Broadway, Laguna, Vallejo Ass'n v. Board of Permit Appeals of City and County of San Francisco

• Decision Date: 26 May 1967
• Docket Number: S.F. 22492
• Citation: 66 Cal.2d 767,59 Cal.Rptr. 146,427 P.2d 810
• Court: California Supreme Court
• Parties: , 427 P.2d 810 BROADWAY, LAGUNA, VALLEJO ASSOCIATION et al., Plaintiffs and Appellants, v. BOARD OF PERMIT APPEALS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; Perry LIEBMAN, Real Party in Interest and Respondent. In Bank

Page 146

59 Cal.Rptr. 146

66 Cal.2d 767, 427 P.2d 810

BROADWAY, LAGUNA, VALLEJO ASSOCIATION et al., Plaintiffs and Appellants, v. BOARD OF PERMIT APPEALS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents;

Perry LIEBMAN, Real Party in Interest and Respondent.

S.F. 22492.

Supreme Court of California,

In Bank.

May 26, 1967.

Rehearing Denied June 21, 1967.

Caspar W. Weinberger, M. Laurence Popofsky and Heller, Ehrman White & McAuliffe, San Francisco, for plaintiffs and appellants.

No appearance for defendants and respondents.

Feldman, Waldman & Kline, Jesse Feldman and Richard B. Morris, San Francisco, for real party in interest and respondent.

Martin & Flandrick, San Marino, as amici curiae on behalf of defendants and respondents and real party in interest and respondent.

TOBRINER, Associate Justice.

We must decide whether the San Francisco Board of Permit Appeals exceeded the scope of its authority in granting a variance under the circumstances of this case. That variance rested upon the alleged attractiveness of the proposed building, coupled with the belated discovery of subsoil conditions requiring a more costly foundation than anticipated. We conclude that the approval of a variance on such a basis would undermine the foundation of a comprehensive zoning law.

The controversy before us arose in 1963, when a developer (the real party in interest) contacted the Zoning Division of the Department of City Planning concerning a proposal to construct an 11-story, 53-unit apartment building on R-4 property located at 2030 Vallejo Street in San Francisco. The zoning division advised the developer that the proposed structure would contravene the floor area ratio regulations, which comprise the primary bulk and density control mechanism of the City Planning Code. ¹ The developer nonetheless refused to modify his plans before applying for a building permit in June 1964; in July the zoning division disapproved the developer's application.

Confronted with this obstacle to the execution of his project unless he obtained a variance, the developer undertook a study of subsoil conditions on his Vallejo Street property. Although he commenced the study several months after informing the Department of City Planning that the proposed structure was already designed, the developer, and ultimately the Board of Permit Appeals, relied exclusively upon this study to support the assertion that 'unusual subsoil conditions' required a variance from the floor area ratio regulations.

After completing his subsoil investigation, the developer applied for a floor The variance requested by the developer, however, did Not involve a relatively unimportant code provision. On the contrary, the consensus among zoning authorities is that, in terms of controlling population density and structural congestion, the technique of restricting the ratio of a building's rentable floor space to the size of the lot on which it is constructed possesses numerous advantages, both theoretical and practical, shared by no other method of controlling building bulk or density. ² The developer in the present case thus sought more than relief from a purely technical requirement of an insignificant ordinance; he requested instead a variance from a regulation which has become a cornerstone of contemporary building codes.

[427 P.2d 813] area variance in August 1964. He urged that the 'unusual conditions' disclosed by his study would cause unnecessary hardship if the planning code were strictly enforced. He argued further that a variance from the requirements of a 'minor' code provision seemed appropriate since his building would possess 'attractive features' above and beyond those required by other code provisions.

To protect such crucial provisions from circumvention, the City Planning Code prohibits the granting of a variance unless the appropriate persons, beginning with the zoning administrator, have first determined that five specified conditions have been met. ³ Having concluded that the developer's application complied with None of those conditions, the zoning administrator denied the application in October 1964.

Recognizing the need to accord appropriate weight to the expert administrator's ruling, the draftsmen of the City Planning Code provided that his determination could be overcome only by relevant and specific findings by the Board of Permit Appeals. ⁴ In reversing the zoning administrator's decision in January 1965, the board purported to comply with the planning code by setting forth its findings with respect to all five code conditions. Acting under the mistaken belief that the board's ultimate conclusion was thereby insulated from judicial review, the trial court deemed itself Although the San Francisco Board of Permit Appeals possesses broadly discretionary power in passing upon permit and licensing matters, it plays a more narrowly confined role in the variance area. (See Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) 66 A.C. 22, 26 & fn. 8, 56 Cal.Rptr. 672, 423 P.2d 824.) Before granting a variance despite the zoning administrator's denial, the board must specify which aspects of the administrator's ruling it deems erroneous and must set forth in its findings 'the facts relied upon in making (its) determination.' (City Planning Code, § 303(d).) (See Cow Hollow Improvement Club v. Dibene (Board of Permit Appeals) (1966) 245 A.C.A. 160, 170--171, 53 Cal.Rptr. 610 (hg. den.).)

[427 P.2d 814] powerless to grant a writ of mandate to compel the board to set aside its variance order. The petitioner, an association of interested property owners, then instituted this appeal.

This requirement for specific findings differentiates the present case from Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 25 Cal.Rptr. 73, 375 P.2d 41, relied upon in the amicus curiae brief filed in support of respondents. That brief cites Siller for the proposition that a zoning board's action in granting a variance must be sustained in the absence of a clear and convincing showing of arbitrariness of caprice. Neither in Siller, nor in any other decision of similar import (see, e.g., Flagstad v. City of San Mateo (1957) 156 Cal.App.2d 138, 318 P.2d 825; Bradbeer v. England (1959) 104 Cal.App.2d 704, 232 P.2d 308), did the governing provisions require the administrative board to specify its subsidiary findings and its ultimate conclusions.

The presumption that an agency's rulings rest upon the necessary findings and that such findings are supported by substantial evidence (see Siller v. Board of Supervisors, supra, 58 Cal.2d at p. 484, 25 Cal.Rptr. 73, 375 P.2d 41; City & County of San Francisco v. Superior Court (1959) 53 Cal.2d 236, 251, 1 Cal.Rptr. 158, 347 P.2d 294), does not apply to agencies which must expressly state their findings and must set forth the relevant supportive facts. (Cf. California Motor Transport Co. v. Public Utilities Com. (1963) 59 Cal.2d 270, 273--275, 28 Cal.Rptr. 868, 379 P.2d 324.) In variance cases, the San Francisco Board of Permit Appeals is such an agency.

In a mandate proceeding to review the granting of a variance by that board, the variance order may be sustained only if the board's findings suffice to establish compliance with all of the statutory criteria and are supported by substantial evidence in the record. (See Cow Hollow Improvement Club v. Board of Permit Appeals, supra, 245 A.C.A. at p. 171, 53 Cal.Rptr. 610; see generally Jaffe, Judicial Control of Administrative Action (1965) 181--182, 190, 320, 575--586, 600--604, 607, 622.)

The basic difficulty with the board's findings in the instant case is not that they lack evidentiary support but rather that they lack legal relevance; even if they are assumed to be correct, those findings simply do not meet the requirements of the planning code.

Viewed in the light most favorable to the board and to the developer, the evidence disclosed by the record before us supports the following findings of fact: (1) After the developer had been told that the proposed building would violate the floor area ratio regulations he undertook a study of his property which revealed that unusual subsoil conditions at that location would increase foundation costs for any structure similar to the one he proposed; (2) such increased costs would render the foundation of the proposed building from two and one-half to three times as expensive as the developer had anticipated; (3) because of this unexpectedly high fixed cost, the reduction of rentable floor space in this or any similar building to a level consistent with the floor area ratio regulations would prevent the developer from realizing as high a rate of return as he had hoped to obtain from his investment; and (4) the 1. Exceptional Circumstances

[427 P.2d 815] proposed building, apart from its excessive floor area, would conform to limitations more exacting than those imposed by the planning code with respect to height, lot coverage, number of dwelling units, uncovered areas, and parking facilities. Accepting these findings as true, we have concluded that they fail as a matter of law to satisfy the statutory criteria ⁵.

The first criterion which a variance application must meet is that there be 'exceptional or extraordinary circumstances or conditions applying to the property involved, or to the intended use of the property, that do not apply generally to other property or uses in the same class of district.' (City Planning Code, § 302(d).) The board purported to find two such 'exceptional circumstances' here: (a) the unusual subsoil condition 'applying to the property involved'; and (b) the attractive architectural features 'applying to * * * the intended use of the property.' Neither of these circumstances, however, satisfies the code criterion.

a. Unusual Subsoil Condition

We turn first to the subsoil condition belatedly discovered by the developer. On the evidence before it, the...