Clark v. City of Hermosa Beach

• Decision Date: 21 August 1996
• Docket Number: No. B089504,B089504
• Citation: 56 Cal.Rptr.2d 223,48 Cal.App.4th 1152
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 6305, 96 Daily Journal D.A.R. 10,229, 96 Daily Journal D.A.R. 10,317 Douglas A. CLARK et al., Plaintiffs and Respondents, v. CITY OF HERMOSA BEACH et al., Defendants and Appellants.

Page 223

56 Cal.Rptr.2d 223

48 Cal.App.4th 1152, 96 Cal. Daily Op. Serv. 6305,

96 Daily Journal D.A.R. 10,229,

96 Daily Journal D.A.R. 10,317

Douglas A. CLARK et al., Plaintiffs and Respondents, v. CITY OF HERMOSA BEACH et al., Defendants and Appellants.

No. B089504.

Court of Appeal, Second District, Division 1, California.

Aug. 21, 1996.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing Sept. 11, 1996.

Review Denied Nov. 13, 1996.

Richards, Watson & Gershon, Rochelle Browne, Roxanne M. Diaz, Los Angeles, and Michael Jenkins, City Attorney, for Defendants and Appellants.

Rutan & Tucker, M. Katherine Jenson and Jeffrey M. Oderman, Costa Mesa, for Plaintiffs and Respondents.

MASTERSON, Associate Justice.

Douglas and Cheryl Clark own a duplex in the City of Hermosa Beach, California (the "City"). In 1992, they applied to the Hermosa Beach Planning Commission for permits to demolish the duplex and replace it with a two-unit condominium. The commission approved the project. The matter was appealed to the City Council (the "Council"). By a 3-2 vote, the Council denied the permits, finding the size of the proposed structure to be excessive.

The Clarks filed this action, seeking a writ of administrative mandate (Code Civ.Proc., § 1094.5) and alleging a violation of federal civil rights (42 U.S.C. § 1983). The trial court granted the writ petition, directing the City to rescind the Council decision and to reinstate the planning commission's approval of the project permits. The court also found for the Clarks on their civil rights claim, awarding them $213,300 in damages and $133,895.21 in attorney fees and litigation expenses.

On appeal, the City challenges the trial court's determination of liability, the award of damages, and the calculation of attorney fees and costs. In the published portion of this opinion, we conclude that the Clarks were deprived of a fair hearing before the City Council and were accordingly entitled to a writ of mandate. However, the trial court erred in directing that the planning commission's decision be reinstated. Instead, the court should have ordered the Council to rehear the matter and provide a fair hearing. We further conclude that the trial court erred in finding that the City violated the Clarks' civil rights. In the unpublished portion of the opinion, we conclude that the trial court should not have awarded damages or attorney fees and should have disallowed certain cost items.

BACKGROUND

In 1982, the Clarks bought a duplex in the City, located at 2902 Hermosa Avenue, a block from the ocean. They rent out one of the units and use the other unit as their second home, making frequent visits to California from their primary residence in Phoenix, Arizona. The property is in an area designated as an R-3 zone, which is a multiple-family residential zone.

After purchasing the property, the Clarks hired an architect and developed plans to demolish the existing duplex and replace it with a two-unit condominium. In 1989, they applied to the planning commission for permits to build a structure 35 feet high, with lot coverage of 65 percent--the maximum height and lot coverage allowed under City law. (Hermosa Beach Mun.Code, §§ 601, 606.) ¹ The commission approved the project, finding that "[t]he site is ... physically suitable for [the] type and density of the proposed development," and "[t]he project will conform to all zoning and condominium criteria and will [be] compatible with adjacent residential properties."

A local resident, Robert Benz, who lived a block inland from the Clarks, sought to overturn the commission's decision. He gathered signatures on five petitions, which stated that "the undersigned, being residents of the city of Hermosa Beach, hereby ... appeal the issuing of the building permit for the [proposed By letter of March 19, 1989, Benz requested that the City waive the fees for his appeal of the commission's decision. In a March 23, 1989 memo to the City Council, Planning Director Michael Schubach advised against granting Benz's request: "Attached is a request to waive the fees for an appeal of a proposed 2 unit condo at 2902 Hermosa Avenue. [p] The condo is in compliance with all zoning ordinance requirements; the City has no view ordinance, and the Planning Commission did not believe view blockage was so significant that conditions related to view should be imposed. [p] ... [p] The staff can find no grounds to waive the appeal fees...." Based on Schubach's memo, the Council declined to waive the fees, and Benz apparently did not further pursue the appeal.

                project] on the basis that the construction of the building will adversely affect the views of neighboring homes."   In a letter to the Council dated February 11, 1989, Benz stated:  "The action taken by the City Planning Commission ... is unacceptable to the wishes of the petitioners.  The 35 foot height of the projected condominium proposal will further constrict the view of the ocean from homes that are located behind and to either side [of] the lot.  [p] ... [p] There seems to be a wanton disregard for the rights of others in the City of Hermosa Beach when it comes to the building of homes and condominiums.  For their own financial gain, developers and speculators have continually proposed the building of high structures in order to maximize the incident view of the ocean for their own projects.  The building of these structures limits the view of the neighboring homes solely to the sight of these excessively high structures....  It is time to stop the issuing of building permits that ignore the restriction of the view of others."
                

After the approval of the Clarks' 1989 project, the City adopted a new setback requirement, necessitating that the Clarks revise their plans. In the interim, the 1989 permits expired. In January 1992, the Clarks submitted another application for the requisite "permits" (i.e., a conditional use permit, precise development plan, and tentative parcel map) and paid $1,261 in processing fees. The proposed structure, a two-unit condominium, was--in the words of Planning Director Schubach--"very similar" to the one approved in 1989. For example, it had the same height (35 feet), though slightly smaller lot coverage (63.7 percent instead of 65 percent). ²

By report dated January 28, 1992, the planning commission staff recommended approval of the project, noting that the Clarks' architect "consulted with staff early in the design process to ensure compliance with applicable code requirements." According to the report, "[l]ot coverage is at 63.7%, all the required setbacks have been met, and the height on the sloped lot is held within the 35 foot limit." The report concluded that the project complied with all planning and zoning conditions.

At the public hearing before the planning commission on February 4, 1992, Planning Director Schubach presented the staff report on the Clarks' plans and urged approval of the permits. Two City residents spoke against the project, arguing that new buildings should not exceed 30 feet in height. The commissioners then discussed the possibility of asking the City Council to adopt a moratorium on construction in R-3 zones until a decision could be made about reducing the 35-foot height limit to 30 feet. On that subject, one commissioner remarked: "I have somewhat of a problem with the idea that this project, which does conform to all the requirements, has been singled out.... I would much more favor dealing with this on its merits and recommending an action. I can understand the 30 ft. height limit as a policy. I think we should recommend action on that, but separate from action on this. I think that we're holding the [project] hostage to the other and that doesn't seem equitable." Another commissioner stated: "I think what I see here is an applicant that responded to the guidelines that we developed over time, in fact, this is the best response I've seen in the time I've been here of somebody The commission ultimately voted, without dissent, to approve the Clarks' conditional use permit, tentative parcel map, and precise development plan. In doing so, the commission found that (1) the "[s]ite is zoned R-3 and is physically suitable for the type and density of the proposed development," (2) the "[d]esign of the proposed subdivision is compatible and consistent with the City's General Plan, and is compatible with the immediate environment," and (3) the "project will conform to all zoning and condominium criteria and will be compatible with neighboring residential properties." The commission also recommended that the City Council consider enacting a moratorium on construction in R-3 zones so that the planning staff could study the height issue.

really trying to do what we've asked them to do. I have a problem with trying to chang[e] the rules in midstream, that really creates a problem for me.... [W]e don't make zone changes based on an individual problem."

On February 12, 1992, several residents appealed the commission's approval of the Clarks' project to the City Council. The appeal, accompanied by petitions bearing numerous signatures, objected to "the spread of condominiums, and the ability of these new developments to build higher than thirty feet."

On or about February 25, 1992, the Council debated whether to impose a moratorium on the construction of buildings taller than 30 feet in R-3 zones, pending further study of the height issue. To be approved, such an interim ordinance required a four-fifths vote of the Council. (Gov.Code, § 65858.) The measure garnered three out of the five possible votes and therefore failed. Absent a moratorium, the Council directed that the planning commission hold public hearings to determine whether the R-3 height limit should be reduced to 30 feet.

Meanwhile, in connection with the appeal of the commission's decision on the Clarks' project, the planning staff gathered additional...