Posted by: Patricia Salkin | January 13, 2011

CA Appeals Court Finds No Nonconforming Use or Vested Right to Rock Crushing Business

Defendant down-zoned a portion of plaintiff’s property to an industrial zone, which meant plaintiff’s rock crushing and recycling business was not permitted. The City issued an order to comply and plaintiff submitted an application for a zoning variance to permit them to continue to use the property as they had done before.  The application was denied after a public hearing and correspondence between plaintiff and others in the community.  In rejecting the application, the zoning administrator stated that the continued use of the facility on the property would be detrimental to the environment and the use was not consistent with the authorized land uses set forth in the Redevelopment Plan.

Plaintiff appealed and argued that it relied on statements made by City officials that if plaintiff filed a request for a variance, it would be granted. The Planning Commission disagreed with plaintiff and upheld the decision to deny the application.  Plaintiff appealed and also filed an appeal with respect to the order to comply. The appeal concerning the order to comply was dismissed because the arguments and issues were previously raised in the zone variance denial.  Plaintiff then pursued a third avenue to dispute the changed zone for its property, filing an application for a determination that it had a vested right to continue its use of the property.  This argument was also denied. 

On appeal, the Court found that plaintiff did not show that the existing zoning would not accommodate its operations and as such, plaintiff did not demonstrate substantial hardship.  Additionally, evidence in the record indicated that the variance would adversely affect portions of the general plan.  Furthermore, plaintiff did not have a certificate of occupancy, which was required for plaintiff to demonstrate it had permission to use the land as a legal nonconforming use.  Without a certificate of occupancy, the Court upheld the trial court’s finding that plaintiff’s use was not a legal nonconforming use.  The Court also agreed with the lower courts on the dismissal of appeal of order to comply and the vested rights determination. 

Shamrock Base Corp. v. City of Los Angeles, 2010 WL 5175455 (Cal.App. 2d District 12/22/2010)

The opinion can be accessed here

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