Opinion
C081195
03-10-2017
FRIENDS OF SPRING STREET, Plaintiff and Appellant, v. NEVADA CITY, Defendant and Respondent; MOLLIE POE et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CU15080911)
In this mandamus proceeding, an association (plaintiff Friends of Spring Street) challenged a determination by defendant Nevada City (the city) that real parties in interest Mollie Poe and Declan Hickey 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.
On plaintiff's appeal, we conclude that while the trial court did not err in upholding the 2015 ordinance, the court did err in upholding the city's ruling with respect to the bed and breakfast. Accordingly, we will reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In October 1983, an initiative measure known as the Bed & Breakfast Initiative qualified to be placed on the ballot for the next general municipal election in Nevada City, which was scheduled for June 1984. The stated purpose of the measure was to "permit[] the establishment of Bed and Breakfast Guest Facilities within residential and commercial zones in the City under reasonable conditions." According to promoters of the measure, such facilities were then prohibited outside of commercial zones within the city, and while "[r]epeated efforts ha[d] been made to change the City Ordinances to permit Bed and Breakfasts outside of commercial areas," "[t]he City government ha[d] thus far failed to act."
The Bed & Breakfast Initiative proposed both a general plan amendment and a zoning ordinance amendment. The city's general plan was to be amended by adding the following policy: "It is a policy of Nevada City to permit Bed-and-Breakfast Guest Facilities for overnight accommodations in suitable structures in all residential and commercial zones within the City, where such use will not unduly interfere with the existing character of the neighborhood." The city's zoning ordinance was to be amended by adding five provisions under the heading, "BED AND BREAKFAST GUEST FACILITIES." The first provision defined the term "Bed-and-Breakfast Guest Facilities" to mean "any building used in whole or in part for sleeping and living facilities for not more than (6) guest-units, available to the public for hire on an overnight or limited-term basis." The second provision specified that such facilities "shall be permitted in all residential zones within the City including, but not limited to, R1, R2, RR, and any other residential zones that may hereafter be created, all commercial zones, however designated, and in any other zone which the City Council, by ordinance shall designate, subject to the obtaining of a conditional use permit." The third provision identified four findings that would have to be made to approve or conditionally approve such a permit. The fourth provision specified building standards for "[b]uildings proposed for conversion to Bed-and-Breakfast Guest Facilities." And finally, the fifth provision provided that "[t]he provisions of this Ordinance shall govern over any confliction provisions of City Ordinance" and "[i]f any one provision of this Ordinance is declared invalid, the balance shall remain in full force and effect."
At the election in June 1984, the Bed & Breakfast Initiative passed by a vote of 726 to 356.
In March 1986, the city council adopted a final addendum to the draft text of the city's general plan for 1980-2000. That addendum added the general plan amendment from the Bed & Breakfast Initiative as one in its list of "Public Service/Fiscal" policies.
In 1987, the city council adopted a new zoning ordinance that was, as some point, codified as title 17 of the city's municipal code. (Nevada City Ord. No. 87-2, codified as Nevada City Mun. Code, § 17.04.010 et seq.) Section 6.07 of the zoning ordinance (codified as § 17.72.070 of the municipal code) contained the five provisions from the Bed & Breakfast Initiative that were added to the zoning ordinance by the initiative measure. The 1987 zoning ordinance also referenced "[b]ed and [b]reakfast [i]nns" in the section listing conditional uses permitted in the RR (rural residential) zone (§ 4.02-04, subdivision (f) of the zoning ordinance; § 17.20.040, subdivision (F) of the municipal code). The section of the zoning ordinance identifying conditional uses permitted in the R1 (single family residential) zone (§ 4.03-04 of the zoning ordinance; § 17.24.040 of the municipal code) referred to bed and breakfast facilities only indirectly, by providing that the conditional uses permitted in the R1 zone included those "permitted in the R R-Rural Residential Zone."
Although the parties fail to note it, the section of the 1987 zoning ordinance identifying conditional uses permitted in the R2 (multiple-family residential) zone (§ 4.04-04) used the same sort of indirect reference to identify bed and breakfast inns as one such conditional use. (See Nevada City Mun. Code, § 17.28.040.) Additionally, bed and breakfast inns were expressly referenced in the section of the zoning ordinance listing conditional uses permitted in the AF (agriculture forestry) zone (§ 4.01-04, subd. (o)). (AR 651-652) (See Nevada City Mun. Code, § 17.16.040.)
The 1987 zoning ordinance also contained a provision addressing the "[d]iscontinuance of a [n]on-conforming [u]se" (§ 11.45 of the zoning ordinance; § 17.76.040 of the municipal code). That section provided 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."
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 the R1 zone.
In 1994, a decade after the passage of the Bed & Breakfast Initiative, Nevada City residents passed an initiative measure known as Measure G by a vote of 684 to 642. 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?" In his analysis of Measure G, the city attorney stated that "[i]f [section 17.72.070 of the Nevada City Municipal Code] is repealed, Bed & Breakfast facilities would no longer be allowed in any residential zoning districts in the City of Nevada City. . . . Established Bed & Breakfast Inns could continue to operate, even if the measure passes."
Following the passage of Measure G, the Kendalls continued to operate Kendall House as a bed and breakfast for another eight years, until 2002, when they discontinued that use of the property due to illness, although they continued to renew and pay for a business license for the property. In 2004, the Kendalls sold the property to Jeff and Justine Corbett. Although the Corbetts used the property for a single family residence, they maintained the business license for the property.
In 2013, the Corbetts sold the property to Poe and Hickey, who sought to reinstitute the use of the property as a bed and breakfast. In a February 2014 letter to the city formally stating their intentions, Poe and Hickey asserted they had "strong evidence to support the conclusion that this legal nonconforming use was never abandoned as required for this use to be terminated under the City's Municipal Code."
A public hearing was scheduled before the city's planning commission in April 2014 "to determine whether use c[ould] be recommenced pursuant to the 1991 use permit for the operation of a bed and breakfast (B&B) known as the Kendall House." 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. Stated another way, staff asserted the issue was "whether there was intent to abandon the B&B use such that the property can no longer be used as a bed and breakfast inn."
Following the hearing in April, the matter was continued to the commission's meeting in May. At the May meeting, the commission voted 3-1 to deny the request to recommence operation of a bed and breakfast at the Kendall House property based on the conclusion that "the grandfathered rights to operate a B&B there as a legal nonconforming use have been terminated by discontinuance of the B&B use with intent to abandon that use."
Poe and Hickey appealed the planning commission's decision to the city council. In their appeal, Poe and Hickey 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 R1 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.
The city council heard the appeal in August 2014 and voted 3-2 to grant the appeal. As a result, in October 2014 the city council adopted a resolution in which the council concluded that "Measure G was intended by the voters to limit new bed and breakfast inns in the R-1 zone" and "did not address the manner of continuation or termination of existing bed and breakfast inns." The council further concluded that sections 17.24.040 and 17.20.040 of the municipal code could not "by implication be voided or avoided," and Poe and Hickey were "entitled to rely upon the Municipal Code as it existed" when they submitted their application to reestablish the bed and breakfast at Kendall House.
In January 2015, plaintiff commenced the present action by filing a petition for writ of mandate and complaint for declaratory and injunctive relief in the superior court, seeking to require the city to set aside its decision granting Poe and Hickey's appeal of the planning commission's decision.
Ultimately, plaintiff's claim for injunctive relief related only to an alleged conflict of interest that is not at issue in this appeal. Accordingly, we will not address that aspect of plaintiff's suit further.
A week later, the city council adopted an urgency ordinance that, among other things, amended section 17.76.040 of the municipal code with relation to the discontinuance of bed and breakfast guest facilities. Soon thereafter, plaintiff filed an amended petition and complaint in the superior court, adding a challenge to the urgency ordinance.
In February 2015, the city council adopted a resolution affirming that the urgency ordinance was exempt from review under the California Environmental Quality Act (CEQA). Then, in March 2015, the city council adopted a nonurgency ordinance that superseded the urgency ordinance from January. As relevant here, the nonurgency ordinance amended section 17.76.040 of the municipal code to provide as follows:
"(a) If a nonconforming use is discontinued for a period of one year, then all rights regarding the nonconforming use shall be terminated and the existing zoning district regulations shall apply to any further use of the property.
"(b) Any determination of discontinuance of a use allowed by a conditional use permit, pursuant to (a) above, shall proceed in accordance with section 17.88.020F of this Code, and shall include a review of all relevant evidence."
Subdivision (F) of section 17.88.020 of the city's municipal code provides as follows:
"In any case where the conditions of a conditional use permit have not been or are not being complied with, the commission shall give the permittee notice of intention to revoke such permit at least ten (10) days prior to a commission hearing thereon. After the conclusion of the hearing, the commission may revoke such a permit."
In April 2015, plaintiff filed a second amended petition and complaint in the superior court, adding a challenge to the nonurgency ordinance in place of the previous challenge to the urgency ordinance. Plaintiff alleged that the amendment to section 17.76.040 "require[s] the City to utilize the permit revocation criteria of Code Section 17.88.020(F) before it may determine that a non-conforming use has been discontinued. This amendment violates state law, which requires that zoning be uniform and not permit uses that are not listed in the zoning code, except in situations where a variance has been issued. . . . The amendment also improperly confers vested rights on landowners possessing [conditional use permits] for uses that no longer comply with applicable zoning, thereby elevating the rights of these non-conforming uses to the status of permitted uses under the Code." Plaintiff also alleged that the city violated CEQA by approving the nonurgency ordinance without any environmental review.
The superior court issued its ruling on plaintiff's petition and complaint in January 2016. Regarding Poe and Hickey's appeal, the court concluded "[t]he City Council was correct in its legal analysis. The old B&B was never a legal non-conforming use and . . . it was still subject to its Conditional Use Permit." Regarding the nonurgency ordinance, the court concluded that the reference to section 17.88.020, subdivision (F) in the amendment to section 17.76.040 of the municipal code did not require the city to use the permit revocation criteria in section 17.88.020, subdivision ( F) in determining whether the right to continue a nonconforming use has been lost by discontinuance; rather, the purpose of the reference to section 17.88.020, subdivision (F) in the amendment to section 17.76.040 was "to provide a clear termination process." Based on these conclusions, the court denied plaintiff's writ petition and granted plaintiff's request for declaratory relief, declaring that "the vested rights of . . . landowners [with conditional use permits] require a permit revocation process before such use may be extinguished."
From the resulting judgment, plaintiff timely appealed.
DISCUSSION
I
The City's Decision On Poe And Hickey's Appeal Of The Planning Commission's Ruling
On appeal, plaintiff contends "the City's decision to overturn the Planning Commission and grant [Poe and Hickey's] appeal by treating a B&B operation at 534 Spring Street as a conforming use in a residential district violates Measure G, the initiative passed by the voters in 1994. . . . Following Measure G, pre-existing B&Bs in residential areas became nonconforming; they could continue to operate, subject to the Nevada City code requirements applicable to nonconforming uses. [Citation.] [¶] By instead treating the old B&B operation at 534 Spring Street as a still conforming use under the Code, the City Council abused its discretion by not proceeding in the manner required by law."
In response, Poe and Hickey argue that "Measure G eliminated the measure defining the terms for new B&Bs, but contains no blanket prohibition on existing B&B's. Section 17.24.040, which Measure G left untouched, identifies existing B&Bs already approved as a conforming use. Consequently, a reasonable interpretation is that Measure G prohibited the approval of new B&B's in residential zones but left existing B&B's as permitted uses in such zones subject to their use permit terms."
The city does not offer any separate argument on the interpretation of Measure G but instead merely adopts the arguments of Poe and Hickey.
The parties agree that the issue here is whether the city prejudicially abused its discretion because it failed to proceed in the manner required by law. (See Code Civ. Proc., § 1094.5, subd. (b).) More specifically, the question is whether the city erred in determining that, following the passage of Measure G, the operation of a bed and breakfast on the Kendall House property remained a conforming use, such that Poe and Hickey were entitled to resume that use of the property as a matter of right, without regard to the rules governing nonconforming uses. In answering that question, we engage in de novo review of the city's decision. (See State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 721-722.) For the reasons set forth below, we agree with plaintiff that the city erred.
"A legal nonconforming use is one that existed lawfully before a zoning restriction became effective and that is not in conformity with the ordinance when it continues thereafter." (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 541, fn. 1.) Here, the question of whether bed and breakfasts that existed when Measure G passed became nonconforming uses or remained conforming uses depends on the intent of the voters because "[b]asic to all statutory construction" -- including the construction of an initiative measure at the municipal level -- "is ascertaining and implementing the intent of the adopting body. [Citations.] Absent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language." (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543.)
Here, plaintiff contends "[t]here is no ambiguity that the intent of Measure G was to prohibit B&Bs in residentially zoned areas." We disagree. There certainly is no ambiguity as to whether Measure G prohibited the establishment of new bed and breakfasts in residential zones. Even Poe and Hickey accept that proposition, which follows from the fact that Measure G eliminated both the criteria for approving permits for such facilities (Nevada City Mun. Code, § 17.72.070, subd. (C)) and the building standards for converting an existing building into a bed and breakfast (id., subd. (D)). Nevertheless, there is a potential ambiguity as to Measure G's effect on bed and breakfasts that existed when Measure G passed because the measure left section 17.20.040, subdivision (F) of the city's municipal code untouched. Recall that section 17.20.040, subdivision (F) identified bed and breakfasts as a conditional use permitted in the RR zone, and section 17.24.040 provided that the conditional uses permitted in the RR zone were also permitted in the R1 zone. Thus, the continued existence of section 17.20.040, subdivision (F) provides at least some basis for the argument by Poe and Hickey that existing bed and breakfasts remained conforming uses in the R1 zone following the passage of Measure G, rather than becoming nonconforming uses. We must resolve this potential ambiguity.
In advancing their argument that Measure G "prohibited the approval of new B&B's in residential zones but left existing B&B's as permitted uses in such zones subject to their use permit terms," Poe and Hickey assert that this is so because "Measure G simply repealed certain language from the General Plan and one provision from the Zoning Ordinance which set forth the procedure for approval of new B&B's." But that is clearly not the case. Indeed, Measure G did far more than that. Measure G repealed section 17.72.070 of the municipal code -- the section governing "[b]ed and breakfast guest facilities" -- in its entirety. By doing so, Measure G: (1) eliminated the definition of such facilities (Nevada City Mun. Code, § 17.72.070, subd. (A)), (2) eliminated the criteria for approving permits for such facilities (id., subd. (C)), and (3) eliminated the building standards for converting an existing building into a bed and breakfast (id., subd. (D)). But even more importantly, Measure G eliminated that part of section 17.72.070 -- subdivision (B) -- which specified where such facilities were permitted. Specifically, before the passage of Measure G, subdivision (B) of section 17.72.070 of the city's municipal code provided that "[b]ed-and-breakfast guest facilities shall be permitted in all residential zones within the city including, but not limited to, R1, R2, RR and any other residential zones that may hereinafter be created, all commercial zones, however designated, and in any other zone which the city council, by ordinance shall designate, subject to the obtaining of a conditional use permit." Contrary to the argument by Poe and Hickey, that part of section 17.72.070 did not "set forth the procedure for approval of new B&Bs." Instead, it provided the basic authority for bed and breakfasts to operate within the city's residential zones, including both the RR zone and the R1 zone. By eliminating that authority, Measure G can be understood to have turned existing bed and breakfasts in such zones from conforming uses to nonconforming uses.
That the intent of Measure G was to prohibit the establishment of new bed and breakfasts in residential zones and to turn existing bed and breakfasts in those zones into nonconforming uses also appears from other aspects of the measure and from the city attorney's analysis of the measure. (See Legislature v. Eu (1991) 54 Cal.3d 492, 504 [where the language of an initiative measure is ambiguous, " 'it is appropriate to consider indicia of the voters' intent other than the language of the provision itself,' " including "the analysis and arguments contained in the official ballot pamphlet"].) First, the measure amended the city's general plan to eliminate the "policy of Nevada City to permit Bed-and-Breakfast Guest Facilities for overnight accommodations in suitable structures in all residential and commercial zones within the City . . . ." This amendment suggested far more than the intent to prohibit new bed and breakfasts. Rather, the amendment eliminated entirely the policy of permitting such facilities in residential zones, which was consistent with the repeal of subdivision (B) of section 17.72.070 to eliminate the basic authority for bed and breakfasts to operate within the city's residential zones.
Second, Measure G asked the voters whether " 'Section 17.72.070 of the Nevada City Municipal Code which currently allows Bed & Breakfast guest facilities in residential and non-commercial zones [should] be repealed.' " By framing the question in that manner, the measure focused not on "one provision from the Zoning Ordinance which set forth the procedure for approval of new B&B's," as Poe and Hickey contend, but on that aspect of section 17.72.070 which allowed bed and breakfasts in residential and noncommercial zones in the first place. With the question framed in this manner, it is reasonable to conclude that the voters understood that if the measure passed, bed and breakfasts -- whether existing or future -- would not be allowed in residential zones within the city -- subject, of course, to the provisions of law (including the municipal code) governing nonconforming uses.
Third, the city attorney's analysis of Measure G was thoroughly consistent with this understanding of the measure, as he stated that "[i]f [section 17.72.070 of the Nevada City Municipal Code] is repealed, Bed & Breakfast facilities would no longer be allowed in any residential zoning districts in the City of Nevada City," although "[e]stablished Bed & Breakfast Inns could continue to operate, even if the measure passes." This statement is most reasonably understood as confirming the idea that existing bed and breakfasts in residential zones would continue to operate as nonconforming uses, but no other bed and breakfasts would be allowed in any residential zone because the basic authority allowing the operation of bed and breakfasts in such zones -- section 17.72.070, subdivision (B) -- would be repealed by the measure.
Poe and Hickey contend that construing Measure G as having eliminated the authority for bed and breakfasts to operate in residential zones, such that any existing bed and breakfast in such a zone became a nonconforming use, would be to say that the measure impliedly repealed section 17.20.040, subdivision (F) of the city's municipal code (the provision that continued to list bed and breakfasts as a conditional use in the RR zone), and the requirements for an implied repeal are not met here. We disagree.
"There is a strong presumption against the implied repeal of a statute or constitutional provision by subsequent enactment. [Citations.] 'The presumption against implied repeal is so strong that, "To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together." [Citation.] There must be "no possibility of concurrent operation." ' " (Sanford v. Garamendi (1991) 233 Cal.App.3d 1109, 1122.)
Poe and Hickey contend "[h]ere, it is possible to harmonize Measure G's repeal of Section 17.72.020 without also finding an implied repeal of Section 17.24.040," subdivision (F) because "[t]he repeal of 17.72.070 by Measure G deleted the provisions that provided a framework for granting permits for B&Bs." As we have explained already, however, Measure G did far more than that. Measure G also repealed the basic authority allowing bed and breakfasts to operate within the city's residential zones: subdivision (B) of section 17.72.070.
To the extent Poe and Hickey contend, in the alternative, that Measure G's repeal of section 17.72.020 can be harmonized with the continued existence of subdivision (F) of section 17.24.040 because Measure G can be understood to have " 'wipe[d] the slate clean' " regarding bed and breakfasts, leaving it up to the city council "to approve or disapprove B&Bs without section 17.72.070's guidelines by simply exercising their independent discretion," we again disagree. In making this argument, Poe and Hickey continue to ignore the fact that Measure G expressly repealed subdivision (B) of section 17.72.070, which specified where such facilities were permitted. The electorate's decision to eliminate the basic authority for bed and breakfasts to operate within the city's residential zones cannot be ignored. At the same time, it is not possible to reconcile the repeal of subdivision (B) of section 17.72.070 and the retention of subdivision (F) of section 17.24.040 in a manner that reasonably gives effect to both actions. "[W]here two laws on the same subject, passed at different times, are inconsistent with each other, the later act prevails." (California Correctional Peace Officers Assn. v. Department of Corrections (1999) 72 Cal.App.4th 1331, 1337.) Accordingly, we must conclude that Measure G impliedly repealed subdivision (F) of section 17.24.040 and that bed and breakfasts existing at the passage of the measure became nonconforming uses. The city, and the trial court, erred in concluding otherwise.
II
The 2015 Nonurgency Ordinance
On the subject of the 2015 nonurgency ordinance, plaintiff contends the reference to section 17.88.020, subdivision (F) in the amendment to section 17.76.040 of the municipal code requires the city to use the permit revocation criteria in section 17.88.020, subdivision (F) in determining whether the right to continue a nonconforming use that is subject to a conditional use permit has been lost by discontinuance. Stated another way, plaintiff contends that "for nonconforming land uses holding a previously issued conditional use permit . . . , the City must revoke [the permit] as part of any determination that the nonconforming use had been legally discontinued." According to plaintiff, this is "unlawful because once a land use becomes 'nonconforming' as a result of a zoning change, the prior 'permission' granted for that use -- as embodied in the [conditional use permit] -- is voided and vested rights [are] instead determined by the laws applicable to nonconforming uses."
In response, the city contends plaintiff has "fundamentally mischaracterize[d] the legal effect of" subdivision (B) of section 17.76.040. According to the city, "[t]he manifest purpose [of that subdivision] is where the use is allowed by [a conditional] use permit but, has become non-conforming, to have determinations of discontinuance of use under §17.76.040(a), follow the procedures for revocation of use permits in §17.88.020 F." In other words, the city contends subdivision (B) of section 17.76.040 requires only that the procedural requirements of subdivision (F) of section 17.88.020 -- that is, at least 10 days' notice prior to a hearing on the matter -- be applied to a determination of whether a nonconforming use has been terminated by discontinuance and does not require that the substantive criteria in the latter provision -- that is, a determination that the conditions of the conditional use permit have not been or are not being complied with -- be applied to a determination of termination by discontinuance.
Poe and Hickey do not offer any separate argument on the nonurgency ordinance but instead merely adopt the arguments of the city.
In reply, plaintiff contends the city's argument "is one made in litigation, inconsistent with ordinance language, as well as the position taken by the City in the administrative proceedings below." Plaintiff then proceeds to again argue against the interpretation of subdivision (B) of section 17.76.040 that even plaintiff admits the city is no longer advancing.
This argument need not detain us long. At best, subdivision (B) of section 17.76.040 of the municipal code is ambiguous as to its intended purpose in referencing subdivision (F) of section 17.88.020. Whatever it may have argued before, the city now contends the purpose of the reference was simply to incorporate the procedural requirements of the latter provision -- that is, the requirement that the property owner be given at least 10 days' notice prior to a hearing on the matter. This is certainly a reasonable construction of the provision that "[a]ny determination of discontinuance of a use allowed by a conditional use permit, pursuant to (a) above, shall proceed in accordance with section 17.88.020F of this Code." Under the foregoing language, a "determination of discontinuance" is to be made "pursuant to [subdivision] (a)" of section 17.76.040 -- that is, by determining whether the nonconforming use has been "discontinued for a period of one year." Where, however, the nonconforming use is subject to a conditional use permit, the determination of discontinuance must "proceed in accordance with section 17.88.020F" -- that is, there must be a hearing and the property owner must receive notice of that hearing at least 10 days prior.
"Statutes are to be so construed, if their language permits, as to render them valid . . . ." (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558.) Because the construction advanced by the city would render subdivision (B) of section 17.76.040 valid, while the construction tendered by plaintiff would -- according to plaintiff's own argument -- render it "unlawful," we find the city's construction of the provision to be the correct one.
That leaves us with plaintiff's CEQA argument, which may be resolved in short order. The heart of plaintiff's CEQA argument is that by relying on the "common sense" exemption to CEQA, the city failed to address "the potential impacts of relying solely on permit revocation criteria to regulate discontinued nonconforming uses." As we have explained already, however, the reference in subdivision (B) of section 17.76.040 to subdivision (F) of section 17.88.020 did not import the substantive "permit revocation criteria" of the latter section into the former section; instead, the reference imported only the procedural requirements of a hearing and prior notice. Plaintiff does not explain how making a determination of discontinuance subject to a hearing with prior notice could possibly have an impact on the environment. Thus, the trial court's implicit rejection of plaintiff's CEQA challenge to the nonurgency ordinance was proper.
As the trial court's resolution of plaintiff's claim for declaratory relief related solely to proper construction of the nonurgency ordinance, and we have found no error in the trial court's resolution of that issue, no further proceedings on that claim are necessary. --------
DISPOSITION
The judgment is reversed with respect to plaintiffs' petition for writ of mandate but affirmed with respect to plaintiffs' complaint for declaratory and injunctive relief. On remand, the trial court shall vacate its order denying plaintiffs' petition for writ of mandate and shall enter a new and different order granting plaintiffs' petition to the extent plaintiffs sought a writ of mandate ordering the city to sets aside its decision granting Poe and Hickey's appeal of the planning commission's decision.
The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Robie, J. We concur: /s/_________
Raye, P.J. /s/_________
Hull, J.