Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS114517 David P. Yaffe, Judge.
Cox, Castle & Nicholson, Kenneth B. Bley and James R. Repking for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, and Terry P. Kaufmann Macias, Deputy City Attorney, for Defendants and Respondents.
MALLANO, P. J.
Since 1983, Shamrock Base Corp. (Shamrock) operated a concrete and asphalt crushing and recycling business in an area of the City of Los Angeles (City) zoned M3. In 1991, a portion of the area was down-zoned to M1. In June 2005, the City issued to Shamrock an order to comply, ordering Shamrock to cease its operations on the ground that the M1 zone did not permit Shamrock’s use of the property. Shamrock mounted a two-pronged attack on the City’s order by applying for a variance and for a vested rights determination. After the City denied Shamrock’s challenges to the order to comply, Shamrock filed a petition for a writ of mandate. The trial court denied the petition, and Shamrock appealed.
We affirm the judgment because substantial evidence supports the trial court’s express or implied determinations that (1) the City properly denied the zoning variance; (2) Shamrock’s use of the portion of the property zoned M1 was not a legal nonconforming use; (3) Shamrock did not have a vested right to continue its use; and (4) any procedural flaws or irregularities in the administrative proceedings were not prejudicial.
BACKGROUND
A. Administrative Proceedings on Variance Application
Beginning in 1983, Shamrock operated its rock crushing and recycling business on unimproved portions of an 18.5 acre parcel of leased property at 555½ North Mission Road. East of the property was a railroad right-of-way and the Los Angeles River. The entire property was then zoned M3, a heavy industrial zone, in which Shamrock’s use was permitted. In 1991, as part of the City’s implementation of the General Plan and Zoning Consistency Program for the Boyle Heights Community Plan area, the City down-zoned a 6.5 acre portion of the 18.5 acre parcel, labeled in the plot plan as Property A (M1 Parcel), from M3 to M1. M1 is a limited industrial zone, in which Shamrock’s use is not permitted. From 2005 to 2008, Shamrock maintained a 40- to 60-foot pile of asphalt and concrete materials on the M1 Parcel. Vehicle access to the M1 Parcel is by way of an unimproved access road from Richmond Street, northeast of the intersection of Mission Road and Cesar E. Chavez Avenue.
The City’s records contain a 1983 application for an inspection and for a certificate of occupancy in which Shamrock sought a permit for “Asphalt & Concrete crushing - Use of Land (100 [feet] x 100 [feet])” or 10, 000 square feet. Shamrock later admitted in a February 2008 appeal hearing that there was no documentation showing that it had followed through on the 1983 permit application and that it had no certificate of occupancy.
Meanwhile, in 1992 Shamrock filed an application for inspection with the City seeking a use of land permit to complete work pursuant to the 1983 application for a permit, which work was “90% complete.” The 1992 application stated that the property was then zoned M1. City records also showed that in February 1992, Shamrock filed a request for an extension of time to submit a plan for a plan check with the City in order to “complete plan for renewal of existing permit, ” apparently referring to the 1983 permit.
In June 2005, as the result of a complaint, an inspector from the City’s Code Enforcement Bureau visited the M1 Parcel, observed the rock crushing and rock storage use on it, and discovered that no certificate of occupancy had been issued, as required by Los Angeles Municipal Code (LAMC) section 12.26. The City issued an order to comply, effective June 10, 2005, stating that the M1 Parcel was in violation of provisions of the LAMC which prohibited a rock crushing and storage facility in the M1 zone and ordering Shamrock to discontinue such use.
Unspecified section references are to the LAMC.
After Shamrock met in the fall of 2005 with representatives of the City Department of Building and Safety (LADBS) and other elected officials to discuss the concerns raised in the June 2005 order to comply, Shamrock agreed to file an application for a zone variance. Shamrock consistently maintained that its use of the property was a legal nonconforming use.
In December 2006, Shamrock submitted a zone variance application to permit the continued use and maintenance of an existing 816, 312 square-foot asphalt and concrete crushing and recycling facility. The M1 Parcel was 6.5 acres, or 283, 706 square feet; Shamrock used the M1 Parcel and a portion of the parcel zoned M3 to conduct its business, which was conducted on a total of 816, 312 square feet.
A public hearing on the variance application was held before the zoning administrator on October 15, 2007. After consideration of the variance application and accompanying plans, written correspondence from Shamrock and others, and statements made at the public hearing, all of which were summarized in the 27-page decision dated December 28, 2007, the zoning administrator denied the variance pursuant to the provisions of Los Angeles City Charter section 562 and LAMC section 12.27.
Before a variance is granted, the following findings must be made: “1. that the strict application of the provisions of the zoning ordinance would result in practical difficulties or unnecessary hardships inconsistent with the general purposes and intent of the zoning regulations; [¶] 2. that there are special circumstances applicable to the subject property such as size, shape, topography, location or surroundings that do not apply generally to other property in the same zone and vicinity; [¶] 3. that the variance is necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity but which, because of the special circumstances and practical difficulties or unnecessary hardships, is denied to the property in question; [¶] 4. that the granting of the variance will not be materially detrimental to the public welfare, or injurious to the property or improvements in the same zone or vicinity in which the property is located; and [¶] 5. that the granting of the variance will not adversely affect any element of the General Plan.” (§ 12.27, subd. D; L.A. City Charter, art. 5, § 562, subd. (c) (City Charter section 562(c)).)
The zoning administrator did not make the required findings for a variance under section 12.27, subdivision D and City Charter section 562(c); instead, the zoning administrator found the opposites to the findings to be true. The zoning administrator made the following findings and explanations for his findings:
(1) A strict application of the zoning ordinance would not result in practical difficulties or unnecessary hardships for Shamrock inconsistent with the general purpose and intent of the zoning regulations. The zoning administrator explained that “there is no documentation in the record to support [Shamrock’s] contention that the subject facility has legal nonconforming status. A ‘nonconforming use, ’ as defined in Section 12.03 of the Municipal Code, is: [¶] A use of building or land which does not conform to the regulations of this chapter [i.e., Planning and Zoning Code] and which lawfully existed at the time the regulations with which it does not conform became effective. [¶] No use of land permit or certificate of occupancy has been produced as evidence or proof that the concrete and asphalt recycling facility use was legally established prior to the 1991 zone change. Subsequent to the 1991 zone change, no application was filed with the Office of the Zoning Administration to request the continued maintenance of a nonconforming use in accordance with Section 12.23 of the Municipal Code. [¶]... [¶] It was only after 2005, when the first of three Orders to Comply issued by the Code Enforcement Bureau of the [LADBS] cited the use for being in violation of the M1 zone, that the applicant sought to remedy the lack of land use permitting for the business conducted on the subject property since 1983 by the submission of this zone variance application request, which was filed on December 21, 2006. [¶] The variance essentially seeks to continue the use of the facility without significant changes to the unenclosed, heavy industrial nature of the entire facility operation, including maintaining the substantial height and quantity of stockpiled material, and allowing continued outdoor rock crushing and transfer of recycled materials onto trucks, despite the potentially significant adverse air quality, aesthetics, noise, groundwater and other environmental effects the facility creates.... [¶] The general purpose and intent of the zoning regulations are to encourage the orderly use and development of land in a manner that promotes the health, safety and the general welfare of the community. The proposed continued use and maintenance of the concrete and asphalt recycling facility within the M1 Zone is substantially inconsistent with similar limitations upon other properties in the same zone and vicinity. Further, due to the lack of any prior land use permits for the facility, practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations cannot be found in that the conditions creating the need for the variance were self-imposed.”
Section 12.23, subdivision C.2 provides in pertinent part: “... [T]he nonconforming use of land may be continued, subject to the following limitations: [¶] (a) that the use is not expanded or extended in any way either on the same or adjoining land beyond the limits of what was originally permitted; and [¶] (b) that the use is not changed, except to a use that conforms to the current use regulations of the zone and other applicable current land use regulations; and [¶] (c) in the MR or M1 Zone, the use shall be completely enclosed within a building or within an area enclosed on all sides with a solid wall or solid fence of a height sufficient to screen the use from public view, but in no event less than six feet in height, within one year from the date the use becomes nonconforming....”
(2) There were no special characteristics of the property’s size, shape, topography, location or surroundings that do not apply generally to other property in the same zone and vicinity. The decision noted that the southerly portion of the property, also in the M1 zone, was used for an auto salvage business. The property was bordered on the northeast and west by Union Pacific Railroad rights-of-way, zoned M3. Immediately beyond the westerly railroad right-of-way was the Los Angeles River, within the Los Angeles County Flood Control District, zoned for open space and recreation uses (the OS-1XL zone). The area south of the property, zoned M1, was developed with light industrial buildings, a nightclub, an auto salvage business, and residences. The area to the southwest, zoned M2, was developed with a warehouse. The zoning administrator concluded that “[a]lthough the size of the... property... - approximately 18.5 acres... - is larger than most surrounding industrial properties which characterize the area, there are not otherwise special circumstances applicable to the property involved such as its irregular shape, topography, location and surroundings that distinguish it to warrant granting the variance.”
(3) A variance was not necessary for the preservation and enjoyment of a substantial property right or use generally possessed by other property in the same zone and vicinity but which, because of special circumstances, difficulties or unnecessary hardships, was denied Shamrock’s property. “As noted in Finding No. 1, no use of land permit or certificate of occupancy has been produced as evidence or proof that the concrete and asphalt recycling facility use was legally established prior to the 1991 zone change from M3-2 to M1-2D. The use has apparently operated in violation of required land use permits since it commenced in 1983, and in violation of the M1 Zone since 1991. There is no inherent right or necessity to continue a nonconforming use of land that has no legal status. There are not otherwise physical constraints or other limitations that preclude the use of the subject property consistent with the rights generally possessed by other property in the same zone and vicinity.”
(4) The granting of the variance will be materially detrimental to the public welfare and injurious to the property or improvements in the same zone or vicinity. After noting that Shamrock’s facility was within one-quarter mile of a residential neighborhood to the east and within 1, 000 feet of a residential neighborhood to the south, the zoning administrator found that the continued use and operation of Shamrock’s facility “would prolong existing adverse land use effects upon these nearby neighborhoods and the larger community, including but not limited to negative effects upon air quality..., aesthetics (degrading of the visual character of the environment adjacent to the Los Angeles River revitalization efforts), and noise above ambient levels (due to rock crushing and loading equipment). In addition, the Initial Study Checklist... also identified potentially significant effects upon geology and soils..., hazards and hazardous materials..., hydrology and water quality, land use (conflict with applicable plans adopted for the purpose of avoiding or mitigating environmental effects), public services (fire protection) and transportation/circulation. [¶]... [¶] If the use is left unchanged and without substantial site improvements, as proposed, the granting of the requested variance to permit the continued unenclosed facility operation will cause ongoing negative environmental effects that discourage the revitalization of industrial uses and development on surrounding properties, to the detriment of the public welfare and surrounding area.”
(5) The granting of the variance will adversely affect elements of the general plan. The zoning administrator explained that the property was within the area of the Boyle Heights Community Plan, which designated the property for limited industrial uses, the Adelante Eastside Redevelopment Project Area and the Los Angeles River Revitalization Master Plan (LARRMP). The LARRMP, adopted by the City in May 2007, acknowledged the river as an important natural resource deserving of protection and that development in the area should “promote the sustainability of the River, the Greenway and the surrounding neighborhoods.” The Community Redevelopment Agency of the City (CRA), which shared planning and regulatory jurisdiction with the City’s planning department for projects located in the Adelante Eastside Redevelopment Project Area, was allowed to consider minor variations from the limits and restrictions of the Redevelopment Plan, but the CRA strongly objected to the granting of the variance. The CRA had commented that “the requested variance is not [in] conformance with the several requirements of the Redevelopment Plan and that there has not been adequate environmental analysis of the project.”
The zoning administrator concluded that granting of the variance would not be “consistent with the Limited Industrial land use designation of the Boyle Heights Community Plan and therefore also not consistent with the land uses authorized by the Redevelopment Plan, ” and the “continued unenclosed facility would also be detrimental in its effects to the physical environment and undermine revitalization planning efforts for properties adjacent to the Los Angeles River. Therefore, for the reasons stated above, the granting of the variance would adversely affect the General Plan.”
Shamrock appealed the zoning administrator’s decision to the East Los Angeles Area Planning Commission (APC). A public hearing before the APC was held on February 27, 2008. Representatives of Shamrock presented written and oral testimony. Shamrock argued, among other things, that in 2005, Shamrock received a “commitment” from City officials that if Shamrock filed a request for a variance, Shamrock would be allowed to “stay in business at the present site.” Shamrock asserted that in reliance on the “commitment, ” it had expended over $200,000 to pursue the variance application. The APC sustained the action of the zoning administrator and denied the appeal. On April 11, 2008, the APC issued its written determination. The APC’s determination informed Shamrock that its decision upholding the action of the zoning administrator was final and subject to judicial review under Code of Civil Procedure section 1094.5.
A transcript of the February 27, 2008 public hearing is included in the administrative record.
On April 25, 2008, Shamrock filed in the superior court a petition for a writ of mandate and complaint for declaratory and injunctive relief challenging the denial of the variance.
B. Administrative Appeal of Order to Comply
In May 2008, Shamrock filed an appeal of the June 2005 order to comply with the LADBS, arguing that its use of the M1 Parcel was a legal nonconforming use. In a May 6, 2008 letter accompanying the appeal, Shamrock asserted that it did not file the appeal earlier because the LADBS directed Shamrock first to apply for a zone variance. On June 24, 2008, the LADBS issued a written determination denying Shamrock’s appeal and informing Shamrock that the determination of the LADBS may be appealed to the Director of Planning under section 12.26, subdivision K.
Section 12.26, subdivision K provides in pertinent part: “1. The Director of Planning shall have the power and duty to investigate and make a decision upon appeals from determinations of the Department of Building and Safety where it is alleged there is error or abuse of discretion in any order, interpretation, requirement, determination or action made by the Department of Building and Safety in the enforcement or administration of Chapter I of this Code and other land use ordinances in site-specific cases.... [¶]... [¶] 3.... The Director shall set the matter for hearing if it is likely to be controversial.”
On July 8, 2008, Shamrock appealed the determination of the LADBS to the Director of Planning (Director). In a written order dated August 28, 2008, the Director dismissed Shamrock’s appeal and request for a legal nonconforming land use determination. The Director noted that the April 11, 2008 determination of the APC, upholding the zoning administrator’s denial of Shamrock’s variance application, was a final decision on the variance application and not further appealable.
The Director reasoned that “[w]ith the subject appeal and request for legal nonconforming use determination, essentially the same arguments and issues are raised that were expressly addressed and dealt with in the zone variance denial. The Municipal Code does not grant authority to file multiple appeals, nor has it been a practice of the Office of Zoning Administration to accept the [refilling] of the same or virtually the same request as had been previously filed and was denied. The reasons for this policy regarding [refilling] of applications are: [¶] 1. The system should render final decision in order to engender public confidence. [¶] 2. Forum shopping should be discouraged. [¶] 3. The public should have confidence that an applicant does not have the ability to manipulate the system. [¶] 4. Time taken to reconsider the same request is diverted from other viable proposals. [¶] 5. There is substantial inconvenience to the public resulting from having to make repeated trips to attend hearings.”
The Director continued: “Further, there is no basis to conclude that there has been a material change in circumstances or conditions since the zone variance denial to warrant further review. Moreover, as stated in the [staff report dated June 23, 2008], the applicant was advised by LADBS that the appeal claiming nonconforming rights may be rejected by the Department of City Planning if it is deemed that the issue was addressed previously by the Zoning Administrator (December 28, 2007) and the East Los Angeles Area Planning Commission (April 11, 2008).”
In September 2008, Shamrock appealed the Director’s dismissal to the APC. Shamrock received a voicemail message from the Planning Department’s staff that the appeal had been dismissed. Shamrock then filed an objection to the dismissal, but the City did not respond to the objection nor schedule a hearing on its appeal.
C. Administrative Determination on Vested Rights Issue
On July 7, 2008, Shamrock filed an application with the Board of LADBS Commissioners (Board) for a determination that it had a vested right to continue its use of the M1 Parcel. A public hearing before the Board was held on October 21, 2008. According to the staff report for the hearing, the words vested rights did not appear in the prior administrative determinations, so “to assure that all administrative rights have been afforded the petitioner, LADBS will formally address the very narrow matter of vested rights.”
The administrative record contains the Board’s minutes for October 21, 2008, but there is no transcript of the hearing. Notwithstanding the lack of a transcript, the minutes provide a detailed summary of the hearing. There is no indication in the minutes that Shamrock requested that the public hearing be tape-recorded.
According to the minutes, Shamrock clarified only moments before the hearing that Shamrock was seeking a vested rights determination to continue its use on only 380, 000 square feet, not on 800, 000 square feet as mentioned in the staff report. The City’s staff argued that Shamrock did not meet the three requirements for a vested rights determination under Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785 (Avco). As framed by the City’s staff, those requirements were (1) that the applicant proceeded in good faith reliance upon a permit issued by the government; (2) that the applicant incurred a substantial liability; and (3) that the applicant performed a substantial amount of work.
Avco “sets forth the judicial vested rights doctrine as applied to land use: ‘It has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he [or she] acquires a vested right to complete construction in accordance with the terms of the permit. [Citations.] Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he [or she] relied.’ ([Avco, supra, 17 Cal.3d] at p. 791.)” (Davidson v. County of San Diego (1996) 49 Cal.App.4th 639, 646.)
The Board determined that Shamrock did not have a vested right to continue its use of the M1 Parcel, making the following findings: “1. The Board finds that no factual evidence was presented that shows the [LADBS] did err or abuse its discretion. [¶] 2. Shamrock did not provide any relevant information or evidence to support compliance with either of the three [Avco] tests. [¶] 3. The initial permit did not encompass an 800, 000 or 380, 000 square foot area. Rights which may vest upon reliance on a governmental permit are no greater than those specifically granted by the permit itself.”
In November 2008, Shamrock filed a second amended petition for a writ of mandate (petition) adding challenges to both the Director’s dismissal of its appeal without a hearing and to the Board’s denial of its request for a vested right to continue its use of the M1 Parcel.
D. Trial Court’s Denial of Shamrock’s Petition for a Writ of Mandate
After a hearing, the trial court denied Shamrock’s petition for a writ of mandate in May 2009. Conducting an independent review of the administrative record, the court found that “Shamrock failed to prove that it had acquired a vested right to maintain a 380, 000 square foot... crushing plant on the site before the site was down-zoned by the City in [1991], from M3 to M1. Crushing plants are not permitted in the M1 zone. The administrative record contains no evidence that Shamrock ever sought and obtained approval to conduct a concrete and asphalt crushing operation on the site. What the record does show is that in 1983, Shamrock applied for a building permit to construct an ‘asphalt concrete crushing yard 100 feet by 100 feet’ in size (an area of 10, 000 square feet.... By 2005 the facility was 38 times that size.... The administrative record does not disclose when, or over what period of time, Shamrock enlarged the facility or how large the facility was at the time that the site was down-zoned from M3 to M1. Assuming that Shamrock obtained the permit for which it applied in 1983, the nonconforming use has been radically enlarged to a present size of 380, 000 square feet.” Placing the burden of proof on Shamrock to establish governmental authorization for its use of the M1 Parcel and to establish a right to continue a nonconforming use, the trial court found that the weight of the evidence supported the administrative decision to deny Shamrock a variance.
The trial court also rejected Shamrock’s challenges to the fairness of the administrative proceedings, finding that “Shamrock was granted an administrative hearing before a Zoning Administrator and was granted an administrative appeal from the decision of the Zoning Administrator. The decision of the [APC] was final, and Shamrock was not required or entitled to pursue the matter further administratively. Shamrock’s attempt to obtain a contrary ruling on the same issue from the Board... did not confer any additional rights upon Shamrock because of the fact that such Board did not record its proceedings.”
Shamrock appealed from the judgment in favor of the defendants (the City, the APC, and the LADBS).
DISCUSSION
A. Denial of Variance
When the trial court applies an independent judgment test, on appeal we review the trial court’s decision for substantial evidence. (Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1531.) We conclude that substantial evidence supports the trial court’s ruling that the weight of the evidence supported the zoning administrator’s decision with respect to the five findings required for the grant of a variance under section 12.27, subdivision D and City Charter section 562(c).
1. Citing the hundreds of thousands of dollars it spent to comply with the City’s directions after the issuance of the 2005 order to comply, its inability to find another suitable site to operate its facility, and the loss of its business and about 20 jobs for its employees, Shamrock contends that there was no substantial evidence to support the finding that a strict application of the zoning ordinance would not cause it practical difficulties or unnecessary hardships inconsistent with the purposes and intent of the zoning regulations. We disagree.
“‘The policy of the law is for elimination of nonconforming uses....’ [Citation.]” (Sabek, Inc. v. County of Sonoma (1987) 190 Cal.App.3d 163, 166 (Sabek).) “‘Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement.’ [Citation.]” (Id. at p. 167.) Thus, the purpose of zoning is “‘to crystallize present uses and conditions and eliminate nonconforming uses as rapidly as is consistent with proper safeguards for those affected; that provisions for continuation of a nonconforming use are inserted in zoning ordinances because of the injustice and doubtful constitutionality of compelling immediate discontinuance of the nonconforming use; and that our courts and courts throughout the country generally, have always strictly construed such provisions....’” (Ibid.)
Unnecessary hardship occurs “where the natural condition or topography of the land places the landowner at a disadvantage vis-à-vis other landowners in the area, such as peculiarities of the size, shape or grade of the parcel.” (Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1183.) The hardship also must be substantial, and “the exception sought must be in harmony with the intent of the zoning laws.” (Ibid.) Although some courts have considered hardship in terms of economics, “‘[i]f the property can be put to effective use, consistent with its existing zoning [and nonconforming use grant] without the deviation sought, it is not significant that the variance[] sought would make the applicant’s property more valuable, or that [it] would enable him to recover a greater income.... [Citation.]’ [Citation.]” (Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 926.)
An unnecessary hardship may also arise when there is an inability to use the property for the purposes of its existing zoning because of the prevailing uses of surrounding property. (Minney v. City of Azusa (1958) 164 Cal.App.2d 12, 31.)
Substantial evidence supports the trial court’s implied finding that the evidence in the record was insufficient to establish practical difficulties or unnecessary hardship because Shamrock’s use was permitted in an adjoining area zoned M3. Significantly, Shamrock’s existing operations extended over not only 6.5 acres (283, 706 square feet) zoned M1, but over an additional 500, 000 square feet (or 200, 000 square feet, as Shamrock claimed in the hearing on the vested rights issue), which was zoned M3 and in which Shamrock’s use was permitted. Shamrock did not establish that the existing zoning would not accommodate Shamrock’s operations in that its uses were permitted on the portion of the 18.5 acres which was zoned M3. Nor was there evidence showing that the M1 Parcel was unable to be used for purposes permitted in that zone, that is, limited industrial uses. Because there were no practical difficulties resulting from the strict application of the zoning code and Shamrock’s hardship was not substantial, the discontinuance of Shamrock’s use in the M1 zone would not be inconsistent with the purposes and intent of the zoning regulations. Substantial evidence thus supports the trial court’s implied determination as to the first required finding.
2. Substantial evidence supports the trial court’s implied finding that there were no special circumstances applicable to the M1 Parcel that did not apply to other property in the same zone and vicinity because there was insufficient evidence showing that the M1 Parcel did not share similar characteristics with other property in the vicinity zoned M1.
3. Substantial evidence supports the trial court’s implied finding that the variance was not necessary to preserve for Shamrock the same property rights generally possessed by others in the same zone or vicinity, but was denied to Shamrock because of special circumstances, practical difficulties, or unnecessary hardships. As explained in connection with the first and second findings, the trial court properly found that there were no special circumstances, practical difficulties, or unnecessary hardships. Nor was there evidence showing that other properties in the vicinity zoned M1 enjoyed rights and uses not available to Shamrock.
4. Substantial evidence supports the trial court’s implied finding that the granting of the variance would be materially detrimental to the public welfare and to the property and improvements in the same vicinity or zone. Shamrock argues that because the variance will not change a use which had been in existence for 25 years, and because Shamrock was amenable to mitigation measures and conditions regarding some aspects of its operations, the variance would not impact the public welfare and its use was consistent with the general plan. But the record is replete with evidence as to the environmental impacts of Shamrock’s operation and substantial evidence supports the trial court’s implied finding that Shamrock’s continued operation will have ongoing negative environmental effects and discourage the revitalization and development of the surrounding area.
5. Substantial evidence also supports the trial court’s implied finding that a variance will adversely affect elements of the general plan, for the reasons set out in detail by the zoning administrator. Shamrock also cites no authority to support its argument that because it began its operations in 1983, and the LARRMP and Adelante Eastside Redevelopment Project Area Redevelopment Plan were adopted in 2007 and 1999 respectively, these plans “cannot be applied to shut down Shamrock’s facility without compensating Shamrock or providing an amortization period.” Because zoning regulations look to the future and the eventual elimination of nonconforming uses (Sabek, supra, 190 Cal.App.3d at p. 167), we interpret the reference to “General Plan” in the fifth finding set out in section 12.27, subdivision D (see ante, p. 5) and City Charter section 562(c) to mean the general plan in existence at the time the variance is sought, not a former general plan that may have existed when the use first began.
B. Nonconforming Use Issue
In an indirect challenge to the denial of the variance, Shamrock contends that it was not required to file an application for a variance in the first instance because its use of the M1 Parcel constituted a “legal nonconforming use.” The zoning administrator, the APC and the trial court addressed this issue and determined otherwise. We conclude that their determinations are supported by substantial evidence.
Section 12.26, subdivision E requires a certificate of occupancy for the use of vacant land. (See ante, fn. 1.) And when there is a change in the LAMC, section 91.106.4.3.1 provides that work under a permit may be completed only if the City makes a determination that substantial liabilities had been incurred and substantial work had been performed under the permit. (See ante, fn. 1.)
It is undisputed that the record contains no certificate of occupancy, a requirement for Shamrock’s use of the land to be considered a legal nonconforming use under the provisions of section 12.03. And Shamrock did not request that the City make the determinations under section 91.106.4.3.1.
To avoid the inescapable conclusion that no certificate of occupancy was obtained and that Shamrock’s facility was therefore not a legal nonconforming use, Shamrock makes a number of meritless arguments.
Shamrock asserts that because the City waited over 14 years after the 1991 down-zoning to enforce its zoning regulations, the City “permitted” Shamrock’s operations and is estopped from enforcing the 1991 zoning regulations. In a similar vein, Shamrock claims that “[t]he fact that the finaled permit file is missing should not be blamed on Shamrock, ” and that the presumption in Evidence Code section 664 that official duty has been performed should be applied. The problem with these arguments is that sections 12.26, subdivision E, and 91.106.4.3.1 (see ante, fn. 1) place the burden on Shamrock to obtain the necessary inspections and the certificate of occupancy. There is no evidence that Shamrock secured an inspection in order to obtain a certificate of occupancy as required by the zoning code, so there is no basis to apply the estoppel doctrine or the evidentiary presumption. There is also no basis to conclude that there are any “missing” files in connection with Shamrock’s use of the property.
Shamrock also contends that the lack of a certificate of occupancy is a mere “technical irregularity” that should not preclude its status as a legal nonconforming use. We are unable to accept Shamrock’s invitation to disregard the zoning regulations because a city’s zoning power “must be exercised within the bounds of all applicable city charter, ordinance and code sections, and any action on its part that exceeds those bounds is void.” (City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1105 (San Francisco).)
And the City did not have to disprove the pre-1991 existence of a certificate of occupancy. As reasoned by the court in the San Francisco case, involving the denial of a permit to maintain three dwelling units on property zoned for single-dwelling use: “Rather, the burden is always on the party seeking to establish the nonconforming use to show that the use did preexist. [The real party in interest] maintains that it is unfair to expect a property owner to come up with documentation when so much time has elapsed and city records are incomplete, yet a contrary rule shifting the burden to the city would mean, as a practical matter, that some older properties could never be brought into compliance with modern zoning standards. As one commissioner in this case noted, the owners of the property had enjoyed the benefit of an illegally built third unit for about 50 years while the city never had the reciprocal benefit of increased assessments.... The code’s purpose is to bring nonconforming uses into code compliance ‘as quickly as the fair interests of the parties will permit.’ [Citation.] The ‘fair interests of the parties’ were well served on both sides here.” (San Francisco, supra, 207 Cal.App.3d at p. 1107.)
Even if we deem a certificate of occupancy to have been issued based on the 1983 application, the permitted use would have been limited to 10, 000 square feet. “‘[T]he rights which may “vest” through reliance on a government permit are no greater than those specifically granted by the permit itself. [Citations.]’ [Citation.]” (Davidson v. County of San Diego, supra, 49 Cal.App.4th at p. 646.) Shamrock’s applications for a variance and for a vested rights determination have consistently requested the use of tens of thousands of square feet more than the 10, 000 requested in the 1983 application. Because Shamrock maintains that in 1991, it used the entirety of the M1 Parcel (approximately 280, 000 square feet) for its operations, Shamrock’s use of the property exceeded 10, 000 square feet in 1991. Therefore, even if Shamrock is deemed to have been entitled to the lawful use of 10, 000 square feet at the time of the 1991 zone change, Shamrock was not entitled to use the remaining 270, 000 square feet, and its operations were not a legal nonconforming use as to the use of the 270, 000 square feet.
We conclude that, on the instant record, substantial evidence supports the trial court’s finding that Shamrock’s use was not a legal nonconforming use of the M1 Parcel.
C. Vested Rights Determination
Substantial evidence supports the Board’s and the trial court’s denial of Shamrock’s request for a vested rights determination. Shamrock agrees that Avco, supra, 17 Cal.3d 785, provides the appropriate test for vested rights. The Avco test requires that the applicant proceeded in good faith reliance on a government permit, that the applicant incurred a substantial liability, and that the applicant performed a substantial amount of work. As stated, the most that Shamrock could have reasonably relied upon under the 1983 application was the right to use a 10, 000 square foot area of the M1 Parcel, not the 380, 000 square feet it requested in its vested rights application. But Shamrock failed to provide any evidence to show that it had incurred any liability or expenses in reliance on a permit to use a 10, 000 square foot area, or indeed in reliance on any permit. Shamrock points to the hundreds of thousands of dollars it incurred after June 2005 to challenge the order to comply and to pursue administrative remedies, yet Shamrock cites no authority to support the proposition that costs incurred in the administrative proceeding itself are the types of liabilities and expenses qualifying under the Avco test. We conclude that substantial evidence supports the Board’s and the trial court’s determinations that Shamrock did not have a vested right to continue its use of the M1 Parcel under Avco.
Shamrock also challenges the Board’s vested rights determination on the ground that the public hearing was not tape-recorded. But Shamrock cites no ordinance or statute requiring the Board to tape-record the proceedings. And there is no indication that this alleged flaw was brought to the attention of the Board, so Shamrock was precluded from raising it in the trial court and on appeal. Government Code section 65009, which applies to actions or proceedings challenging local land use decisions, provides in pertinent part: “(b)(1) In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing, except where the court finds either of the following: [¶] (A) The issue could not have been raised at the public hearing by persons exercising reasonable diligence. [¶] (B) The body conducting the public hearing prevented the issue from being raised at the public hearing.”
Shamrock does not contend that this case meets either of the two exceptions set out in Government Code section 65009, subdivision (b)(1). And Shamrock does not show that any failure to tape-record the proceedings was prejudicial. (Sabek, supra, 190 Cal.App.3d at p. 168.) Shamrock’s position, evidence, and arguments were set out in numerous letters and documents accompanying its application to the Board. At the time of the October 21, 2008 Board hearing, the Board was informed as to all of the previous administrative proceedings involving the M1 Parcel. The minutes of the Board hearing on October 21, 2008, are detailed. As Shamrock fails to establish that the record is not adequate for judicial review, Shamrock does not show that the lack of a tape-recorded hearing is prejudicial.
D. Dismissal of Appeal of Order to Comply
Shamrock contends that the LADBS and the Director violated its due process rights by dismissing its appeal of the order to comply, in which Shamrock again raised the issue of whether its use of the M1 Parcel constituted a legal nonconforming use. We conclude that there was no due process violation.
In connection with an analysis of the first required finding for a variance under section 12.27, subdivision D (see ante, p. 5), the zoning administrator discussed and rejected Shamrock’s claim of a legal nonconforming use. After Shamrock had appealed to the APC, exhausted administrative remedies in connection with its variance application, and filed in the superior court a petition for a writ of mandate challenging the denial of the variance, Shamrock filed with the LADBS an appeal of the June 2005 order to comply. The appeal of the order to comply raised the same nonconforming use issues which had been determined by the zoning administrator and the APC. The determination by the APC was final, and Shamrock was entitled to challenge it, and did challenge it, by filing its petition for a writ of mandate.
Shamrock does not cite any City code provision which affords it an administrative appeal of the order to comply under the circumstances of this case, where the issue raised in the appeal already had been decided by the City and was presented in a petition for a writ of mandate filed in the superior court. Shamrock has also now obtained appellate review of the nonconforming use determinations by the City and by the trial court. Under the instant circumstances, Shamrock fails to demonstrate that, assuming procedural error or irregularity in connection with the administrative proceedings, any purported error was prejudicial. (Sabek, supra, 190 Cal.App.3d at p. 168.)
Because Shamrock fails to establish that the trial court erred and that its findings were not supported by substantial evidence, the judgment is affirmed.
DISPOSITION
The judgment is affirmed. Defendants are entitled to their costs on appeal.
We concur: ROTHSCHILD, J., JOHNSON, J.
Section 12.26, subdivision E provides in pertinent part: “No vacant land shall be occupied or used, except for agricultural uses... until a certificate of occupancy shall have been issued by the Superintendent of Building.”
Section 12.26, subdivision E.2 provides: “A certificate of occupancy for the use of vacant land or a change in the character of the use of the land... shall be applied for before any such land shall be occupied or used for any purpose except that of tilling the soil and the growing therein of farm, garden or orchard products; and a certificate of occupancy shall be issued after the application has been made, provided such use is in conformity with the provisions of the Municipal Code.”
The rights attaching to a permit when there is a change in the zoning code are set out in the following provisions of the LAMC.
Section 91.106.4.3.1 provides: “The issuance of a permit is not an approval or an authorization of the work specified therein. A permit is merely an application for inspection, the issuance of which entitles the permittee to inspection of the work which is described therein. [¶] Permits issued under the requirements of this Code shall not relieve the owner of responsibility for securing required permits for work to be done which is regulated by any other Code, department or division of the City of Los Angeles. [¶] All permits are issued subject to the following conditions: [¶] If the work described by a valid permit is prohibited by a change in the Los Angeles Municipal Code, then such work may be completed only if the department determines that both substantial liabilities have been incurred, and substantial work has been performed on site, in accordance with the terms of that permit. Work performed and liabilities incurred pursuant to a demolition or relocation permit shall not be considered in determining whether an owner may complete a building or structure for which a building permit has been issued.”
Section 91.106.4.3.2 provides: “Neither the issuance of a permit nor the approval by the department of any document shall constitute an approval of any violation of any provision of this Code or of any other law or ordinance, and a permit or other document purporting to give authority to violate any law shall not be valid with respect thereto.”