Victory in Land Use, Zoning Ordinance and Nuisance Case

July 1, 2003

Ian Fusselman of the San Diego office prevailed in two related suits involving a writ of mandamus and a request for injunctive relief. A group of residents filed the actions against the County of San Diego, a local theater group and our client, a non-profit foundation responsible for maintaining an outdoor nature theater located near Plaintiffs' homes.

Plaintiffs claimed that annual theater productions at the theater violated County sound and zoning ordinances and that the noise and traffic from the productions represented a nuisance and depreciated property values.

During a two-day hearing on the writ action and the motion for preliminary injunction, Plaintiffs presented testimony from sound experts to support the notion that the performances violated County noise ordinances.

Mt. Helix Nature theater established that it had been in continuous use for outdoor productions prior to the enactment of the zoning ordinances and therefore qualified as a legal, nonconforming use, which eliminated plaintiff's zoning violation claims. The defense was also able to discredit Plaintiff's sound experts and established that the County of San Diego's sound testing was accurate, and therefore prevailed on the noise ordinance violations claims.

With respect to Plaintiffs' nuisance claims and request for preliminary injunction, Plaintiffs did not have standing to proceed The defense argued that Plaintiffs had not met their burden in establishing a reasonable likelihood of success in the case on the merits, an immediate threat of irreparable harm, or the balance of hardships in their favor.

The Court denied Plaintiffs' writ and the motion for preliminary injunction. Plaintiffs then dismissed the entire action for a waiver of costs.