Clark v. Rancho Santa Fe Assn.

• Citation: 216 Cal.App.3d 606,265 Cal.Rptr. 41
• Decision Date: 13 December 1989
• Docket Number: No. D004097,D004097
• Court: California Court of Appeals
• Parties: Russell J. CLARK, Trustee, Plaintiff and Appellant, v. RANCHO SANTA FE ASSOCIATION, et al., Defendants and Respondents.

Page 41

265 Cal.Rptr. 41

216 Cal.App.3d 606

Russell J. CLARK, Trustee, Plaintiff and Appellant, v. RANCHO SANTA FE ASSOCIATION, et al., Defendants and Respondents.

No. D004097.

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

Dec. 13, 1989.

Certified for Partial Publication ¹

[216 Cal.App.3d 610] James W. Hall, for plaintiff and appellant.

Jenkins & Perry and Gary Wollberg, San Diego, for defendants and respondents.

HUFFMAN, Associate Justice.

Russell J. Clark and his family trust (Clark) appeal a judgment denying his petition for writ of mandate. In his petition, he challenged a decision of the Rancho Santa Fe Association (the Association) turning down his application to subdivide his Rancho Santa Fe property. Pursuant to a stipulation of general reference, the trial was heard by the Honorable Charles W. Froehlich, Jr., who issued a statement of decision finding no abuse of discretion on the part of the Association, and the superior court entered judgment accordingly. Thereafter, Clark sought to bring a motion for new trial before the superior court, which referred it to Referee Froehlich, who denied it as untimely. Clark additionally appeals the order of the superior court delegating the motion for new trial to the referee. Although the latter claim of error is not addressed to an appealable order, we deem each argument raised to be a cognizable challenge to the judgment as a whole. Nevertheless, for reasons explained below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND ²

Clark is a homeowner in Rancho Santa Fe of a 4.42-acre lot having one existing home. Like other properties in that community, his lot is subject to a protective covenant (the covenant) adopted by the Association in 1927 and amended in 1930, 1939, and 1973. The covenant enacts numerous land use regulations and aesthetic standards, stating in its preamble these purposes:

"WHEREAS, Rancho Santa Fe is unusually attractive and valuable as a high class place of residence because of the rare quality of its landscape, trees and shrubs and the fine architecture and other improvements established by its property owners; and

"WHEREAS, these property owners are most desirous of preserving, continuing and maintaining this character of community and rare landscape features and of upholding the quality of all future architecture and improvements; and of restricting the use, height and bulk of buildings...."

Both the preamble and other paragraphs in the covenant (nos. 4, 149, 180) contain language enabling the Association to interpret and enforce covenant conditions and restrictions.

Clark first made inquiries in 1980 into the possibility of subdividing his lot into two parcels of approximately equal size. However, the lack of adequate sewer facilities at that time forced him to abandon the plan. When a sewer district was formed in 1983, Clark told his engineers to proceed with plans so he could apply for approval of the subdivision. He submitted his application to the Association on October 21, 1983, including tentative maps showing the proposed lot and the slopes on the property.

He updated this application to correct several formal deficiencies, such as his use of an outdated application form, shortly thereafter.

The Association's land use planner Linda Zombeck evaluated the plans, visited the site, and notified Clark the proposed building site was on an area of slope greater than that permitted by the Association's community plan adopted in 1980 (25 percent). She recommended the proposed lot lines be adjusted to avoid the areas of greatest slope. Clark requested his application be removed from the agenda of the Association's Art Jury (Art Jury), to whom the application had been delegated pursuant to the provisions of the covenant, for a short delay while he redesigned the parcel map. ³ The redesigned map and plans complied with suggestions made by Zombeck and by the Association's building commissioner, William Stonebreaker, and with Association covenant compliance standards for grading, subdivision, and setbacks, ⁴ and County standards for zoning acreage. The County approved the parcel map.

Although Association land use planning staff did not make a recommendation one way or the other on Clark's application, the Art Jury recommended denial of the application on February 21, 1984. In response, Clark prepared a proposed restrictive covenant to be filed upon approval of his application which would restrict any future building to areas of less than 25 percent slope and require neutral coloration of any such building. He submitted his proposals to the Association's Board of Directors (the Board) on March 1, 1984, when it was to act upon the Art Jury's recommendation. The Board returned the matter to the Art Jury after visiting the property. Again the Art Jury recommended denial at its meeting on March 20, 1984. When Clark renewed his application before the Board on April 5, 1984, it was denied. The formal notification of this denial attached the Board's resolution listing five findings on which the denial was based:

"1. The Tentative Map does not meet the 'uniform and reasonably high standards of artistic result' as required by Paragraph 46 of the [covenant.]

"2. The lot is not physically suitable for the proposed type of development; and

"3. Due to the highly visible location of the proposed new lot and steepness of the slope, the requested subdivision does not conform to the [covenant] and Community Plan.... ⁵

"4. The parcel is divided by the proposed access easement creating an isolated section of Parcel B on the downhill portion of the property. This section of Parcel B generally conforms to the slope of Parcel A and should most logically be a part of Parcel A.

"5. Due to the prohibition of the Rancho Santa Fe Community Plan against building on slopes in excess of 25%, the available building site is severely restricted. This will limit the size and location The Board refused Clark's request that it reconsider its denial of his application, informing him a covenant modification would be required for any reconsideration.

of a future residence as well as accessory facilities beyond the point of reasonable expectations of future buyers."

Clark filed his petition for writ of ordinary mandamus and complaint for declaratory relief on September 19, 1984, and amended it December 26, 1984. (Code Civ.Proc., § 1085.) ⁶ He alleged the Association violated its ministerial and discretionary duties to approve his subdivision proposal and that similarly situated applicants and properties were treated differently. The Association demurred to and moved to strike portions of the pleading. (§§ 430.10, 435, 436.) Pursuant to stipulation of the parties, a general reference under section 638 was ordered and Charles W. Froehlich, Jr., then a retired judge, was appointed referee. ⁷ The terms of the stipulation and order, dated February 21, 1985, provided in pertinent part that the action was referred "for a complete and final adjudication," and that the referee's decisions would stand as the decision of the court with judgment to be entered thereon in the same manner as if the action had been tried by the court.

Referee Froehlich issued an order after hearing on the Association's demurrer and motion to strike. Among other rulings, he struck the allegations in the petition and complaint referring to a ministerial duty on the part of the Association. He refused to strike allegations in the petition referring to the Association as a "defacto municipal body." A demurrer to the cause of action for declaratory relief was sustained without leave to amend on the ground it was not clear what specific relief was sought.

The matter proceeded to trial on April 10 and 16, 1985. Clark entered into evidence the covenant, his applications and maps, Association reports, and the Board's resolution of denial of the proposal. He testified that an Association staff report found his plans were in compliance with all objective standards of the covenant and regulations with regard to zoning, setback, and grading requirements. The Association stipulated that the plans presented by Clark showed a structure could be built that was in compliance with all applicable County building codes and construction standards.

Clark then presented evidence of the subdivision maps and building plans for nine different properties in the area for which subdivisions had been approved, attempting to show an Association pattern of inconsistent treatment of applications. He called two experts, Kenneth Wiant, an architect, and William Hart, a civil engineer, to testify about the characteristics of these properties, some of which were irregularly shaped, heavily sloped, visible from or close to adjoining residences, visible from roadways, or possessed of panhandle driveways running down the side of adjoining lots. Clark showed that of all subdivision applications made within the past 10 years and not withdrawn before consideration by the Board, all were approved except for Clark's and one for an already undersized lot.

Somewhat inadvertently, Clark also showed some lots in Rancho Santa Fe are not house sites. In response to Clark's attorney's comment that that evidence did not help him any, the referee pointed out, "You established that there are lots that cannot be built on."

Clark also called to testify Luis H. Renn, a community activist, who expounded about the history in the Association of differential treatment of applicants depending on the changing memberships of various art juries. At the close of the first day of trial, the parties and referee went out to view Clark's and other properties.

Clark raised a collateral estoppel theory at trial based on an unpublished opinion of When Clark completed his case in chief, the Association moved for judgment under section 631.8 ⁸ on the ground he had not made out a prima facie case that the discretion of the Association could legally have...