NEVADA CITY, Calif. March 21, 2017 – The California Third District Court of Appeals recently ruled in the case, Friends of Spring Street v. Nevada City, Mollie Poe et al. In its ruling the court made clear that Measure G, passed by voters in 1994 had the effect of making legally approved bed and breakfast establishments in residential areas nonconforming uses, thus reversing the City Council’s and the trial court’s decisions which said the B&B never became nonconforming and could, therefore, reopen at will.
The Court also upheld the City’s new ordinance requiring the procedure used to revoke conditional use permits be used to determine discontinuance of a nonconforming use while making clear that revocation of the conditional use permit was not a requirement for termination of a nonconforming use.
In its opinion the Court stated: “At best, subdivision (B) of section 17.76.040 of the municipal code [the code section which was the subject of litigation] is ambiguous as to its intended purpose in referencing subdivision (F) of section 17.88.020 [the code section regulating revocation of conditional use permits]. 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.”
As a result of the Court’s opinion, the Planning Commission’s decision that the use of 534 Spring Street as a B&B was terminated due to discontinuance of the use for over one year was upheld. The B&B will not be able to re-operate. Likewise, other B&B’s in residential districts of the City legally approved between 1984 and 1994 became nonconforming uses with the passage of Measure G and are now subject to the laws regulating nonconforming uses.
To terminate a nonconforming use, the City’s new ordinance requires a determination of discontinuance be made after a hearing and ten day notice.