Breneric Associates v. City of Del Mar, No. D024838

CourtCalifornia Court of Appeals
Writing for the CourtMcDONALD; HALLER, Acting P.J., and McINTYRE
Citation69 Cal.App.4th 166,81 Cal.Rptr.2d 324
Parties, 1999 Daily Journal D.A.R. 389, 99 Daily Journal D.A.R. 469 BRENERIC ASSOCIATES et al., Plaintiffs and Appellants, v. The CITY OF DEL MAR, Defendant and Respondent.
Decision Date15 December 1998
Docket NumberNo. D024838

Page 324

81 Cal.Rptr.2d 324
69 Cal.App.4th 166, 1999 Daily Journal D.A.R. 389,
99 Daily Journal D.A.R. 469
BRENERIC ASSOCIATES et al., Plaintiffs and Appellants,
v.
The CITY OF DEL MAR, Defendant and Respondent.
No. D024838.
Court of Appeal, Fourth District, Division 1, California.
Dec. 15, 1998.

Page 328

[69 Cal.App.4th 171] Joseph S. Carmellino, La Jolla, for Plaintiffs and Appellants.

Mark A. Potter, San Diego, for Defendant and Respondent.

James S. Burling and Stephen E. Abraham, Sacramento, Amici Curiae on behalf of Pacific Legal Foundation.

Ruth Sorensen, Sacramento, Amicus Curiae on behalf of California State Association of Counties.

McDONALD, J.

Breneric Associates and Stephen Scola (together Breneric) applied to the City of Del Mar (Del Mar) for a permit to build a [69 Cal.App.4th 172] two-story addition to an existing single-family residence (the residence). A condition to obtaining the permit was approval of the project's design and issuance of a design review permit by Del Mar's Design Review Board (DRB). The DRB found that Breneric's proposed design was inconsistent with the residence's architectural style and was inharmonious with the surrounding neighborhood and denied Breneric's application for a design review permit. Del Mar's City Council upheld the DRB ruling.

Breneric filed a lawsuit against Del Mar, seeking (1) a writ of administrative mandate to compel Del Mar to issue the design review permit, and (2) damages under 42 U.S.C. section 1983 ("section 1983"). The trial court sustained Del Mar's demurrer to the section 1983 claim without leave to amend and dismissed that claim. However, the trial court granted Breneric's petition for a writ of mandate, finding there was insufficient evidence to support denial of the permit. Breneric argues the ruling on his section 1983 claim was error, and by cross-appeal Del Mar argues granting the writ of mandate was error.

We conclude the trial court correctly sustained the demurrer to Breneric's section 1983 claim but erred by granting the writ of mandate.

I

Factual and Procedural Background

A. The Del Mar Ordinances

Chapter 23.08 of the Del Mar Municipal Code 1 provides that a person must obtain a design review permit as a condition to obtaining a building permit for certain types of remodeling projects. (§ 23.08.020-A.) The purpose of design review is to protect the aesthetic quality of the community "by fostering and encouraging good design which encompasses the use of harmonious materials and colors [and] compatible proportional relationships." (§ 23.08.010.)

The design review permit may be denied if the DRB makes findings of fact, based on information presented at the hearing on the application, supporting one or more of the regulatory conclusions specified by the ordinance. (§ 23.08.070.) Section 23.08.077, titled "Regulatory Conclusions--Relationship to Neighborhood," authorizes the DRB to deny a design review permit if "[t]he design is not harmonious with ... the surrounding [69 Cal.App.4th 173] neighborhood in one or more of the following respects: ... [s]tructural siting on the lot." (§ 23.08.077-D.2.) Section 23.08.078, titled "Regulatory Conclusions--Building Design," authorizes the DRB to deny a design review permit if "[t]he proposed development fails to coordinate the components of exterior building design on all elevations with regard to color, materials, architectural form and detailing to achieve design harmony and continuity."

Page 329

(§ 23.08.078-A.) The residence had been built in 1884 and retained its architecturally historic character.

Breneric filed an application for a design review permit to demolish an existing bedroom at the rear of the residence, construct a new two-story addition on the western side of the residence and make other exterior improvements. In April 1993 the DRB discussed the application and noted that the proposed use of glass panels on the roof deck was inappropriate and inconsistent with the architectural style of the existing structure. It also noted that the proposed siting of the two-story addition on the lot created a crowded structural condition inharmonious with the surrounding neighborhood. The DRB denied the application based on sections 23.08.077-D.2 and 23.08.078-A.

Breneric appealed the DRB ruling to Del Mar's City Council. At the July 1993 hearing on the appeal, it appeared there were sufficient votes to uphold the DRB ruling. Breneric elected to accept a vote remanding the proposal to the DRB for consideration of design changes that would eliminate the DRB's objections.

Breneric submitted to the DRB a slightly modified proposal, but the use of glass panels on the deck and the siting of the addition were unchanged from the initial proposal. In January 1994 the DRB again denied Breneric's application, concluding (1) the design of the roof deck and associated glass panels was inconsistent with the design of the existing structure, and (2) the siting of the addition would result in a structure covering almost the entire width of the lot, making it inharmonious with the surrounding neighborhood.

Breneric again appealed to Del Mar's City Council. Although the DRB cited both the design issue and the siting issue in the January 1994 denial of the design review permit, the principal discussion at the February 1994 City Council hearing was whether the proposed siting of the two-story addition was acceptable. 2 The City Council held a lengthy hearing during which it evaluated the objections to and problems created by the proposed siting. The [69 Cal.App.4th 174] City Council voted to deny Breneric's application and uphold the DRB's denial of the design review permit, citing as grounds for rejecting the proposed design both the use of glass for the roof deck (§ 23.08.078-A) and the siting of the addition (§ 23.08.077-D).

B. The Lawsuit

Breneric's lawsuit against Del Mar stated two causes of action. The section 1983 claim alleged that an unnamed majority of members of the DRB and the City Council were hostile to Scola and acted with the intent to prevent Breneric from development activity in Del Mar and by manipulating the Del Mar Ordinances to deny them any economically viable use of the property. Breneric alleged the vote to deny the application was based not on the merits of the application but on hostility toward Scola. Breneric alleged that Del Mar acted under color of state authority, and denial of the application deprived Breneric of substantive due process and equal protection and was a "taking" of property. Breneric could therefore recover damages under section 1983. The trial court sustained Del Mar's demurrer to the section 1983 cause of action without leave to amend. Breneric appeals this ruling.

The lawsuit also sought a writ of administrative mandate to compel Del Mar to issue the design review permit. The trial court concluded there was insufficient evidence in the administrative record to support the finding that the use of the glass panels in the design of the roof deck justified denial of the design review permit under section 23.08.078-A. The trial court also concluded there was insufficient evidence in the administrative record to support the finding that the siting of the proposed addition justified denial of the design review permit under section 23.08.077-D. Del Mar's cross-appeal contends that because substantial evidence supports both findings, the trial court erred by granting the writ of administrative mandate.

Page 330

II

Del Mar's Cross-Appeal

A. Standard of Review

We initially determine the standard of judicial review of an agency's denial of a discretionary design review permit. Del Mar argues the proper standard of review is the deferential substantial evidence test summarized in Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 30 Cal.Rptr.2d 95. Under this standard, the appellate court is not bound by the trial court's determinations but instead conducts a de novo examination of the administrative record to assess whether there is substantial evidence to support the [69 Cal.App.4th 175] administrative agency's findings and whether the findings support the agency's decision. The burden is on the petitioner to show there is insufficient evidence to support the agency's findings. (Id. at p. 1212, 30 Cal.Rptr.2d 95.) Under this standard of review, we resolve all reasonable doubts in favor of the administrative findings and decision and reverse the administrative determination only if, based on the evidence before the agency, a reasonable person could not have reached the conclusion reached by the agency. (Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963, 969, 31 Cal.Rptr.2d 1.)

Breneric's appellate briefs are silent on the proper standard of review. However, Pacific Legal Foundation (PLF), in its amicus brief filed on behalf of Breneric, suggests that because denial of a permit deprives the landowner of the right to reasonably use his property the proper standard of review is a form of "heightened scrutiny" enunciated by Nollan v. California Coastal Comm'n (1987) 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (Nollan ) and Dolan v. City of Tigard (1994) 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (Dolan ). PLF argues the test is not whether there is evidence from which the agency could rationally have decided that denial of the permit might achieve the governmental objective, but whether the agency has produced evidence demonstrating that the denial of the permit in fact substantially advanced the legitimate state interest sought to be achieved. (Nollan, supra, 483 U.S. at p. 834, fn. 3, 107 S.Ct. 3141.) PLF argues that Del Mar must show there is a logical connection between the denial of the permit and the governmental objective to be achieved, and must further make a determination that the conditions imposed on the applicant are roughly proportional to the nature and effect of the proposed development. (Ehrlich v. City of Culver City...

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59 practice notes
  • Cmty. Youth Athletic Ctr. v. City of Nat'l City, D060001
    • United States
    • California Court of Appeals
    • October 30, 2013
    ...protections only if the owner has a legitimate claim of entitlement to the approval. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 181–184, 81 Cal.Rptr.2d 324.) “An ownership interest alone does not cloak the prospect of developing the property with the protections of p......
  • Bowman v. City of Berkeley, No. A103980.
    • United States
    • California Court of Appeals
    • September 20, 2004
    ...issues have arisen under local ordinances rather than CEQA is supportive of that view. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 172-173, 81 Cal.Rptr.2d 324 [permit to build addition to residence denied under ordinance requiring that the design be "`harmonious with ......
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...Arriba County , 115 N.M. 168, 848 P.2d 1095 (1993) Bregar v. Britton , 75 So. 2d 753 (Fla. 1954) Breneric Assocs. v. City of Del Mar , 81 Cal. Rptr. 2d 324, 69 Cal. App. 4th 166 (1998) Bright Dev. v. City of Tracy , 24 Cal. Rptr. 2d 618, 20 Cal. App. 4th 783 (1993) Browning-Ferris Indus. v.......
  • Land Development Conditions
    • United States
    • Bargaining for Development Article
    • July 19, 2003
    ...at 483-84. 121. See, e.g., Loyola Marymount , 53 Cal. Rptr. 2d at 424, 45 Cal. App. 4th at 1256; Breneric Assocs. v. City of Del Mar, 81 Cal. Rptr. 2d 324, 69 Cal. App. 4th 166 (1998) (declining to apply Nollan/Dolan based on Ehrlich’s admonition that such heightened scrutiny is inapplicabl......
  • Request a trial to view additional results
57 cases
  • Cmty. Youth Athletic Ctr. v. City of Nat'l City, D060001
    • United States
    • California Court of Appeals
    • October 30, 2013
    ...protections only if the owner has a legitimate claim of entitlement to the approval. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 181–184, 81 Cal.Rptr.2d 324.) “An ownership interest alone does not cloak the prospect of developing the property with the protections of p......
  • Bowman v. City of Berkeley, No. A103980.
    • United States
    • California Court of Appeals
    • September 20, 2004
    ...issues have arisen under local ordinances rather than CEQA is supportive of that view. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 172-173, 81 Cal.Rptr.2d 324 [permit to build addition to residence denied under ordinance requiring that the design be "`harmonious with ......
  • Graham v. Bank of Am., N.A., D063779
    • United States
    • California Court of Appeals
    • May 23, 2014
    ...the law or to a fact of which judicial notice may be taken. (Breneric Associates v. City of Del Mar, supra, 69 Cal.App.4th at p. 180, 81 Cal.Rptr.2d 324.) IIGraham Does Not State a Cause of Action for Fraud or Deceit Graham contends the SAC sufficiently alleges the elements necessary to sta......
  • Las Lomas Land Company, LLC v. City of Los Angeles, No. B213637.
    • United States
    • California Court of Appeals
    • September 17, 2009
    ...the prospect of developing the property with the protections of procedural due process. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 181-184 [81 Cal.Rptr.2d 324] (Breneric).) Rather, a land use application invokes procedural due process only if the owner has a legitima......
  • Request a trial to view additional results
2 books & journal articles
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...Arriba County , 115 N.M. 168, 848 P.2d 1095 (1993) Bregar v. Britton , 75 So. 2d 753 (Fla. 1954) Breneric Assocs. v. City of Del Mar , 81 Cal. Rptr. 2d 324, 69 Cal. App. 4th 166 (1998) Bright Dev. v. City of Tracy , 24 Cal. Rptr. 2d 618, 20 Cal. App. 4th 783 (1993) Browning-Ferris Indus. v.......
  • Land Development Conditions
    • United States
    • Bargaining for Development Article
    • July 19, 2003
    ...at 483-84. 121. See, e.g., Loyola Marymount , 53 Cal. Rptr. 2d at 424, 45 Cal. App. 4th at 1256; Breneric Assocs. v. City of Del Mar, 81 Cal. Rptr. 2d 324, 69 Cal. App. 4th 166 (1998) (declining to apply Nollan/Dolan based on Ehrlich’s admonition that such heightened scrutiny is inapplicabl......

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