Compelling Renewal of a Conditional Use Permit in California
In Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, a tavern had been in continuous operation since 1955. A conditional use permit was issued in 1974, allowing a beer garden to be added to the tavern. (Id. at p. 1522.)
The tavern changed hands in 1984 and the new owner spent about $ 1.75 million to refurbish the establishment. Four years later, he knocked out a wall and turned an adjoining commercial space into a game room. Only afterwards, he sought and obtained a temporary conditional use permit for the expansion. (Id. at p. 1523.)
The conditional use permit was renewed more than once. However, in 1990 an application for renewal of the conditional use permit was denied. (Ibid.)
Tenants in a nearby apartment complex and some neighboring business owners had complained about late night noise and trash problems associated with the tavern, and about drunken patrons as well. (Id. at p. 1524.)
The tavern owner sought a writ of administrative mandamus, pursuant to Code of Civil Procedure section 1094.5, to compel the renewal of the conditional use permit. (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1525.)
Code of Civil Procedure section 1094.5 provides that an independent judgment standard of review shall be applied. However, there is an exception to this general rule.
section 1094.5, sets out the procedure for obtaining judicial review of a final administrative determination by writ of mandate.
The trial court, applying an independent judgment standard of review, granted writ relief. (Ibid.)
The Court affirmed. (Id. at p. 1522.)
In addressing whether the tavern owner had a vested fundamental right at stake, we noted, "'the term "vested" in the sense of "fundamental vested rights" to determine the scope of judicial review ... in an administrative mandamus proceeding is not synonymous with ... the "vested rights" doctrine relating to land use and development.' 'When an administrative decision affects a right which has been legitimately acquired or is otherwise vested, and when that right is of a fundamental nature from the standpoint of its economic aspect or its effect ... in human terms and the importance ... to the individual in the life situation, then a full and independent judicial review of that decision is indicated because the abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.' " (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1526.)
Given the facts before us, we concluded that the tavern owner had a fundamental vested right to continue the operation of the business. It was not "a 'purely economic privilege,'" but rather, was "the right to continue operating an established business in which the owner had made a substantial investment." (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1529.)
The Court further explained: "'Where a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled. '" (Id. at p. 1530.)
"By simply denying renewal of its conditional use permit, the city destroyed a business which had operated legally for 35 years. The action implicated a fundamental vested right of the property owner, and the trial court was correct in applying the independent judgment test." (Id. at p. 1531.)
In Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, the Court of Appeal held the independent judgment standard of review applied to Costa Mesa's decision to deny a tavern owner's application for renewal of a conditional use permit. (Goat Hill Tavern, at p. 1527.)
The tavern had been in continuous operation since 1955, before the enactment of a zoning ordinance requiring a conditional use permit for an establishment serving food or beverages within 200 feet of a residential zone.
A conditional use permit was issued in 1974, allowing a beer garden to be added to the tavern. The tavern changed hands in 1984. The new owner spent more than $1.75 million to renovate the tavern and add a game room. He then applied for and was given a six-month conditional use permit for the expansion. The permit was renewed for another three months. The city then denied the owner's application for a third renewal. (Id. at pp. 1522-1524.)
The Court of Appeal held "the rights affected by the city's refusal to renew Goat Hill Tavern's permit are sufficiently vested and important to preclude their extinction by a nonjudicial body." (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1527.)
Acknowledging that "courts have rarely upheld the application of the independent judgment test to land use decisions" (ibid.), the court explained: "Goat Hill Tavern has been in operation for over 35 years as a legal nonconforming use. The owner invested over $1.75 million in its refurbishment, including substantial exterior facade improvements undertaken at the city's behest. He then sought a conditional use permit to allow the addition of a game room, which was granted on a temporary basis. Now, with the expiration of the permit, the city urges he has lost all right to continue in business. We cannot conclude on these unique facts that the owner's right to continued operation of his business is not a fundamental vested right. This is not, as the city so strongly urges, a 'purely economic privilege.' It is the right to continue operating an established business in which he has made a substantial investment." (Id. at p. 1529, fn. omitted.)