Opinion
G052900 G053696
11-27-2017
MIKE CZAJKOWSKI, as Trustee, etc., Plaintiff and Appellant, v. CITY OF LAGUNA BEACH et al., Defendants and Respondents.
Kassouni Law and Timothy V. Kassouni for Plaintiff and Appellant. Rutan & Tucker, Philip D. Kohn and Travis H. Van Ligten for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00689779) OPINION Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed. Kassouni Law and Timothy V. Kassouni for Plaintiff and Appellant. Rutan & Tucker, Philip D. Kohn and Travis H. Van Ligten for Defendants and Respondents.
* * *
Plaintiff Mike Czajkowski filed a petition for writ of mandate in the superior court after defendants City of Laguna Beach (City) and Laguna Beach City Council (Council; collectively defendants) denied his application for a permit to build a residence. The trial court affirmed the decision. Plaintiff claims this was error for several reasons.
First, he contends the decision was improperly based solely on unfounded objections by neighbors, which objections cannot be the basis of a denial. Second, he argues there is no evidence supporting defendants' findings. Third, he asserts the municipal ordinances on which defendants rely are unconstitutionally vague. Finally, he maintains the denial of his application violated equal protection.
We reject these arguments and affirm.
FACTS AND PROCEDURAL HISTORY
In 1998 plaintiff purchased a lot at 2058 Crestview Drive, Laguna Beach (Property). It encompasses approximately 6,450 square feet, is 40 feet wide at the front, not quite 62 feet wide at the rear, and about 133 feet deep. It is trapezoid shaped and steeply slopes down from rear to front; it also slopes down the side. There are five adjacent lots, four of which were developed and one of which was being developed.
Under the Laguna Beach Municipal Code (LBMC) any proposed new building is subject to design review before a permit will be issued. (LBMC § 25.05.040(B)(1); all further undesignated code references are to the LBMC.) The purposes of design review are to ensure the development meets standards and guidelines, provides "an orderly and harmonious appearance," "considers public and private views," and complies with specific plan policies. (§ 25.05.040(A)(1), (3), (5), (7) & (8).)
Defendants have "maximum flexibility and discretion in the decision making process" in applying development standards. (§ 25.05.040(H).) The specified development standards "represent the maximum allowable building envelope for a given property. The actual development allowed will typically be less than the maximum . . . because of localized conditions identified during the design review process. A proposed development that has no variances from the Zoning Code does not have any presumptive development right or 'entitlement.'" (Ibid.)
There are 16 Design Review Criteria (Design Criteria), which include "design articulation" to minimize the appearance of building and retaining wall mass; "neighborhood compatibility" so the development is compatible with existing buildings vis-à-vis height, size, scale, and mass and preserves neighborhood character; "privacy," requiring decks, entertainment rooms, and picture windows to be placed to minimize invasion of neighbors' privacy; and "view equity" to protect neighbors' existing views while at the same time allowing property a "reasonable opportunity" to be developed. (§ 25.05.040(H)(2), (9), (11) & (16); capitalization omitted.)
The Property lies within the Diamond/Crestview Specific Plan (Specific Plan) area, which has its own design guidelines (Guidelines), which also need to be satisfied. The Guidelines set out design concepts and goals, including architecture, siting, materials and colors, landscaping, parking, lighting, and the like. Specifically, the Guidelines' Design Policy includes consideration of the "size, scale and mass of the structure in proportion to the lot area and configuration"; the "privacy of adjoining properties"; and "[r]espect for architectural character and massing with adjoining properties." (Guidelines, Design Policy.)
As to siting, the Guidelines provide neighbors' views of the coast and canyons should be "maximized while respecting rights of" those wishing to develop their property. (Guidelines, Building Siting, No. 3.) Additionally, structures are to "be spaced and oriented" so as to give a feeling of "openness and randomness." (Id., No. 4.) Further, siting is to consider "the size and configuration of the lot so as to avoid the appearance of overbuilding . . . and overcrowding" and "to maintain privacy between adjacent properties." (Id., Nos. 5 & 6.)
In 2005 plaintiff submitted an application to build a 3,000 square-foot two-story home with an elevator. In 2006 he submitted application for a 2,940 square-foot home with various modifications. Defendants' Design Review Board (Board) reviewed both proposals but did not approve them for a variety of reasons, including that the house was sited too close to the rear property line.
He submitted his first application in 2004.
In early 2012 plaintiff submitted another application with a revised proposal for an "Asian-influenced Contemporary style" 2,994 square-foot home. According to the staff report it was sited 10.5 feet from the rear of the Property and 42.1 feet from the front. There was a 42-foot long driveway sloping uphill that led to the garage. There were five stair runs from the garage up to the front door of the five-split-level main building. Staff noted the structure would have an appearance of mass because it was sited so close to the rear of the Property and had elevated decks.
At least three surrounding neighbors (Parkers, Masons, and Matt Lawson) sent letters to the Board opposing the proposal on several grounds. All objected, as they had before, to the siting of the house at the rearmost part of the Property, noting it gave an appearance of improper massing, blocked views, and interfered with their privacy. They all also objected to the height of the building, and noted it violated several Guidelines.
The Parkers pointed out the building's main entry and an elevated deck were "directly adjacent" to their master bedroom. Moving the building down the hill would correct the problem. The Masons agreed with staff there was an appearance of massing as viewed from below due to the high siting. Matt Lawson sent a four-page letter expressing several objections and citing to numerous violations of the Guidelines.
At the hearing these neighbors and more voiced the same objections. Mr. Urban, explained the kitchen was right under his master bedroom. He also noted that from street level to the top of the house measured 70 feet high.
The Board disapproved the design noting several violations of Guidelines and Design Criteria. The members were fairly consistent in stating it was improperly sited, needed to be moved downhill, interfered with neighbors' privacy, and had grading problems. They explained the house had to be redesigned and suggested plaintiff hire an architect familiar with the area.
Following that advice, in July 2012 plaintiff submitted another revised application with a structure (Structure) designed by a local architect. The staff report noted some differences but concluded the design "had not changed much." Square footage had been reduced by 300 feet, the deck area reduced by 65 square feet, three skylights had been removed, and the façade materials and colors had changed. Although the rear setback had been increased by 2.33 feet, the Structure was still sited in the same place. The appearance of massing remained.
Neighbors again wrote opposing the proposal. Their concerns were substantially the same, primarily, siting near the top of the property line, interference with privacy, and massing. An elevated deck was still adjacent to the Parkers' master bedroom. Although the rear setback was increased by 2.33 feet, the height was increased by two feet.
These concerns were reiterated at the Board hearing. Further, the Structure's entrance was immediately adjacent to and within 15 feet of the Parkers' master bedroom. The kitchen/entertainment area was under the Urbans' master bedroom.
Plaintiff's lawyer objected to any discussion of siting. He claimed no views were blocked and there were no privacy problems. Side yard setbacks exceeded minimums. He claimed the neighbors had "'empty lot syndrome'" and did not want the house built at all. When a Board member inquired why the Structure had not been moved downhill, the attorney answered plaintiff did not want to move it. Counsel also commented that doing so would increase grading and decreased usable living space. The architect opined the Structure was similar to those adjacent as to scale, mass, and siting.
All the Board members believed siting remained a problem. One member had walked below the Urbans' master bedroom windows and felt she could "touch the corner of the thirteen-foot high kitchen [in the Structure] with windows all around it." She observed the siting affected all neighboring houses. She acknowledged the Structure could not be moved to the front of the lot, but she pointed out moving the Structure 15 feet down the hill would open up the site. In continuing the hearing, the Board explained it would be "looking for drastic changes."
To obtain approval plaintiff is required to grant an easement to defendants over a portion of the front of the Property for public parking space that extended on to the Property.
By the time of the next hearing, plaintiff had redesigned the Structure, moving the house downhill four additional feet and the garage by almost six feet. An elevator was added back as well as screens at the upper deck and entry levels to buffer noise. Several neighbors again spoke in opposition.
Mr. Parker stated that although some changes had been made, the Structure was still sited "unnecessarily close" to his home with the entry too near his backyard and master bedroom. The elevator added to the height issue. Mrs. Mason explained moving the house only another 4.8 feet downhill was not sufficient. Also, the Structure was still massive, five stories or 70 feet above the street, especially with the addition of the elevator and chimney.
The Board members acknowledged and thanked plaintiff for the changes, but explained they were not enough. Siting and the amount of "program" were still problems as was neighborhood compatibility. They recognized the Parkers' privacy concerns. Although trees help screen, they do not solve the noise emanating from the elevator and people going in and out of the entry. The problem with the grading, as well as noise, mass, scale, privacy and compatibility were all caused by the siting. The Board made clear the Structure did not have to be moved all the way downhill, but it was still sited too close to the rear lot line. Suggestions were given as to changes that could resolve the problems.
The Guidelines define "program" as the total "living, deck, mechanical and garage areas."
The Board unanimously denied approval. It was unable to make the necessary findings required by the Design Criteria "for articulation, mass, and scale, environmental context, landscaping, neighborhood compatibility or privacy." Additionally, they could not make findings for [1, 2 and 6] of Guidelines or finding 1 for the Coastal Development Permit.
Plaintiff filed an appeal with Council. He complained he was discriminated against because he was the last to build in the neighborhood and the Board gave preference to existing residences.
Ten neighbors, including some who had not corresponded with the Board, sent letters in opposition voicing the same complaints: siting, noise, interference with privacy, mass, and scale. The Urbans noted the rear siting cancelled out attempts by neighboring properties to comply with density criteria. They reiterated their concern about noise from the kitchen and mechanical elements directly below their master bedroom. They also stated the Structure "tower[ed]" at 70 feet above Crestview Drive. The Parkers remained concerned the entrance and the elevator were adjacent to their master bedroom. Mr. and Mrs. Rodgers stated the siting blocked their view equity. Other letters were similar.
Council denied the appeal. During the meeting one member stated, "move the house down the hill. It's too close to the other houses. That's the issue and that is a value and it is in our policies." Another stated siting was the issue. The mayor said "our objective, [Board's] is not to interfere with other people's privacy."
Defendants adopted a resolution denying the appeal, stating the Board's decision "was appropriate for the reasons [it] stated," specifically that the siting would substantially invade the neighbors' privacy. Siting the Structure further downhill would minimize both invasion of privacy and the appearance of massing.
Plaintiff filed a petition for writ of mandate and a complaint for declaratory relief and violation of equal protection in the Orange County Superior Court. After a hearing on the petition, the court granted it for the sole purpose of remanding the matter to defendants to make more specific findings to enable the court to determine whether substantial evidence supported the decision. The court directed the resolution to specify the reasons for denial, including the evidence on which it was based, and how applicable standards were applied to arrive at the decision.
Defendants then adopted a new, 13-page resolution (Resolution), including citations to the administrative record. It set out the basis of plaintiff's appeal and the municipal code section stating the presumption the Board's decision was reasonable and valid; plaintiff had the burden of proof to show otherwise by a preponderance of the evidence. It further set out the criteria used in design review as contained in the LBMC, including privacy, massing, and neighborhood compatibility.
The Resolution found siting of the project "would result in a substantial invasion of privacy of neighboring properties, which could be minimized by relocating the structure further downslope." This would reduce the appearance of massing, as well.
It further stated, "The substantial invasion of neighbors' privacy and the inappropriate appearance of massing . . . are a direct result of the residence being situated as far as possible from the front property line, at the rearmost uphill potion of a steeply sloped lot, as depicted in the illustration attached as Exhibit A." The Resolution continued: although existing homes on all of the adjoining lots fronting the same street are approximately 10 feet from the front property line, plaintiff's was approximately 39 feet away. The front of the structure contains "[l]arge decks and picture windows."
Due to the siting "the project looms above the immediate adjacent downhill homes fronting on Crestview Drive, and the project creates an overcrowded pattern of development with regard to the immediate adjacent uphill homes fronting on Gainsborough Drive."
The Resolution noted defendants had relied on letters and testimony from neighbors, and summarized portions from eight of them, including concerns about siting, size, privacy, view, excess mass, the structure's "towering presence" from the street, and the appearance of overcrowding.
The Resolution also cited to and described the Guidelines. Defendants found that, as the Board had decided, the project did not conform to those Guidelines: "the site is not adequate in size and shape to accommodate the proposed development, and the project does not comply with the development standards and design guidelines of the specific plan." The Specific Plan requires buildings to minimize scale and mass, reserve canyon and coastal views of existing homes, and minimize grading. Homes should be spaced to give a "sense of openness." Siting should maintain privacy between neighboring properties and "avoid the appearance of overbuilding and overcrowding." Structures should not be sited at the topmost of the property if it will obstruct or obscure neighbors' views.
DISCUSSION
1. Standard of Review
Relying on Code of Civil Procedure section 1094.5, plaintiff claims defendants abused their discretion in denying his permit because they improperly relied solely on neighbors' opposition to the design. He further argues the findings do not support the Resolution and the evidence does not support the findings.
Where, as here, there is no fundamental vested right, we "review[] the administrative record to determine whether [defendants'] findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 (JKH).) In so doing, we engage in limited weighing of the evidence, but we do not "'substitute[ our] own findings and inferences for [those] of [defendants].'" (Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, 1040 (Kutzke).) "We must uphold [defendants'] decision if any one of [their] findings is supported by substantial evidence.'" (Id. at p. 1041.) Because it is presumed "'the findings and actions of the administrative agency were supported by substantial evidence,'" plaintiff has the burden to show the lack of same. (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 419.)
If substantial evidence supports the findings we consider whether the findings support the decision. We must affirm the decision as long as defendants "found those facts that as a matter of law are essential to sustain" it. (JKH, supra, 142 Cal.App.4th at pp. 1058-1059.) 2. Opinions of Neighbors
Plaintiff contends defendants erred when considering the opinions of neighbors who opposed the structure as sited. He argues defendants relied solely on their opposition, claiming the project otherwise would have been approved. We disagree.
Plaintiff relies heavily on our decision in Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954 (Ross). In Ross, the plaintiffs sought to rezone a parcel to allow two houses, rather than the one permitted by current zoning. Although the planning commission approved it, the city council denied rezoning after neighbors opposed it. The trial court granted the plaintiffs' writ petition and we affirmed.
In so doing we stated, "'[I]n restricting individual rights by exercise of the police power neither a municipal corporation nor the state legislature itself can deprive an individual of property rights by a plebiscite of neighbors . . . . Such action is arbitrary and unlawful.'" (Ross, supra, 1 Cal.App.4th at p. 968.) The "mere fact of neighborhood opposition" cannot justify an otherwise arbitrary or discriminatory land use decision. (Id. at pp. 963, 964.)
But Ross does not preclude reliance on objections by neighbors. Instead it states, "To the degree that public opposition to a particular kind of land use articulates a rational basis for the subsequent legislative decision, there can be no quarrel. And there can be no quarrel that a legislative body has both the right and duty to listen to its constituents." (Ross, supra, 1 Cal.App.4th at p. 965; Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 973, italics omitted ["It is appropriate and even necessary for the [agency] to consider the interest of neighboring property owners in reaching a decision whether to grant or deny a land use entitlement, and the opinions of neighbors may constitute substantial evidence on this issue"].)
The recent case of Kutzke, supra, 11 Cal.App.5th 1034 is in accord, stating "'[t]he opinions and objections of neighbors can provide substantial evidence to support rejection of a proposed development.'" (Id. at p. 1041.)
As discussed below, the neighbors objections constituted substantial evidence. Further, the record shows defendants did not rely solely on the fact neighbors opposed the Structure. Council had an Agenda Bill summarizing the history of the project, including the various revised designs, Board staff reports, and minutes of Board meetings; the basis for the appeal; and a recommendation to deny the appeal. An attachment to the Agenda Bill showed the 17.67 foot rear setback and the 34.94 foot front setback. Staking poles on the Property showed the same.
In addition, the zoning administrator made comments at the beginning of the meeting, reiterating the siting of the Structure basically had not changed over the course of the many applications. Siting was the "primary driving force for neighbor and Board concerns." She noted that in denying the application, the Board had been "very clear" and had spelled out the Design Criteria and Guidelines that had not been met.
Siting had been the problem since the initial applications, as plaintiff repeatedly had been informed. As a Board member told plaintiff at a hearing, the problem would be solved if he moved the Structure down the hill 15 feet. He did not want to do so and as a result the Structure was too close to the Parkers' and the Urbans' master bedrooms. In addition, the proposed siting created the appearance of massing. These were violations of the Guidelines and the Design Criteria.
We do not agree with plaintiff's assertion the Board chair "concluded that privacy issues had been addressed." Although she did comment privacy issues could be partially solved by screening, she also noted there was still the issue of noise from the elevator and entryway. She also pointed out the Structure was too close to the Urbans' bedroom. Thus, plaintiff "need[ed] to create more open space." She voiced at length several ideas about how to redesign the project and in so doing noted the continuing problems. And in any event Board was not bound by the chair's comments.
We do not consider this concern to be "bizarre" as plaintiff claims.
We also disagree defendants failed to differentiate between "minimiz[ing]" a "'substantial'" invasion of privacy as opposed to eliminating any invasion of privacy.
Plaintiff notes another comment by the Board chair, "if you could solve the privacy concerns that the Parkers have then that also potentially averts the moving it down the hill and your client gets to have the house where he wants it but it meets all the other standards that I think are necessary . . . ." Plaintiff characterizes this as defendants' "reliance on the whim of one neighbor." But again, this was at the end of the chair's lengthy statements described above about what changes could be made to solve the issues of proximity to bedrooms and other problems. At the beginning of her comments she announced she could not make many of the findings required by the Guidelines and Design Criteria and noted plaintiff's changes had not been enough.
Plaintiff argues defendants failed to discuss the merit of the neighbors' objections. He has not cited any requirement they do so. The transcript of the hearing makes clear the Council members understood the concerns of the neighbors and agreed with them. Their comments made at the hearing were unanimous that siting was a problem. The Structure was "too close to the other houses."
The parties debated the comments of Greg Vail, a spokesperson for the Parkers. Plaintiff claimed he "unequivocally conceded that "privacy concerns have been addressed" and also pointed out volume, square footage and plate heights were "fine" and the project was better since it was moved a few feet down the hill.
Defendants counter that plaintiff failed to include all of Mr. Vail's comments, including his statement the "incremental changes" "still [don't] solve the problem for the Parkers." Plaintiff responds that the full text of the comments illustrates there were no objective problems with the design, thus highlighting the subjective nature of the opposition. We do not agree with plaintiff's characterization of the comments.
And in any event, Board was not required to accept Mr. Vail's alleged concession. Further, Mr. Vail's comments are not the only evidence supporting the findings. Many neighbors spoke against the project; Mr. Vail was not the only speaker. Mr. Parker himself explained he was still concerned with the siting because the entry was "very, very close to my backyard and my . . . master bedroom."
In addition, the neighbors opposition was based on objective facts. The Parkers and the Urbans, for example, explained the close proximity of the Structure to their master bedrooms. They were not required to provide specific measurements to establish this. And the massing finding was supported by evidence the Structure rose 70 feet over the street.
Nor do we agree with plaintiff's characterization of Mr. Parker's response to a question from the Board chair. She suggested that if the Structure was moved farther downhill, he would have "view impacts" and Mr. Parker agreed. Plaintiff maintains he would have then objected on that basis. But the context of the colloquy does not support that. Mr. Parker went on to state that "I think it'll be different." "[I]nstead of looking at the side of a structure" "you're looking over it."
Plaintiff's claim the neighbors would prefer the Property remain undeveloped is not supported by the evidence. Neighbors' letters stated they were tired of looking at the staked Property and looked forward to a project that complied with Guidelines and Design Criteria. 3. Substantial Evidence Supporting Findings
Plaintiff argues there was no evidence to support defendants' findings in the Resolution, specifically disputing the finding the Structure substantially invades the neighbors' privacy or has the appearance of massing. Plaintiff points to this finding: "The substantial invasion of neighbors' privacy and the inappropriate appearance of massing caused by the proposed project are a direct result of the residence being situated as far as possible from the front property line, at the rearmost uphill portion of a steeply slope [sic] lot, as depicted in the illustration attached as Exhibit A." He claims this finding is not supported by the evidence and characterizes it as a "fabrication." He also argues exhibit A attached to the Resolution is an old rendering that does not accurately depict the siting of the Structure.
We agree with plaintiff the record reflects the design currently under review moved the Structure downhill so the setback from the rear property line is 17.67 feet as opposed to the previous siting of 10.5 feet. Thus, the Structure is not sited at the rearmost part of the Property. And exhibit A does not show the most current proposed siting of the Structure.
We asked the parties for supplemental briefing as to whether this statement was a scrivener's error. Not surprisingly, plaintiff maintains it is not while defendants claim it is. Regardless, this question is not dispositive of the appeal.
But this is not fatal to the Resolution. We may not reverse unless we find an error in the Resolution was prejudicial, causing substantial injury to plaintiff, and there would have likely been a different result absent the error. (Gov. Code, § 65010, subd. (b).) There is no presumption of prejudice or injury even where there is error. (Ibid.) Here there was no prejudice from the challenged findings in the Resolution.
In addition to the challenged finding, the Resolution found the siting of the Structure "would result in a substantial invasion of privacy of neighboring properties, which could be minimized by relocating the [S]tructure further downslope. Such relocation also would minimize the appearance of massing as to proximate homes."
There is evidence in the record to support this finding even with the Structure sited 17.67 feet from the rear. Staking poles showing the proposed siting were erected on the Property. Further, the Parkers and the Urbans stated portions of the Structure were right below their master bedrooms. One Board member had walked beneath the Urbans' master bedroom windows and felt the Structure would be so close she could touch it.
In addition, there was evidence the Structure "tower[ed]" 70 feet above the street and was "virtually" five stories high even though the Structure was comprised of the garage and two levels above it. These are independently verifiable objective facts not merely "self-interested, purely subjective objections" of neighbors. The neighbors' objections were pursuant to and based on the dictates of the Guidelines and Design Criteria. And the fact the objections were self-interested does not invalidate them.
Plaintiff also criticizes the Resolution's statement that the Structure was about 39 feet back from the front property line whereas neighboring residences were back approximately 10 feet. He maintains it was "misleading and arbitrary" to make such a finding without mentioning the required 19.5 foot parking easement on the front of the Property. But there is no evidence the existence of this easement would prevent moving the Structure further down the hill.
In sum, there was sufficient evidence to support the finding the siting of the Structure would cause a substantial invasion of privacy and inappropriate massing. Again, "We must uphold [defendants'] decision if any one of [their] findings is supported by substantial evidence." (Kutzke, supra, 11 Cal.App.5th at p. 1041.) 4. Vagueness of Ordinances and Due Process
Plaintiff claims the LBMC and the Specific Plan are both unconstitutionally vague. Specifically, he focuses on a portion of the privacy criteria (§ 25.05.040(H)(11)), which states: "The placement of activity areas (e.g., decks, picture windows and ceremonial or entertainment rooms) in locations that would result in a substantial invasion of privacy of neighboring properties should be minimized." He also points to the section on design articulation (§ 25.05.040(H)(2)), which reads: "Within the allowable building envelope, the appearance of building and retaining wall mass should be minimized." The section includes a nonexclusive list of several articulation methods that could reduce the appearance of massing.
That the list does not include relocating a structure does not invalidate such a solution. --------
Plaintiff complains the LBMC does not define "'substantial,'" "'privacy,'" or "'minimize.'" He also faults the lack of guidelines to direct property owners to determine, for example, the difference been an invasion of privacy and a substantial invasion of privacy.
Language used in an ordinance "'"must be definite enough to provide a standard of conduct' for those whose activities are prescribed as well as a standard by which the agencies called upon to apply it can ascertain compliance therewith."'" (Ross v. City of Rolling Hills Estates (1987) 192 Cal.App.3d 370, 375; italics omitted.) "'"[T]he words used . . . should be 'well enough known to enable those persons within its purview to understand and correctly apply them,' or "'"have an established or ascertainable meaning in the profession or industry involved,"'" "'"or the meaning of which may be determined from a fund of human knowledge and experience."'" (Ibid.) "'"[A] standard fixed by language which is reasonably certain, judged by the foregoing rules, meets the test of due process 'notwithstanding an element of degree in the definition as to which estimates might differ.'"'" (Ibid.)
The ordinances challenged here meet the test. The terms "substantial," "privacy," and "minimize" may be understood by "persons of common intelligence." (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 642.) Briggs held an ordinance requiring a project to maintain an "'adequate amount of separation'" from the neighboring properties and "'respect the existing privacy of surrounding properties'" was sufficiently certain. (Id. at pp. 640, 644.) We are not persuaded that language sets out objectively quantifiable standards as plaintiff claims.
Likewise, Ross v. City of Rolling Hills Estates, supra, 192 Cal.App.3d 370 held that words similar to those challenged here, including "'needless,'" "'discourage,'" "'view,'" "'impairment,'" and "'significantly obstructed,'" passed constitutional muster. (Id. at pp. 374-376.) The fact the plaintiff implied in his argument he understood the meaning of a substantially impaired view was not dispositive of the case.
And in Novi v. City of Pacifica (1985) 169 Cal.App.3d 678, the court rebuffed a vagueness attack on an ordinance directing "'variety in the design of the structure and grounds to avoid monotony in the external appearance.'" (Id. at p. 682.) Contrary to plaintiff's claim, the plaintiff in Novi did indeed claim a portion of the anti-monotony ordinance was unconstitutionally vague. (Ibid.)
Moreover, as defendants point out, "the absence of an official definition does not necessarily mean [a term] is vague. Reference to commonly accepted usage, coupled with judicial interpretation of similar language, establishes what these terms mean." (City of Los Altos v. Barnes (1992) 3 Cal.App.4th 1193, 1203.)
We reject plaintiff's claim the language of the ordinances gave defendants "unfettered" discretion "to simply declare by fiat" what constitutes a substantial invasion of privacy. "'[A] substantial amount of vagueness is permitted in California zoning ordinances'" (Ross v. City of Rolling Hills Estates, supra, 192 Cal.App.3d 370, 376) and by extension, design ordinances (Briggs v. City of Rolling Hills Estates, supra, 40 Cal.App.4th 637, 643).
Apparently also arguing the Guidelines and Specific Plan are vague as applied, plaintiff cites to a comment by the mayor that "our objective, [Board's] objective is not to interfere with other people's privacy." He argues this means defendants believed "any" invasion of privacy was sufficient to deny approval of the project, when in fact only a substantial invasion of privacy needed to be minimized. We do not read it that way.
The mayor is presumed to know the law. (Benson v. California Coastal Com. (2006) 139 Cal.App.4th 348, 355.) Based on the siting of the Structure, the Board decision, and neighbors objections, it can be fairly inferred the mayor believed the Structure was substantially invading neighbors' privacy.
Plaintiff also calls "nonsensical" and "cryptic" a statement in the Resolution that relocating the Structure further downslope "would minimize the appearance of massing as to proximate homes." He claims the "proximate homes" are not identified and asserts there is no finding as to "view impacts" nor an objection to the size or height of the Structure. That is not correct.
The Resolution states that, due to the siting, "the project looms above the immediate adjacent downhill homes fronting on Crestview Drive, and the project creates an overcrowded pattern of development with regard to the immediate adjacent uphill homes fronting on Gainsborough Drive." It goes on to describe written and oral testimony from several neighbors, many of whom described the "excessive height" and size and massing.
Plaintiff also criticizes language in the Resolution stating "the siting of the proposed project on the subject property would result in a substantial invasion of privacy of neighboring properties, which could be minimized by relocating the structure further downslope." He claims this illustrates defendants' refusal to commit that the project would be approved even if moved further down the hill, resulting in a "never ending cycle of design revisions." Again we disagree.
The record is plain plaintiff was consistently told to relocate the Structure further downhill since his first applications. At one hearing he was told to move it 15 feet downhill. He opted to move it less than five feet and it did not solve the privacy and massing problems. Contrary to plaintiff's assertion, defendants did provide guidance as to how to resolve the privacy and massing issue. He just chose not to follow it.
We are not persuaded by plaintiff's claim the Guidelines and Design Criteria "allow a neighborhood veto power." Cases he cites are inapt. Nothing in the ordinances even hint that neighbors hold the power to approve or reject a proposal, contrary to, for example, Eubank v. City of Richmond (1912) 226 U.S. 137, 141, where the offending statute allowed two-thirds of surrounding property owners to determine the building line on another's property. Nor are the Guidelines and Design Criteria a "delegate[ion] to private landowners the power to determine how another private party may use his or her land 'uncontrolled by any standard or rule prescribed by legislative action.'" (Young v. City of Simi Valley (9th Cir. 2000) 216 F.3d 807, 820.)
5. Equal Protection
Plaintiff claims he was "single[d] out" for disparate treatment when defendants denied his application. He relies on the "'class of one'" theory, alleging he was treated differently from similarly situated neighbors and there is no rational basis for his disparate treatment. He argues his proposed Structure is essentially comparable to those of his neighbors in objective, "meaningful ways" (italics omitted), and there was no basis not to approve his project. We disagree.
To prevail on a "'class of one'" claim, plaintiff must show he was intentionally treated differently from those similarly situated without any rational basis for the difference. (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564.) "The rational basis test is extremely deferential and does not allow inquiry into the wisdom of government action." (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 858 (Las Lomas).) "'Under the rational relationship test for land use decisions, an equal protection claim will be rejected if the "'"wisdom [of the decision] is at least fairly debatable and it bears a rational relationship to a permissible state objective."'"'" (Disney v. City of Concord (2011) 194 Cal.App.4th 1410, 1417.)
"A court must reject an equal protection challenge to government action 'if there is any reasonably conceivable state of facts that could provide a rational basis for the [difference in treatment].'" (Las Lomas, supra, 177 Cal.App.4th at p. 858.) "'Where there are "plausible reasons" for [the] action, "our inquiry is at an end."'" (Ibid.) "Under the rational basis test, courts must presume the constitutionality of government action if it is plausible that there were legitimate reasons for the action. In other words, the plaintiff must show that the difference in treatment was '"so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational."'" (Id. at p. 859.)
"'There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be "treated alike, under like circumstances and conditions" is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.'" (Las Lomas, supra, 177 Cal.App.4th at pp. 859-860.)
This is such a case. As shown above, there were legitimate reasons why defendants denied the application—privacy and massing concerns. There were a myriad of factors set out in the Guidelines and Design Criteria that required individual and subjective consideration in ruling on plaintiff's application. The mere fact defendants might have treated plaintiff differently than neighboring property owners does not invalidate their decision. Contrary to plaintiff's claim, defendants did not "'unfairly discriminate against'" his Property. (Reynolds v. Barrett (1938) 12 Cal.2d 244, 251.) They followed the Guidelines and Design Criteria. Thus, that the Structure may be similar to surrounding residences is not relevant. Further, the fact the rear setback is greater than the LBMC's required minimum did not dictate design approval. Once more, under the LBMC there is no right to a permit merely because there are no zoning variances. (§ 25.05.040(H).)
Plaintiff claims neighbors who built before he submitted his application did not have to deal with "the purely subjective, vague design criteria" he maintains defendants are imposing on him. He complains they were not required to "grovel at the feet" of their neighbors. But we have already determined the design criteria were neither vague nor subjective. Further, there is no evidence in the record to show what conditions the neighboring property owners had to satisfy to obtain their approvals.
Plaintiff also points to a letter he sent to defendants in 1998 where he made comments about a proposed project adjacent to his Property. He included a sketch of what he claims showed the proposed site of his home. He asserts this "put [defendants and neighbors] on notice," complaining that "notice was ignored."
The sketch in the record is faint and difficult to see, and it does not appear to show any structure. Even if it had, however, the letter and sketch were nothing more than an informal communication. Defendants could not act until they had an official application from plaintiff. The letter does not support an equal protection claim.
We are also not persuaded by plaintiff's contention the only real difference between his property and those of his neighbors is that he is the last to build, suffering from neighbors' opposition to any structure. As noted above, more than one neighbor expressed a willingness for plaintiff to build his home—so long as it complied with the Guidelines and Design Criteria.
Plaintiff maintains the neighbors' opposition was not a legitimate government interest, claiming the decision on his application could not be based "solely" or even "primarily" on that basis. As discussed above, neighbors' concerns were a proper basis for denying the application. (Kutzke, supra, 11 Cal.App.5th at p. 1041; Ross, supra, 1 Cal.App.4th at p. 965.)
Moreover, the cases on which plaintiff relies are factually dissimilar, making them inapt. In Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330, 337 the court invalidated an initiative that rezoned property solely to defeat a proposed development. And in Washington ex rel. Seattle Title Trust Co. v. Roberge (1928) 278 U.S. 116, 122 and Eubank v. City of Richmond, supra, 226 U.S. 137, 144 the court held ordinances delegating land use decisions to neighboring property owners were not proper.
Nor are we convinced the findings in the Resolution are "pre-textual, post-hoc rationalizations." The findings of massing and interference with privacy were discussed at the Council meeting.
Plaintiff points to the Resolution's finding neighboring homes are sited approximately 10 feet from the front property line as compared to his 39 feet. He again points to the required easement at the front of his Property, claiming the only way the Structure could be sited 10 feet from the road would be if it infringed on the easement. But defendants never required the Structure to be within 10 feet of the front line, merely moved downhill.
Plaintiff's argument about the differences in the size and topography of his lot is unclear. As he argues, defendants did not deny the permit on that basis. Nor did they require his project have "'zero impact'" on his neighbors' privacy.
"A legislative action will survive an equal protection attack as long as the challenged classification bears a rational relation to a legitimate government objective." (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 186, fn. omitted.) Such was the case here.
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.