Discussion, Deliberation, and Possible Decision to Affirm

NYE COUNTY BOARD OF COUNTY COMMISSIONERS PLANNING DEPARTMENT STAFF REPORT

Meeting Date: July 19, 2011

AGENDA ITEMS

Appeal of Pahrump Re2ional Planning Commission Decision:

AP-11-0001: Discussion, deliberation, and possible decision to affirm, modify, or reverse the Pahrump Regional Planning Commission’s decision to approve Conditional Use Permit Application CU-11-0006 allowing Red Apple Fireworks Company to conduct the retail sale of fireworks located at 3610 S. Nevada Highway 160, Pahrump, Nevada, further described as Block 2, Lot 4 of Calvada Valley Unit 1, Assessor Parcel Number 42-451-13. Vegas of Pahrump, Inc. — Appellant.

GENERAL INFORMATION SUMMARY

The Pahrump Regional Planning Commission (RPC) held its hearing on Conditional Use Permit application CU-11-0006 on April 26, 2011. The RPC, after conducting a public hearing, voted to approve the Conditional Use Permit along with an associated Waiver application, subject to standard and special conditions of approval (see attached RPC staff report).

An appeal was filed by B.J. Alan Company (Phantom Fireworks) on May 23, 2011 regarding the issuance of the Conditional Use Permit granted to Red Apple Fireworks. The appeal filed by B.J. Alan Company was within the 30 day time frame required by Nye County Code.

The BOCC may affirm, modify, or reverse the Pabrump Regional Planning Commission’s decision to approve Conditional Use Permit Application.

RPC MINUTES

RPC Minutes (from the April 26, 2011 RPC meeting):

Commissioner Kimball stated that he had wanted to start with comments from the Sheriff about fireworks requirements. Commissioner Kimball stated he would like information from Mr. Steve Osborne. Commissioner Kimball asked for specifics on the issue.

Mr. Osborne referred to the specifics of the staff report.

Commissioner Kimball asked if we were to approve the CUP what would that mean for the general citizens. If you are a citizen of Nye County then you would not be able to buy the fireworks here in Nye County.

Mr. Osborne stated that the person that purchased the fireworks would be able to use those fireworks outside of Nye County. There has been a private place in Amargosa to set the iT fireworks off but you must leave the county within 24 hours. Commissioner Koenig stated that there are limitations on retail sales. Retail sales are restricted from June 25, 2011 and July 4, 2011 per the code.

Commissioner Kimball asked about the 1500 foot distance and the fact that is required in the CUP and Waiver permit. Commissioner Kimball stated that is a safety mechanism of some type and we are sure.

Douglas Berda spoke as the applicant. He stated he was very appreciative of the fact that the RPC has come together for this special meeting. His family has been in the fireworks business for over 30 years. It becomes an event with concessions and such that he would like to think that he could do something like a shooter site because it would bring money into the town. He feels that it could be a positive impact to the community in the long term. Mr. Berda requested a review of the time period limitations.

Commissioner Koenig stated he agreed with his assessment of the provision.

Mr. Berda stated that there is definitely some confusion in the code. He also stated that he has spoken to neighbors in the area that he spoke to was in full support of the business that he is proposing. Commissioner Opatik asked what his hours of operation were and Mr. Berda stated that he would be looking at 9am to 9pm.

Mr. Brent Steed from Pahrump Building and Safety stated the fire code that only within. 100 feet not 1500 feet.

Commissioner Parker stated she did not want to limit the businesses hours because there are businesses in the area that operate 24 hours a day. Commissioner Opatik stated that the codes are the codes so we have to deal with the codes we have been dealt. She stated that this is a mixed use master plan and zoning. The get to general commercial and we have to have a CUP to get to general commercial and then from there we have to get another CUP to deal with the current zoning. Area 51 had a fire in 2010 and the question was how big the safety perimeter was.

Chief Scott Lewis stated that the perimeter was within a good vicinity of a fire hydrant and that it was not hard to contain.

Commissioner Opatik asked if there was a fire event in the proposed building would there be a risk to the residents in the area.

Chief Lewis stated that the difference is that this proposed building is in a sprinklered facility.

Commissioner Kimball stated that from what he understands from Mr. Osborne and from what Commissioner Opatik is saying are two different things.

Mr. Osborne stated that the way we have the item proposed today, this is the way the action should be taken. Commissioner Opatik stated she just doesn’t understand how we are getting from mixed use to a general commercial CUP.

2 ______

Mr. Osborne stated that if the business meets the general use and condition of the district then it is allowed in that area. It fits in the neighborhood commercial business but Mr. Osborne agreed that it would fit in this use.

Mr. Berda stated that the business will adhere to the 2006 fire code which none of the other fireworks stores are at this point.

Public comment opened at 2:35

Tim McCoy stated that he has been in the fireworks business for over 30 years. He stated that there are afready six permits being used in this county so how could we even be here today because all of them are active right now. He asked that the NFPA is the one that 1500 foot residence regulation.

Lori Orman from Phantom Fireworks wanted to follow up on the six permits that are already being used in the County.

Casey Steinhart stated that it would be a hardship if there has to be a waiver and he doesn’t have one.

Public comment closed at 2:41 pm.

Mr. Berda stated that this is obviously the wrong forum for this argument. Yes he understands that the public policy should be to put all the permits into use and not to create a monopoly. He stated that the fire code is the 100 foot radius. He stated that he has taken all of the proper precautions and paperwork. Mr. Berda stated he had read all of the standard and special conditions and Mr. Osborne stated he stands behind them.

Mr. Schinhofen asked of Mr. Osborne has final action on this item.

Commissioner Kimball stated that it would go before the BOCC after this as Waivers and Conditional Use Permits are finalized before the BOCC.

Commissioner Hand stated that the vote to approve is that it is the RPC’s duty to do this based on the fact there is no opposition on the item.

Commissioner Opatik made a motion to approve. Commissioner Parker seconde’L Roll Call Vote: Parker, yes; Opatik, yes; Kimball, yes; Minnick, yes; Hand, yes; Koenig, yes. Motion Passes 6-0.

RECOMMENDATION

Recommended BOCC Motion: “I motion to [options include: 1.) affirm, 2.) modify, or 3.) reverse] the Pabrump Regional Planning Commission’s decision on Conditional Use Permit Application CU-11-0006.”

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NYE COUNTY BOARD OF COMMISSIONERS Page 2 May 23, 2011

3. The Planning Commission erred in granting a waiver or exemption from the strict interpretation of the Nye County Code without making a finding pursuant to Nye County Code §17.04.915 CE>(3) and §17.04.915(H) (3) that the waiver or exception was found to be necessary to substantiate justice to the applicant or owner of the property. 4. The Planning Commission erred in granting a waiver or exemption from the strict interpretation of the Nye County Code without making a finding pursuant to Nye County Code §17.04.915(E) (4) and §17.04.915 (H) (4) that the granting of the waiver would not result in material damage or prejudice to other properties in the vicinity nor be detrimental to public health, safety, and general welfare. 5. The Planning Commission erred in granting a waiver or exemption from the strict interpretation of the Nye County Code without making a finding pursuant to Nye County Code §17.04.915(E) (5) and §17.04.915 (H) (5) that such granted relief would provide an opportunity for improved zoning and planning that would benefit the community. 6. The Planning Commission erred in granting a waiver or exemption from the strict interpretation of the Nye County Code by failing to acknowledge or verify whether there was a fireworks sales license available for use by the Applicant at the specified location. Vegas of Pahrump, Inc., the Appellant, respectfully requests that a public hearing be scheduled in accordance with the provisions of Nye County Code §16.36.080 (B) (2) at which Vegas of Pahruinp, Inc. will present evidence and testimony to support the points of appeal raised herein. If there is anything further that you require in connection with the processing of this Appeal, please do not hesitate to contact me at your convenience. Thanking you for your attention to the processing of this Appeal, I am Very tuly yours,

La’urie Orman Manager NYE COUNTY, NV PAHRUMP REGIONAL PLANNING COMMISSION SPECIAL MEETING - APRIL 26, 2011

Staff Report Agenda Item No. 7 a. & b.

CASEDESCRIPTION(S): Conditional Use Permit and Waiver Application(s):

a. CU-11-0006: Conditional Use Permit (CUP) Application to allow the retail sale of fireworks.

b. WV-11-0004: Waiver Application to waive the 1,500 foot separation requirement between retail sale of fireworks and residential properties as required per NCC 17.04.700.19.b.

LOCATION: 3610 S. Nevada Highway 160

APNNUMBER(S): AP# 42-451-13

LEGALDESCRIPTION(S): Block 2, Lot 4, Calvada Valley Unit 1

PROPERTYOWNER(S): Interest Income Partners L.P. — Property Owner

APPLICANT(S): Red Apple Fireworks Company, Ltd. — ApplicantlAgent

AGENT(S): Red Apple Fireworks Company, Ltd. — Applicant/Agent

STAFFCONTACT: Steve P. Osborne, AICP, Planning Director —(775) 7514249 PROJECTSYNOPSIS: ,- Request for a Conditional Use Permit (CUP) to allow the retail sale of fireworksin the Edward Homes Professional Center and a Waiver Application to waive the 1,500 foot separationrequirement between the proposed fireworks retail store and residential properties as required per NCC 17.04.700.19.b.

Conclusions — Upon extensive review of the application, Staff fmds sufficient justification to recommend approval. Nye County Code allows for the retail sale of fireworks with the approval of a Conditional Use Permit; although the distance between the proposed fireworks business at the proposed location and residential uses technically does not meet the Code, there are mitigating circumstances that justify approving a waiver.

RECOMMENDEDMOTION(S): Move to APPROVE CU-I 1-0006 and WV-i 1-0004, based upon the Findings as shown on page two (2) and subject to the conditions outlined in the staff report (or move to deny CU-i 1-0006 and WV-i 1-0004, based upon alternate findings as established by the Pahrump Regional Planning Commission.) Pahrump Regional Planning Commission Staff Report;CU-11-0006& WV-11-0004 April26, 2011 Page2ofl3

Findings for CU-i 1-0006 as required under NCC 17.04.920.Lof the Nye County Code:

1. The conditional use is harmonious with and is in accordance with the general objectives or with any specjfic objectives of the currently adopted Master Plan, the Zoning Reference Map and this Title. Retail sales are a permissive use within the MU zone; however, retail sales of fireworks require a Conditional Use Permit. The subject parcel is already developedwith a mixture of commercialuses, including a bar, bakery, and offices, and is adjacent to properties zoned MU and Neighborhood Commercial (NC), and the property fronts along a major roadway, Highway 160.

2. The conditional use will be designed, constructe4 operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity. The conditional use will not change the essential character of the same area. The proposed retail sales of fireworks would not change the essential character of the area, as there already exists retail and other commercial uses on the subject parcel.

3. The conditional use will not be hazardous or disturbing to existing or future neighboring uses. The use would not be disturbing any more than other existing uses on the subject parcel in terms of noise, vibrations, glare, etc. The use is potentially hazardous; however, potential negative impacts can be mitigated through implementation of proper safety measures (i.e., sprinicleringof building, fire inspections, etc.).

4. The conditional use may be viewed as a substantial improvement to property in the immediate vicinity and to the communityas a whole.

5. The conditional use will be adequately served by essential public facilities and services (highways, streets, police and fire protection, drainage structures, refuse disposal schools).

6. The conditional use will not potentially create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community.

7. The conditional use will not involve uses, activities, processes, materials and equipment, and conditions of operation that are detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke,fumes, glares or odors. The proposed use is the retail sales of “consumer” fireworks only; there will be no sales of “display” fireworks, nor will there be any processing or manufacturing of any type of fireworks. The CUP allows only the retail sales of consumer fireworks.

8. The ôonditional use is consistent with the intent and purposes of this Chapter.

Findings for WV-i 1-0004 as required under NCC l7.04.915.H of the Nye County Code:

1. There are special circumstances or conditions applying to the property under consideration which makes compliance with the provisions of this Chapter difficult and a cause of hardship to, and abridgement of a property right of the owner of said property. Nye County Code Title 17 (Zoning) does not distinguish between various classes or types of fireworks. The retail sales of all “fireworks” within the PRPD require a 1,500 separation from residential properties, however, the U.S. government does not regulate the retail sales of “consumer” fireworks, which are a different classification of fireworks than “display” fireworks. “Display” fireworks are the type of fireworks used in large public events such as 4th of July shows, at theme parks and major sporting events such as the Super Bowl, New Year’s Eve public events, etc. The proposed use is the retail sales of “consumer” fireworks only; there will be no sales of “display” fireworks, nor will there be any processing or manufacturing of any type of fireworks.

2. The circumstances or conditions apply generally to other properties in the same land use district.

3. Thegranting of the waiver or exception is necessary to substantiate justice to the applicant or owner of the property. ______

Pahrump Regional Planning Commission Staff Report;CU-11-0006 & WV-11-0004 April26, 2011 Page 3of 13

4. Thegranting of the waiver will not result in material damage or prejudice to other properties in the vicinity,and such granting willnot be detrimental topublic health, safety,and general welfare.

LAND USE MATRIX

CURRENTZONING MASTERPLANDESIGNATION CURRENTLANDUSE SITE Mixed Use Mixed Use Edward Homes Professional Center: Retail, offices, bar, fitness center NORTH Neighborhood MixedUse Highway I 60/vacant undeveloped Commercial SOUTH RE-i Low Density Residential Vacant/Undeveloped EAST MixedUse MixedUse Edward Homes Professional Center: Retail, offices, bar, fitness center WEST Neighborhood MixedUse Vacant/Undeveloped Commercial

DISCUSSION

Background: The subject property was originally platted as Block 2, Lot 4, of Calvada Valley Unit 1 subdivision. The subject property was developed with the existing Edward Homes commercial center in 2007.

Area Characteristics: The subject property consists of one (1) parcel with a land area of ÷1-1.1 acres which is bordered by Alfalfa Street, a paved, county maintained roadway to the south, and Nevada Highway 160, a paved, state (NDOT) maintained roadway to the north. An inventory of surrounding land uses can be found in the above-listed matrix. The site is developed with the existing Edward Homes Professional Center. The subject property is located within flood zone X (unshaded), which corresponds to areas outside the 500-year flood hazard area as indicated by the Flood Insurance Rate Map (FIRM).

External Comments: The Town of Pahrump, Emergency Services (Fire and Sheriff’s Departments), and the Nye County School District offered no comments.

Nye County Public Works: General Comments:

• Zone Changes, Master Plan Amendments etc for commercial and multiple-unit developments. It is understood that RPC’s review and approval of planning applications that are unrelated to site development (i.e. no site plan and buildings being proposed at the time) will ensure the right of County is reserved for the determination in the future days any requirements of owner for public road improvements. Such determinations will be given by the Department of Public Works when actual site development application has been submitted by the developer to this Department. • Parcel Maps, Conditional Use Permits, Waivers and all land subdivisions applications. In conjunction with Nye County Code 16.28. It is also understood that RPC’ s approval of these applications may include requirement of road dedications and improvements as recommended by Public Works under applicable County rules. As deemed appropriate under applicable rules, the Director of Public Works may determine that certain public improvements are required as a condition of approval, but may be deferred upon technical review of owner’s submissions. The owner of the property shall agree to pay for his Pabrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April 26,2011 Page 4of 13

share of the deferred public improvements and that such agreement shall be recorded by the owner on the title of the lands. Notwithstanding the forgoing and under applicable County rules, as impact mitigation measures, the Department also reserves its right, and based on existing road conditions and/or pavement condition index, to require the proponent to be responsible and/or pay for its share of improvement, repairs, striping, re-striping, signage, reconstruction, rehabilitation or resurfacing of roads. Determination of this requirement is the sole responsibility of the Department of Public Works. Any aboveground obstructions within an easement, rIght of way, roadway and/or street such as trees, utility lines, utility poles, utility boxes, guy wires, mailboxes and similar items shall be removed or relocated from the easement, right of way, roadway and/or street. It is further understood that should the decision of the RPC go against the recommendation of Public Works and unless otherwise subsequently advised by Public Works in writing, the Planning Department shall automatically appeal such decision through the County Board of Commissioners. Developer shall dedicate to County up to the full width of half the right of way of any streets and highway on their side of the property if such right of way is required by the Master Plan and/or County Capital Improvement Plan. • All future development shall follow Public Works “Guidelines for Design and Review of Development Engineering Submissions” in the Pahrump Regional Planning District. Resolution 2005-02.

• All encroachments into a road easement must conform to Nye County Code § 12.08.010 and a permit must be obtained from Public Works. • The need for Traffic improvements required as a result of a Traffic Impact Analysis (TIA) shall be subject to Public Works Department review and approval of proponent’s TIA. • In addition Subdivisions, Geotechnical Reports and Technical Drainage Studies when required must receive Public Department approval prior to submitting any improvement plans for review. Geotechnical Reports must conform to County Code 15.16.075. • Commercial/Industrial, Geotechnical Reports and Technical Drainage Studies when required must receive Public Department approval in conjunction with submitting any improvement plans for review. Geotechnical Reports must conform to County Code 15.16.075. • This department reserves its right to provide further comment on all development servicing issues upon review of sanitary, geotechnical, technical drainage studies, and traffic impact analysis. • No subdivision plan, site plan, land use plan for a Planned Unit Development, conditional use or zone change may be approved unless on the date of such approval there exists Adequate Public Facilities (APF) applicable to the project for which such approval is sought. • Developers shall make APF submittals containing the following information: o Background information that describes the proposed development, its location, and the adequacy and conditions of all surrounding public facilities. o Identification and analysis of development impacts to public facilities in accordance with this Policy. o Proposed program for mitigating impacts to public facilities. o A submittal must address the impacts of each phase of project development and must submit a schedule for each phase of construction. • Sewage Treatment Facilities Pahrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April26, 2011 Page5ofl3

o With respect to the location, design and operation of any proposed wastewater treatment facility, the proponent shall ensure full compliance with applicable Nevada State laws and regulations, and in particular, the implementation of NAC 445A.285 - Locating a Treatment Works and Nevada Division of Environmental Protection WTS-21, in which they state: Under NAC 445A.285

“1. In locating the site for a treatment works, the designer shall attempt to select a site that is not: (a) Within 984.3 feet (300 meters) of an occupied dwelling or other building. (b) Within the limits of a 100-year floodplain unless protected from the flood to the satisfaction of the Department. 2. No site may be approved by the Department without having first been approved by local government.” eff. 5-2-781-—(Substitutedin revision for NAC 445.181)

Under NDEP WTS-21

“c) The structures may be located within 200 feet but not less than 25 feet away from a major highway, dwelling, or other building whose use is not compatible with wastewater treatment provided that: 1) The air from all structures which are designed to contain sewage, screening, grit, sludge or chemicals at the wastewater facility is captured and treated as approved by DEP.” • The proponent is required to submit to Nye County Planning and Public Works Departments a separate site development plan for the facility and adjacent park/open space to ensure adequate setback and buffer from residential neighborhood and dwellings. Proponent shall further agree that compatibility of the proposed treatment process with the present and planned future land use, including noise, potential odors, air quality, and anticipated sludge processing and disposal techniques must be reviewed and approved by Nye County Planning and Public Works Departments; and any non conformance of such under NAC 445A.285 and Nevada Division of Environmental Protection W’TS-21 criteria shall be either rejected or fully disclosed by the proponent to the potential home buyers and affected residents, as deemed necessary by the Departments.

1. WV-i 1-0004, CU-i 1-0006: General Comments apply. No Comment.

ANALYSIS

Application Details: The applicant is requesting a Conditional Use Permit (CUP) to allow the retail sale of fireworks and a Waiver Application to waive the 1,500 foot separation requirement between the proposed fireworks retail store and residential properties as required per NCC 17.04.700.19.b.

Zonina: The subject property is zoned Mixed Use (MU); this zone is intended to provide commercial uses such as offices, recreational uses such as bowling alleys and movie theatres, public, quasi-public, and institutional uses, all neighborhood commercial uses, retail, restaurants, as well as single and multi-family residential development.

Proposed Conditional Use and Waiver: The applicant has provided explanation letters, exhibit maps and accompanying site plans with the conditional use permit and waiver applications. See attached information for further details. Further applicablesections of Nye County Code are as follows: Pahrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April26, 2011 Page 6 of 13

Nyc County Code Chapter 8.04 FIREWORKS

8.04.010: PURPOSE:

The ordinance codified herein amends this chapter and provides for the regulation of fireworks including regulating the discharge and/or detonation of fireworks outside an incorporated city in Nye County, Nevada, and declares that the regulation of the sale and use of fireworks will protect the public health, safety and welfare of the residents of Nye County, Nevada. (Ord. 363, 2008)

8.04.020: DEFINITIONS:

BOARD: The board of county commissioners of Nye County, Nevada.

CONSUMER FIREWORKS: Explosive devices designed primarily to produce visual or audible effects by combustion, deflagration, or detonation. This term includes devices containing no more than fifty milligrams (50 mg) of explosive composition, which were formerly classified as class C explosives and are now known as I.4G explosives pursuant to the United States consumer products safety commission and the United States department of transportation.

DISPLAY FIREWORKS: Explosive devices designed primarily to produce visible or audible effects by combustion, deflagration, or detonation. This term includes devices containing more than two (2) grains (130 mg) of explosive composition intended for public display. These devices were formerly classified as class B explosives and are now known as 1.3G explosives by regulation of the United States consumer products safety commission, and the United States department of transportation.

PERMIT: Written permission from the board to sell and/or use fireworks in accordance with the provisions of this chapter.

A. Consumer and Display Fireworks Permit: Written permission to sell, trade, furnish or give away consumer and display fireworks.

B. Display Fireworks Event Permit: Written permission to use display fireworks upon a showing that the fireworks will be used solely for public events and/or public celebrations.

RETAIL SALE: The nonwholesale sale of fireworks to any person not permitted to sell fireworks or the sale of fireworks for any purpose other than for resale.

SHOOTERS SITE: A location or locations designated by an unincorporated town for the purpose of discharge or detonation of consumer fireworks.

WHOLESALE SALE: The sale of consumer or display fireworks for resale to consumers or the sale of consumer or display fireworks to business entities or nonprofit organizations that utilize the fireworks as part of its activities or promotions. (Ord. 363, 2008)

8.04.030: PERMIT REQUIRED:

A. It is unlawful for any person, organization, corporation or entity to sell, trade, furnish, or give away, in any quantity, lot or dimension, any consumer/display fireworks as defined at section 8.04.020 of this chapter without securing a written consumer/display fireworks permit as set forth in section 8.04.040 of this chapter. This prohibition shall cover all applicable retail and wholesale sales. Pahrump Regional Planning Commission Staff Report; CIJ.11-0006 & WV-11-0004 April26, 2011 Page 7of13

B. It is unlawful for any person, organization, corporation or entity to discharge or detonate any “display fireworks” as defmed at section 8.04.020 of this chapter, without first securing a written display fireworks event permit as set forth in section 8.04.040 of this chapter.

C. It is unlawful for any person, organization, or entity to discharge or detonate any retail purchased “consumer fireworks” as defined at section 8.04.020 of this chapter unless discharge or detonation occurs within an approved shooters site in accordance with section 8.04.150 of this chapter. (Ord. 363, 2008)

8.04.040: PERMIT APPLICATIONS:

A. Consumer/Display Permits: The board is empowered to issue consumer and/or display fireworks permits authorizing the sale, trade, furnishing, or giving away, or any combination thereof, of fireworks as defined by section 8.04.020 of this chapter upon receipt of a written application made on forms provided by the county.

B. Display Fireworks Event Permits: The board is empowered to issue display fireworks event permits authorizing the discharge or detonation of “display fireworks” as defined by section 8.04.020 of this chapter upon receipt of a written application made on forms provided by the county.

C. Applications:

1. Applications must be filed together with the required permit fee (see section 8.04.070 of this chapter) with the Nye County sheriffs office, who shall present the application to the board at its next regular meeting.

2. Upon receipt of the written application for a permit, the board shall, within a reasonable period of time, either: a) grant the permit, b) require additional information for the application, or c) deny the permit based upon good cause.

3. An applicant who is denied a permit shall be given specific reasons for such denial in writing.

4. An applicant who desires to appeal his/her denial shall, within fifteen (15) days from the date of the denial, serve the board of county commissioners with written notice of the intent to appeal the denial and the reason(s) why the denial should be overturned. An appeal shall be heard during the next available regularly scheduled meeting of the board of county commissioners. (Ord. 363, 2008)

8.04.050: LIMITATIONS ON CONSUMER/DISPLAY FIREWORKS PERMITS:

The effective duration of a consumer/display fireworks permit shall not exceed one year. A maximum of six (6) permits for the sale of consumer/display fireworks may be granted for the entire county. Applicants who are reapplying for permits shall be given priority over others. Permits must be displayed in the public areas of the permittee’s property or place of business where fireworks are sold. Permits are not transferable. (Ord. 363, 2008)

8.04.060: LIABILITY INSURANCE:

Any person, organization, corporation, or entity, designed to sell, trade, furnish, or give away fireworks as defined in section 8.04.020 of this chapter, shall submit with his/her application proof of product or liability insurance. The insurance shall provide policy coverage for a minimum of one million dollars ($1,000,000.00), and shall remain in full force and effect for the entire permit period. (Ord. 363, 2008) Pahrump Regional Planning Commission Staff Report; CU-11-0006 & WV-11-0004 April26, 2011 Page 8 of 13

8.04.070: FEES:

A. ConsumerfDisplay Fireworks Permit: A written application for consumer fireworks permit shall be accompanied by the sum of one thousand dollars ($1,000.00). Such sum:

1. Shall be used to compensate the sheriffs office for time expended;

2. Shall be used to compensate the county for damages caused by fireworks;

3. Is not refundable; and

4. Creates in the applicant no vested right.

B. Display Fireworks Event Permit: There shall be no fee for an application for a display fireworks event permit. (Ord. 363, 2008)

8.04.080: TESTING BY WHOLESALERS:

A consumer fireworks permittee engaged in the wholesale sale of consumer fireworks may test consumer fireworks to ensure quality and safety. Prior to any testing, the permittee must provide written notice to the sheriff of the intent to conduct testing, including a proposed date and time for the testing to take place. All testing shall be done at an approved shooters site pursuant to section 8.04.150 of this chapter. (Ord. 363, 2008)

8.04.090: RESTRICTIONS ON SALE:

A. All sales must be made in compliance with the following regulations:

1. Upon the securing of a specific written permit as set forth in section 8.04.040 of this chapter, the permittee may sell fireworks permitted in this chapter to any competent person eighteen (18) years old and older. Sale to a person younger than eighteen (18) years old may be grounds for immediate revocation of this permit, and shall subject the seller to the penalties contemplated by this chapter.

2. All quantities of fireworks sold, traded, furnished or given away must be packed in an approved, sealed, shipping carton with a copy of an executed “fireworks purchaser’s form” (hereinafter “form”) the format of which is provided to the sellers/retailers by Nye County, and prominently affixed thereto.

3. Each sale, trade, furnishing or giving away of fireworks, as defined in section 8.04.020 of this chapter, must be completed by the execution of a form. The form must be completely executed in indelible ink prior to the exchange or delivery of any fireworks.

4. Each permittee shall be required to maintain the original executed forms. The original must be maintained by the permittee for a period of one year after execution of the form, and must be made available for inspection upon the request of the sheriff. (Ord. 363, 2008)

8.04.100: LIMITATIONS ON RETAIL SALES:

Retail sales of consumer fireworks shall not be conducted prior to seven o’clock (7:00) A.M. on June 25 nor after twelve o’clock (12:00) midnight on July 4. Retail sales are not permitted between the hours of twelve o’clock(12:00)midnight and seven o’clock(7:00) A.M. (Ord. 363, 2008) Pahrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April26, 2011 Page 9 of 13

8.04.110: MANUFACTURE PROHIBITED:

It is unlawful for any person, organization, corporation or entity, to produce or manufacture any fireworks as defmed in section 8.04.020 of this chapter unless such manufacture is specifically authorized pursuant to zoning regulations. (Ord. 363, 2008)

8.04.120: MATERIALS NOT TO BE STORED NEAR FIREWORKS:

Fireworks shall not be stored, kept, sold or discharged within one hundred feet (100’) of any gasoline pump, gasoline filling station, gasoline bulk station, or any building in which gasoline or volatile liquids are kept or sold. (Ord. 363, 2008)

8.04.130: PUBLIC NOTICES:

A. All consumer/display fireworks permittees must prominently display the following:

1. In areas where fireworks are stored or displayed, there shall be posted a sign reading:

FIREWORKS - NO SMOKING - KEEP OPEN FLAMEOR FIRE AWAY.

2. In areas where consumer fireworks are sold, purchased, furnished, traded or given away, there shall be posted a sign reading:

NOTICE: IT IS UNLAWFUL TO DISCHARGE CONSUMER FIREWORKSIN NYE COUNTYUNLESS DISCHARGED ATA DESIGNATED SHOOTERS SITE. ALL OTHER FIREWORKS OBTAINEDFROM A NYE courr RETAILER OR WHOLESALERMUST BE TRANSPORTEDOUTSIDE THE COUNTY WITHIN TWENTY-FOURHOURS.

8.04.140: REVOCATION:

Violations of any section of this chapter may be grounds for immediate revocation of the permit. (Ord. 363, 2008)

8.04.150: SHOOTERS SITE:

A. Unincorporated towns within Nye County may recommend, and the board may consider, ordinances that address:

1. The process for selecting shooter sites for the discharge or detonation of consumer fireworks within an unincorporated town’sboundaries;

2. The process for developing and approving shooter site management agreements; and

3. The requirements for:

a. Fire protection;

b. Litter control;

c. Hours of operation (within the parameters stated at subsection B of this section); and

d. Any applicable use fees, method of fee collection, and how use fees will be expended. Pahrump Regional Planning Commission Staff Report; CU-11.0006 & WV-11-0004 April 26, 2011 Page 10 of 13

B. Hours of operation of shooter sites within Nye County shall be not prior to eight o’clock(8:00) A.M. on June 25 nor after twelve o’clock (12:00) midnight on the 4th of July and on such other dates and times as designated by an unincorporated town. Discharge of consumer fireworks is not permitted between the hours of ten o’clock(10:00) P.M. and eight o’clock(8:00) A.M. except on the 4th of July, fireworks may be discharged until twelve o’clock (12:00) midnight. Hours may be further restricted by an unincorporated town.

C. A management agreement adopted pursuant to subsection A of this section must address:

1. The physical location of the proposed shooter site;

2. The responsibility for the following:

a. Fire protection;

b. Litter control;

c. Parking;

d. Control of access to the site; and

e. Any applicable use fees and the method of fee collection.

D. The unincorporated town must submit the shooter site(s) management agreement(s) to the board of county commissioners for approval.

E. Nye County may, by resolution, approve the unincorporated town’s management agreement(s) for shooter site(s). Proof of the existence of an ordinance created under subsection A of this section must accompany the management agreement when it is submitted for approval. (Ord. 363, 2008)

8.04.160: PUBLIC DISPLAY:

Any person, organization, corporation or entity intending to discharge or detonate “display fireworks”, as defmed in section 8.04.020 of this chapter, to be viewed by members of the general public, shall secure beforehand a display fireworks event pennit as set forth in section 8.04.040 of this chapter. (Ord. 363, 2008)

8.04.170: PENALTY FOR VIOLATION:

Persons found guilty of violating any of the provisions of this chapter are subject to a fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00), or by imprisonment in the countyjail for not more than six (6) months, or by both such fine and imprisonment. (Ord. 363, 2008) Pahrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April 26,2011 Page 11 of 13

Fireworks classifications in the United States

The United States government classifies fireworks based on their potential hazards. The U.S. government uses the United Nations “explosives shipping classification system”. This system is based on hazard in shipping. The following are some of the more common types of fireworks classes:

• Class 1.1G (Mass Explosion Possible: Pyrotechnics) UN0094 Flashpowder • Class 1.1G (Mass Explosion Possible: Pyrotechnics) UN0333 Fireworks (Salutes in bulk or in manufacture) • Class 1.2G (Projection but not mass explosion: Pyrotechnics) UN0334 Fireworks • Class 1.3G (Fire, Minor Blast: Pyrotechnics) UN0335 Fireworks (Most “Display” Types of Fireworks)

Current federal law requires a license or permit from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to possess Class 1.30 fireworks. Class 1.30 fireworks are intended for professional display of fireworks. The following are various types of Class 1.3G fireworks:

• Any fireworks device containing over 50 milligrams of explosive composition • Torpedoes • Multi-tube devices containing over 500 grams of pyrotechnic composition and without 1/2” space between each tube • Any multiple tube fountains with over 500 grams of pyrotechnic composition and without 1/2” space between each tube • Any reloadable aerial shells over 1.75”diameter • Display shells • Any single-shot or reloadable aerial shell/mine/comet/tube with over 60 grams of pyrotechnic composition • Any Roman candle or rocket with over 20 grams of pyrotechnic composition • Any aerial salute with over 130 milligrams of explosive composition

• Class 1.4G (Minor Explosion Hazard Confmed To Package: Pyrotechnics) 1JN0336Fireworks (these are also known as “Consumer” Fireworks): • Reloadable aerial shells 1.75”or less sold in a box with not more than 12 shells and one launching tube • Single-shot aerial tubes • Bottle rockets • Skyrockets and missiles • Ground spinners, pinwheels and helicopters • Flares & fountains • Roman candles • Smoke and novelty items • Multi-shot aerial devices or “cakes” • Firecracker packs • Sparklers • Catherine wheels • Black snakes and strobes • Mines Pahrump Regional Planning Commission Staff Report; CU-11-0006& WV-11-0004 April26, 2011 Page 12 of 13

“Consumer fireworks” or Class 1.4G fireworks, are not subject to regulation under the Federal explosives laws. The importation, distribution, and storage of consumer fireworks are exempt from the provisions of the Federal explosives laws. However, because Class 1.4G fireworks contain pyrotechnic compositions classed by the ATh as explosive materials, the manufacturing of consumer fireworks requires a manufacturer’s license. Class 1.4G fireworks are the only type of fireworks proposed to be sold by Red Apple Fireworks Company. Red Apple Fireworks Company is not proposing to manufacture any type of fireworks.

“Display fireworks” or Class 1.3G fireworks, which are the type of fireworks used by professional pyrotechnicians for large public events such as 4th of July shows, at theme parks and major sporting events such as the Super Bowl, are considered to be explosive materials and are subject to regulation under Federal explosives laws and regulations. Red Apple Fireworks Company is not proposing to sell any Class 1.3G fireworks. “Display” fireworks include aerial shells containing more than 40 grams of pyrotechnic compositions, and other display pieces which exceed the limits of explosive materials for classification as “consumer fireworks”.

The proposed use by Red Apple Fireworks Company is the retail sales of “consumer” fireworks, or Class 1.4G fireworks, only; there will be no sales of “display” fireworks or Class 1.3G fireworks, nor will there be any processing or manufacturing of any type of fireworks on the subject property.

CONCLUSIONS

Upon extensive review of the applications, Staff finds sufficient justification to recommend approval. Nye County Code allows for the retail sale of fireworks with the approval of a Conditional Use Permit; although the distance between the fireworks business and residential uses technically does not meet the Code, there are mitigating circumstances that justify approving a waiver, such as Nye County Code Title 17 (Zoning) does not distinguish between various classes or types of fireworks; “display” fireworks are the type of fireworks used in large public events such as 4th of July shows, at theme parks and major sporting events, which the applicant does not propose to sell; the proposed use is the retail sales of “consumer” fireworks only; there will be no sales of “display” fireworks; nor will there be any processing or manufacturing of any type of fireworks on the subject property. The following CONDITIONS FOR APPROVAL have been suggested pursuant to this recommendation and subject to the discretion of the Regional Planning Commission.

STANDARD CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT AND WAIVER

1. Unless otherwise specified, all conditions must be met or financial assurances must be provided to satisfy the conditions prior to submittal for any required building permits. The Nye County Planning Department and/or Public Works Department is responsible for determining compliance with a specific condition and shall determine whether the condition must be fully completed or whether the applicant shall be offered the option of providing financial assurances. All agreements, easements, or other documentation required by these conditions shall have a copy filed with said Departments. 2. Compliance with the conditions of this approval is the responsibility of the applicant, its successor(s) in interest, and all owners, assignees, and occupants of the property and their successors in interest. Failure to comply with any conditions imposed may result in the implementation of revocation procedures. 3. Development of the property must conform to the plans approved as part of this application. The Nye County Planning Department shall determine compliance with this condition. 4. Nye County reserves the right to review and revise the conditions of this approval should it determine that a subsequent license or permit issued by Nye County violates the intent of this approval. 5. For the purposes of conditions imposed by Nye County, “may” is permissive and “shall” or “must” is mandatory. 6. The Conditional Use Permit will expire in three (3) years unless the use is commenced or construction is completed within the three (3) years, unless the Pahrump Regional Planning Commission grants a different time period. Any extension of time must be applied for prior to the date of expiration. Pahrump Regional Planning Commission StaffReport;CU-11-0006& WV-11-0004 April26, 2011 Page 13 of 13

7. The Waiver will expire in one (1) year unless the use is commenced or construction is started, unless the Pahrump Regional Planning Commission grants a different time period. Any extension of time must be applied for prior to the date of expiration. 8. Approval of this application does not constitute approval of a liquor, gaming or fireworks license/permit or any other County issued permit, license, or approval. 9. The applicant and any successors shall direct any potential purchaser/operator of the conditional use permit to meet with the Nye County Planning Department to review conditions of approval prior to the final sale of the conditional use permit. The subsequent purchaser/operator of the conditional use permit shall notify the Nye County Planning Department of the name, address, telephone number, and contact person of the new purchaser/operator within 30 days of the final sale. 10. No construction of public improvements shall occur until any required construction plans are submitted and approved in accordance with the Guidelines for Desifn & Review of Develovment Enfineerinz Submissions along with the calculations of the construction valuation, and plans check and inspection fees shall be borne by the Developer(s). 11. If required, drainage study, construction plans and/or traffic studies must be submitted and approved and all improvements must comply with the approved plans.

SPECIAL CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT AND WAIVER 12. ApplicantlProperty Owner shall comply with all federal, state and local regulations. 13. Applicant/Property Owner shall obtain a Consumer Fireworks Permit from the Nye County Board of County Commissioners in accordance with Nye County Code. 14. Applicant/Property Owner shall obtain approval of any Building Plan Reviews, and obtain any Fire & Life Safety or Hazmat permits or inspections as may be required by the Nevada State Fire Marshal’s office or Pahrump Building Safety. 15. Applicant/Property Owner shall install any building sprinkler systems as may be required by any state or local agency, including Pahrump Building Safety and the Nevada State Fire Marshal’s office. 16. Applicant/Property Owner shall install any Fire alarm systems in accordance with required plans, material specifications, battery calculations and wiring diagrams, as may be required by any state or local agency.

17. The Conditional Use Permit is valid only for Class 1.4G (Consumer) fireworks sales. 18. The Conditional Use Permit is not valid for the manufacturing of any type of fireworks. 19. The Conditional Use Permit is not valid for sales of Class 1.3G fireworks (display fireworks). 20. Applicant/Property Owner shall obtain a Town of Pahrump business license. PRPC HEARING --26 APRIL2011 -- CU-11-0006/WV-11-0004 REDAPPLEFIREWORKS.CO. LTD

j I I SUBJECTPROPERTY

EXHIBIT“A” -- AREAZONING

SUBJECT PROPERTY NC; Neighborhood Commercial I NOTIFIEDPROPERTIES RE-I; Rural Estates I I I I Residential ‘——I 500 FOOT BUFFER j VR-20; Village Residential [:::I MU;Mixed Use XIou;openuse PRPC HEARING -- 26 APRIL2011 -- CU-11-0006/WV-11-0004 REDAPPLEFIREWORKS,CO. LTD

EXHIBIT“B” -- MASTERPLANCATEGORIES

SUBJECT PROPERTY NOTIFIEDPROPERTIES MU:MixedUse I I 500 FOOT BUFFER LDR:LowDensity Residential _ , I I

IMDR:Medium Density Residential PRPCHEARING -- 26 APRIL2011 -- CU-11-OOO6/WV-11-_1

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OFFICE SPACE EDWARD HOMES CONVERSION Ti. Inc. PAFIRUMP,NEVADA JUSTIFiCATiON LETTER - CONDITIONALUSE PERMIT

April6, 2011

Nye County Planning Department 250 N. Hwy 160, Suite 1 Pahrump, Nevada 89060

Re: Conditional Use Permit for the Retail Sales of Fireworks at 3610 S. Hwy 160, Suite 400-401, Parcel No. 042-451-13; Interest Income Partners L.P., Owner; Red Apple Fireworks Co. Ltd., Applicant

To Whom It May Concern:

Withthe formal and sufficient consent of the above-mentioned property owner, Applicant respectfully requests approval of a Conditional Use Permit for a retail fireworks sales establishment located in the Edward Homes Professional Center at 3610 S. Hwy. 160, Suite 400-401 (the Premises). The Applicant intends to conduct retail fireworks sales at the Premises beginning in the 2011 Fourth of July holiday season, which is nearly upon us. Applicant requests that the requested Conditional Use Permit be approved and applicable to the entire approximately 4,300 square feet of the Premises, but that only an approximately 1,000 square foot portion of the Premises willbe utilized initially,until completion of the build-out of the remaining approximately 3,300 square feet of the Premises, whereupon Applicant willutilizethe entire approximately 4,300 square feet of the Premises.

I. IntroductIon

Applicant’s products consist wholly of goods commonly referred to as “Class C”fireworks, “Consumer” fireworks, or, “1.4G” fireworks. 1.4G fireworks are regulated by the United States Federal Government. The United States Federal Government has approved 1.4G fireworks for normal consumer use (i.e., in a backyard, by anyone over 18 years of age, fun for the whole family).

Applicant’s products stand in contrast to goods commonly referred to as “Class B”fireworks, “Display”fireworks, or “1.3G”fireworks. 1.3G fireworks require special permits, licenses, training and the like,to handle, distribute, sell, or otherwise use. 1.3G fireworks are for consumption only by professional pyro-technicians.

Applicant does not, and will not ever, possess, handle, distribute, sell, or offer for sale 1.3G fireworks, whether at the Premises.

In particular, 1.4G fireworks are not even classified as explosive material in the 2006 International Fire Code— they are only classified as containing “pyrotechnic composition,” which by its nature is chemical-based, and does not contain “black powder,” “gun powder,” or any similar classification that is clearly explosive in nature.

In non-pyrotechnic terms, if 1.4G fireworks are set on fire other than by the only designated permissible use of such fireworks (i.e., by lighting a fuse), the fireworks willnot produce any fireworks-type effect; rather, they will simply burn, with no such effect.

II. CondItIonal Use Request

Applicant respectfully seeks a Conditional Use Permit according to Nye County Code 17.04.700: CONDITIONS ANDSAFEGUARDS FOR CONDITIONALUSE PERMITS.This sectionrequires that a retail fireworks operation operate on the basis of a conditional use permit. (Applicanthas submitted contemporaneously herewith a waiver requestfor a certain requirement of such conditional use at the Premises.)

Applicant is fullycognizant of the Nye County Code pertaining to Condition Use Permit Procedures, includingthe above-mentioned section, as well as Section 17.04.920, including that the planning commission is solely responsible for all decisions on applications for conditional use permits. In that vein,Applicant respectfully submits the following as at least part of the basis for approval of Applicant’s request:

1. Applicant’s proposed use of the Premises willbe harmonious with and in accordance with the general objectives or with any specific objectives of the master plan of current adoption, as Applicant’s retail sales willoccur in the Edward Homes Professional Center, the current land use of which is retail, mixed. Specifically, the Edward Homes Professional Center contains a bar, a fitness center, a bakery, offices, and other vacant spaces. 2. Applicant’s proposed use of the Premises willat all times be designed, constructed (to the extent not already designed and constructed), operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use willnot change the essential character of the same area. Specifically, the Premises are currently in full compliance with this set of circumstances, and Applicant willnot change the current design or construction, nor through Applicant’s operation or maintenance of the Premises change any aspect, in any manner, that may be inconsistent with this consideration. 3. Applicant’s proposed use of the Premises willnot affect future neighboring uses in any regard, including with respect to any disturbing or hazardous manner. Applicant willsimply be conducting retail sales, in the same manner in which any like business would conduct such sales. 4. Applicant’s proposed use of the Premises willcertainly be a substantial improvement to the property in the immediate vicinity, and to the community as a 1whole. a. The Edward Homes Professional Center contains many vacant units, including with respect to units that have their front on Highway 160. Importantly, the Edward Homes Professional Center is one of the first shopping areas that visitors to Pahrump see as they enter Pahrump from the south. Applicant plans to tillthe remaining portion of a unit that is currently only approximately 40% occupied, thereby fillinga gaping hole in the Highway 160 frontage. Moreover, Applicant’s utilization will be to that of the highest levels of professional retail standards of presentation, product selection, and tastefulness, providing a great impression to Pahrump for both residents and visitors. Perhaps most Importantly, Applicant Is excited by the prospect of being able to Immediately employ approximately 15 Pahrump residents, at minimum, and to foster ongoing community relationships and form new ties by virtue of Its operation and desire to maintain beneficial relationships within the community and with Its members. This is In addition to the Pahrump-based contractor (Edward Homes) that Applicant will utilize at the Premises for all aspects of development of the Premises. 5. Applicant’s proposed use will be served adequately by essential public facilities and services, not only due to the location, but also due to the open nature of Applicant’s operation, and Applicant’s desire to interact with those involved in the operation of such public facilities and services. Likewise, Applicant plans to maintain any responsibility necessary to provide adequately any such service. 6. Applicant’s proposed use will not create excessive additional requirements for public cost for public facilities and services and willnot be detrimental to the economic welfare of the community. In fact, Applicant is prepared to operate, to the greatest extent possible, without any additional requirements that could potentially generate additional public cost. In the same vein, Applicant seeks to bolster the economic welfare of the community, and certainly not undertake any act that could have a detrimental effect. Indeed, based on the above, Applicant is of the opinion that the economic welfare of the community willreceive an immediate boost based on the provision of jobs and the expected influxof purchasers of Applicant’s goods. 7. Applicant’s proposed use willnot in any manner involve any uses, activities, processes, materials and equipment, and conditions of operation that willbe detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glares or odors. Applicant plans to maintain its operation to the highest levels of professional retail conduct, which Applicant views as inherently and necessarily not undertaking any action that could have such negative effects or impacts. 8. Applicant’s proposed use will at all times and in all manners be consistent with the intent and purpose of the chapter of the Nye County Code to which these considerations and circumstances apply.

1 Applicanthas also experienced an influxof other businesses to the area inwhichApplicanthas done business inthe past. III. ConclusIon

Applicant recognizes that any Conditional Use Permit is in addition to zoning procedures and requirements relating generally to issuance of building permits and certificates of occupancy.

!t is Applicant’s intent to comply in every respect and regard withthe acceptable use, occupancy, location, construction, design, character, scale, manner of operation, and other applicable considerations, of conducting Applicant’s business in Pahrump.

Based on the forgoing, Applicant therefore respectfully requests approval of its Appilcationfor Conditional Use Permit.

Ifany questions should arise, I may be contacted at any time via any of the means listed below, and would look forward to hearing from you as such.

Sincerely,

Doug\I8urda Red Apple fireworks Co., Ltd. Direct. (702)518-0075 [email protected] JUSTIFICATiON LETTER - WAIVER

April6, 2011

Nye County Planning Department 250 N. Hwy 160, Suite 1 Pahrump, Nevada 89060

Re: Waiver of Paragraph 18.b. of Nye County Code 17.04.700 for the Retail Sales of Fireworks at 3610 S. Hwy 160, Suite 400-401, Parcel No. 042-451-13; Interest Income Partners L.P., Owner; Red Apple Fireworks Co. Ltd., Applicant

To Whom It May Concern:

With the formal and sufficient consent of the above-mentioned property owner, Applicant respectfully requests a Waiver of Paragraph 18.b. of the Nye County Code 17.04.700 pertaining to the Conditions and Safeguards for Conditional Use Permits regarding retail fireworks sales. Applicant desires to operate a retail fireworks sales establishment to be located in the Edward Homes Professional Center at 3610 S. Hwy. 160, Suite 400-401 (the Premises). The Applicant intends to conduct retail fireworkssales at the Premises beginning in the 2011 Fourth of July holiday season, which is nearly upon us. Applicant requests that the requested Waiver be approved and applicable to the entire approximately 4,300 square feet of the Premises, but that only an approximately 1,000 square foot portion of the Premises willbe utilized initially,untilcompletion of the build-outof the remaining approximately 3,300 square feetof the Premises, whereupon Applicant willutilizethe entire approximately 4,300 square feetof the Premises.

Currently, the Premises are not located “at least one thousand five hundred feet (1,500’)from residential properties” as required by Paragraph 18.b. Applicant respectfully submits, however, that a waiver of such requirement is appropriate under the conditions and circumstances described herein.

I. Introduction

Applicant’s products consist whollyof goods commonly referred to as “Class C”fireworks, “Consumer” fireworks, or, “1.4G”fireworks. 1.4G fireworks are regulated by the United States Federal Government. The United States Federal Government has approved lAG fireworks for normal consumer use (i.e., in a backyard, by anyone over 18 years of age, fun for the whole family).

Applicant does not, and will not ever, possess, handle, distribute, sell, or offer for sale 1.3G fireworks at the Premises.

In particular, 1.40 fireworks are not even classified as explosive material in the 2006 International Fire Code— they are only classified as containing “pyrotechnic composition,” which by its nature is chemical-based, and does not contain “black powder,” “gun powder,” or any similar classification that is clearly explosive in nature.

Furthermore, perhaps most relevant to Applicant’s request, the various fire and fireworks codes expressly applicable to the retail sale of fireworks in Nye County (namely the 2006 International Fire Code, 2006 edition of the 1124 National Fire Protection Association (NFPA), Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles, etc.) as originallypromulgated do not contain any reference to the 1,500’ requirement of Paragraph 18.b. In other words, such measurements only occur in these codes with specific reference to manufacturing or “processing” of 1.3G fireworks and the like—activities which Applicant will never undertake at the Premises.

II. Waiver Request

As mentioned above, applicant respectfully seeks a Waiver of Paragraph 18.b of Nye County Code 17.04.700 entitled CONDITIONSANDSAFEGUARDS FOR CONDITIONALUSE PERMITS.This Section requires not only that a retail fireworks operation operate on the basis of a conditional use permit, but also that such an operation “complywith all state and county regulations,” and that such an operation “be located at least one thousand five hundred feet (1,500’) from residential properties.” (Applicant has submitted contemporaneously herewith an application for Conditional Use.) Notably, Applicant is, or shall be very shortly, in full compliance with all state and county regulations relevant to the retail sale of fireworks In Nye County. The only requirement that Applicant is incapable of fulfillingis the 1,500’ feet requirement, and even then, Applicant is only incapable of such fulfillmentby virtue of physical constraints having to do with how the Premises are situated. Applicant does not have the abilityto modifythese physical constrains.

Applicant is fullycognizant of the Nye County Code pertaining to Waivers and Special Exception Procedures and Conditional Use Permit Procedures, including the above-mentioned section, as well as Section 17.04.920, including that “the planning commission is solely responsible for all decisions on applications for conditional use permits,” and Section 17.04.915, including that “the planning commission shall have the power to grant waivers and exceptions from the strict interpretation of [Chapter 17] under the conditions and criteria set forth”therein.

Inthat vein, Applicant respectfully submits the followingas at least part of the basis for approval of Applicant’s request:

1. There are special circumstances or conditions applying to the property under consideration which make compliance with the provisions of this chapter difficultand a cause of hardship to, and abridgement of, a property right of the owner of said property. Specifically,the rule sought to be waived causes a hardship to the property owner in that prevents the property owner from putting its land to an immediate and useful purpose by leasing the Premises—at the present time, the Premises are vacant, unoccupied, and unused in any respect. The Premises are simply empty, bare, and most significantly,un-leased. Granting the requested Waiver would allow the property owner to lease the Premises, thereby making beneficial use ot the Premises, which would necessarily and directly exercise the property owner’s property rights concerning leasing the Premises to the Applicant, withthe incidental benefits to Nye County and the City of Pahrump discussed herein. Without such waiver, there is an abridgement of the property owner rightto lease, as the property owner is prevented from leasing the Premises to Applicant. 2. Such circumstances or conditions do not apply generally to other properties in the same land use district. Specifically, every other occupied space surrounding the Premises currently being put to use through lease, or standing vacant, is not subject to the rule sought to be waived, including, at minimum, a fitness club, a bakery, a bar, and offices—none of these establishments must necessarily be located any particular distance from residential properties or any other property. 3. The granting of the waiver or exception is necessary to substantiate justice to Applicant pf the property owner. Specifically, as discussed above, the property owner is currently prevented from utilizingone of the “bundle of rights” applicable to its land ownership, namely, the right to lease its property. By granting the requested Waiver, such right willimmediately be exercised by leasing the Premises to Applicant. Further, Applicant willbe prevented from running its business according to its tried, true, and preferred methods of retail operation, thereby depriving Applicant of Applicant’s abilityto conduct its business in furtherance of the public policy of creating business-friendly conditions and fostering the growth of business in general. 4. Granting the requested Waiver willnot be detrimental to the public safety, health, or welfare or injuriousto other property nor willthe Waiver have the effect of nullifyingthe intent and purpose of this chapter. Specifically, in addition to the above, Applicant plans to maintain its operation to the highest levels of professional retail conduct, which Applicant views as inherently and necessarily not undertaking any action that could have such negative effects or impacts. 5. Ifthe requested Waiver is granted, Applicant willoperate its business at all times and in all manners consistent with the intent and purpose of the chapter of the Nye County Code to which these considerations and circumstances apply. 6. Granting the Waiver will not result in material damage or prejudice to other properties in the vicinity nor be detrimental to public health, safety, and general welfare, relief would provide an opportunity for improved zoning and planning that would benefit the community.’ Specifically, the Edward Homes Professional Center is one of the first shopping areas that visitors to Pahrump see as they enter from the south. Applicant plans to fillthe remaining portion of a unit that is currently only approximately 40% occupied, thereby fillinga gaping hole in the Highway 160 frontage. Moreover, Applicant’s utilization will be to that of the highest levels of professional retail standards of presentation, product selection, and tastefulness, providing a great impression to Pahrump for both residents and visitors. Perhaps most Importantly, Applicant is excited by the prospect of being able to Immediately employ approxImately 15 Pahrump residents, at minimum, and to foster ongoing community relationships and form new ties by virtue of its operation and desire to maintain beneficial relationships within the community and with Its members. This Is In addition to the Pahrump-based contractor (Edward Homes) that Applicant will utilize at the Premises for all aspects of development of the Premises. Further, Applicant seeks to bolster the general welfare of the community based on the provision of jobs and the expected influx of purchasers of Applicant’s goods from geographic areas near and far.

Ill. ConclusIon

Applicant recognizes that any Conditional Use Permit, and any waiver related thereto, is in addition to zoning procedures and requirements relating generally to issuance of building permits and certificates of occupancy.

It is Applicant’s intent to comply in every respect and regard with the acceptable use, occupancy, location, construction, design, character, scale, manner of operation, and other applicable considerations, of conducting Applicant’s business in Pahrump.

Based on the forgoing, Applicant therefore respectfully requests approval of its Request for Waiver of Paragraph 18.b. of Nye County Code 17.04.700.

Ifany questions should arise, I may be contacted at any time via any of the means listed below, and would look forward to hearing from you as such.

Sincerely,

Doj’Burd a Red Appe Fireworks Co., Ltd. Direct. (702) 518-0075 Email. [email protected]

Applicanthas also experienced an influxof other businesses to the area in whichApplicanthas done business inthe past.