Opinion
B160938.
7-30-2003
JOSEPH E. AND PATRICIA A. BERBERICH et al., Appellants, v. CITY COUNCIL OF THE CITY OF LOS ANGELES et al., Respondents, ANTHONY W. WAYNE et al., Real Parties in Interest.
Manning, Leaver, Bruder & Berberich, and Joseph E. Berberich for Appellants. Rockard J. Delgadillo, City Attorney, Jeri L. Burge, Assistant City Attorney, and Ingrid M. Causey, Deputy City Attorney, for Respondents. Michael F. Obrand for Real Parties in Interest.
Joseph E. and Patricia A. Berberich, and John and Carole Kobashigawa, appeal from the judgment entered against them in their administrative mandate action brought to undo a decision by the City of Los Angeles allowing the construction of a nearby home that exceeded existing height limitations. For the reasons set forth below, we affirm that judgment.
FACTS AND PROCEDURAL HISTORY
Anthony Wayne wanted to build a house on a vacant lot on Berger Street that was located within subarea 3 of the Coastal Bluffs Specific Plan zone (the Specific Plan) in the Westchester Bluffs area of the City of Los Angeles (the City). The Specific Plan has several stated purposes. These include protecting and restoring the coastal environment, assuring maximum public access to coastal areas, regulating development in order to protect scenic views and assuring that development is "compatible and in character with the existing community[,]" controlling erosion, and reducing the potential adverse effects of hillside grading. Under the Specific Plan, Wayne could not build a home greater in height than nine feet for a distance of 30 feet extending backward from the front of his lot. Because the slope of his lot was far different from others nearby, he sought and was granted an exception from the Specific Plan that allowed him to build to a height of 23 feet, thus allowing him to be at or near the same height as many of the surrounding homes.
Wayne, his contractor, John Kwan, and a company known as Eastern Pacific Energy Corp. were the real parties in interest to the underlying administrative mandate action against the City and are both real parties in interest and respondents for purposes of this appeal. For ease of reference, we will refer to Anthony Wayne, Kwan, and Eastern Pacific Energy collectively as "Wayne" and to the house being built as "Waynes house."
The homes along Berger Street sit atop a curving bluff that provides ocean views. Wayne was granted permission to build a three-level house totaling 7,450 square feet on a lot of 9,580 square feet. Across the street from Waynes lot are homes owned by appellants Joseph E. and Patricia A. Berberich and by appellants John and Carole Kobashigawa. After exhausting their administrative remedies, appellants brought an administrative mandate action challenging the Citys decision. The trial court held that the 23-foot height exception was justified by the unique characteristics of Waynes lot and the height of the surrounding homes, but found that the placement of the rear of the house-on the side with the ocean views-was not justified. This appeal followed.
For ease of reference, we will refer to the Berberichs and the Kobashigawas collectively as "appellants."
After the Citys planning commission approved the exception, appellants appealed that decision to the City Council. The Council denied the appeal.
Also parties to appellants writ action were other neighbors who challenged the rear setback of Waynes house, contending it blocked their ocean views. The trial court ruled for those neighbors and sent the matter back to the City, which approved the same rear setback. That led to a second administrative mandate action, and a second ruling in favor of the neighbors. Wayne and the City appealed, leading us to reverse the trial courts judgment. (Jibilian v. City of Los Angeles, No. B155022, nonpub. opn. filed March 24, 2003.) We asked the parties to provide supplemental briefing as to whether our earlier opinion in the related Jibilian case acted as law of the case or otherwise had precedential value here. After considering the issue, we have decided to give no precedential effect to our decision in Jibilian. To the extent we have borrowed from that decision, we did so only because we found our earlier reasoning both sound and independently applicable here.
STANDARD OF REVIEW
We perform the same function as the trial court: we will affirm the Citys decision if it is supported by substantial evidence. In doing so, we review the entire record. We may not interfere with the Citys discretionary judgments and must resolve reasonable doubts in favor of the administrative findings and decision. (Dore v. County of Ventura (1994) 23 Cal.App.4th 320, 326-327; Smith v. County of Los Angeles (1989) 211 Cal. App. 3d 188, 198-199, 259 Cal. Rptr. 231.) Nor may we substitute our judgment for that of the Citys and reverse because we believe a contrary finding would have been equally or more reasonable. (Cipriotti v. Board of Directors (1983) 147 Cal. App. 3d 144, 155, 196 Cal. Rptr. 367.) Because the City was required to make and expressly state certain findings, however, we do not presume that the Citys decision was based on the required findings or that those findings are supported by substantial evidence. (J. L. Thomas, Inc. v. County of Los Angeles (1991) 232 Cal. App. 3d 916, 926, 283 Cal. Rptr. 815.)
DISCUSSION
1. The Citys Findings
An exception to a zoning ordinance is comparable to a zoning variance. (Rubin v. Board of Directors (1940) 16 Cal.2d 119, 124, 104 P.2d 1041.) The standards for granting such deviations from zoning regulations must necessarily be broad and flexible in order to give municipal zoning authorities the discretion they need to address the wide variety of circumstances that might arise. (Matthews v. Board of Supervisors (1962) 203 Cal. App. 2d 800, 803, 21 Cal. Rptr. 914; Tustin Heights Assn. v. Bd. of Supervisors (1959) 170 Cal. App. 2d 619, 633-634, 339 P.2d 914.)
The guidelines for exceptions from the Citys Specific Plan are contained in Los Angeles Municipal Code section 11.5.7.D.1. Under that ordinance, the City was required to make five findings:
The Citys ordinance appears to have been reorganized by different letter designations. Because the trial courts statement of decision referred to it this way, we will continue to do so.
"(a) That the strict application of the regulations of the specific plan to the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the specific plan;
"(b) That there are exceptional circumstances or conditions applicable to the subject property involved or to the intended use or development of the subject property that do not apply generally to other property in the specific plan area;
"(c) That an exception from the specific plan is necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property within the specific plan area in the same zone and vicinity but which, because of special circumstances and practical difficulties or unnecessary hardships is denied to the property in question;
"(d) That the granting of an exception will not be detrimental to the public welfare or injurious to the property or improvements adjacent to or in the vicinity of the subject property; and
"(e) That the granting of an exception will be consistent with the principles, intent and goals of the specific plan and any applicable element of the general plan." (L.A. Mun. Code, § 11.5.7.D. 2 (the exception ordinance).)
The Citys findings to justify the exception were based on several factors: (1) because Waynes lot had only a gradual slope for about the first 35 feet back from the curb, it was different from others in subarea 3 which were steeply sloped; (2) the 9-foot height restriction worked well on those steeply sloped properties because minimal grading was required; (3) Waynes lot "would require extensive excavation in order to build a similar structure as those" around him; (4) the 23-foot height exception would give Wayne more design flexibility in order to build a home similar to those around him; (5) the two homes on either side of Waynes lot had the same topography; one was allowed to build to the height requested by Wayne due to the grant of a hardship exemption under a prior ordinance, and the other was built to that height before the Specific Plan was adopted; (6) the unique characteristics of Waynes lot made the exception necessary in order to allow him to build a home similar to those around him; (7) without the exception, substantial grading would be required; (8) a home built 23-feet high would not block any more of the publics view than would a home that was 9-feet high; and (9) the exception was consistent with the Specific Plans purposes of tailoring development regulations to the particular conditions and circumstances of the area, regulating development in order to protect views, and preserving the areas unique and distinctive landforms requiring sensitive site design.
2. Substantial Evidence Supports the Citys Findings
A. No Detriment to the Public Welfare
The Specific Plan states that building heights shall be regulated to "protect and enhance" public views. Appellants contend that increasing the height of Waynes home from 9 to 23 feet would block public views from the street, violating the Specific Plans stated purpose to the contrary. A staff member from the office of City Councilmember Ruth Galanter testified at a planning hearing that there would be no difference in the amount of public view blocked because, from the perspective of pedestrians and passing cars, a 9-foot-high home blocked just as much of the view as would a taller structure. That opinion was shared by one of the Citys planning commissioners, who likened the front of a house to a view-obstructing wall.
Photographs taken from across the street of Waynes lot seem to bear this out. The photos show the front of Waynes vacant lot, surrounded on either side by homes about 23-feet high. Imaginary lines are drawn across the photos showing the roof line of Waynes home with and without the height exception. Two of the photos show that the 9-foot line is roughly equal with the roof of a sport utility vehicle parked nearby. Based on those photos, the City could find that the views of passing motorists and pedestrians would be effectively blocked by the front of a 9-foot-high building, leading to the conclusion that an even higher structure would do no more harm.
Appellants contend that such an interpretation would render the Specific Plans 9-foot height limit meaningless. We disagree. The 9-foot limit applies only in subarea 3, where most of the lots slope quickly downhill from their street frontage. Homes in other subareas are allowed to build to 25 feet, which is sure to block the publics views. During the Citys hearing on appellants administrative appeal, Waynes engineer testified that Waynes lot should have been placed in a different subarea because of the way it was sloped. City Councilmember Miscikowski echoed that sentiment, stating that the nine-foot height limit was meant "for bluffs. This lot in particular is not like the bluff, this lot is a flat pad." As a result, she said the height limitation did not apply. Given the unique characteristics of Waynes lot, which apparently made it unsuitable for the height limits applicable to subarea 3 properties, there was sufficient evidence for the City to conclude that the greater height limit applicable to other subareas was appropriate and would result in no greater impediment to the publics views than the Specific Plan was intended to allow. In short, denying the exception would neither protect nor enhance the publics view. This accords with the broad and flexible discretion possessed by the City to address the wide variety of circumstances that might arise when determining whether to grant an exception. (Matthews v. Board of Supervisors, supra, 203 Cal. App. 2d at p. 803; Tustin Heights Assn. v. Bd. of Supervisors, supra, 170 Cal. App. 2d at pp. 633-634.)
B. No Injury To Neighboring Properties
Appellants also contend that the exception is contrary to the Specific Plan because Waynes house will block their private views. Resolution of this issue requires us to interpret the applicable provisions of the Specific Plan.
Municipal ordinances are interpreted by the same rules used to construe statutes. (Flavell v. City of Albany (1993) 19 Cal.App.4th 1846, 1851.) The fundamental rule of statutory construction is to ascertain the intent of the legislative body in order to effectuate the purpose of the law. In doing so, we first look to the words of the enactment and try to give effect to the usual, ordinary import of the language, at the same time not rendering any language mere surplusage. The words must be construed in context and in light of the nature and obvious purpose of the statute where they appear. The statute or ordinance must be given a reasonable and commonsense interpretation consistent with the legislative bodys apparent purpose and intention. The interpretation should be practical, not technical, and should result in wise policy rather than mischief or absurdity. If the language of a statute is clear, we should not add to or alter it to accomplish a purpose which does not appear on the face of the statute or from its legislative history. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1390-1391.)
City planning commissioners and planning staff members took the position that the Specific Plans height limitations were intended to protect the views of only the public, not nearby landowners. According to them, homeowners who enjoyed views through vacant lots had to expect their views would eventually be blocked once a home was built on the lots. This interpretation is entitled to great weight unless it is clearly erroneous or unauthorized. (Flavell v. City of Albany, supra, 19 Cal.App.4th at p. 1851.) It is also borne out by the language of the Specific Plan.
Among its stated purposes, the Specific Plan lists the regulation of height and other development factors "in order to provide for the protection and enhancement of views of scenic features visible from scenic corridors and scenic highways, and to assure that development is compatible and in character with the existing community." (Italics added.) Views that are visible from scenic corridors and highways are not the same as the private views enjoyed by other homeowners. Construing this language, especially in light of the Citys own interpretation, we conclude that the 9-foot height limit in subarea 3 was designed to protect only the publics view from scenic corridors and highways. Although the City could have crafted its ordinance to apply to private views (Pacifica Homeowners Assn. v. Wesley Palms Retirement Community (1986) 178 Cal. App. 3d 1147, 1152, 224 Cal. Rptr. 380), it did not do so. Therefore, obstructing such a view could not constitute injury for purposes of granting a height exception to the Specific Plan. Because enforcing the 9-foot height limit would not protect the publics view and because the exception was needed to make Waynes house compatible with those around him, the public welfare and private injury components of the Citys exception ordinance were satisfied. Stated succinctly, appellants were not injured by the loss of an intangible benefit to which they had no entitlement.
C. Unnecessary Hardships Not Inconsistent With Specific Plan
The concept of unnecessary hardship for purposes of zoning variances is most applicable when the natural condition or topography of a parcel places the owner at a substantial disadvantage compared to his neighbors. (Zakessian v. City of Sausalito (1972) 28 Cal. App. 3d 794, 800-801, 105 Cal. Rptr. 105 (Zakessian ).) The City found that due to such conditions, the exception was needed to avoid burdening Wayne with unnecessary hardships that were inconsistent with the Specific Plan. (L.A. Mun. Code, § 11.5.7.D.1.(a).) According to the City, the exception would allow Wayne to build to the same height as his neighbors homes while avoiding excess excavation of the bluffs.
Appellants contend that only the prospect of excessive grading qualified as an item that might be inconsistent with the purposes and intent of the Specific Plan. Relying on Broadway, Laguna etc. Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767, 59 Cal. Rptr. 146, 427 P.2d 810 (Broadway), they contend that increased grading costs did not, as a matter of law, amount to an unnecessary hardship. They also contend there is insufficient evidence that increased grading was required. We disagree with appellants characterization of the Specific Plans purposes and conclude that the grading issue and Broadway are therefore inapplicable.
At issue in Broadway, supra, 66 Cal.2d 767, was whether the developer of an apartment building could exceed the floor area ratio regulations in part because unusual subsoil conditions would increase building costs. Operating under a variance provision similar to the Citys exception ordinance, San Francisco city zoning authorities granted the variance based on the subsoil conditions, the developers self-imposed adherence to stricter building regulations, and the supposed benefit to the community from those higher standards. The Supreme Court rejected that notion, holding that voluntary overcompliance with other building standards did not make the hardship of increased building costs unnecessary. To hold otherwise, the court suggested, could weaken compliance with some building codes simply because other codes were exceeded. (Id. at pp. 778-779.)
In addition to reducing the potential adverse effects of hillside grading, the Specific Plan lists among its several purposes the regulation of "all development, including use, height, density, bulk, and other factors" in order to protect scenic views "and to assure that development is compatible and in character with the existing community." (Italics added.) Wayne repeatedly referred to the fact that without the height exception, he would be left with a 9-foot-high "pillbox" sandwiched between much higher structures. According to Wayne, the exception was needed to let him build as his neighbors had. The City agreed, finding that Wayne would then be allowed to build a home in character with those nearby.
There was ample evidence that Waynes lot was substantially different from others in subarea 3 because it was relatively flat for at least 35 feet from its street frontage to the back of the lot before it began to slope downhill. The typical lot in the area has little or no flat area in front and begins an almost immediate downhill slope at the front. As discussed above, there was also substantial evidence to support a finding that the exception was needed to place Wayne in roughly the same position as his neighbors. Without it, Waynes home would be sandwiched between much taller homes. We believe that such a result would create an unnecessary hardship that was inconsistent with the purposes of the Specific Plan.
Appellants also contend that the hardship finding was unwarranted because this was a self-imposed hardship brought about by Waynes knowing purchase of property that was not zoned for the type of house he wished to build. That rule is inapplicable here, where the hardship occurs due to natural topographical conditions making the subject property significantly different from others nearby. (Zakessian, supra, 28 Cal. App. 3d at pp. 799-800; cf. Town of Atherton v. Templeton (1961) 198 Cal. App. 2d 146, 153-154, 17 Cal. Rptr. 680 [landowner sought variance to build tennis court in front of property, which was forbidden by zoning laws; his sale of a portion of his land where the court would have been allowed was a self-induced hardship]; City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal. App. 2d 657, 672-673, 4 Cal. Rptr. 547 [defendant sought variance to build rectory, parking lot and playground on property zoned for residential use before purchase; one who buys property knowing a variance is needed for a forbidden use suffers from self-induced hardship].)
D. Exceptional Circumstances
Appellants incorrectly contend there are no exceptional circumstances to justify the Citys deviation from the Specific Plans height limitation. The evidence shows that Waynes lot is located between two others with similar slopes and that both are built to a height of approximately 23 feet. Without the height exception, Waynes home would be dwarfed by the taller structures. Appellants reliance on a contrary recommendation by City planning staffers is misplaced. The Planning Commission rejected that recommendation and made its own findings, which are supported by substantial evidence. Appellants reliance on a photo of a nearby home built to the 9-foot limit is also misplaced because there is no indication that the home was built on a lot with a slope similar to Waynes.
E. Preserving a Substantial Property Use
The City was required to find that the exception was necessary so Wayne could preserve and enjoy "a substantial property right or use generally possessed by other property within . . . the vicinity" which would otherwise be denied due to special circumstances or practical difficulties. (L.A. Mun. Code, § 11.5.7.D.1.(c).) As our earlier discussion makes clear, there was substantial evidence that the peculiar topography of Waynes lot made the exception necessary to allow him to build to the same height as the adjoining landowners.
F. Consistency With Specific Plan
The final finding which the City was required to make was that the exception would be consistent with the principles, intent and goals of the Specific Plan. (L.A. Mun. Code, § 11.5.7.D.1.(e).) As set forth above, the height exception was consistent with the Specific Plan because it furthered the goal of ensuring that Waynes home would be compatible and in character with those nearby.
3. Alleged Due Process Violations
Appellants also alleged that their due process rights to a fair hearing were violated because: (1) Councilmember Galanter, who represented the Westchester Bluffs area, submitted a letter to the planning commission supporting the exception, having the "prejudicial effect" of convincing the commission to disregard its staff members recommendations and instead approve the exception; and (2) after appellants appealed the planning commissions decision to the council, Galanter voted to deny the appeal, thus tainting that process with her bias. The trial court rejected those contentions, finding no evidence that "on February 9, 2000, when the City Council voted unanimously to approve the exceptions, Councilwoman Galanter dominated the proceedings or that [appellants] were denied the opportunity to be fairly heard." Relying on the decision in BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205 (BreakZone Billiards ), the trial court reasoned that Galanters participation in the administrative appeal to the full council did not violate appellants due process rights to a fair hearing.
As to appellants first contention, there is no evidence that Galanters letter and the brief testimony of her staff member affected the outcome of the planning commission hearing. The record shows that the commission received and considered a great deal of evidence from both sides, then discussed the matter in open session before voting to grant the exception. The facts concerning the topography of Waynes lot and the height of the surrounding homes were undisputed. On this record, assuming for discussions sake only that there was something improper about Galanters letter, we conclude it had no effect on the outcome.
As to the fairness of Galanters participation in the administrative appeal after backing the exception before the planning commission, appellants acknowledge decisions which have held that such procedures did not violate due process. (See BreakZone Billiards, supra, 81 Cal.App.4th at pp. 1236-1239, and cases cited therein.) They distinguish those cases by pointing to BreakZones statement that a due process violation exists when there has been an earlier "commitment to a result" by the decision maker. (Id. at p. 1236.) As explained below, appellants have ignored the remaining portion of the BreakZone courts discussion.
In BreakZone Billiards, the owner of commercial property obtained a conditional use permit (CUP) allowing a change in the use of his property. As allowed by city code, a city councilmember appealed that decision to the council, which took away the CUP. The owner brought an administrative mandate action challenging that action on several grounds, including the procedural unfairness inherent in having the matter heard by the council member who took the appeal to the council. The trial court denied the petition and the appellate court affirmed.
Relying on Withrow v. Larkin (1975) 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456, the BreakZone Billiards court held that in "adjudicatory administrative" proceedings such as the city councils CUP appeal process, it was proper for the members of the administrative agency to investigate the facts, institute proceedings and make the necessary determinations. The risk of bias or prejudgment in those cases is not high enough to indicate that the adjudicators would remain wedded to their previous positions no matter what. (BreakZone Billiards, supra, 81 Cal.App.4th at p. 1241.) Because it did not appear that the council member who brought the appeal dominated the council proceedings, and because the record showed the owner was given a full opportunity to present his case, the appellate court held that the councils decisionmaking process was not fundamentally unfair. (Id. at pp. 1240-1241.)
We believe the same is true here. The record shows that those opposed to the exception submitted a great deal of written material as part of the administrative appeal of the planning commissions decision. The transcript shows that representatives of both sides were allowed to speak at the appeal hearing and there is no indication that appellants ever objected that they were not allowed to present evidence or state their case. They did, however, object to Galanters participation, prompting the council president to state: "No, we represent the City. We represent the district and so that is the prerogative of the Council member." Councilmember Miscikowski then said that the 9-foot height limit was meant to apply to the bluffs but was inapplicable because Waynes lot was flat. "That is why the [Planning and Land Use] Committee was persuaded that the exception made sense. It was supported by the Councilperson in the district but we also looked at the facts in this case and felt that it was a reasonable application to grant the exception in this instance . . . ." (Italics added.) The council then voted unanimously, 11-0, to deny the appeal and approve the exception. Therefore, it does not appear that Galanter dominated the proceedings or that appellants were denied the opportunity to present their case. Instead, the record shows that the council independently reviewed the facts and concluded unanimously that the exception made sense. On this record we hold that no due process violation occurred.
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Respondents to recover their costs on appeal.
We concur: COOPER, P.J., BOLAND, J.