Freeman v. City of Beverly Hills

Opinion

JOHNSON, J.

Plaintiffs Israel Freeman and Dean M. Williams appeal from the judgment entered following the trial court’s granting the City of Beverly Hills’ motion for summary judgment. We affirm.

Factual and Procedural History

In May 1986, plaintiff Freeman became owner and operator of Dolores’ Restaurant in the City of Beverly Hills (City). In June 1987, plaintiff Williams entered into partnership with Freeman.

On June 25, 1987, the City issued building permit No. 87003039 to plaintiffs for modification of the interior and exterior of their restaurant, to conduct a “drive-in” business and to construct a restroom accessible to handicapped patrons. Plaintiffs began renovations immediately. During plaintiffs’ ongoing construction, the City issued and delivered to plaintiffs a stop work order dated July 7, 1987. On July 8, 1987, the City suspended

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plaintiffs’ building permit on the ground it had been erroneously issued in violation of the City’s Municipal Code section 10-3.3007, which required approval from the architectural commission before issuance of permits.

On July 21, 1987, two weeks after suspending plaintiffs’ permit, the City adopted an emergency Interim Ordinance No. 87-0-1997, regulating and establishing a conditional use permit (CUP) procedure for drive-in facilities in the City. This ordinance was extended by a second Interim Ordinance No. 87-0-2002 on September 1, 1987.

After suspension of their permit, plaintiffs submitted plans for their construction modifications to the architectural commission. These were approved September 10, 1987, subject to four conditions, one of which prohibited drive-in use. Plaintiffs did not seek judicial review of the determination. They complied with the architectural commission’s conditions and opened their restaurant on January 1988.

On July 5, 1988, a third Interim Ordinance No. 88-0-2033 extended the drive-in CUP requirement.

On April 24, 1989, plaintiffs Freeman and Williams filed a complaint against the City requesting: 1) declaratory relief because the City’s CUP was adopted and extended in violation of its own ordinances, and because plaintiffs had acquired a vested right to operate a drive-in facility prior to adoption of the Interim Ordinance; 2) money damages in the amount of $1,175,000 for the City’s adoption of the ordinance and the suspension of the initial permit; and 3) money damages in the same amount for inverse condemnation. On July 6, 1989, 72 days after plaintiffs filed their complaint, the City adopted Permanent Ordinance No. 89-0-2063, which amended Beverly Hills Municipal Code, title 10, chapter 3, article 24, section 10-3.1612 to permanently add the provision of the interim ordinances regulating and establishing a CUP procedure for construction and operation of drive-in facilities (the permanent ordinance).