Johnston vs. Hermosa Beach – STR’s are not a residential use, and no Constitutional Vested Right for Prior Illegal use

In the trial court, plaintiffs conceded their short-term rental businesses were nonconforming uses in a residential zone, and they sought to balance the harm between their economic interests and the City’s exercise of its police power. We apply the abuse of discretion standard to this aspect of the trial court’s ruling.

 

Johnston v. Hermosa Beach

 

Is STR a Residential Use within the meaning of areas zoned residential?

 

The City of Hermosa Beach (the City) enacted an ordinance expressly prohibiting short term vacation rentals (STVR’s) in areas zoned for residential housing. Because some residential areas are located

in the “coastal zone,” plaintiffs contend the California Coastal Act of 1976[1] (Coastal Act) preempts the ordinance.

The Ordinance adds seven different sections to the Hermosa Beach Municipal Code (HBMC), each using the language reproduced above. The STVR prohibition accordingly applies in all residential zones, which include single family, two-family, multiple family, mobilehome and residential/professional dwellings.

 

  1. “Dwelling” is defined as “a building or portion of a building designed for residential purposes, including one-family, two-family and multiple dwellings, but shall not include hotels, boarding and lodging houses.”

 

  1. “Family” means “two or more persons living together in a dwelling unit, sharing common cooking facilities, and possessing the character of a relatively permanent single bona fide housekeeping unit in a domestic bond of social, economic and psychological commitment to each other, as distinguished from a group occupying a boarding house, club, dormitory, fraternity, hotel, lodging house, motel, rehabilitation center, rest home or sorority.”

 

Before enactment of the Ordinance, STVR’s were not expressly permitted in areas zoned as residential. Residential zoning is the most restrictive, and uses not expressly permitted are prohibited.

Plaintiffs argued the ordinance was unconstitutional because it (1) violated the Coastal Act;(2) banned commercial speech (i.e., advertising residences for STVR use); and (3) deprived them of a vested right to use their properties for nonconforming commercial purposes in a residential zone and generate income.

The trial court engaged in a two-part analysis and denied the request for a preliminary injunction. It issued an amended written order on October 17, 2016. The trial court first determined plaintiffs did not establish a probability of prevailing on the merits of any of their theories, specifically finding:

  1. Plaintiffs had no constitutionally protected vested rights because the pre-Ordinance use of their properties as STVR’s was not legal or permitted.

 

Plaintiffs’ reliance on sections 30213 (“lower cost visitor and recreational facilities”) and 30222 (“use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation”) is unavailing. Those provisions set forth standards by which the adequacy of an LCP is determined. As noted, by the time of the hearing on the request for a preliminary injunction, the City had not prepared a proposed LCP. There is no authority applying these provisions to zoning ordinances enacted pursuant to a city’s police powers.

As discussed earlier in this opinion, plaintiffs also argue various “actions of the Coastal Commission make clear that the ban on STVR’s within the Coastal Zone is an unconstitutional violation of the Coastal Act.” They rely primarily on documents—a number of which were Coastal Commission staff reports—this court has declined to judicially notice. Moreover, the Coastal Commission did not seek leave to intervene in the trial court, nor did it seek to submit an amicus brief in this court.