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Beames v. City of Visalia

California Court of Appeals, Fifth District

December 19, 2019

Delbert A. BEAMES, Plaintiff and Appellant,
CITY OF VISALIA, Defendant and Respondent.

         [256 Cal.Rptr.3d 845] APPEAL from a judgment of the Superior Court of Tulare County. David C. Mathias, Judge. (Super. Ct. No. VCU-267649)

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         McCormick, Kabot, Jenner & Lew, Nancy A. Jenner, for Plaintiff and Appellant.

         Herr Pedersen & Berglund, Leonard C. Herr, Ron Statler, for Defendant and Respondent.


         SMITH, J.

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          Plaintiff Delbert Beames obtained writ relief after a City of Visalia hearing officer ruled against him in a zoning dispute concerning a commercial property. His motion for attorney’s fees under the Civil Rights Act of 1976 (42 U.S.C. � 1988 (section 1988)) was denied.

          Beames argues that the denial of the fee motion was an abuse of discretion. We agree.

         Beames’s writ petition sought relief on the basis of procedural violations of the city’s municipal code committed by the hearing officer at the hearing. But the petition also made a claim under the Civil Rights Act of 1871 (42 U.S.C. � 1983 (section 1983)), founded on the contention that the hearing officer’s errors denied Beames due process of law under the 14th Amendment. Section 1988 authorizes an award of attorney’s fees to a plaintiff prevailing in a proceeding to enforce section 1983.

         The record is somewhat ambiguous about whether the trial court’s decision to grant relief rested in any part on the section 1983 due process claim. Even if it did not, however, that claim was (a) not insubstantial; and (b) based on the same nucleus of operative facts as the municipal code violation claim.

         Beames also requested an attorney’s fee award under Code of Civil Procedure section 1021.5. This is California’s "private attorney general" fee statute, which authorizes a fee award where the action "resulted in the enforcement of an important right affecting the public interest" and conferred a significant benefit on the public; the need for and burden of private

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enforcement make the award appropriate; and it would not be in the interest of justice for fees to be paid out of a damages recovery. Under the relevant case law these factors mean Beames should have received a fee award under section 1988.

         Beames expressly abandons this claim on appeal, and we do not rule on it. As a result, we have no remark to make on whether the specific requirements of Code of Civil Procedure section 1021.5 are established by the record.

          Long before the City of Visalia (city) began enforcement actions against Beames, it had begun the process of developing and enacting a comprehensive overhaul of its zoning ordinance. The possibility of including provisions in the overhaul to resolve the dispute with Beames, and at the same time solve a more general zoning problem affecting other businesses in the neighborhood, had been discussed among city staff before the hearing, and Beames himself had discussed it with city staff. It was because city staff did not disclose this link with the zoning overhaul to the hearing officer at the administrative hearing, and Beames’s own references to it were disregarded or not understood— combined with the hearing officer’s fundamental misunderstanding [256 Cal.Rptr.3d 846] of his role— that the hearing officer believed erroneously that he had no choice but to uphold the city’s order directing Beames to remove his tenant’s business from his property forthwith, and impose the maximum penalty of $500 per day until this should be done. The hearing officer never heard of the possibility that Beames’s use of the property could soon be legalized by the city’s own action; and in any case, he was ignorant of his discretion to consider that or other information as a basis for continuing the hearing, modifying or vacating the enforcement order, or reducing or omitting the penalties. He thought that if the violation was undisputed, he was required to uphold the order to shut down the business immediately and impose the maximum daily penalty as requested by the city.

          These errors on the part of the city and its hearing officer forced Beames to file his writ petition, and led to the city compounding the negative effects of this unnecessary litigation.

          After the hearing officer ruled against Beames, but before Beames filed his writ petition, the city’s planning staff had placed before the planning commission a recommendation to consider including in the zoning overhaul a provision affecting Beames’s property favorably to him and neighboring businesses similarly situated. After Beames filed his writ petition, but before the hearing on the merits, city staff had placed approval of the overhaul on the city counsel’s agenda, including a provision that would convert the use on Beames’s property into a conforming use. Beames filed a motion to stay the daily penalties that had by then reached $45,000. The legislative process

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moved along, but outside counsel for the city opposed this motion, insisting that the business must be removed from the property immediately or the penalties must continue accumulating. By the time of the merits hearing in the superior court, the city’s counsel acknowledged that final approval of the zoning overhaul, including the provision that would legalize Beames’s land use, was imminent, Beames would no longer be in violation, and the business would not have to be evicted. Further, the city’s counsel admitted in open court that the daily penalties that had been requested by the city, approved by the hearing officer, and defended in litigation, had never been warranted, and promised that the city would waive them all. But in spite of all this, the city never proposed any kind of compromise, pause or stay of the litigation to minimize costs in the case even after its disclosures and admissions at the merits hearing virtually ended its case.

          We reverse and remand for a determination of a reasonable fee.


          Background Facts

          In 2016, the city was in the midst of a lengthy process of revising its zoning and subdivision ordinances. According to a memorandum to the city’s planning commission authored by its principal planner, Paul Bernal, the city adopted a new general plan in October 2014. The city needed to update the zoning and subdivision ordinances comprehensively to conform to the new general plan. In 2015, the city selected a consulting firm, Quad Knopf, to lead the updating process. The consultant, planning commission, and planning staff held a "Kick-Off" meeting on October 12, 2015, and six work session meetings were held from February 8, 2016, to July 25, 2016. Draft ordinances and maps were prepared and public outreach was conducted.

          Beames purchased the property at 920 North Ben Maddox Way in Visalia in 2010. [256 Cal.Rptr.3d 847] The property had a metal building on it that was about 50 years old. It had been used by a towing service from 2003 to 2005. From the time Beames bought the property until 2016, it was leased to a neighboring auto body and paint shop, which used it as a place to which it could tow cars. In January 2016, Beames leased the property to West Coast Towing.

          Beames’s use of the property was similar or related to other uses on the same block. These included a full service auto repair shop, an auto body and paint shop, and a business that performed sandblasting and powder coating services (i.e., stripping metal and refinishing it with powder coat, a type of baked-on finish).

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          The zone in which Beames’s property was located was Shopping Office Commercial (C-SO in the city’s system of coding). It is undisputed that a towing service is not a conforming use in this zone and that the property was in violation of the zoning ordinance. The other businesses just described also were not allowed in the zone; no enforcement action was taken against these, however. Beames believed the action taken against him probably originated with a complaint from a competing towing service.

          Administrative Proceedings Against Beames

          The city received a complaint or complaints about the zoning issue from someone on February 8, 2016. Jesse Villegas, a code enforcement officer, inspected the property, determined there was a violation, and mailed a notice of violation to Beames on February 10, 2016, ordering him to remove the towing business within 30 days.

          On February 29, 2016, Beames went to the public counter at the city’s planning division office and asked to speak to the planner in charge of the comprehensive zoning update. Bernal, the principal planner, came out and spoke with him at the counter. Beames wanted to know if the update might change the zoning on his property and solve his problem. Bernal said he could not predict whether any of the changes made would affect Beames’s property in that way or at all, and encouraged Beames to attend future work session meetings. He also told Beames about a process called site plan review, which Beames could use before applying for a zoning change on his own. Through this process, planning staff could provide guidance and tell Beames whether the planning division would support an application for a zoning change. Bernal also told Beames about the next step, actually applying for a change in the zoning, called the zone text amendment process. Beames told Bernal he would apply for site plan review. Beames asked whether a pause in the enforcement process would be possible for six months while he attempted to organize support for a zoning change among the other property owners in the vicinity, a change of zone for a single parcel not being a lawful option. Bernal did not say such an arrangement was possible. Beames never made any application for a site review or a zoning change.

          On June 8, 2016, Villegas returned to the property and ascertained that the nonconforming use was still present. The city issued an administrative enforcement order to Beames the next day. It stated that the use of the property violated the zoning ordinance and Beames was required to remove that use. It further stated that he then owed $2,929.23, consisting of $2,800 in administrative penalty fees and $129.23 for staff time. The order was to become final unless Beames requested an administrative appeal hearing within 10 days, after which the city would abate the violation [256 Cal.Rptr.3d 848] and charge Beames the cost, impose additional penalties, or both.

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          Beames requested an appeal hearing. The hearing was set for July 27, 2016, and then rescheduled at his request for August 24, 2016.

          In July 2016, Beames had another meeting at the planning division, this time with Bernal and his supervisor, Josh McDonnell. McDonnell told Beames his only options were to remove the nonconforming use or to apply for a site plan review and then for a zoning change. Beames said he could not get the neighboring owners together before the scheduled August hearing. As Beames recalled, McDonnell suggested that Beames seek to have the hearing delayed. McDonnell did not recall making such a suggestion, and Bernal did not remember the question of a delay in enforcement being discussed at all at this meeting.

          The hearing officer at the administrative appeal hearing on August 24, 2016, was Kevin Tromborg. Also in attendance were Beames and four city employees: Villegas, Bernal, McDonnell, and Neighborhood Preservation Manager Tracy Robertshaw. Beames was not represented by counsel. A form filled out by or on behalf of the hearing officer indicated that an assistant city attorney was present, but the transcript does not show that he spoke.

         Villegas recited the facts that he had inspected the property, issued a notice of violation, reinspected it, found the nonconforming use was still present, and issued the administrative enforcement order. Robertshaw asserted that if the enforcement order were upheld, new fines would begin to accrue at $500 per day beginning the day after the hearing. Bernal and McDonnell described the meetings they had with Beames the previous February and July, agreeing that they had never said or suggested Beames could have extra time to comply. Bernal mentioned that Beames had asked whether the comprehensive zoning update would affect his property, but "the [city council] did not authorize the redesignation of his property along the Ben Maddox corridor."[1] In response to a question from Tromborg, McDonnell stated that the only options for Beames were to remove the nonconforming use, obtain a change of zone for the area, or obtain a change in the definition of the existing zone to allow the use.

          Beames said he wanted to delay the hearing for six months. He said he had spoken with Quad Knopf, the consulting firm the city had used for the comprehensive zoning update, and wanted the extra time "so they can come up with a plan." McDonnell averred that if Beames had applied for a

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rezoning as an individual, "that would certainly constitute grounds for [him] potentially continuing this hearing because there would be a discretionary and legislative action that is under consideration by the city," but no application had been received from him.

          Despite the several references made to the zoning overhaul, the consulting firm working on it, and the prior discussions about whether it could help, no one actually explained the nature of the overhaul to the hearing officer. No one described its possible bearing on the future status of Beames’s property, or the city’s intentions regarding the future of the neighborhood; and the hearing officer did not ask. Instead, [256 Cal.Rptr.3d 849] as just mentioned, Bernal simply said in connection with the overhaul that the city council "did not authorize the redesignation" of property in the Ben Maddox corridor— a remark that was literally true but misleading, since the planning division— including Bernal himself— was still working on the update at the time of the hearing and it would not be finally presented to the city council for approval for several more months.

          Tromborg told Beames the matter was "pretty straightforward." Rejecting any kind of delay, Tromborg elicited McDonnell’s assent to the proposition that, other than Beames applying for and obtaining a rezoning on his own, there was not "any other option here, as far as moving forward for him to try to keep his [tenant’s] business." "Those are the two options," McDonnell asserted. "I did not offer a six-month stay," he continued, implying that absent such an offer by him, no lawful course of action was possible but the two just mentioned. Once again, he did not mention the idea that the comprehensive update was still under consideration or that it could potentially regularize the whole collection of nonconforming automotive land uses in the neighborhood and render Beames’s individual case moot.

         The hearing officer and McDonnell thus agreed that, no rezoning having been obtained by the property owner, nothing could be done to prevent a random one among many similar and complementary businesses, chosen by an unknown complainant, from being snuffed out forthwith, and onerous daily penalties heaped on its landlord, because of zoning that would have eliminated multiple businesses in the neighborhood if enforced uniformly.[2]

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          Tromborg went on to explain his view that his "job here as a hearing officer" was limited to "mak[ing] sure that the City of Visalia has followed all of their processes and procedures and all their rules and regulations." He found that "they have followed all of their rules and regulations," suggesting that from this conclusion, a ruling affirming the city’s code enforcement order followed inevitably. He stated, further, that "as hearing officer, I don’t have the authority to— to remove the fees or the fines. The only thing I can do is justify them." He then found, "As far as I can tell today, their fees and their fines and the administrative costs are justified."

          As it happens, the hearing officer’s conception of his function was far removed from the role set out for him in the city’s municipal code, which called for him to examine the matter from several sides and exercise judgment.

          First, there was nothing to prevent him from considering whether a continuance might prove fruitful, and acting in accordance with his considered judgment on that point. Section 1.13.090(D)(3) of the Visalia Municipal Code expressly allows this: "The hearing officer may, upon request of the responsible party against [256 Cal.Rptr.3d 850] whom a penalty is to be imposed, or upon request of the city, grant continuances from time to time for good cause shown, or upon his/her own motion." The municipal code also confers broad discretion on the hearing officer in his or her determination of whether and to what extent to uphold an administrative enforcement order. Visalia Municipal Code section 1.13.100(A) reads as follows:

"Factors in Hearing Officer’s Decision. The hearing officer may affirm the administrative enforcement order imposed by the city, reduce the penalty, amend the abatement order, or find that the imposition of the penalty or abatement order is not warranted or is not in the interest of justice and vacate the order. In making his/her decision regarding the administrative enforcement order, the hearing officer shall consider evidence presented by all witnesses, the seriousness of the violation, the responsible party’s efforts to correct the violation, the injury or damage, if any, suffered by any member of the public, any instances in which the responsible party has been in violation of the same or similar code provisions in the previous three years, and the amount of city staff time which was expended investigating and addressing the violation."

          Was there good cause for a continuance? In light of the long-standing use and its similarity to other uses in the immediate vicinity, would it have been in the interest of justice to reduce or eliminate the penalty, amend the abatement order, or vacate the administrative enforcement order in its entirety? Was it a serious violation to continue using the property as an

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automotive-related business after doing so unimpeded for years in an area full of automotive-related businesses? Were Beames’s efforts to adjust his dispute with the planning department in person worthy of some consideration, although ineffectual? There is no evidence that any member of the public suffered injury or damage, that Beames was a recidivist violator, or that the $129.23 charge for staff time represented a major effort. The hearing officer’s remarks indicate he was unaware that he had any responsibility for considering any of these matters or any authority to act on the basis of them.

         The hearing officer ruled in favor of the city, upholding the enforcement order and approving the imposition of penalties of $2,800[3] plus $500 a day, commencing the next day and continuing until the improper use was removed. He stated that Beames could stop the accrual of fees by submitting an application for "a zone text change or a general plan update or whatever the City’s policy is" the next day. "My ruling is in favor of the City in this [instance] and I find ... the fees issued by Code Enforcement to be justified," he concluded. "Case is closed."

         The decision was memorialized on a city form that had no space for findings of fact, even though Visalia Municipal Code section 1.13.100(B) required the hearing officer to set forth "the findings of fact supporting the determination" in writing. Instead, under the heading "Hearing Officer’s Findings," printed on the form, the hearing officer checked a box labeled, "Guilty of violations," and wrote in citations of the sections of the zoning ordinance Beames was determined to have violated.[4] The order was dated August 24, 2016.

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         [256 Cal.Rptr.3d 851] Beames’s Participation in Public Hearing and City Staff Response

          The planning commission held an initial public hearing about the comprehensive zoning update on October 10, 2016. Beames and three other owners of property on Ben Maddox Way between Houston Avenue and Center Street spoke at the meeting. They proposed that the area be rezoned. The new zone could be Service Commercial (C-S), which would allow those owners’ uses without a conditional use permit. Alternatively, it could be Mixed Use Commercial (C-MU), and the list of uses allowable with a conditional use permit in that zone could be amended to include the owners’ uses. Mixed Use Commercial (without the amendment of the list of conditional uses) was already the new zone the planning staff had been recommending for the neighborhood.

          Staff analyses and recommendations concerning public input such as this were prepared by Bernal and presented at a planning commission meeting on November 14, 2016. In these written remarks, Bernal explained that the existing zone for Ben Maddox Way, Shopping/Office Commercial, had been in place for more than 20 years, but would not be used at all in the comprehensively updated zoning ordinance. Like the Mixed Use Commercial zone, the Shopping/Office Commercial zone did not allow "tow yards, powder coating services, or other similar heavy commercial uses." Consequently, "not allowing them now would be a continuance of existing policy."

          Further, according to Bernal, the Mixed Use Commercial zone would be compatible with a general plan goal that "envisions the Ben Maddox Way corridor as a ‘revitalization’ area ‘with offices, commercial uses, multi-family residential, and mixed use developments.’ " But altering the definition of the Mixed Use Commercial zone to allow uses like Beames’s with a conditional use permit would have the undesirable effect of making those uses allowable with a conditional use permit everywhere that zone is in place. Rezoning the area as Service Commercial was a poor alternative, as it would exclude "uses such as general retail uses, grocery stores, pharmacies, and specialty food stores, and would require that offices over 2,000 square feet obtain a conditional use permit." That would be incompatible with the general plan.

         Bernal’s remarks included mention of the fact that the existing towing business [256 Cal.Rptr.3d 852] on Beames’s property "was opened in violation of existing zoning" and the city was then endeavoring to enforce existing zoning there. But he did not point out that this use was typical in the area despite the zoning, or that the rezoning originally recommended as part of the comprehensive update could leave other similar businesses exposed to extinction. Ordinarily,

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established businesses that would no longer be allowed under a new zone are "grandfathered" by the normal rule that continuing nonconforming uses are lawful after a zoning change. (See Visalia Mun. Code, � 17.40.060[5] ; Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 551-552, 48 Cal.Rptr.2d 778, 907 P.2d 1324.) But the towing business on Beames’s property evidently was not regarded as a continuing nonconforming use from the prior rezoning 20 or more years ago, and the nearby businesses might not have been so regarded either. Bernal’s analysis, and especially his remark about continuing existing policy, thus did not take account of the atypical way in which the neighborhood’s reliance interests would be left unprotected after the proposed rezoning. His readers were left to infer that Beames and his neighbors were not responsible businesspeople attempting to preserve an industry that had been doing business in the neighborhood for years, but scofflaws looking for a loophole.

          Bernal did, however, attribute weight to one argument made by Beames and his neighbors. "They pointed out that there are several existing older buildings along the corridor and if the zoning provided the certainty that these heavy commercial uses would be allowed, then there would be a greater likelihood that investments would be made to upgrade these aging sites." He "acknowledged" this point and agreed that amending the list of conditional uses in the Mixed Use Commercial zone to cover these types of businesses could "help increase the number of possible uses that these buildings could be used for." His ultimate conclusion was: "If the [planning commission] desires to increase the number of possible uses for older buildings on the Ben Maddox Way corridor, then Staff would recommend that ‘Auto Repairs, Major’ be added to the list of uses allowed with a conditional use permit (CUP) in the C-MU zone. This would preserve a possible viable use for the older metal buildings and the CUP could require site upgrades where they are needed."

          Merits Litigation and City Legislative Action

          According to a declaration submitted by Beames and his attorney with his fee motion, Beames was not represented by counsel until after the administrative appeal hearing. He consulted with several local attorneys, none of whom wanted to take the case. Finally, a few days after the November 14, 2016 planning commission meeting discussed above, he was put in touch with his current counsel, who filed his writ petition in the superior court on November 22, 2016.

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          The petition alleged that the city’s actions violated the municipal code, and also violated section 1983 by denying Beames due process of law. The facts alleged in support of these claims were:

• The city chose arbitrarily to take enforcement action against Beames but none of the similarly situated property owners in the immediate vicinity.
[256 Cal.Rptr.3d 853] • The code enforcement officials, the planning division, and the hearing officer proceeded against Beames in spite of his requests for delays and continuances, never taking account of the likelihood that the planning commission and the city council would soon legalize Beames’s use of the property.
• The hearing officer denied Beames’s request for a continuance when there was no reasonable basis for denying it, and without stating any reasons for denying it.
• The hearing officer made no findings of fact.
• The hearing officer ruled against Beames without considering any of the factors specified in ...

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