Reopening Kendall House bed and breakfast reveals confusion in Nevada City
May 1, 2014
Timeline for B&B Regulations, courtesy of Nevada City Attorney Hal DeGraw:
2/1/1984 — Notice of Election issued for General Municipal Election for City including vote on Bed & Breakfast measure.
2/24/1984 — City Attorney’s Analysis of Bed & breakfast Initiative issued.
6/5/1984 — Voter initiative Measure “B” passed at general municipal election amending the City General Plan “…to permit Bed and Breakfast Guest Facilities in all residential and commercial zones within the City provided that the property has scenic or historical characteristics, adequate off-street parking, and it does not unduly interfere with the surrounding residential neighborhood” and amending the City Zoning ordinance to provide B&B regulations.
3/9/1987 — Ordinance 87-2 comprehensively readopting, updating and amending entire Zoning Ordinance, including:
§6.07, codified as Nevada City Municipal Code §17.72.070, adopted pursuant to Measure “B” (using the same voter approved regulations) providing in part that Bed and Breakfast Guest Facilities “…shall be permitted in all residential zones within the city including, but not limited to, R1, R2, RR and any other residential zones that may hereinafter be created, all commercial zones, however designated, and in any other zone which the city council, by ordinance shall designate, subject to obtaining a conditional use permit” and
§11.45, codified as Nevada City Municipal Code §17.76.040, providing “If a nonconforming use is discontinued for a period of one year, then all rights regarding the nonconforming use shall be terminated and the existing zoning district regulations shall apply to any further use of the property.”
1/2/1991 — Special meeting of the Planning Commission to consider Kendall application to convert residence to B&B.
1/7/1991 — Notice from Planning Commission Chair to Juneus and Jan Kendall approving conditional use permit for conversion of existing dwelling unit into a bed and breakfast inn operating 5 guest rooms with findings and conditions/mitigations
11/8/1994 — Voter initiative Measure “G” passed at general election repealing “…Sec. 17.72.070 of the Nevada City Municipal Code, which currently allows Bed & Breakfast guest facilities in residential and non-commercial zones…” and deleting Policy 6 of the Nevada City General Plan under the heading of “Public Service/Fiscal” and other references to establishment of Bed & Breakfast guest facilities.(vote 684 for/ 642 against)
12/12/1994 — Resolution 94-48 adopted declaring results of the November 1994 election results.
3/13/07 — Letter from Jim Anderson, City Attorney, to Terry Roach, Attorney representing new owners of The Downey House hoping to use it as a B&B, opining that, after the voter initiative approved in 1994, existing B&Bs became legal non-conforming uses, reuse of which could be prohibited by abandonment consisting of discontinuance for one year per the Nevada City Municipal Code and an intent to abandon, a determination best made after a judicial type proceeding affording due process to the owner.
4/3/2007 — Letter from Jim Anderson, City Attorney, to the Planning Commission advising that the issue for the Planning Commission is whether there has been an abandonment of the non-conforming B&B use of the Downey House such that the property can no longer be used as a bed and breakfast inn.
4/12/2007 — Planning Commission meeting including evidentiary hearing on validity of bed and breakfast permit for Downey House at 517 West Broad Street. Minutes reflect motion that based on the evidence, the Commission finds there to be no evidence to be believe [sic] there has been an abandonment (carried 4-0).
6/23/2010 — Memorandum opinion from City Attorney Hal DeGraw to City Manager Gene Albaugh issued in view of a number of former B&Bs being for sale on the question of whether another initiative would be required to allow Bed & Breakfast guest facilities due to the repeal of regulations allowing B&Bs by voter initiative Measure “G” in 1994, concluding it would not (and the City Council could adopt new B&B regulations) because the net effect of Measure “B” and Measure “G” was to cancel each other out, returning the status of City B&B regulations to what it was before either initiative.
8/28/2013 — Memorandum opinion from City Attorney Hal DeGraw to City Manager David Brennan issued due to inquiry as to whether current owners of the former Kendall House B&B could represent to a potential buyer that they had preserved the right to resume use of that property as a B&B guest facility in the future, concluding that, absent an administrative hearing definitively adjudicating the issue of whether the grandfathered B&B rights for the Kendall House have terminated, the City Attorney was unable to opine with certainty that the B&B use may be resumed in the future as a matter of law, there being evidence that the use had been discontinued, but mixed evidence either way on the issue of “intent to abandon”
4/19/2014 — Planning Commission staff report issued for “Public Hearing and Evidentiary hearing on request by owners Mollie Poe and Decklan [sic] Hickey that the Planning Commission determine whether use can be recommenced pursuant to the 1991 use permit issued for the operation of a Bed and Breakfast within a residence at 534 Spring Street” noting the issue for the Planning Commission to be “whether there was intent to abandon the B&B use such that the property can no longer be used as a bed and breakfast inn.”
4/17/2014 — Public Hearing to determine whether B&B use for 534 Spring Street can be recommenced pursuant to 1991 use permit issued for the Kendall House.
Nevada City's municipal code includes a zoning ordinance governing which homes can be turned into bed-and-breakfasts, but it did not come up during a recent hearing on reopening the Kendall House.
The ordinance dictates that the proposed property has to have scenic or historical characteristics, but the conversion cannot damage or harm those characteristics. It also has to be found that the day-to-day operations of a bed-and- breakfast at the proposed location will not "unduly" interfere with the surrounding residential neighborhood. The ordinance also includes other factors dealing with parking, zoning, permits and building standards. But none of those were reportedly relevant at the Kendall House hearing.
Kendall House, which operated as a bed-and-breakfast on Spring Street, was granted a use permit in 1991. In 2002, new owners stopped operating it as a business. At one point it was purportedly used as a boarding house, with rooms rented out on a long-term basis. During that time, the owners maintained a business license and paid commercial sewer rates to the city. When purchased by the most recent owners, Molly Poe and Decklan Hickey of San Francisco, they tried to reopen Kendall House.
That led to a debate before the planning commission centered on two-decades-old voter initiatives and a legal opinion dating back to 2007, authored by former City Attorney Jim Anderson.
“There’s no definite line or checklist that if you do this, this and this, you’re assured that it’s going to reopen.”
City Attorney Hal DeGraw
Measure B, which later became Nevada City's zoning ordinance governing bed-and-breakfasts, was passed by a margin of just 42 votes in 1984. Ten years later, in 1994, voters approved Measure G, which repealed the zoning ordinance established by Measure B. The repealed ordinance was still in the 2007 municipal code, however, despite having been negated roughly 20 years ago.
"The net effect of the two initiatives was to cancel each other out, returning the status of city regulations to what it was before either initiative was approved," City Attorney Hal DeGraw wrote in a 2010 memo to former City Manager Gene Albaugh.
As a result, it became possible to open a bed-and-breakfast on commercially zoned property but not in a residential neighborhood. Existing bed-and-breakfasts in residential zoning were found to be a legally nonconforming use, and they were essentially grandfathered in.
This situation left the legal aspects of opening or reopening a bed-and-breakfast in Nevada City in a kind of limbo for roughly 13 years.
In 2007, Anderson determined that if the owners intentionally abandon that nonconforming use, they lose all rights to it. Under those circumstances, reopening could be prohibited.
To get the big picture on opening or reopening a bed-and-breakfast in Nevada City, one would have to consult the municipal code, a supporting document explaining amendments to the municipal code, and several letters written by past and present city attorneys.
Some consider the regulations to be unclear.
To address that issue, DeGraw has compiled a timeline of events affecting bed-and-breakfast regulations in Nevada City, which is available on The Union's website.
As it currently stands, before a new bed-and-breakfast could open in residential zoning within Nevada City, the city council would need to adopt regulations allowing that to happen. Existing establishments, however, are another matter.
That was the heart of the issue when the bid to reopen Kendall House went before the Nevada City Planning Commission April 17. Kendall House had not operated as a bed-and-breakfast for 10 years or more, and opponents argued that during those years, the rights to a nonconforming use at that location had been terminated. But Kendall House does have the permit required to operate a bed-and-breakfast. The property came with a business license, moreover, and previous owners had maintained a commercial sewer connection.
"Whether or not there are municipal code sections that require other things to be done, one would need a class in B&B operation in Nevada City to know that those even exist," said attorney Peter Lemmon, representing the most recent owners of Kendall House.
Even the planning commissioners, who continued the matter to their May meeting, were unable to make a determination without asking DeGraw and other city staffers to further look into the issue.
"We want more information," said Pamela Meeks, a member of the commission.
The planning commission will revisit the Kendall House matter May 15. Meanwhile, however, The Union contacted DeGraw for an explanation of what factors would determine whether or not a one-time bed-and-breakfast can reopen in Nevada City. But details are somewhat hazy.
"There's no definite line or checklist that if you do this, this and this, you're assured that it's going to reopen," DeGraw added. "But there are a number of different indicia of whether or not there's an intent to abandon."
Those include maintaining a business license and paying commercial sewer rates, as well as leaving the bed-and-breakfast's sign up so the business remains recognizable. However, none of those issues are mentioned in the zoning ordinance governing bed-and-breakfasts. And even if they were, it was repealed 20 years ago.
Owners and management at some of the other bed-and-breakfasts say Nevada City needs more rooms.
Andy Howard, who owns the Emma Nevada House on East Broad Street, tried to reopen the Sargent House, also on Broad Street, several years ago. The move was blocked in a contentious controversial municipal process.
"I was the treasurer of the town at the time, so people who wanted to make political hay could say it was an inside job," Howard said.
"So it goes with the politics of Nevada City," he added. "It's a good ol' boy town and that's how it operates."
Howard has since left the community. He still owns the Emma Nevada House, but he also operates another establishment on the coast.
Howard said he is concerned that the rules governing bed-and-breakfasts in Nevada City may not be getting applied fairly, but he hopes the latest owners of Kendall House have more luck with their endeavor than he did.
"I hope they can reopen by whatever means necessary," Howard said.
"The town needs it."
To contact staff writer Dave Brooksher, send emails to firstname.lastname@example.org or call 530-477-4230.