The State of Nevada v. United States Department of the Treasury - Internal Revenue Service

Filing 8

ORDER for Occupancy. Signed by Judge Andrew P. Gordon on 4/4/16. (Copies have been distributed pursuant to the NEF - TR)

1
2
3
4
5
6
7
8
9

3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102

Office of the Nevada Attorney General

10

ADAM PAUL LAXALT
Attorney General
Dennis V. Gallagher
Chief Deputy Attorney General
Nevada Bar No. 955
Joe Vadala
Special Counsel
Nevada Bar No. 5158
Scott R. Davis
Senior Deputy Attorney General
Nevada Bar No. 10019
3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102
Tel: [phone]
E-Mail: [e-mail]
[e-mail]
Attorneys for Plaintiff State of Nevada
ex rel. its Department of Transportation

11

UNITED STATES DISTRICT COURT

12

DISTRICT OF NEVADA

13

THE STATE OF NEVADA, on relation of its
Department of Transportation,

14

CASE NO.:

2:16-cv-00665-APG-GWF

Plaintiff,

15

v.

16

UNITED STATES DEPARTMENT OF THE
TREASURY – INTERNAL REVENUE
SERVICE; DARRELL E. JACKSON, a
married man; THOMAS M. STRAWN, JR., a
married man; ANDREW S. LEVY, a married
man; DAVIDSON INVESTMENTS LIMITED
PARTNERSHIP, a Nevada limited partnership;
JOHN W. BOYER, a married man; MICHAEL
ALEXANDER, Trustee of the MICHAEL
ALEXANDER LIVING TRUST; NEVADA
TITLE COMPANY, a Nevada corporation; L.
S. ENTERPRISES, INC., a Nevada corporation
d/b/a American Commonwealth Mortgage Co.;
EAGLEMARK SAVINGS BANK, a Nevada
corporation; STATE OF NEVADA,
DEPARTMENT OF EMPLOYMENT,
TRAINING & REHABILITATION,
EMPLOYMENT SECURITY DIVISION;
CITY OF LAS VEGAS; CLARK COUNTY, a
political subdivision of the State of Nevada; and
all other persons unknown claiming any right,
title, estate, lien or interest in the real property
described in the Complaint,

17
18
19
20
21
22
23
24
25
26
27
28

Defendants.
1

ORDER FOR OCCUPANCY

1

Plaintiff State of Nevada – Department of Transportation (“NDOT”) filed a Complaint in

2

Eminent Domain in the Eighth Judicial District Court on February 16, 2016. This matter was

3

then removed to this Court by Defendant United States Department of the Treasury – Internal

4

Revenue Service pursuant to 28 U.S.C. § 1442(a)(1) on March 25, 2016. Prior to removal, the

5

State of Nevada filed a Motion for Order for Immediate Occupancy Pending Entry of Judgment

6

(“Motion”) in the state court. The Motion seeks an order permitting the State to occupy the

7

premises sought to be condemned (“Subject Property”), pending the entry of judgment, and to do

8

such work thereon as may be required for the fee or property rights sought, according to its

9

nature. No opposition to the Motion was filed.

3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102

Office of the Nevada Attorney General

10

Plaintiff’s Motion was heard by this Court on the 29th day of March, 2016. At the

11

hearing, the NDOT appeared and was represented by Senior Deputy Attorney General Scott

12

Davis, Defendant U.S. Department of the Treasury was represented by Assistant United States

13

Attorney Mark Woolf, and Defendant Andrew Levy appeared and was represented by Amy

14

Sugden, Esq.

15

Having reviewed the Motion and the affidavit attached thereto, the Court finds from the

16

evidence presented in NDOT’s Motion, and pursuant to Nev. Rev. Stat. 37.100(4), that the

17

Subject Property is being condemned for a valid public use; and, further, that there are valid

18

reasons for a speedy occupation, that NDOT is entitled to occupation of the premises sought to

19

be condemned pending judgment, and good cause exists for this Order. Good cause appearing

20

therefor, it is hereby ORDERED:

21

1.

That upon the deposit of funds described below the State of Nevada, Department

22

of Transportation be granted the right to possess and occupy the property and property rights

23

described in the Complaint and more particularly described as follows:

24

The property sought to be condemned for said highway improvement is designated by the

25

NEVADA DEPARTMENT OF TRANSPORTATION as Parcel Nos. I-015-CL-041.410 and I-

26

015-CL-041.410TE, and is described as follows:

27

Said real property situate, lying and being in the City of Las Vegas, County of Clark, State

28

of Nevada, and more particularly described as being portions of the SW 1/4 of the NE 1/4 of
2

1

Section 4, T. 21 S., R. 61 E., M.D.M., and more fully described by metes and bounds as follows,

2

to wit:
PARCEL NO. I-015-CL-041.410 to be acquired fee simple

3

and 5, a BRASS CAP IN SURVEY WELL STAMPED "32/5/4 PLS5094",

6

shown and delineated as a FD. WELL MON. #5094 on that certain

7

RECORD OF SURVEY FOR JOHN W. BANKS AND MARJORIE N.

8

BANKS filed for record on June 29, 1995, in Book 950629, Instrument

9

No. 01574, File 77, Page 35, in Official Records Clark County, Nevada;

10
3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102

COMMENCING at the section corner common to Sections 32, 4

5

Office of the Nevada Attorney General

4

thence S. 0°55'21" W, along the west line of said Section 4, a distance of

11

2,662.39 feet (Record S. 0°11'11" W. – 2,662.33 feet per said RECORD

12

OF SURVEY), to the 1/4 corner common to Sections 4 and 5, being a

13

FOUND 0.10' ALUM CAP FLUSH WITH OIL UNREADABLE, shown

14

and delineated as a FD. R/AC on said RECORD OF SURVEY; thence

15

N. 67°45'05" E. a distance of 3,130.55 feet to the POINT OF

16

BEGINNING; said point of beginning being on the left or northwesterly

17

right-of-way line of IR-15, 321.18 feet left of and at right angles to

18

Highway Engineer's Station "Le" 782+65.63 P.O.T; thence along said

19

northwesterly right-of-way line the following three (3) courses and

20

distances:

21

1.

N. 25°10'11'' E. – 79.27 feet;

22

2.

N. 2°26'05'' E. – 93.39 feet;

23

3.

N. 89°35'26'' E. – 156.82 feet, the first 28.29 feet being

24

along said northwesterly right-of-way line;

25

thence S. 49°47'12'' W. a distance of 109.76 feet to a non-tangent curve;

26

thence from a tangent which bears S. 49°47'38'' W., curving to the left with

27

a radius of 536.00 feet, through an angle of 13°54'15'', an arc distance of

28

///
3

1

130.07 feet; thence S. 89°35'24'' W. a distance of 22.45 feet to the point of

2

beginning; said parcel contains an area of 12,137 square feet.
PARCEL NO. I-015-CL-041.410TE to be acquired as a temporary easement for

3
4

construction purposes for a four-year period commencing on the date of occupancy
COMMENCING at the section corner common to Sections 32, 4

5

“32 5|4 PLS5094” shown and delineated as a FOUND WELL MON.

8

#5094 on that certain Record of Survey for John W. Banks & Marjorie N.

9

Banks, filed for record on June 29, 1995, in Book 950629, Instrument No.

10
3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102

and 5, a FOUND 2” BRASS CAP IN MONUMENT WELL STAMPED

7

Office of the Nevada Attorney General

6

01574, File 77, Page 35, in Official Records Clark County, Nevada; thence

11

S. 0°55'21" W, along the west line of said Section 4, a distance of 2,662.39

12

feet (Record S. 0°11'11" W. – 2,662.33 feet per said Record of Survey), to

13

the 1/4 corner common to Sections 4 and 5, a FOUND 0.10' ALUM CAP

14

FLUSH WITH OIL UNREADABLE, shown and delineated as a FOUND

15

REBAR IN AC on said Record of Survey; thence N. 67°45'05" E. a

16

distance of 3,130.55 feet to the POINT OF BEGINNING; said point of

17

beginning being a point on the left or northwesterly right-of-way line of

18

IR-15, 321.18 feet left of and at right angles to Highway Engineer's Station

19

"Le" 782+65.63 P.O.T; thence along the following four (4) courses and

20

distances:

21

1. S. 89°35'24'' W. – 11.09 feet;

22

2. N. 25°10'11'' E. – 82.04 feet;

23

3. N. 2°26'05'' E. – 90.88 feet;

24

4. N. 89°35'26'' E. - 10.01 feet to said northwesterly right-of-way
line;

25
26

thence S. 2°26'05'' W., along said right-of-way line, a distance of

27

93.39 feet; thence S. 25°10'11'' W., along said right-of-way line, a distance

28

///
4

1

of 79.27 feet to the point of beginning; said parcel contains an area of

2

1,728 square feet (0.04 acres).

3

The Basis of Bearing for these descriptions is the NEVADA STATE PLANE

4

COORDINATE SYSTEM, NAD 83/94 DATUM, East Zone as determined by the State of

5

Nevada, Department of Transportation.

6

2.

That NDOT will, not later than 15 days from the date of this Order, deposit with

7

the Clerk of the Court, the sum of ONE HUNDRED THOUSAND FIVE AND NO/100

8

DOLLARS ($100,005.00) into the Court’s interest bearing account for said Parcel Nos. I-015-

9

CL-041.410 and I-015-CL-041.410TE.

3014 West Charleston Boulevard, Suite 150
Las Vegas, Nevada 89102

Office of the Nevada Attorney General

10

3.

That acceptance by any of the Defendants of this sum or any part thereof to be

11

deposited by NDOT is without prejudice to the right of any of the Defendants to contest the

12

amount of compensation to be finally awarded to them in the above-entitled action, but the

13

receipt by Defendants of said money deposited with the Clerk of the Court shall constitute a

14

waiver of all defenses except those relating to the amount of such compensation.

15

IT IS FURTHER ORDERED that pursuant to Nev. Rev. Stat. 37.100(8), and pending this

16

action, Defendants herein be restrained and enjoined, and they are hereby restrained and

17

enjoined, from hindering or interfering with the performance of the work by Plaintiff in and upon

18

the property and property rights of Defendants described in the Verified Complaint as required

19

for the construction of said highway project.

20
21

IT IS FURTHER ORDERED that a copy of this Order be served by the Plaintiff upon the
above-named Defendants.

22

IT IS SO ORDERED.

23

____________________________________
UNITED STATES DISTRICT JUDGE
Dated: April 4, 2016.

24
25
26
27
28

Submitted by:
ADAM PAUL LAXALT
Nevada Attorney General
Dennis V. Gallagher
Chief Deputy Attorney General
Attorneys for Plaintiff State of Nevada
ex rel. its Department of Transportation
5