Collier v. City and County of San Francisco

• Decision Date: 12 June 2007
• Docket Number: No. A113171.,A113171.
• Citation: 60 Cal.Rptr.3d 698,151 Cal.App.4th 1326
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen COLLIER, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

60 Cal.Rptr.3d 698

151 Cal.App.4th 1326

Stephen COLLIER, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

No. A113171.

Court of Appeal, First District, Division 3.

June 12, 2007.

Mark A. White, Carol D. Quackenbos, Chapman, Popik & White, San Francisco, for Appellant Stephen Collier.

Dennis J. Herrera, City Attorney, Wayne Snodgrass, Deputy City Attorney, for Respondent City and County of San Francisco, et al.

PARRILLI, Acting P.J.

In this appeal, we consider whether the transfer of certain building permit fee revenues from the San Francisco Department of Building Inspection to the San Francisco Planning and Fire Departments violated California Constitution article XIII A, section 4 (article XIII A, section 4); Government Code section 50076 (Gov. Code, § 50076); and the City and County of San Francisco Charter, article IX: Financial Provisions, section 9.113 General Fiscal Provisions (charter section 9.113).¹ Appellant Stephen Collier seeks a taxpayer's injunction, mandamus and other declaratory relief against respondents City and County of San Francisco, its Mayor, Controller and Board of Supervisors (collectively, San Francisco) based on those allegedly improper building permit fee revenue transfers. Both parties filed motions for summary judgment. The trial court granted summary judgment to San Francisco, prompting this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the record before the trial court when it ruled on the parties' motions for summary judgment. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 99 Cal.Rptr.2d 316, 5 P.3d 874.) We consider all the evidence set forth in the parties' moving and opposition papers except that to which objections were made and sustained. (Id. at pp. 65-66, 99 Cal.Rptr.2d 316, 5 P.3d 874; Code Civ. Proc., § 437c, subd. (c).)

San Francisco has a complex regulatory framework that governs building construction. The Department of Building Inspection (DBI), a chartered department of San Francisco, is central to that regulatory framework. Additionally, the Planning Department and Fire Department play important roles. The interplay of these departments in relation to the building construction process in San Francisco is discussed below.

The Department of Building Inspection.

All persons interested in obtaining a San Francisco building permit must submit an application to DBI. DBI is charged with enforcing the San Francisco Building Codes, which include the Housing, Mechanical, Electrical, and Plumbing Codes, to ensure safety in the construction and maintenance of San Francisco buildings. It also enforces state building requirements set forth in the Health and Safety Code. (E.g. Health & Saf.Code, §§ 17960, 19120.) Consistent with those enforcement duties, DBI issues building permits only after reviewing the permit applications and performing necessary inspections to ensure the proposed projects are in compliance with the relevant code requirements.

DBI also works with other departments, including the Planning and Fire Departments, to enforce building-related requirements set forth in the various state and local codes. In most cases, after DBI has reviewed and processed a building permit application and conducted any necessary inspections of the building site, DBI routes the application to other departments to conduct their own review of the proposed project. Afterwards, the application is returned to DBI for final approval.

DBI collects regulatory fees from building permit applicants to cover the costs of providing services related to the building permit and inspection process. DBI will not issue a building permit unless the applicant pays the regulatory fee. The fee amount varies depending on the value of the proposed building project.² The building permit fee revenues, along with revenues DBI collects in the form of fines and other penalties charged for code violations, are placed in the Building Inspection Fund (BIF). The BIF is a creation of the San Francisco Administrative Code, which provides in relevant part: "(a) Establishment of Fund. The Building Inspection Fund is established as a category four fund to receive all revenues collected by the Department of Building Inspection, including, but not limited to, application fees, permit fees, plan check fees, the Apartment and Hotel License Fee, and reproduction fees, but excluding Fire Department plan check fees, and Department of City Planning fees shall be deposited into this fund, "(b) Use of the Fund. This fund shall be used by the Department of Building Inspection, subject to the approval of the Building Inspection Commission exclusively to defray the costs of the Bureau of Building Inspection in processing and reviewing permit applications and plans, field inspections, code enforcement and reproduction of documents." (San Francisco Administrative Code, Chapter 10: Finance, Taxation and Other Fiscal Matters, article XIII: Funds, section 10.100-45 Building Inspection Fund (S.F.Admin.Code, § 10.100-45).)

Use of fee revenues in the BIF is controlled by the Mayor and Board of Supervisors as part of San Francisco's annual budget process. As a "category four fund" (S.F.Admin.Code, § 10.100-45), the BIF fee revenues are not automatically appropriated for DBI's use; rather, each year the Mayor and Board of Supervisors must make an appropriation of the funds, as directed by San Francisco Administrative Code, Chapter 10: Finance Taxation and Other Fiscal Matters, article XIII: Funds, section 10.100-1 Administration of Special Funds (S.F.Admin.Code, § 10.100-1). Since 1995, the BIF has entirely supported DBI's operations. As such, DBI has received no financial support from San Francisco's general fund or any other source.

The Planning Department.

The Planning Department is charged with enforcing the San Francisco Planning Code, which regulates, among other things, the city's land use and zoning practices. As enforcer of the Planning Code, the Planning Department is also responsible for formulating and implementing San Francisco's state-mandated "general plan." (Gov.Code, § 65300 [requiring each city to adopt a "comprehensive long-term general plan for [its] physical development"].) A general plan is designed to promote and enforce responsible future growth and development. (Ibid.) To that end, the Planning Department's long-range planning division is involved in such activities as preparing and revising the general plan, preparing environmental impact reviews, and updating zoning ordinances.

All land use decisions, including building construction decisions, must be consistent with a city's general plan. (Gov.Code, § 65860, subd. (a)(2); Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 355, 110 Cal.Rptr.2d 579.) As such, no city, including San Francisco, may issue a building permit for a project inconsistent with the general plan. (Land Waste Management v. Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 957-958, 271 Cal.Rptr. 909 ["[issuance of a permit inconsistent with zoning ordinances or the general plan may be set aside and invalidated as ultra vires"]; San Francisco Planning Code, article 1.7: Compliance, section 175 Approval of Permits [S.F. Planning Code, § 175].)

Consistent with its enforcement duties, the Planning Department reviews most building permit applications submitted to DBI to ensure compliance with the San Francisco Planning Code, and, in particular, with the general plan. Building permit applications subject to Planning Department review cover projects involving new construction, demolition, or changes to a building's exterior appearance, i.e. projects most likely to implicate the Planning Department's concern for land use and long-term planning. Under section 175, subdivision (a) of the S.F. Planning Code: "No application for a building permit ... shall be approved by the Department of City Planning, and no permit or license shall be issued by any City department, which would authorize a new use, a change of use or maintenance of an existing use of any land or structure contrary to the provisions of this Code."

The Fire Department.

The Fire Department is charged with enforcing the San Francisco Fire Code, as well as ensuring San Francisco residential buildings and other structures meet certain state-mandated fire safety standards set forth in the Health and Safety Code. (E.g. Health & Saf.Code, §§ 13146, 13143.5, 13217.) Consistent with those responsibilities, the Fire Department may review a building permit application and perform necessary inspections to ensure a proposed project complies with local and state fire standards.

Additionally, the Fire Department works with DBI to enforce San Francisco's Sprinkler Ordinance, which was enacted in 2002 under the San Francisco Housing and Fire Codes and creates requirements for multi-tenant single resident occupancy (SRO) hotels.

The BIF Surplus and San Francisco's Budget Crisis.

Throughout the last decade, revenues held in the BIF have exceeded DBI's general operating costs nearly every year. As such, the BIF has ended every fiscal year this decade with a net cumulative surplus. At the end of fiscal year (FY) 1994-1995, the BIF surplus was approximately $2.2 million. By the end of FY 1998-1999, the BIF surplus reached $10.6 million. Then, after dropping to $.03 million at the end of FY 2000-2001 due to an economic downturn, the surplus grew again to approximately $11.5 million at the end of FY 2002-2003.

The director of DBI explained that maintaining a BIF surplus is important so DBI can guard against future contingencies, including fluctuations in the business cycle. Building construction projects, he explained, are uniquely affected by market conditions, as evidenced by the BIF's steep drop in revenues for FY 2001-2002.

While the BIF has, enjoyed a comfortable surplus for most of...