Tuesday, January 29, 2019
Court of Appeal:
Opinion Says Action May Not Be Predicated on County Policy Absent Board of Supervisors’ Action
By a MetNews Staff Writer
A couple was unjustified in accepting, at face value, pronouncements by county staff members, including the planning director, that permits for a particular use of their real property were unavailable, the Sixth District Court of Appeal has said, holding that higher-level determinations should have been sought before challeging the purported policy through noncompliance.
The decision on Friday, in an unpublished opinion, comes in a case arising from the battle between retired neurosurgeon William R. Lewis Sr. and his wife, Duncan Lewis, with the County of Monterey over use of their property on the scenic 17 Mile Drive in Pebble Beach. The appeal is from a Monterey Superior Court judgment denying a challenge to a $25,000 fine based on the Lewises’ short-term rentals, without a permit, of a large house abutting their $6 million residence.
Prominent among uses of the rented house were the staging of weddings.
Monterey’s policy, as imparted to the couple by county personnel involved in issuing or denying permits, was that only inland landowners could obtain short-term rental permits. At the administrative hearing at which the fine was imposed, the planning director testified that when he became a county employee in 1999, he was “taught that short‑term rentals were not allowed in the coastal zone as part of my training,” and that he he had “never observed a deviation from that position.”
Presiding Justice Mary J. Greenwood wrote the opinion affirming a Monterey Superior Court judgment upholding the fine because it was undisputed that the Lewises did lack the required permit.
Greenwood said the challenge to the county’s purported policy cannot be addressed, explaining:
“Had plaintiffs applied for and been denied a permit, appealed that denial to the Board of Supervisors, and received an adverse decision by the Board, plaintiffs could have challenged that ban in court. Alternatively, under the county code plaintiffs could have requested a formal interpretation of the code and challenged that interpretation had the Board of Supervisors concluded that plaintiffs’ uses were banned per se in the coastal zone. Plaintiffs failed to avail themselves of either administrative remedy, meaning there is no final administrative decision by the Board of Supervisors in the record for us to review.
“We acknowledge that county staff—including even the planning director—made repeated statements throughout the years suggesting that short term rentals are not allowed at all in the coastal zone. But because those statements are not a final administrative decision by the county and plaintiffs never obtained one, their arguments about the county’s alleged ban are unripe.”
Equal Protection Challenge
Greenwood did address the Lewises’ equal protection challenge, predicated upon their perception that inland property owners are able to obtain permits for short-term rentals, while those in the Coastal Zone cannot. She said:
“Plaintiffs’ equal protection argument is fatally flawed because they failed to apply for a permit. Plaintiffs received the same treatment that similarly situated inland landowners would have received who had not applied for a permit. Thus plaintiffs are similarly situated with inland landowners who operate short term rentals without a permit. Just as in the coastal zone, operating a short term rental in inland areas without a permit is not allowed. As such, an inland landowner would be subject to a functionally identical administrative fine as the one imposed against plaintiffs. Because plaintiffs were not treated differently than similarly situated inland landowners, there was no equal protection violation.”
The jurist specified that the opinion does not cut off remedies available to the Lewises prospectively to establish the legality of establishing the legality of short-term leases of their property.
“This opinion merely confirms the straightforward principle that when a land use law requires a permit to use property in a certain manner, a local governmental body may properly impose a penalty against a landowner who does not obtain (or even apply for) the required permit,” Greenwood noted.
The case is Lewis v. County of Monterey, H044252.
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