Nevada City council gives Kendall House B&B the go-ahead
August 29, 2014
In a special meeting Wednesday night, the Nevada City Council voted 3-2 to allow the Kendall House to begin operating as a bed-and-breakfast again after 10 years on hiatus.
The meeting was set to hear an appeal by Mollie Poe and Declan Hickey, the new owners of the house in the 300 block of Spring Street, after the Nevada City Planning Commission denied them their bid to re-open the facility as a bed and breakfast.
The hearing was scheduled to take place in July, but was postponed due to the absence of City Attorney Hal DeGraw.
As it turned out, DeGraw would have to be absent anyway. Before the hearing began Wednesday, he recused himself, citing a potential conflict of interest.
“Let’s look at voter intent. I voted on Measure G because I didn’t want B&Bs to continue to spread (in residential zones). When we voted, I don’t think we ever thought a B&B would cease to exist. …”
Nevada City council member Evan Phelps
As City Manager Mark Prestwich explained, DeGraw had recently been presented with an inquiry that a city attorney in San Carlos sent to the California Fair Political Practices Commission (FPPC), as to whether the Political Reform Act prohibited him from advising the city council in negotiations to buy a property that was within 500 feet of his home.
The FPPC said yes, a ruling that affected DeGraw, whose property runs up against Kendall House.
"He had not seen anything before that related to city attorneys, just elected officials. So he felt that, out of an abundance of caution and the fact that the cases were similar, he should recuse himself," Prestwich said.
Attorney Robert Shulman took the place of DeGraw, even though the city attorney had already recommended the council uphold the appeal and allow Poe and Hickie to begin operating their property as a B&B again.
"I can guide you. It's a complicated decision, and during deliberations I'll participate. But I don't have a comprehensive statement," Shulman said to the council.
The Friends of Nevada City argued that after a year of inactivity, a B&B in a residential zone would no longer be allowed to operate, citing Measure G.
They also brought forth a deed of trust that had been recorded by the appellants, which was meant to counter the argument made by the owners that they had purchased the Kendall House with the intention of generating a profit from it.
In the deed, Poe and Hickie indicated that the Kendall House property would be used solely as a second home, not as a business.
But the property owners' attorney, Allen S. Haley, argued that B&Bs within the R1 zoning areas are in fact fully conforming and should be permitted.
Tamara S. Galanter, the attorney representing Friends of Nevada City, said the will of the voters should trump any potential loopholes in Measure G.
"For the past 20 years, staff, multiple city attorneys and B&B owners all understood that B&Bs are not allowed in residential districts," Galanter said.
"So it's not enough to just look at the text and say 'It's not in the code.' The intent of the voter was that Measure G prevents B&Bs in residential zones. The intent of voters is paramount."
Nine Nevada City residents voiced their displeasure at the prospect of re-opening the Kendall House while only two residents spoke in support, but that was not enough to sway the council.
"Let's look at voter intent. I voted on Measure G because I didn't want B&Bs to continue to spread (in residential zones). When we voted, I don't think we ever thought a B&B would cease to exist. We just assumed they would always be the way they were," said council member Evans Phelps.
"So, my simplistic way of looking at it is, I stand by what I believe I voted on, which was to stop the spread of B&Bs into the neighborhoods."
Phelps and fellow council member Duane Strawser also questioned why there wasn't more outrage about other businesses operating in what they referred to as "mixed use neighborhoods." In particular, Strawser referenced his own store, Tour of Nevada City Bicycle Shop, as one such business situated in a residential zone.
Council member Robert Bergman sided with Phelps and Strawser.
"It's not a question of the broader look of whether B&Bs should be in town or not. It's whether the appellants should be allowed to re-open (Kendall House) as a B&B," he said. "We should step back and correct an error if it needs to be corrected. Loopholes are loopholes until they are fixed."
Mayor Terri Andersen and Vice Mayor Jennifer Ray provided the two opposing votes. Andersen argued that the re-opening of a B&B 10 years later would have the same impact as a new B&B on a residential area.
Ray disagreed with Haley's analysis, saying Measure G was very clear to her. She also said she found Friends of Nevada City's arguments more persuasive.
Before the 3-2 vote was recorded, Shulman recommended the council allow staff to craft an argument based upon the result, to which the council agreed.
"They decided to make their decision subject to formal adoption of findings of fact and conclusions of law, which would then be prepared by us for the next meeting for them to pass. It's normal in a complicated case for the decision makers to show how they reasoned from point to point to point, to get to their conclusion which they say they feel is correct," he explained.
"(The vote is) not decided with total finality. But they have made a decision that staff has to support, and they are going to show their reasoning from the evidence to the final conclusion so that any reviewing body, like a court, could follow what their logic was."
The vote left Friends of Nevada City "very disappointed that the City Council did not respect the intent of the voters on Measure G," Galanter said in a statement to The Union.
"The text of Measure G clearly prohibits bed and breakfasts in residential districts. The Council's decision flies in the face of the city's 20-year interpretation of this voter initiative and the city's own ordinances. I am concerned the city will be vulnerable in any legal challenge to this decision."
Spencer Kellar is an intern with The Union. Contact him at NCPCInternC@the union.com.