Goat Hill Tavern: a Retrospective
| Publication year | 2017 |
| Author | Donna Mooney |
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.
In the quarter-century since, Goat Hill Tavern has been referenced on numerous occasions, mainly in two related debates: 1) whether the underdog's true champion wears a black robe, and 2) whether we can trust mere technocrats to go where the evidence takes them.
Goat Hill Tavern did not invent independent judgment as a standard of review available to courts examining challenges to administrative decisions, but the case did contribute to the debate on when court involvement should begin and end. In 1971, the California Supreme Court noted that the purpose of independent judgment is to act as a check against the creation of a "huge administrative bureaucracy" that is delegated power to deal with modern complexities but threatens individual rights, or in other words, to guard against "untoward intrusions by the massive apparatus of government."5 "Restricted to the narrow ground of review of the evidence and denied the power of an independent analysis, the court might well be unable to save the unpopular professional or practitioner. Before his license is revoked, such an individual, who walks in the shadow of the governmental monoliths, deserves the protection of a full and independent judicial hearing."6 Scary stuff.
In several instances after Goat Hill Tavern, the courts again found circumstances warranting independent review in a land use context. Malibu Mountains Recreation, Inc. v. County of Los Angeles ("Malibu Mountains") involved the revocation of a CUP for a tennis ranch nearly 20 years after it was issued and after the property changed hands, on the grounds that the use had ceased and the owner violated the conditions. The appellate court held that if the CUP had been revoked from the original owner, independent judgment would have been warranted, and since a CUP runs with the land, the subsequent owner had the same rights.7
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Later, in 2008, the appellate court found justification for applying independent judgment in a land use decision, and in doing so, Goat Hill Tavern helped a Huntington Beach oil well owner win his fight with the state. In The Termo Co. v. Luther, a state administrator ordered several idle wells plugged.8 The wells had not been operating for more than a half-dozen years, and the co-owners could not agree what to do with them. The order was challenged by writ. The trial court applied the substantial evidence standard of review. But the appellate court noted that, like the city's action in Goat Hill Tavern, the administrator's order to plug the wells would effectively shut down a business that had been operating for at least 20 years.9 The court found a fundamental vested right and remanded with an order that the trial court exercise independent judgment. Quoting from the Supreme Court, the appellate court hailed independent judgment by the...
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