League to Save Lake Tahoe v. Crystal Enterprises

685 F.2d 1142
Court of Appeals for the Ninth Circuit·Decided August 31, 1982·No. No. 80-4377·Published·Cited by 2 cases

Opinion

FLETCHER, Circuit Judge.

This suit concerns the construction of a parking garage/hotel tower at the Crystal Bay Club on Lake Tahoe. The plaintiffs contend that construction ceased on this project for periods of time sufficient to make the defendants subject to the requirements of the Tahoe Regional Planning Agency’s Land Use Ordinance. The de[1144]*1144fendant, Crystal Enterprises, claims that it is exempt from the requirements • of the ordinance under a grandfather clause, and alternatively argues that it has a vested right to complete the project as planned. The district court, 490 F.Supp. 995, found for the plaintiffs. Defendants appeal from that judgment and order. We note jurisdiction under 28 U.S.C. § 1291 (1976) and affirm.

I

FACTS

In 1970, the predecessors in interest of Crystal Enterprises began construction of a fifteen story hotel/parking garage complex at Crystal Bay, Nevada. This complex was to be an addition to the Crystal Bay Club casino. The Washoe County, Nevada, building department granted a building permit for the construction on August 20, 1970. By the end of June, 1971, the parking garage and the structural portion of three floors of the hotel tower were completed. Construction ceased at this point. No significant work was done on the project again until April, 1975, when construction re-commenced.

The Tahoe Regional Planning Agency’s Land Use Ordinance (LUO) became effective on April 11, 1972. Under the ordinance, the project at Crystal Bay is a nonconforming use. See LUO § 7.12(15). However, the ordinance contains a grandfather clause, LUO § 9.11, which exempts from the requirements of the ordinance existing uses and projects “upon which construction has commenced as allowed by . . . permit prior to February 10, 1972....” LUO § 9.11. The exemption does not apply, however, if “any such use ceases for a period of one (1) year.” Id.

II

ANALYSIS

A. Land Use Ordinance § 9.11

Relying on the grandfather clause, LUO § 9.11, appellant maintains that its unfinished hotel is not subject to review by the Tahoe Regional Planning Agency (TRPA). LUO § 9.11 provides as follows:

9.11 Existing Uses and Structures
Uses of land and structures that do not conform to the regulations established by this Ordinance and which lawfully existed on February 10, 1972, or which are to be created in connection with structures for which a valid permit was issued on or before February 10,1972, and upon which construction has commenced as allowed by such permit prior to February 10, 1972, may be continued, transferred or sold, provided, however, in the case of a use to be created it shall occupy no greater area than planned at the time such permit was issued. If any such use ceases for a period of one (1) year, subsequent use of such land shall be in conformity with the regulations contained in this Ordinance.

(emphasis in original).

The difficulty lies in the interpretation of the phrase “any such use.” Both sides agree if use of a completed structure ceases for a period of one year or more, that the protection afforded by the grandfather clause to the nonconforming use will be lost. Defendant’s position is that the nonconforming use classification can only be lost once the structure is completed, used for its purpose, and then that use is abandoned for more than a year. The plaintiffs’ contention, however, is that the cessation of construction for a period of one year or more forfeits the exemption from TRPA review provided by LUO § 9.11. We conclude that the latter interpretation is the correct one.

Questions in regard to construction of zoning ordinances are matters of law. Interpretation of LUO § 9.11 is a question of federal law. League to Save Lake Tahoe v. B. J. K. Corp., 547 F.2d 1072, 1075 (9th Cir. 1976). There is, however, no federal law of zoning. We must therefore rely on state court interpretations for guidance.

Zoning laws, not unlike other statutes, are to be reasonably construed in [1145]*1145terms of legislative intent, objectives sought, and the accepted usage of the language contained in the ordinance. See City of Norwalk v. Auction City, Inc., 186 Cal. App.2d 287, 8 Cal.Rptr. 781 (1960). In many cases the language is so precise and explicit that no interpretation is required. When interpretation is necessary, specific rules of construction that have evolved over the years are applied. They are not always mutually consistent. The ordinance must be construed in its entirety. 6 Powell on Real Property H 872[4] (1981). Ambiguities are normally resolved in favor of the landowner. State ex rel. Standard Mining & Development Corp. v. City of Auburn, 82 Wash.2d 321, 326, 510 P.2d 647, 651 (1973); Murphy v. S. A. Hutchins & Associates Construction Co., 263 Or. 245, 247, 501 P.2d 1273, 1275 (1972); Kubby v. Hammond, 68 Ariz. 17, 198 P.2d 134, 138 (1948). There are, however, jurisdictions which permit liberal construction in favor of the municipality. Place v. Board of Adjustment, 42 N.J. 324, 200 A.2d 601, 603 (1964). Provisions pertaining to nonconforming uses are normally construed in favor of discontinuance. See, e.g., Kelly Supply Co. v. Anchorage, 516 P.2d 1206, 1210 (Alaska, 1973).

A nonconforming use is a lawful use in existence on the effective date of the zoning restriction and continuing thereafter in nonconformance to the ordinance. 6 Powell on Real Property ¶ 871[1][a] (1981). A provision permitting continuance of a nonconforming use is ordinarily included in zoning ordinances because of the hardship and doubtful constitutionality of compelling the immediate discontinuance of nonconforming uses. However, the general purpose of zoning ordinances is to achieve conformity, eventually terminating all nonconforming uses. Zoning ordinances ordinarily establish separate areas, locating in each the appropriate uses, and forbidding other uses that will tend to impair the development and stability of the area for appropriate uses. The public welfare is considered in the context of the objectives of the zoning and the effect of the zoning on all of the property within any particular district. It is not contemplated that pre-existing nonconforming uses are to be perpetual. “The presence of any nonconforming use endangers the benefits to be derived from a comprehensive zoning plan.” City of Los Angeles v. Gage, 127 Cal.App.2d 442, 459, 274 P.2d 34, 43 (1954).

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League to Save Lake Tahoe v. Crystal Enterprises, 685 F.2d 1142 (9th Cir. 1982).

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