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RV Parking: Lawsuit claims city not playing fair on zoning

By MARIANNE KOBAK, Staff Writer
Friday, October 1, 2004 12:45 PM PDT

ELKO - Although the City of Elko won a partial victory this month after portions of a lawsuit filed by the owners of Double Dice RV Park were dismissed, several legal issues remain on the table before the case is concluded.

The case began in 1999 when Marvin and Julie Churchfield filed suit in Elko District Court principally over what they claim is the city's failure to enforce zoning regulations that govern recreational vehicle parking.

Some of the Churchfields' other claims against the city and current and former city officials, however, were tossed out in a decision filed Sept. 2 by District Judge James Hardesty.

In that decision, Hardesty dismissed a conspiracy claim against the city. In addition, all claims were dismissed against the individual defendants: Mayor Michael Franzoia; Elko Councilmen Glen Guttry and Lee Hoffman; former councilmen and current Elko County Commissioners John Ellison and Charles Myers; and Linda Ritter, Elko's former city manager.

The dismissed claims were a result of the city asking for a summary judgment in July.

In spite of those claims being dismissed, the plaintiffs weren't displeased with the judge's ruling.

"The judge upheld the defamation, zoning, room tax, and sewer and water claims," Lori Vavak said. "We were real happy with that because nothing important was dismissed. We hope to see them enforce the law."

Vavak is the Churchfields' daughter and manages the park with her husband, Dean Vavak.

"We didn't expect it to go on this long," she said. "The city has been really uncooperative."

On Sept. 15, Hardesty ordered the parties provide him with more information on the room tax and sewer and water fee claims as alleged by the Churchfields.

A supplemental brief on the room tax will address three issues:

€ Whether a statute of limitations or other statute limits any recovery to which the plaintiffs might be entitled and, if so, to what extent;

€ Whether the plaintiffs are required to exhaust administrative remedies with the state or the city prior to obtaining relief from the court; and

€ Any other appropriate discussion of legal issues related to the applicability of the city's room tax ordinance to RV parks.

A supplemental brief on the sewer and water fee claims will address four issues:

€ Whether the city has a practice of exempting businesses from monthly sewer and water fees for vacant units and, if so, what types of businesses have been granted such an exemption;

€ Whether the city's practice of exempting certain businesses from monthly sewer and water fees for vacant units extends to businesses that use meters rather than the fixture count method;

€ Whether the plaintiffs have previously attempted to obtain exemptions from sewer and water fees for vacant RV spaces and, if so, whether such an exemption was granted by the city; and

€ Whether the city has legal authority to exempt businesses from monthly sewer and water fees for vacant units.

Hardesty ordered the Churchfields to file the supplemental brief by Oct. 15 and the city has until Nov. 1 to file a reply.

The lawsuit is scheduled for trial Dec. 6 through Dec. 17.

The Churchfields and Vavaks claim city officials refused to uphold zoning laws concerning RV parking in the city limits.

"We're zoned commercial but we must have a conditional-use permit for RMH4, which requires safety measures such as fire hydrants, rest rooms and sewer dumps," Vavak said about starting the RV park. "We could not park one RV overnight on our property until we complied with city and state zoning and development regulations, while other properties, like Wal-Mart, are allowed to escape any of these requirements."

Wal-Mart allows people in RVs to park overnight for free. The Wal-Mart parking lot does not have the extra amenities that RV parks are required to have by law.

"They have 10 to 20 a night in the Wal-Mart parking lot," Dean Vavak said. "They're not paying room tax or water and sewer. We call them squatters."

Lori Vavak said the park has lost an average of $200,000 each year for the last five years because the codes aren't being enforced.

The city's attorney said there is no proof that allowing RVs to park outside RV parks deprives the Churchfields of potential business.

"The plaintiffs cannot state that were RVs prohibited from parking outside of RV parks they would necessarily spend money at the Double Dice RV park or at any RV park for that matter," city attorneys stated in a court document.

Part of the suit also claims the city, through its attorney, has fabricated information about the Churchfields and Vavaks that has caused irreparable damage to their business.

"RV parking is advertised on the Wal-Mart Web site but it also says they don't allow it if it's against state or local law," Dean Vavak said. "The city attorney claims individuals were performing citizen arrests. Why would we do this? They're our potential customers."

Marvin Churchfield said it is the job of the city building inspector to uphold zoning regulations.

"The police have no business in this," Churchfield said.

"You can't compete with free," he said. "I went to the ordinances before I turned a shovel of dirt. What kind of a country doesn't enforce its laws?"

The city, in a motion to the court, said "the city should be allowed to exercise its discretion to enforce and apply these ordinances without facing the risk of tort liability." City attorneys also claim there is no evidence the city failed to enforce zoning laws.

"In addition to the lack of standing to sue on the part of the plaintiffs and the city's discretionary function immunity ... the 'other ordinances' cited by the plaintiffs, with the sole exception of the central parking corridor, do not prohibit free overnight RV parking."

The city "relaxed" RV parking restrictions in the summer of 2000, according to a court document from the city attorney.

"They have us in a corner," Lori Vavak said. "They allow it everywhere in the city. If they want a campground at Wal-Mart, then build one. The worst part of it is they're joking about it in public meetings. The mayor has admitted to calling my dad RV Marvie."

The defense, in a court document, did not deny Franzoia called Churchfield RV Marvie but said it was a "joking reference," and not defamatory under Nevada law.

In the end the Churchfields and Vavaks said they are done trying to settle the issue with the city and want a jury to handle it.

"Winning or losing a lawsuit is not the issue here," Lori Vavak said. "We never wanted to go to court. The real issue is that all laws and regulations need to be applied fairly and across the board to everyone they apply to. To pick and choose who is and who is not subject to the law is simply discrimination.

"Had the city of Elko informed us that doing business illegally was more profitable, we would have just built a parking lot."

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Free Press writer Marianne Kobak can be reached at 738-3118 or by e-mail at crime@elkodaily.com.

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