The revocation of a conditional use permit involves a fundamental vested right even if the landowner has not made a major financial investment in reliance of it, the Second District Court of Appeal. However, the Second District declined to remand the particular case back to the Superior Court, saying that there was no possibility of a reversal even though the trial judge had used the wrong standard of review. The case arose when the Los Angeles County Regional Planning Commission revoked the CUP held by Malibu Mountains Racquet Club to operate a tennis ranch on a seven-acre property in e Santa Monica Mountains. The county ruled in 1986 that the CUP had lapsed, claiming the property owner had not used the property as a tennis ranch for more than two years. MMR filed a new application in 1990, but in 1991 the county repealed its decision that the CUP had lapsed, thus reactivating it. Later that year, however, neighbors complained about MMR's use of the property. In 1992, the county planning commission revoked the CUP and the Board of Supervisors later upheld the revocation. Among other things, the county concluded that the tennis courts were in disrepair and the tennis ranch was used only incidentally to MMR's other business interests — principally magazine publishing. Subsequently, MMR sued filing a petition for administrative mandamus and a claim for compensation based on an inverse condemnation argument. L.A. County Superior Court Judge Lorna Parnell ruled in favor of the county, concluding that MMR had made no investment in reliance of the CUP between 1986 and 1991, and that the "general recreational uses" used by MMR after 1986 were not contemplated in the original CUP, as argued by the property owner. She concluded that there was substantial evidence to support revocation of the CUP due to non-use. On appeal, MMR argued that Judge Parnell had used the wrong standard of review and therefore the case should be remanded. The Second District, Division 2, ruled that Judge Parnell had indeed used the wrong standard of review but declined to remand the case to the trial court. Judge Parnell used the "substantial evidence" test, while MMR argued on appeal that she should have used the more rigorous "independent judgment" test, in which the court asserts its own independent judgment rather than simply concluding whether substantial evidence exists. The independent judgment is required if a fundamental vested right is at stake. The leading case in this area is Goat Hill Tavern v. City of Costa Mesa, 6 Cal.App.4th 1519 (1992), in which the appellate court ruled that the case of issuing a series of short-term CUPs to a long-standing tavern in Costa Mesa involved a fundamental vested right and therefore the independent judgment test should be used. (Although the city had placed the tavern on short-term CUPs, in fact it had been operating continuously for almost 40 years). However, the court went on to say: "In the present case, there is no question that the CUP was granted. The question is whether the permittee acted in reliance on it." MMR argued that it had spent almost $500,000 in reliance on the CUP but Judge Parnell wrote that "the record does not support that conclusion. Although money was spent to improve the property after 1990,l there is no evidence that the expenditures were in support of a tennis ranch." Significantly, the appellate court concluded that "the amount of monetary damage is only one factor in analysis." Because a CUP is "a property right that runs with the land," Judge Parnell erred in looking only at the question of financial investment by MMR. "It is clear from the record that the prior owner of the property acted in reliance on the CUP for at least some period of time, as the property was indeed used for a tennis ranch after the CUP was granted and support facilities were built," the court wrote. "The CUP was in force at the time MMR bought the property. MMR was not required to obtain a new CUP. Thus, MMR acceded the same rights as held by the previous owner. Phrased another way, it is obvious that had the property never been sold and had the County revoked the CUP, judicial review would have been governed by the independent judgment test. Since the CUP runs with the land, MMR obtained the same status as the prior owner." Thus, the court concluded that a fundamental vested right was in force and Judge Parnell should have used the independent judgment test. Having reached that conclusion, however, the court, declined to remand. "Reversal would be mandated when the record showed that the trial court did not examine and weigh the losing party's evidence or exercise its independent judgment as to the credibility of the witnesses and the overall weight of the evidence," the court wrote. However, "the key portions of the trial court's statement of decision shows that the court did indeed consider all evidence in making the threshold findings that supported the ultimate decision." The court added: "In sum, after a review of all evidence, the trial court made the critical findings that the CUP was granted for use as a tennis ranch; MMR presented no evidence that it ever used the property as a tennis ranch; the current uses of the property had nothing to do with having a tennis ranch as the centerpiece of activity; and the expenditure of funds on the property by MMR had nothing to do with a tennis ranch. "A judgment will only be reversed if the error at the trial court level resulted in a miscarriage of justice to the extend that a different result would have been probable without the error. Our examination of the record does not show that a miscarriage of justice occurred here or that remand would result in a more favorable result to MMR." The Case: Malibu Mountains Recreation Inc. v. County of Los Angeles, No. B118524, 98 Daily Journal D.A.R. XXXX, filed October 20, 1998. The Lawyers: For Malibu Mountains: Gerald M. Sato, (xxx) xxx-xxxx. For Los Angeles County: Peter J. Gutierrez, Deputy County Counsel, (213) xxx-xxxx.