Real Property Law

Cal. Real. Prop. Journal 2017, R.P. VOL. 35, NO. 3/4 and Fall 2017, P.L. Vol. 40, No. 4

Goat Hill Tavern: A Retrospective

Donna Mooney

Donna Mooney has practiced municipal law for more than 15 years, first with the City of Alameda and currently the City of Vallejo. She served on the State Bar Public Law Section Executive Committee from 2010 to 2013. Her municipal law practice has included advising staff and city officials on planning and land use matters, affordable housing, military base reuse, and zoning enforcement. After earning a law degree, she was an associate with Donahue, Gallagher, Woods & Wood, and a research attorney with Alameda County Superior Court civil law and motion.

Twenty-five years ago, the Fourth District Court of Appeal decided Goat Hill Tavern v. City of Costa Mesa, declaring a bar owner the victor in his fight with the city.1 The tavern had been operated for several decades as a legal nonconforming use (i.e., originally legal but not an allowed use under subsequent land use regulations) when the city granted the owner a conditional use permit ("CUP") to add a beer garden. A new owner bought the tavern and spent more than a million dollars on refurbishment, including the addition of a game room for which he later obtained a six-month CUP subject to request for renewal. The city issued several short-term renewals while deadlocked with the owner about the need to reduce noise, trash, and crime at the site. The city then denied a renewal, stating that the owner had lost the right to operate the business.

The tavern owner filed a writ petition with the court under Code of Civil Procedure Section 1094.5, which the trial court granted, concluding based on independent judgment that the city’s decision was not supported by the evidence. The appellate court affirmed, saying, "By simply denying renewal of its conditional use permit, the city destroyed a business which has been operating legally for 35 years."2 The appellate court rejected the city’s assertion the tavern owner had no fundamental vested right that warranted independent judgment as the standard of review.3 The court considered the right at stake "of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power," while noting that courts "have rarely upheld the application of the independent judgment test to land use decisions."4 This was one of those rare occasions.

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