Opinion
B153868. B157239.
7-3-2003
JAMES E. NELSON et al., Plaintiffs and Respondents, v. CITY OF PASADENA et al., Defendants and Appellants.
Michelle Beal Bagneris, City Attorney, Frank L. Rhemrev, Assistant City Attorney; Fox & Sohagi, Deborah J. Fox, and Jocelyn Ann Julian for Defendants and Appellants. Hogue & Langhammer, Thomas Daniel Hogue, and Carl Edward Langhammer, Jr., for Plaintiffs and Respondents.
This appeal follows the trial courts order granting a writ of mandate compelling appellant City of Pasadena (the City) to vacate its revocation of building permits issued to respondents James E. and Cynthia L. Nelson (the Nelsons). The City issued the Nelsons building permits for the construction of a new garage and workshop in the rear yard of their property. After receiving complaints from the Nelsons neighbors, the City revoked the permits on the grounds that they were issued "in error" because they did not comply with Pasadena Municipal Codes 25-foot setback requirement. The Nelsons filed a petition for writ of mandate, which the trial court granted, finding that the permits were valid when issued and that the City had simply "changed its mind" regarding the permits after receiving complaints from the Nelsons neighbors. Thereafter, the trial court determined that the City had acted arbitrarily and/or capriciously in revoking the permits and granted the Nelsons request for attorney fees pursuant to Government Code section 800 (section 800).
The City, as well as appellants Board of Zoning Appeals of the City of Pasadena and the Board of Appeals, appeal both orders of the trial court, urging that (1) it properly revoked the Nelsons building permits because they were issued "in error," and (2) even if it did err in revoking the permits, it did not act arbitrarily or capriciously so as to warrant the imposition of attorney fees against it. We disagree, and we affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
The Property and Issuance of Building Permits
The Nelsons own and occupy a home located at 1496 Kenmore Road in Pasadena. The Nelsons property faces Kenmore Road, a public street, which provides the only access to the their property. The back of their property abuts Hillcrest Avenue, a private roadway which provides the only means of access for the residences which face Hillcrest Avenue. The Nelsons own no interest in Hillcrest Avenue and have no right to use that private roadway.
In September and October 1999, the Nelsons applied for building permits from the City for the construction of a new garage and workshop in the rear yard of their property. Although the plans submitted to the City by the Nelsons indicate that the front of their property faces Kenmore Road, the plans did not reflect the fact that the back of the property abuts Hillcrest Avenue. However, their survey map submitted with the plans showed the curb and paved surface of Hillcrest Avenue.
After a six-week review, in late 1999, the Citys building official issued the requested building permits to the Nelsons. The Nelsons paid the required fees.
Construction began and progressed throughout January and February 2000, during which time the Nelsons completed significant work and spent a substantial amount of money in reliance upon the permits.
The City Revokes the Permits on the Ground that the Property is a Double Frontage Lot
Thereafter, the City began receiving complaints that the Nelsons structure was not sufficiently set back from Hillcrest Avenue, as allegedly required by the Pasadena Municipal Code (the Code). The zoning administrator investigated those complaints, including by personally viewing the property, and, on March 1, 2000, placed a "stop work order" on the Nelsons construction on the grounds that it was a "double frontage lot," subject to setback requirements on both the front and rear of their property.
Under the Pasadena Municipal Code, a "double frontage lot" is "an interior lot having frontage on more than one street." (Pasadena Municipal Code, § 17.12.020.) In cases of double frontage lots, the front and rear of a parcel of property are both considered front yards and subject to a 25-foot setback. (Pasadena Municipal Code, § 17.20.030(F).)
Apparently because the Code was not clear as to whether a parcel of property facing a public street and abutting a private roadway constitutes a "double frontage lot," on March 3, 2000, the zoning administrator issued "Zoning Administrators Interpretation No. 13" (ZI13), pursuant to a procedure authorized by the Code by which he can clarify uncertainty in the Code for future application. (Pasadena Municipal Code, § 17.08.050.) According to the Nelsons, their property was not a "double frontage lot" until after the zoning administrator issued ZI13, the effect of which was to impose a new setback requirement upon their rear property line.
The zoning administrator then informed the Nelsons that the building permits had been issued in violation of the Code.
The Nelsons Appeal to the Board of Zoning Appeals
The Nelsons appealed the zoning administrators determination. On April 19, 2000, the Board of Zoning Appeals held a hearing and affirmed ZI13. The zoning administrator then requested that the building official revoke the Nelsons building permits and order demolition of the Nelsons new structure, which he did on May 2, 2000.
The Nelsons First Petition for Writ of Mandate
and Appeal to the Citys Board of Appeal
On June 29, 2000, the Nelsons filed a petition for writ of mandate challenging the Board of Zoning Appeals determination that their property was a double frontage lot. Because the Nelsons had not yet exhausted their administrative remedies, the superior court stayed the action to give them the opportunity to pursue their administrative appeal rights to the Citys Board of Appeal (the Board).
The Nelsons filed an appeal to the Board on November 14, 2001. The Board then hired a civil engineer to act as its hearing officer, hold an evidentiary hearing, and make recommendations to the Board. After holding an evidentiary hearing, the hearing officer concluded that the Nelsons property did not meet the Codes definition of "double frontage lot." He found that the zoning administrator and the Board of Zoning Appeals erred in applying standards from old, superceded zoning codes to the Nelsons property, and recommended reinstatement of the Nelsons building permits.
The Board did not follow the hearing officers recommendations. Instead, it determined that the building official properly revoked the permits based upon the zoning administrators determination that the Nelsons property constituted a double frontage lot.
The Nelsons Second Petition for Writ of Mandate
The Nelsons then brought a second petition for writ of mandate, which was consolidated with the first petition for trial. On August 10, 2001, a court trial was held. The trial court determined that the Board "attempted to take retroactive quasi-legislative action against [the Nelsons]" in order to quiet complaints by neighbors. The trial court found that the Board did not decide the Nelsons case on the evidence, but applied a legislative solution that was favored by a greater number of residents in the area. It further concluded that the City produced no evidence whatsoever that it had ever applied its definition of "double frontage lot" to require a minimum 25-foot setback to any area in which all of the lots abutted a public street on one end and a private street or alley on the other, and that all of the residences were oriented so that the front yards abutted the public street and the backyards abutted the alley or private street. Ultimately, the trial court determined that the City simply changed its mind after issuing the building permits and imposed a quasi-legislative special requirement applicable to the Nelsons property.
The trial court granted the Nelsons petition for writ of mandate on September 4, 2001, and entered judgment for the Nelsons. The parties did not request a statement of decision.
The Nelsons Request for Attorney Fees and the Instant Appeal
Thereafter, the Nelsons requested attorney fees pursuant to section 800. The trial court granted their motion, finding that the Citys actions in revoking the permits were arbitrary and capricious, based upon improper political considerations.
This timely appeal followed.
DISCUSSION
I. Petition for Writ of Mandate
A. Standard of Review
A traditional writ of mandate lies "to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station. . . ." (Code Civ. Proc., § 1085; see also Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, 869 P.2d 1142.) The correct standard of review which we apply is a mixture of the de novo and substantial evidence approaches. "In reviewing the trial courts ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.] [Citation.]" (Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1217; see also Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 973-974; Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502.)
Thus, to the extent we interpret provisions of the Pasadena Municipal Code, we do so applying the de novo standard of review. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544.) But, to the extent we determine whether the evidence supports the judgment, we apply the substantial evidence standard of review. (Estate of Beard (1999) 71 Cal.App.4th 753, 778-779; see also County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 972-973 [trial courts findings as to fundamental facts are conclusive if supported by substantial evidence].) In that regard, we focus on findings made by the trial court, not the administrative agency. (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1840-1841.)
Moreover, because there was no request for a statement of decision, we presume the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. The necessary findings of ultimate facts will be implied and we indulge all presumptions in favor of the order. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140; Code Civ. Proc., § 632.)
B. The Trial Court Properly Granted the Nelsons Petition for Writ of Mandate
The City revoked the Nelsons building permits on the grounds that they had been issued "in error" because the City allegedly did not realize that the Nelsons property was a double frontage lot at the time it issued the permits. Substantial evidence supports the trial courts determination that the City could not justify its decision. The permits here were not void when issued; rather, as the trial court found, they were issued because the proposed construction did not violate the Code.
Pasadena Municipal Code section 106.4.5 provides for the revocation of a building permit issued "in error or on the basis of incorrect information supplied, or in violation of any ordinance or regulation or any of the provisions of this code."
As set forth above, a "double frontage lot" is defined by the Code as "an interior lot having frontage on more than one street." While the term "frontage" is not defined by statute, the term "street" is identified interchangeably with the term "public right-of-way" and means any "public thoroughfare, avenue, road, highway, boulevard, parkway, way, drive, lane, court or private easement, not including freeways, providing the primary roadway to and egress from the property abutting thereon."
Here, the Nelsons property does not fall within the definition of a "double frontage lot" because it does not have frontage on Hillcrest Avenue. Hillcrest Avenue is not a "street" which "provides the primary roadway to and egress from" the Nelsons property. Rather, it is undisputed that Hillcrest Avenue provides access only to those residences which face that roadway. The Nelsons have no right to use Hillcrest Avenue, and despite appellants unfounded conclusions to the contrary, there is no evidence that even if the Nelsons garage door faces Hillcrest Avenue, they will be permitted to use Hillcrest Avenue to gain access to their property. Substantial evidence indicates that the only primary roadway to and egress from the Nelsons property is Kenmore Road.
As aptly recognized by the trial court, appellants argument that the Nelsons property is a double frontage lot hinges upon the assumption that a setback is required because other properties that abut Hillcrest Avenue do not abut any other street and Hillcrest Avenue is the only means of access to those properties. The problem with appellants position is that substantial evidence supports the trial courts finding that no evidence or code provision supports this assertion. Although appellants presented evidence that other properties in the neighborhood had been treated as double frontage lots in 1949 and 1950, there is no evidence that appellants "had ever applied its definition of double-frontage lot to require a minimum twenty-five foot setback to any area in which all of the lots abutted a public street at one end and a private street or alley at the other, and all of the residences were oriented so that the front yards abutted the public street and the backyards abutted the alley or private street." Moreover, the trial court was free to reject these few examples as archaic. As summarized by the hearing officer who recommended that the Nelsons permits be reinstated: "The Zoning Ordinance in force prior to 1952 when the three referenced variances were granted, required a boundary line needed only to be coterminous with street line to fulfill the definition of a Front Line.[] Boundary lines coterminous with street lines of Kenmore Road and the 20 foot easement complied with the definition of a double frontage lot at that time. In the 1970s the City adopted the definition for Street Frontage used by L.A. County. In the 1980s the City added the need of access to the definition of Street Frontage[.] [P] Extrapolating standards from front yard variances granted in 1949 under a previous Zoning Ordinance does not come into play where street frontage is not complied with along two lot lines. The subject parcel has only one Street Frontage as defined by the current Zoning Ordinance. The zoning administrator was remiss in not applying that current definition for Street Frontage[.]"
Accordingly, the trial court properly found that the permits were not issued "in error." Because the permits were valid when issued, appellants had no grounds upon which to revoke them.
It follows that the trial court correctly concluded that the facts in this case parallel Trans-Oceanic Oil Corp. v. Santa Barbara (1948) 85 Cal. App. 2d 776, 194 P.2d 148 (Trans-Oceanic ), and not Pettitt v. City of Fresno (1973) 34 Cal. App. 3d 813, 110 Cal. Rptr. 262. In Trans-Oceanic, "the building permit was a valid permit when issued, and in reliance thereon the permittee acted to his detriment." (Pettitt , supra, at p. 824.) Under these circumstances, the municipality could not revoke the permit. (Trans-Oceanic, supra, at pp. 790-791.) In contrast, the Pettitt court held that a municipality could not be estopped from denying the validity of a building permit issued in violation of a zoning ordinance. (Pettitt, supra, at pp. 822-823.) Here, as discussed above, the City issued valid building permits to the Nelsons, who then relied upon those permits by expending substantial amounts of time and money in constructing the new structures on their property. Under these circumstances, Trans-Oceanic governs, and the holding in Pettitt simply does not apply.
Appellants urge that the permits were void when issued because of the zoning administrators determination, enunciated in ZI13, that property which faces a public street and abuts a private roadway constitutes a double frontage lot under the Code. Appellants claim that we should defer to this determination. We decline to do so. Again, as set forth above, the building permits issued to the Nelsons were proper and valid at the time they were issued. We will not endorse or condone the zoning administrators subsequent attempt to change or "clarify" the definition of "double frontage lot" retroactively (under the guise of uncertainty) so as to penalize the Nelsons after they had spent time and money in reliance upon valid permits. (Trans-Oceanic , supra, 85 Cal. App. 2d at p. 791.)
II. Attorney Fees
The trial court awarded the Nelsons attorney fees pursuant to section 800. That statute provides, in relevant part: "In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law . . . where it is shown that the award, finding, or other determination of the proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his or her official capacity, the complainant if he or she prevails in the civil action may collect reasonable attorneys fees."
""The award of attorneys fees under Government Code section 800 is allowed only if the actions of a public entity or official were wholly arbitrary or capricious. The phrase arbitrary or capricious encompasses conduct not supported by a fair or substantial reason, a stubborn insistence on following unauthorized conduct, or a bad faith legal dispute." [Citations.] Attorneys fees may not be awarded simply because the administrative entity or officials action was erroneous, even if it was "clearly erroneous." [Citation.]" (American President Lines, Ltd. v. Zolin (1995) 38 Cal.App.4th 910, 934, quoting Stirling v. Agricultural Labor Relations Bd. (1987) 189 Cal. App. 3d 1305, 1312, 235 Cal. Rptr. 56.) We review the trial courts award of attorney fees for abuse of discretion. (American President Lines, Ltd. v. Zolin , supra, at p. 934.)
Based upon the evidence presented, we conclude that the trial court did not abuse its discretion in awarding attorney fees to the Nelsons pursuant to section 800. After considering the briefs and evidence filed by the parties, the trial court found that the City acted arbitrarily or capriciously by revoking the Nelsons properly-issued building permits. Instead of acting impartially, "it attempted to take retroactive quasi-legislative action against the [Nelsons] in order to satisfy complaints by neighbors of [the Nelsons]." In other words, the City "did not decide the case before it on the evidence presented to it, but applied a legislative solution that was favored by a greater number of residents in the area." These express findings by the trial court indicate that it evaluated the evidence and claims of the parties and determined that appellants did more than just err in their interpretation of the Code. Rather, they engaged in unfair conduct, motivated solely by political considerations. Under these circumstances, the trial court did not abuse its discretion in awarding the Nelsons attorney fees in the statutory amount of $ 7,500.
DISPOSITION
The orders of the trial court are affirmed. The Nelsons shall recover their costs on appeal.
We concur: BOREN, P. J., and NOTT, J.