Homeowners sue state, city

Lakeview homeowners filed a lawsuit this week against the state of Nevada and Carson City, asking the courts to legally define a state statute allowing halfway houses and elder-care homes in residential areas despite neighborhood restrictions.

The legal action follows the controversial decision by one Lakeview homeowner who plans to open an elder-care residence for 10 seniors on Numaga Pass.

Several residents of the exclusive mountainside community were outraged recently when nonresident owner Karen Kelly asked the city permission to operate the care home, apparently violating established neighborhood covenants.

Kelly thought she needed permission from the city, but later found the state allows the use outright if she acquires a proper state license and meets health and safety requirements. In fact - the city was required to allow it, city attorneys advised.

The proposal brought to light a state law, passed in 1999, mandating cities and counties allow group homes for disabled, the elderly and drug and alcohol rehabilitation residents to operate in single-family neighborhoods.

Residents question the city's interpretation of the state statute.

"The law was enacted in the dark of night, so to speak and we think it's got some real problems," said Attorney Harry Swainston, representing residents Albert and Mary Fischer who live next door to Kelly's property.

"We want the courts to declare what the law actually is," he said. "We had three opinions . . . and in some ways they're consistent, and in some ways they're not consistent - and in some ways, they really confound the imagination in what they're suggesting."

Because of questions with the state statute and the application, city supervisors sent the issue back to the Planning Commission in January. They advised Kelly she really didn't need a special use permit if she was planning to only allow disabled seniors at the home. If she wanted to allow nondisabled seniors, she needed a permit.

Kelly withdrew her application Jan. 21. By withdrawing her application, Kelly can proceed to open a care home at the site. She has since applied for a state license, according to her attorney Michael Matuska.

"At this time, a special use permit isn't warranted," Matuska said. "She's still proceeding with the state license application."

The home at 4150 Numaga Pass would offer an option for seniors who don't have dementia or problems that would require a lock-down, Kelly said. The facility would have one live-in aide and an assistant. Seniors age 65 and older would be selected for the home and pay from $3,000 to $3,500 per month for full-time care.

Kelly has operated three similar facilities in California for the past 10 years. She has only ever had residents who have qualified as disabled under federal definitions, meaning they have at least one impairment of a basic activity like seeing, hearing, walking or taking care of themselves, Matuska said.

Many in the Lakeview community are stunned to learn the state can override its covenants, conditions and restrictions established in 1970. The neighborhood contract, signed by each homeowner, prohibits commercial activity.

"Our beef is really with the (state) statute," Swainston said. "In effect, it lays the basis for the constitutional violation of the rights of every resident and owner in the Lakeview subdivision in this way: It impairs the obligation of the contract they have with every other resident not to engage in commercial activity."

Swainston expects the state will be given 45 days to respond to Monday's filing. Carson City Civil Chief Deputy District Attorney Mark Forsberg said the city hadn't yet been served Thursday.

Contact Jill Lufrano at jlufrano@nevadaappeal.com or 881-1217.