Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. CV136570
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
On July 9, 2008, the California Supreme Court transferred this matter to this court with directions to vacate our decision filed on February 7, 2007, and to reconsider the cause in light of Santa Cruz County Ordinance No. 4921, which amends sections 13.10, 13.20 and 16.50 of the Santa Cruz County Code.
In our prior decision (Travis v. County of Santa Cruz (Feb. 7, 2007, H029771) [nonpub. opn.]), we determined that the rental and income restrictions imposed by Santa Cruz County’s Second Unit Ordinance (Santa Cruz County Code, former § 13.10.681, subds. (c), (d)) were lawful conditions that could be imposed on a permit allowing the construction of a second dwelling unit on property otherwise designated in the County’s zoning and general plan for one single-family residence. We also determined that the condition limiting occupancy based on the age of the prospective tenant violated the Unruh Act (Civ. Code, §§ 51.2, 51.3) and Government Code section 65008 and was therefore unlawful. For those reasons, we reversed the trial court’s denial of appellant Steven Travis’s petition for a writ of mandate and remanded the matter with directions that the trial court grant the writ of mandate with respect only to the condition imposed by Santa Cruz County’s Second Unit Ordinance that limited occupancy of a second unit based on the age of the prospective tenants.
Hereafter, all references to the County Code are to the Santa Cruz County Code.
Following the direction of the California Supreme Court, we hereby vacate our prior decision. Having reconsidered the matter, for the reasons stated below we will vacate the judgment and remand the matter to the trial court for (1) reconsideration of Travis’s petition for a writ of mandate in light of Santa Cruz County Ordinance No. 4921, which amends the Second Unit Ordinance (Santa Cruz County Code, section 13.10.681); and (2) consideration of Travis’s claim for attorney fees.
II. FACTUAL AND PROCEDURAL BACKGROUND
Travis owns property in an unincorporated area of Santa Cruz County (County), consisting of one parcel that is 5.6 acres in size, zoned for single family residential use. It is designated by the County’s general plan as “mountain-residential” property, with a maximum density of one dwelling per ten acres. On February 16, 1999, Travis applied to the County for a permit to convert a single family dwelling that was under construction into a 1200 square-foot second dwelling unit, and for the construction of a new primary dwelling on the property. The County issued a development permit signed April 30, 1999, approving the conversion of the 1200 square-foot dwelling under construction into a second unit, and imposing certain conditions on its use, pursuant to Santa Cruz County Code, former section 13.10.681, known as the Second Unit Ordinance.
A. The Second Unit Ordinance
At the time Travis’s permit was issued, the Second Unit Ordinance provided that one second unit could be constructed on any parcel in a residential zone if various requirements were met, including lot size, location, design, setbacks, parking, and available utilities. (County Code, former § 13.10.681, subds. (c), (d).) Travis’s proposed second unit met these requirements. The Second Unit Ordinance also provided for occupancy and rent restrictions, which were set forth in subdivision (e) of former County Code section 13.10.681.
Former County Code section 13.10.681, subdivision (e), read in part: “Occupancy Standards. The following occupancy standards shall be applied to every second unit and shall be conditions for any approval under this section: [¶] (1) Occupancy Restrictions. The maximum occupancy of a second unit may not exceed that allowed by the State Uniform Housing Code, or other applicable state law, based on the unit size and number of bedrooms in the unit. Rental or permanent occupancy of the second unit shall be restricted for the life of the unit to either: [¶] (A) Households that meet the Income and Asset Guidelines established by the Board of Supervisors resolution for lower income households; or [¶] (B) Senior households, where one household member is sixty-two (62) years of age or older, that meet the Income and Asset Guidelines requirements established by Board resolution for moderate or lower income households; or [¶] (C) Persons sharing residency with the property owner and who are related by blood, marriage, or operation of law, or have evidence of a stable family relationship with the property owner. [¶] . . . [¶] (4) Rent Levels. If rent is charged, the rent level for the second unit, or for the main unit, if the property owner resides in the second unit, shall not exceed that established by the Section 8 Program of the Department of Housing and Urban Development (HUD) or its successor, or the rent level allowed for affordable rental units pursuant to Chapter 17.10 of the County Code, whichever is higher.”
B. The Writ Proceedings
Travis refused to accept the development permit conditioned upon the restrictions imposed pursuant to the Second Unit Ordinance then in effect. On May 14, 1999, he filed an administrative appeal challenging the occupancy and rent conditions, which was denied by the Deputy Zoning Administrator of the County Planning Department on June 21, 1999.
On September 9, 1999, Travis and copetitioners Stanley and Sonya Sokolow filed a petition for a writ of mandate. They sought removal of the conditions imposed on their development permits pursuant to the Second Unit Ordinance and further sought to compel the County to repeal or amend the Second Unit Ordinance, to cease imposing the rental and occupancy conditions, to compensate second unit owners for lost rents or fines assessed, and to record a document expunging all deed restrictions imposed under the Second Unit Ordinance. They asserted claims that the rent restrictions were preempted by California’s Costa-Hawkins Act (Civ. Code, §§ 1954.50-1954.535), that the occupancy restrictions unlawfully discriminated on the basis of age or income in violation of the Unruh Act (Civ. Code, § 51.2) and Government Code section 65008, and that the deed restrictions constituted a regulatory taking in violation of the Fifth Amendment to the United States Constitution.
The trial court denied the petition, finding that all of plaintiffs’ “facial” challenges to the Second Unit Ordinance, including their preemption claims, were barred by the 90-day statute of limitations in Government Code section 65009. The court further found that Travis’s claim that the occupancy and rent restrictions constituted a regulatory taking of his property was timely but not meritorious. As to the Sokolows, the court found that their petition was untimely as to all of their claims because they had not acted within 90 days of the final decision on their permit. Travis and the Sokolows appealed.
C. Our First Opinion
In our first opinion in this case, a divided panel affirmed the trial court’s order. (Travis v. County of Santa Cruz (July 25, 2002, H021541) [nonpub. opn.].) The majority found that all of plaintiffs’ claims were “facial” challenges to the County’s Second Unit Ordinance, that the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1)(B) applied, and that all of plaintiffs’ preemption claims were time-barred. Plaintiffs petitioned for review.
D. The Supreme Court’s Opinion
The Supreme Court granted review and filed its opinion on July 29, 2004. (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757.) The high court found that plaintiffs’ claims encompassed both “facial” and “as-applied” challenges to the Second Unit Ordinance. As to the parties’ facial claims that various state statutes preempted the Second Unit Ordinance and gave rise to a duty on the part of the County to repeal or amend the Second Unit Ordinance, or to cease enforcing it in the future, the court found that all of these claims seeking to nullify the Second Unit Ordinance itself were time-barred. (Id. at pp. 772-774.)
Insofar as the action sought to remove or invalidate the conditions imposed by the Second Unit Ordinance on the plaintiffs’ development permits, the court found that the 90-day statute of limitations contained in Government Code section 65009, subdivision (c)(1)(E) applied, and ran from the date the permit issued. Applying this statute, the court found that Travis’s claims were timely but the Sokolows’ claims were not. Travis was therefore entitled to proceed with those claims challenging the application of the Second Unit Ordinance to his permit, and in the context of that action he could raise issues regarding the validity of the Second Unit Ordinance. (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 769.)
This statute applies to actions “to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.” (Gov. Code, § 65009, subd. (c)(1)(E).)
Because this court in its initial opinion had affirmed the trial court’s judgment solely on the basis of the statute of limitations, without addressing the trial court’s determination that Travis’s regulatory taking claim was without merit, the Supreme Court remanded the matter to this court to decide that issue.
E. Our Second Opinion
In our second opinion (Travis v. County of Santa Cruz (Dec. 6, 2004, H021541) [nonpub. opn.], we addressed the regulatory taking claim and found that the conditions imposed by the Second Unit Ordinance on Travis’s development permit did not constitute a taking of his property. We then remanded the matter to the trial court, with the following directions.
“As to plaintiff Travis only, his as-applied challenge to County’s imposition of conditions on his second unit permit was timely. On remand, Travis is entitled to have this challenge heard in the trial court on its merits. Travis’s attack on the ordinance itself is barred by the three-year statute of limitations contained in Code of Civil Procedure section 338, subdivision (a). All of the claims of plaintiffs Stanley and Sonya Sokolow are barred by applicable statutes of limitations. The trial court’s determination that the application of County’s second unit conditions to Travis’s property did not constitute an unconstitutional taking of property is affirmed.” (Travis v. County of Santa Cruz, supra, H021541.)
F. Proceedings on the Writ Petition On Remand
On remand, the trial court received new written argument from the parties and after a hearing issued a written decision on November 17, 2005. The court found that the rent and occupancy conditions imposed on Travis’s development permit for a second unit did not violate the Costa-Hawkins Act, the Unruh Act, or Government Code section 65008. In addition to the claims previously at issue, Travis articulated a new claim contending that the conditions imposed on his development permit violated his constitutional right to privacy. The court addressed and rejected this claim on the merits, after noting that it did not appear from the record that Travis had previously raised this claim, either at the administrative proceeding or in the initial writ petition. Travis appealed the trial court’s denial of his petition for a writ of mandate.
G. Our Third Opinion
In our third opinion (Travis v. County of Santa Cruz (Feb. 7, 2007, H029771) [nonpub. opn.]), we concluded that the rental and income restrictions imposed by the County’s Second Unit Ordinance were lawful conditions that could be imposed on a permit allowing the construction of a second dwelling unit on property otherwise designated in the County’s zoning and general plan for one single-family residence.
However, we also concluded that the condition limiting occupancy based on the age of the prospective tenant violated the Unruh Act (Civ. Code, §§ 51.2, 51.3) and Government Code section 65008 and was therefore unlawful. We reversed the trial court’s denial of Travis’s petition for a writ of mandate and remanded the matter with directions that the trial court grant the writ of mandate with respect only to the condition imposed by the County’s Second Unit Ordinance that limited occupancy of a second unit based on the age of the prospective tenants. We did not reach the merits of Travis’s constitutional right to privacy claim.
H. The Supreme Court’s Transfer Order
Travis petitioned for review of our third opinion, Travis v. County of Santa Cruz, supra, H029771. The California Supreme Court granted review on May 16, 2007. (S150695.)
The County moved to dismiss review on the grounds of mootness on May 28, 2008. In its motion, the County advised the court that the County’s Board of Supervisors had adopted Ordinance No. 4921, which amended the County’s Second Unit Ordinance by deleting all of the second unit rent and occupancy restrictions that Travis had challenged in his petition for a writ of mandate. The County also argued that retention of the case for a decision on the merits was not warranted because the case did not present an issue of broad public interest that was likely to recur, since other jurisdictions were unlikely to adopt similar provisions in their second unit ordinances. The County also requested judicial notice of Ordinance No. 4921 and the March 29, 2008 staff report of the County’s planning director.
Travis opposed dismissal, contending that the case was not moot because the amendments to the Second Unit Ordinance were not retroactive and therefore the amendments did not apply to his second unit permit; there was a strong possibility that the issues would recur because the County could reinsert the illegal restrictions in the Second Unit Ordinance; and the case presented issues of broad public interest that were likely to recur due to the enactment of similar second unit ordinances in other California cities.
On July 9, 2008, the California Supreme Court issued its order granting the County’s May 28, 2008 motion to dismiss review and request for judicial notice. The order also transferred the matter to this court “with directions to vacate its decision and reconsider the cause in light of Santa Cruz County ordinance number 4921, which amends sections 13.10, 13.20 and 16.50 of the Santa Cruz County Code.”
III. DISCUSSION
A. Mootness
After receiving the California Supreme Court’s July 9, 2008 transfer order, we requested and received supplemental briefing on the threshold issue of mootness. Our request for supplemental briefing posed two questions: (1) In light of Santa Cruz County Ordinance No. 4921, which amends sections 13.10, 13.20, and 16.50 of the Santa Cruz County Code, is the appeal moot? and (2) If the appeal is moot, should it be dismissed without a decision on the merits?
The parties agree that Santa Cruz County Ordinance No. 4921, adopted April 15, 2008, deleted the specific occupancy and rent restrictions imposed by the Second Unit Ordinance (County Code, former § 13.10.681) that Travis had challenged in this case. The County argues in its supplemental brief that the appeal is therefore moot. The County also argues that the moot appeal should be dismissed without a decision on the merits because it does not present an issue of broad public interest that is likely to recur and yet tends to evade review. Alternatively, the County asserts that even if a similar issue regarding a second unit ordinance were to arise in another jurisdiction, review would be appropriate in that jurisdiction.
As to the status of Travis’s permit, the County asserts that even though Ordinance No. 4921 was not made expressly retroactive, Travis may benefit from its application. According to the County, “any person can obtain an amendment of their previously issued permit to conform to the current ordinance and thereby officially eliminate the previously imposed rent and occupancy restrictions. Any such application for an amendment will be processed and approved ministerially.” Additionally, the County notes that the County planning department has ceased enforcement of the rent and occupancy restrictions imposed by the former Second Unit Ordinance, as stated in the declaration of the County Planning Director, because the restrictions “were not being effective for their intended purpose while imposing a significant burden on property owners and on county staff to administer . . . .”
In his supplemental brief, Travis contends that the appeal is not moot because the amendments to the Second Unit Ordinance are not retroactive and therefore the amended Second Unit Ordinance does not apply to his previously issued second unit permit. As a result, Travis believes that he will lack a remedy absent a “further decision” by this court. Travis asks this court to (1) remand the matter to the trial court with directions to reverse its decision and to issue a writ of mandate directing the County to strike the rent and occupancy restrictions contained in his permit and to reissue the permit; (2) declare him the prevailing party and award him attorney fees and costs on appeal; and (3) award him attorney fees pursuant to Code of Civil Procedure section 1021.5 on the ground that he was the catalyst in bringing about the changes to the Second Unit Ordinance.
To determine whether the appeal is moot, we apply well established rules. The duty of the court “ ‘ “is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot effect the matter in the case before it.” ’ [Citation.]” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Accordingly, “ ‘[w]hen no effective relief can be granted, an appeal is moot and will be dismissed.’ [Citations.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 213. An amendment that repeals or modifies the ordinance challenged on appeal may render a pending appeal moot. (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 393; Callie v. Board of Supervisors (1969) 1 Cal.App.3d 13, 18; Jordan v. County of Los Angeles (1968) 267 Cal.App.2d 794, 799.)
In the present case, Ordinance No. 4921 modified the Second Unit Ordinance by deleting the rent and occupancy provisions that Travis had challenged in his petition for a writ of mandate and on appeal. We nevertheless determine that his appeal is not moot because we may grant Travis effective relief by vacating the judgment denying his petition for a writ of mandate and directing the trial court to reconsider the matter. We believe that it is appropriate for the trial court to determine in the first instance whether the relief sought in Travis’s petition for a writ of mandate should be granted in light of Ordinance No. 4921 and its amendments to the Second Unit Ordinance.
B. Attorney Fees
We similarly believe that the trial court should determine in the first instance whether Travis is entitled to the attorney fees he has requested.
Travis seeks an award of attorney fees pursuant to Code of Civil Procedure section 1021.5, including an award of attorney fees on appeal. “Section 1021.5 is a codification of the private attorney general doctrine adopted by this court in [Serrano v. Priest (1977) 20 Cal.3d 25]. [Citation.] The award of attorney fees is proper under section 1021.5 if ‘(1) plaintiffs’ action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons” and (3) “the necessity and financial burden of private enforcement are such as to make the award appropriate.” ’ [Citation.]” (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317-318, fn. omitted.) “ ‘Thus, an award of attorney fees may be appropriate where “plaintiff’s lawsuit was a catalyst motivating defendants to provide the primary relief sought . . . .” [Citation.]’ ” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 567; Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.)
An award of attorney fees under Code of Civil Procedure section 1021.5 may require findings of fact. (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 154.) Consequently, in many cases “the trial court will be better equipped to decide whether fees should be awarded under section 1021.5. It is therefore proper for a reviewing court to defer to the trial court in making that determination.” (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 426.) Regarding attorney fees on appeal, this court has stated a similar rule: “Although we have the power to appraise and fix attorney fees on appeal, we deem it the better practice to remand the cause to the trial court to determine the appropriate amount of such fees. [Citation.]” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1610.)
In the present case, we will defer to the trial court with respect to the initial determination of whether Travis is entitled to an award of attorney fees under Code of Civil Procedure section 1021.5 (including any entitlement to attorney fees on appeal) and, if so, the appropriate amount of attorney fees to be awarded.
IV. DISPOSITION
The judgment denying the petition for writ of mandate is vacated. The trial court is directed to reconsider the matter in light of Ordinance No. 4921, which amends sections 13.10, 13.20 and 16.50 of the Santa Cruz County Code. On appropriate motion, the trial court may consider a request for attorney fees pursuant to Code of Civil Procedure section 1021.5, including a request for attorney fees on appeal. Costs on appeal are awarded to appellant.
WE CONCUR: MIHARA, J., MCADAMS, J.
Former subdivisions (e)(5), (e)(6) and (e)(7) of the Second Unit Ordinance required the property owner to obtain a certificate of eligibility from the County prior to the second unit being occupied, that the property owner make periodic status reports to the County, and that a declaration of the restrictions be recorded against the title to the property, which would be binding on all successors in interest. (County Code, former § 13.10.681, subds. (e)(5), (6), (7).)