Zoning & Bill 1909 – Myths, Confusion and Current Facts

I really, really try to avoid boring topics like zoning and city code ordinances as they are generally about as much fun as a trip to the dentist, without that sparkly clean feeling when you’re done. But all of this recent confusion and hubbub on social media has us feeling like we’ve got to try to sort this out, for our own sanity if nothing else. The intent here is to put some info into publication that can hopefully try to make a few things clearer at least, and also try to calm the waters a bit, if at all possible.

Much has been made about Bill 1909, and a formal discussion at City Council which will be held on November 23rd for a request that both the C1(Commercial) and R1 (Residential) City Code be amended to include a ‘Conditional Use Permit’ for mortuaries and funeral homes within these two zones. We’re going to dig into each of these zoning codes separately, but first we wanted to talk about a particular ‘building of interest’ in this whole process, the one pictured above at 1404 Colorado Street.

A few facts:

1. Back in the spring of 2020, Boulder City Mortuary owner Tyson Smith did ask for a text amendment for a mortuary to be allowed within the C1 zone with that property in mind. The Planning Commission approved that request, but the City Council voted against it. Tyson does not deny his interest in this property.
2. As of a few weeks ago 1404 Colorado Street is ‘in contract’ for purchase. This means an offer has been made and is still in the ‘due diligence’ process in escrow.
3. The potential buyer(s) is NOT Boulder City Family Mortuary or its owner, Tyson Smith, nor is the prospective buyer connected to him in any way and has no plans to lease the building to him as far as we can tell.
4. As of this publishing date, no one from the City has yet to hear from the prospective buyer(s). The name of the buyer(s) is not yet public at this time nor is their intent of what business they wish to conduct there.

To those who have made statements both at City Council and/or on social media and other channels charging Tyson with some sort of arrogant assumption or collusion that he has already made plans to buy this building expecting the changes to the zoning to be automatically approved, could maybe consider rethinking their opinion. We can find no evidence whatsoever that this is happening.

**UPDATE: as of late on 11/17/21 we have learned that the prospective buyer has withdrawn their offer. We do not know the reasons for that.

We have also heard much from the local neighborhood close to that building both now and in the past. Again, while all citizens should always remain vigilant, informed, and aware of issues affecting them, the rhetoric surrounding this proposal has been at a highly charged and emotional level regarding the potentiality of a mortuary close to their homes. Passion is good – we should all care passionately about maintaining the well-being of our community.

The larger issues at hand are actually quite complex. The truth is that the above building along with several others in town, may or may not be zoned correctly given their uses, physical characteristics and locations in town. In fact, the very building in question above is potentially in physical conflict of our existing zoning rules. But furthermore, the Bill that will go before City Council on November 23rd frankly will not address these larger problems. So, to try to help explain the processes and what is really going on, we’re going to have to be willing to take a dive down the rabbit hole. Are you ready? Let’s go….

City Code and Zoning – Commercial

The City Code sets the guidelines and standards for our ordinances governing zoning and subdivisions – how buildings can be used for what purposes and where in town. It’s important as it helps control the various uses and flavors of our community, streets, and neighborhoods. Residential areas should look like places people want to live, be quiet, with some space, and expectations of safety from hazards and noises that are common in commercial areas. Our Commercial Zones are divided into 4 categories, (links to each City Ordinance included below):

C1 – Neighborhood Commercial Zone, which is “intended to serve a neighborhood area and to provide for the necessary neighborhood needs of limited goods and services.” It’s kind of like a bridge between a residential area and a commercial one – it’s the ‘diet coke’ of commercial zones, if you will.

C2 – General Commercial Zone, which is to “provide for the orderly development of the business district which is intended to serve as the central trading area for the City.” This is our main downtown area with a wide variety of businesses and also along BC Parkway and other areas in town.

BC – Business Center Zone, which is to “provide sufficient space in appropriate locations for certain types of business in industrial uses.”

CM – Commercial Manufacturing Zone, which is “designed to provide a protective zone for light manufacturing uses based on the performance of the use as well as the type of use.”

We’re going to mostly ignore BC and CM for the balance of this discussion and turn the focus towards the main issues on the upcoming Bill 1909 that will be discussed. But one quick note first – if you glance through all the zones mentioned above, you’ll see ‘Permitted Uses’, ‘Conditional Uses’, and ‘Limitations’ or other requirements. Note, that mortuary and funeral homes are not ‘Permitted Uses’ anywhere in our city code. The only currently allowed zone for such a business is as a Conditional Use Permit within the C2 or CM zones. That’s it.

Here is the specific language that is being looked at for the upcoming City Council meeting: “Bill 1909, an Ordinance of the City of Boulder City, Nevada to amend Title 11, Chapters 3 and 10 of the City Code to allow funeral homes/mortuaries as a conditional use in the R1, Single-Family Residential and C1, Neighborhood Commercial Zones (AM-21-356).”

So what is a Conditional Use within that C1 zone currently? The following types of businesses are allowed to submit a request for conditional use:

• Public and quasi-public buildings and uses
• Private schools
• Uses of an educational, religious, cultural or public service type.
• Public and private recreational areas and facilities such as country clubs, golf courses and swimming pools.
• Restaurants and cafes, but not including those having dancing or entertainment, or drive-through car service.
• Residential uses, subject to all the provisions specified by the R3 regulations for such residential uses.
• Social halls, lodges, fraternal organizations and clubs.
• Business and professional offices, retail sales and services, greater than three thousand (3,000) square feet, exclusive of storage.

The way this works is this: if you wish to open a business within C1 that is not on this list, the business cannot even submit the request to have his/her potential use be heard by anyone in the city. In other words, this Bill 1909 is simply the opportunity to BE considered for a Conditional Use. Nothing more. If your business is not on the above list then you don’t get to play, period. And THIS PROCESS right here is HOW you get the opportunity to do that. There is no other way for Tyson Smith to have his permit heard before the Planning Commission. There is nothing ‘sneaky’ in this text amendment, it is in fact the correct process for this matter to proceed according to our City Code. So to those of you who keep asking why this request is being made to change the Zoning Ordinances themselves instead of making the request now for a specific property within the zone – this is your answer. THAT CANNOT HAPPEN ACCORDING TO OUR OWN CITY CODE.

IF the City Council were to approve the above for this zone, THEN and only then would that trigger the process of the business owner filling their paperwork for the Conditional Use Permit for a specific business or property located within that zone. The process of which is HERE. You’ll note – getting a Conditional Use permit is arduous indeed.

One of the things we have heard in all of the concern from residents who are not clear about this process, is that they were not being properly notified about the potentiality of the mortuary moving into their area without any public hearings. But that is incorrect based upon the procedures. Again, the bill above is just to have permission to begin the process. Only if it is approved, at that point then the following is triggered:

“Upon receipt of the necessary fee and a complete application [for a Conditional Use Commercial Business Permit], the community development director shall set the time and place for the public hearing before the planning commission.” Announcements are made, and letters are sent to those who live in the surrounding area (within 500 feet of the building) at that time.

In other words, no one is trying to sneak anything past the community. This is a text amendment to potentially allow the process to begin. And to the above point, no funeral business or mortuary is allowed to operate in Boulder City as a regularly permitted business, anywhere. Any such business will have to go through the Conditional Use process, complete with a public hearing, for any location. And mind you, for the Commercial Industrials Zones, the same bill introduction process would be required as well, as this business is also not allowed as Conditional Use in those areas either. Possibly because it seemed logical to those drawing out those rules way back when, that Industrial Zones are not suitable for this type of business, as has been mentioned by many people in the community for the Boulder City Mortuary to consider for its location. You don’t see churches or other community-oriented business located in CM or BC either.

Lastly, let’s look at the decision-making process and how that actually goes. Any ‘Conditional Use Permit’ that is submitted goes through the formal notification of a public meeting for any potentially affected person/business in that area. That public hearing is held before the Planning Commission. They render a decision. If ANY CITIZEN is unhappy with their decision they can file a formal appeal within 7 days after the decision, and then this forces the matter before the City Council, who will then render a final decision. So in fact, the citizens have quite a lot of power through this process.

Is the building at 1404 Colorado Street Zoned Correctly?

That’s a fair question. A few points here on this. Check the City Zoning Map, (which is easier to do on a phone/tablet because you can zoom in), if you look there are very, very few C1 zones in town. The code for C1 clearly states that any business who wishes to operate in a C1 zone be less than 3,000 square feet. Anything larger will need to have a Conditional Use permit submitted and approved, and there are several, such as the Boulder Dam Credit Union for example.

But….check the specs on 1404 Colorado HERE. It leaves one asking, how then does a 2-story, 24,000+ square foot office building even get built in this section of town? The building was constructed originally in 1968 and was home to the Bureau of Reclamation in the 70’s. During that time the building was zoned CP, Commercial Professional. It was then rezoned for C1in 1988, and the building was remodeled in 2009. So, IS it actually zoned correctly as a C1 now?

This building is unique in town, even within that C1 zone. Because it was initially constructed as an office building, it is ‘grandfathered’ in under this portion of the City Code. Even though the wording in the code itself states that office space larger than 3,000 square feet needs a conditional use permit – THIS building doesn’t – as long as whatever occupies the space qualifies as an ‘Office’. However, if the purchaser wants to use it in a way that does not meet that requirement, then they will need to go through that same Conditional Use permitting process. Or, should the building be rezoned as C2?

Another model is the owner could rent out less than 3,000 square feet of space to businesses needing the types of allowed space where a public facing office isn’t required. That puts that owner basically into a property management roll. Which could be a win but also contain it’s own risks/rewards on the ability to keep the spaces rented to generate the revenue.

A zoning change for a building can only be accomplished in several ways: 1. The owner of the building requests it. 2. The City Council or the Planning Commission can instruct city staff to do a zoning review of the properties in town and then make a recommendation that would need to go before both the Planning Commission and City Council before being adopted into City Code Ordinances. Or 3. A text amendment request is brought forth in a method such as what has happened here.

The office space at 1404 Colorado would be perfect for a number of uses, such as a private trade school, call or IT center, training facility, government offices, etc. Regardless, it would be nice to see it used and occupied. But because of the nature of how it is zoned, it’s potentially complicated for that buyer. The conflict of the size of the building versus how it is zoned creates a situation where any potential buyer is having to purchase this completely on the speculation that MAYBE they will be granted that Conditional Use Permit to have them able to occupy more than 3,000 square feet of active business, unless you need a LOT of storage. NOTE: also a Realtor friend of mine noted that a buyer could purchase the building contingent upon that approval. But unless you’re a large business entity or corporation who has ample resources, that’s still a meaningful risk in terms of both time and resources.

City Code and Zoning – Residential

We have a number of Residential Zones in Boulder City, and the one that is the largest that the majority of us live in, is the R1 Zone, for single family homes. You’ll see from that link the Permitted Uses as well as the current Conditional Uses listed currently are:

• Public and quasi-public buildings and uses.
• Private schools.
• Uses of an educational, religious, cultural or public service type, but not including corporation yards, storage or repair yards, warehouses or vocational schools that require mechanical operations.
• Temporary subdivision tract offices, if not located on the same property…(see link)
• Public and private recreational areas and facilities, such as country clubs, golf courses and swimming pools.
• Group childcare home facility as a business within the home and as defined and regulated by the state of Nevada, department of human resources.
• Family community residences for people with disabilities…(see link)
• Transitional community residences for people with disabilities.

Just as in the above-mentioned processes, the same rules apply for this part of the Bill 1909 request – this is about potentially adding mortuaries and funeral homes to that list above. In no way whatsoever is that a guarantee that the final permit request would be granted. The Conditional Use Permitting processes all apply, the same standards must be met, and a public hearing would have to be held before any possible business ON THAT LIST could even be considered to be allowed to open and function.

People get fussy about their homes – I know I do, and we all should. For most of us our home is where we live, love, raise our children, expect safety, hope for good neighbors, and it’s also for a great many of us the largest personal financial investment we may make in our entire lives. That nest-egg is dear for all of us, and we want it protected and rely in part on our government and our rules to help us do so. Thus, all the emotions that have run so high on this part of the proposed bill becomes understandable.

But in an attempt to focus on the rules and processes within our City Codes, I want to just back up a minute and look at a few more key pieces of information. Beyond the parts of the City Zoning Codes we’ve been examining, the City also closely monitors and has rules for ‘cottage’ Home Occupations, or businesses based in Residential Areas. You can see that ordinance HERE. You’ll note the prohibited uses list is long and blocks out all kinds of noisy or potentially disruptive types of businesses that neither you nor I would want next to us in our residential neighborhood. Clearly when you read and look at this list, in no way could a mortuary or funeral home-based business qualify for a business permit. No way. The point being that we have more than one set of City Code protecting the safety and suitability of our residential community and who may operate a business out of any residential home.

Boulder City Mortuary owner Tyson Smith has said many times that the only reason he included the R1 zone as part of this bill request, is because of the existing Palm Boulder City Mausoleum and Columbarium structure, which is located at 551 Adams Blvd., adjacent to the Boulder City Cemetery, but also clearly within the R1 zone (see Zoning Map). This building has been allowed to function in this current zone because Palm Mortuaries, which is part of a larger corporation, Dignity Memorial who is based out of state, back in 1980 was able to have this building within R1(7) classified as a “religious, cultural or public service type” (see the list above), and that it has been allowed to operate under that conditional use. Boulder City Mortuary we know would like to expand their services potentially at that location. He has reached out to that company to purchase the space, but they have declined any offer to sell. So, it is only for this reason and the hope that someday they may change their minds that he has included the R1 in this Bill 1909. In speaking with Tyson there is zero chance that he is interested in acquiring any single-family home for the purposes of turning it into a mortuary. Zip, zero, nada. So why include it? I think it is simply a ‘hail Mary’ pass on his part, but it has ruffled many feathers in town. And – maybe it should.

The Slippery Slope…

The issue in talking with many people is the matter of setting a precedent. Is granting one conditional use permit for one business, in fact, a gate-way drug for others? I’m not sure – maybe this would be a ‘slippery slope’ or maybe not. Let’s say the Council votes to include this within R1 – would another mortuary company actually attempt to move into one of our residences? Based upon the strength of the objections we’ve seen so far, not to mention Tyson’s professional expertise saying such a location is totally unsuitable, why would they?

In my observations of both the current and prior Planning Commissions I have found these people to all be thoughtful, diligent, and serious about their responsibilities as deciders of these types of issues. I genuinely believe, and maybe naively so, that they hold our best interests as a community at heart. Does anyone really believe that some massively inappropriate conditional use permit would be granted in our residential areas? Are you, living on Avenue K, Cherry St., the ‘girl streets’, horse streets, or within one of the HOA areas going to find yourselves one day suddenly located next to a car wash/motorcycle repair shop/animal shelter/mortuary/farmyard and not have any recourse or even know it was happening? Multiple layers of city code prevent that from occurring.

Discussions, Ideas and Vision

Tyson Smith is a reputable and professional business owner in Boulder City who has set down roots in our community. He and his wife are involved in our area and raise their children here. He is also a man with a vision of something he would like to create and genuinely sees a need in our community for it. Many agree with him, and others are reacting negatively to his efforts for various reasons of their own. What we haven’t liked is much of the rhetoric that has been aimed at him. Ideas take courage and being willing to go public with a new idea is often met with resistance.

What I think we need as a community are some productive discussions around fixing the issues that actually need fixing – we’ve got some wonky and outdated zoning concerns that this issue has brought to light. So let’s do something productive about that.

Coming soon, our City is also facing some hard truths that some of the land that has surrounded us, and kept us in a virtual ‘bubble’ is now at risk of being annexed by the City of Henderson. We’re watching this closely and look for more information from us when we have that to share. If we want to continue to control our own destiny, we need to be willing to be brave, think differently and pursue solutions – and if at all possible pull the politics of personality out of the mix. I have no idea what our City Council will do with this particular vote, but it’s certainly an important one. They could amend the bill and accept one part of the request and deny the other. Or approve, or deny, both parts in their entirety. But this is only one tiny piece of what needs to be done. Will we seize the day and be proactive about the needs in our community, or remain acting as reactionaries only?