Goat Hill Tavern v. City of Costa Mesa

• Decision Date: 29 May 1992
• Docket Number: No. G011143,G011143
• Citation: 8 Cal.Rptr.2d 385,6 Cal.App.4th 1519
• Court: California Court of Appeals Court of Appeals
• Parties: GOAT HILL TAVERN, Plaintiff and Respondent, v. The CITY OF COSTA MESA, Defendant and Appellant.

Page 385

8 Cal.Rptr.2d 385

6 Cal.App.4th 1519

GOAT HILL TAVERN, Plaintiff and Respondent, v. The CITY OF COSTA MESA, Defendant and Appellant.

No. G011143.

Court of Appeal, Fourth District, Division 3, California.

May 29, 1992.

Review Denied Aug. 13, 1992.

[6 Cal.App.4th 1522] Thomas Kathe, City Atty., Costa Mesa, Adams, Duque & Hazeltine, Richard R. Terzian and Cristina L. Sierra, Los Angeles, for respondent and appellant.

Harper & Burns and Alan R. Burns, Orange, for petitioner and respondent.

OPINION

WALLIN, Associate Justice.

Robert Ziemer, owner of the Goat Hill Tavern, was granted a writ of administrative mandamus (Code Civ.Proc., § 1094.5) ordering the City Council of the City of Costa Mesa to set aside its denial of Ziemer's application for renewal of a conditional use permit for the tavern, to recognize that the tavern had a vested right to continue operation, and to renew the conditional use permit. The city appeals, contending the trial court erred in finding the tavern had any vested rights to continue in business which resulted in the trial court erroneously applying the independent judgment standard of review, rather than the substantial evidence test. We affirm.

* * * * * *

Goat Hill Tavern ¹ is located on Newport Boulevard, a busy arterial street, at a point which will eventually be the terminus of a freeway. The property is zoned commercial and the commercial nature of the area is expected to intensify in the future. An apartment building, in a residential zone, abuts the property behind its parking lot. The Helm bar is next door.

The city's zoning ordinance requires a conditional use permit for any establishment serving food or beverages within 200 feet of a residential zone. However, Goat Hill Tavern, under different ownership and name, has been in continuous operation in its present location since 1955, before enactment of the current zoning ordinance. The tavern, therefore, existed as a legal nonconforming use. In 1974 a conditional use permit was issued allowing the tavern to add a beer garden.

Ziemer purchased Goat Hill Tavern in 1984 and invested approximately $1.75 million in its refurbishment. In 1988 he knocked out a wall into an adjoining commercial space, turning it into a game room. He did not obtain building permits or land use approvals. After the fact he applied for a conditional use permit for the expansion. Conditional Use Permit No. 88-132 was approved by the planning commission on September 26, 1988. ² One of the conditions was that approval of the expansion was for a period of six months only. Prior to expiration Goat Hill Tavern could request renewal of the permit.

In September 1989, following citizen complaints of noise from Goat Hill Tavern's parking lot, the city's planning staff discovered the conditional use permit had expired. A request for renewal was made and approved in December for three months.

In March 1990 the city renewed the permit for another three months but added a condition limiting the tavern's hours. Goat Hill Tavern filed suit and the court stayed enforcement of the hours restriction. The action was dismissed when the three-month period expired.

The city held a public hearing on Goat Hill Tavern's request for a third renewal of the conditional use permit on July 16, 1990. The staff report, accompanied by over 100 pages of documents, was not given to the tavern's attorney until the Friday evening before the Monday hearing. Goat Hill Tavern requested a continuance to adequately respond to the lengthy report. The city council refused unless the tavern agreed to limit its hours of operation in the interim. Ziemer refused; the hearing was held and the conditional use permit was denied.

In Goat Hill Tavern's ensuing second administrative mandamus proceeding, the court concluded the city's refusal to continue the July 16 hearing violated Ziemer's due process rights. The city was ordered to hold a new hearing on the renewal of the permit. It was held in December 1990 and the tavern's application was again denied.

The following facts regarding Goat Hill Tavern were adduced at the hearing. Tenants of the apartment building abutting the tavern's parking lot and some business owners began complaining about the tavern in the summer of 1989. The complaints largely related to late night noise in the parking lot and trash. In response, conditions were imposed on earlier extensions of the tavern's conditional use permit which required additional security guards, decreased noise levels and increased clean-up. The owner of the apartment building testified that on three occasions after July 1990, people were milling about the tavern parking lot at about 2 a.m., honking horns and yelling. At least one of his tenants had moved because of the noise and others were threatening to leave. Several apartment tenants wrote letters complaining of noise and fights in the parking lot, and of individuals vomiting, urinating and defecating on residents' lawns and fences.

Several nearby business owners made similar complaints, stating Goat Hill Tavern was no longer a neighborhood tavern but had become a popular nightclub. The staff report summarized 19 reported police incidents occurring at the tavern between August 1990 and November 1990. They included incidents in the parking lot, complaints the tavern exceeded its capacity and that its patrons were drunk in public.

Goat Hill Tavern submitted a petition signed by 1035 persons, including 248 Costa Mesa residents, supporting its permit renewal application. Declarations from its janitorial company indicated the tavern had expanded its area of clean-up beyond its own parking lot. Numerous letters from Costa Mesa residents, area businesses, and civic and charitable groups supporting the tavern's application were also presented.

Goat Hill Tavern presented evidence suggesting an explanation for the complaints was the large number of homeless and transient persons who frequented the area. A nearby city-owned parking lot was known as a congregating area for homeless people. Additionally, the Helm bar, adjoining the tavern, could be the cause of the complaints. Ziemer was not allowed to cross-examine complaining witnesses as to why they believed Goat Hill Tavern, and not the other possible sources, was responsible for their complaints. Although at the beginning of the hearing the mayor asked each witness to provide such an explanation, no witness did so, and no follow-up questions were asked.

The tavern submitted police reports of incidents at all similar establishments within the area for the previous 90 days. 19 incidents were reported at Goat Hill Tavern. But of the 18 bars and coffee shops in the vicinity, 10 had a greater number of reported incidents for the same period and only 5 had less than 15 incidents.

Goat Hill Tavern also submitted the declaration of a paralegal who had reviewed the city's conditional use permit file. She found 79 conditional use permits issued between 1974 and 1990 with term limitations which had expired and were not renewed. Many of the businesses were still in operation.

I

Goat Hill Tavern sought a writ of administrative mandamus (Code Civ.Proc., § 1094.5) compelling the city to renew its conditional use permit. The trial court, applying the independent judgment test, concluded the city's decision to deny renewal of the permit was not supported by the evidence and granted the writ. The court specifically concluded that Ziemer had a vested property right and, to terminate the use, the city must establish Goat Hill Tavern was a public nuisance or demonstrate a compelling public necessity. The city appeals, contending the trial court applied an incorrect standard of review. It argues that Ziemer had no fundamental vested right in Goat Hill Tavern and, therefore, the trial court was limited to a determination of whether substantial evidence supported the city's decision.

The grant or denial of a conditional use permit is an administrative or quasi-judicial act. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517, 113 Cal.Rptr. 836, 522 P.2d 12; Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188, 198, 259 Cal.Rptr. 231.) Judicial review must be in accordance with Code of Civil Procedure section 1094.5.

If an administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29. See Code Civ.Proc., § 1094.5, subd. (c).) On appeal, we consider only whether the trial court's finding is supported by substantial evidence. (Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 251, 220 Cal.Rptr. 2, criticized on other grounds in Surfside Colony, Ltd. v. California Coastal Com. (1991) 226 Cal.App.3d 1260, 1269-1272, 277 Cal.Rptr. 371.) If the decision does not substantially affect a fundamental vested right, the trial court considers only whether the findings are supported by substantial evidence in the light of the whole record. (Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d at p. 32, 112 Cal.Rptr. 805, 520 P.2d 29.)

The threshold issue on appeal is whether Ziemer had any vested fundamental right to continue operation of the tavern. ³ Preliminarily, we note "[t]he 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." (Whaler's Village Club v. California Coastal Com., supra, 173 Cal.App.3d at p. 252, 220 Cal.Rptr. 2.) "When an administrative decision affects a right which has been legitimately acquired or is otherwise vested, and when...