Friends of Spring St. v. Nev. City

245 Cal. Rptr. 3d 592, 33 Cal. App. 5th 1092
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 28, 2019
DocketC086563
StatusPublished
Cited by30 cases

This text of 245 Cal. Rptr. 3d 592 (Friends of Spring St. v. Nev. City) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friends of Spring St. v. Nev. City, 245 Cal. Rptr. 3d 592, 33 Cal. App. 5th 1092 (Cal. Ct. App. 2019).

Opinion

Robie, J.

*1096This attorney fees and costs case follows from our opinion in Friends of Spring Street v. Nevada City (Mar. 10, 2017, C081195) 2017 WL 945106 [nonpub. opn.] ( Friends I ). An association (plaintiff Friends of Spring Street) filed a petition for writ of mandate and complaint for declaratory and injunctive relief in superior court, challenging a determination by defendant Nevada City (the City) that real parties in interest Mollie Poe and Declan Hickey (collectively Real Parties) had the right to resume operation of a bed and breakfast facility in a residential district of the City despite the fact that, years earlier, voters had passed an initiative measure repealing the provisions in the City's municipal code allowing such facilities. Plaintiff also challenged a 2015 City ordinance relating to the discontinuance of nonconforming uses subject to conditional use permits. The trial court upheld the City's ruling with respect to the bed and breakfast and upheld the 2015 ordinance. (Friends I .) Plaintiff appealed.

In Friends I , "we conclude[d] that while the trial court did not err in upholding the 2015 ordinance, the court did err in upholding the [C]ity's ruling with respect to the bed and breakfast." ( Friends I , supra , C081195.) On remand, the trial court vacated its prior decision on the bed and breakfast issue and entered judgment in favor of plaintiff on that issue with respect to its petition for writ of mandate. The trial court further directed the City to file a return to the writ, indicating it had set aside its challenged decision. The City complied.

*1097Plaintiff moved for costs under Code of Civil Procedure1 section 1032 and attorney fees under section 1021.5; the City and *596Real Parties opposed. The trial court granted the City's and Real Parties' motions to strike plaintiff's memorandum of costs and denied plaintiff's motion for attorney fees. Plaintiff appeals.

We reverse and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, the City passed an initiative by a vote of 726 to 356 to "permit[ ] the establishment of Bed and Breakfast Guest Facilities within residential and commercial zones in the City under reasonable conditions." ( Friends I , supra , C081195.) The City thereafter adopted a new zoning ordinance (codified as Nevada City Mun. Code, § 17.04.010 et seq.) implementing the initiative, including provisions regarding conditional use permits2 and discontinuances of nonconforming uses. ( Friends I , supra , C081195.) The zoning ordinance contained a provision that " '[i]f a non-conforming use is discontinued for a period of one (1) year, then all rights regarding the non-conforming use shall be terminated and the existing zoning district regulations shall apply to any further use of the property.' " (Ibid .)

"In 1991, Juneus and Jan Kendall obtained a conditional use permit to operate a bed and breakfast at 534 Spring Street (referred to as Kendall House), which is in a [single family residential] zone." ( Friends I , supra , C081195.)

In 1994, the City passed an initiative known as Measure G by a vote of 684 to 642. ( Friends I , supra , C081195.) "The question posed by Measure G was this: '[S]hall Section 17.72.070 of the Nevada City Municipal Code which currently allows Bed & Breakfast guest facilities in residential and non-commercial zones be repealed and the Nevada City General Plan amended accordingly such that Policy No. 6 under the heading of 'Public Service/Fiscal' be deleted along with any other references in the General Plan authorizing the establishment of Bed & Breakfast guest facilities?' " ( Ibid . )

The Kendalls continued to operate Kendall House as a bed and breakfast until 2002, "although they continued to renew and pay for a business license *1098for the property" thereafter. ( Friends I , supra , C081195.) The Kendalls sold the property in 2004, and the buyers (who used the property as a residence while paying for and maintaining the business license) later sold the property to Real Parties in 2013. ( Ibid. )

In 2014, Real Parties sought to recommence the conditional use permit to operate the Kendall House as a bed and breakfast. ( Friends I , supra , C081195.) The City's planning commission staff "framed the issue as whether, following the passage of Measure G in 1994, there had been a voluntary abandonment of the nonconforming use of the property as a bed and breakfast such that the right to use the property for that purpose was terminated." ( Ibid . ) The planning commission received at least seven letters regarding Real Parties' application prior to the hearing and, at the hearing, at least 14 people spoke on the issue. The planning commission denied the request because " 'the grandfathered rights to operate a [bed and breakfast] there as a legal nonconforming use ha[d] been terminated by discontinuance of the [bed and breakfast] use with intent to abandon that use." Real Parties appealed the decision to the city council.

*597"In their appeal, [Real Parties] did not challenge the planning commission's finding that the right to operate a bed and breakfast on the property as a nonconforming use had been lost by discontinuance accompanied by an intent to abandon that use. Instead, they argued for the first time that operation of a bed and breakfast at Kendall House was never a nonconforming use because section 17.24.040 of the municipal code, through its reference to section 17.20.040 of the code, still provided that a bed and breakfast inn was a permitted conditional use in the [single family residential] zone. Thus, they contended the conditional use permit issued for Kendall House in 1991 was 'existing and fully valid' because the business license fee had been paid ever since." ( Friends I , supra , C081195.)

The city council received at least nine letters regarding Real Parties' appeal prior to the hearing and, at the hearing, at least 14 people spoke on the issue. The city council granted Real Parties' appeal and vacated the planning commission's decision. In its resolution, the city council explained "the subject matter is of importance to the public interest in the effective enforcement of city zoning laws" and found "[t]he preponderance of the weight of the evidence considered by the Council is that Measure G was intended by the voters to limit new bed and breakfast inns in the [single family residential] zone. Measure G did not address the manner of continuation or termination of existing bed and breakfast inns." ( Friends I , supra , C081195.) The city council also concluded Real Parties were entitled to rely on the municipal code sections that existed when they submitted their application because the code sections "could not 'by implication be voided or avoided.' " ( Ibid . )

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Cite This Page — Counsel Stack

Bluebook (online)
245 Cal. Rptr. 3d 592, 33 Cal. App. 5th 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friends-of-spring-st-v-nev-city-calctapp5d-2019.