Desmond v. County of Contra Costa

• Decision Date: 23 December 1993
• Docket Number: No. A061677,A061677
• Citation: 21 Cal.App.4th 330,25 Cal.Rptr.2d 842
• Court: California Court of Appeals Court of Appeals
• Parties: William DESMOND et al., Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Defendant and Respondent.

Page 842

25 Cal.Rptr.2d 842

21 Cal.App.4th 330

William DESMOND et al., Plaintiffs and Appellants, v. COUNTY OF CONTRA COSTA, Defendant and Respondent.

No. A061677.

Court of Appeal, First District, Division 3, California.

Dec. 23, 1993.

William G. Segesta, Berkeley, for plaintiffs and appellants.

Diana J. Silver, Deputy County Counsel, Victor J. Westman, County Counsel, Martinez, for defendant and respondent.

MERRILL, Associate Justice.

William and Tanya Desmond appeal from a judgment denying their petition for writ of administrative mandate. That petition sought to set aside the decision of the Board of Supervisors (Board) of the County of Contra Costa (County) denying their application for a land use permit. Appellants contend that the administrative findings of the Board are not supported by substantial evidence, and that the standards imposed by the applicable County ordinances exceed the maximum standards set by Government Code section 65852.2 for second units in residential zones. We disagree and therefore affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The subject property, which is located at 8 Golden Hill Court in Walnut Creek, is zoned R-15, single-family residential district. Appellants sought and received issuance of a building permit to construct an addition to their single-family home. The addition consisted of a new two-car garage and second-level bedroom addition with a separate foundation detached from the principal structure. The new unit was attached to the existing single-family home by means of second-story decking. The building permit contained a provision that no kitchen facilities could be included in the new unit unless appellants first obtained a land use permit to allow construction of a residential second unit at that location. Appellants then submitted an application for a land use permit for a residential second unit.

Relying on alleged statements by unnamed County employees that issuance of a use permit would be "pro forma," appellants did not wait to obtain the permit before commencing construction of the new unit. When a hearing was held on appellant's application for a permit to establish a residential second unit the County zoning administrator approved it. Thereafter, a group of neighbors filed an appeal to the County Planning Commission from the zoning administrator's approval of the issuance of the land use permit. County staff recommended that the planning commission uphold the decision of the zoning administrator, but following a public hearing and review of the matter, the planning commission voted unanimously to uphold the neighbors' appeal and deny the application, on the grounds that the proposed second residential unit was not architecturally compatible with the overall character of the neighborhood, and that development of the second unit would present a threat to public health, safety and welfare.

Appellants appealed the decision of the planning commission to the County Board, which held a public hearing on the matter. At the close of the hearing, the Board declared its intent to deny the appeal and the application, and directed the staff to prepare findings to support its decision. By a vote of three to two, the Board affirmed its earlier expressed intent, denied the appeal and the application, and adopted the staff findings.

In its findings, the Board stated that the property was currently designated in the County general plan as single-family residential, low density. The Board found that the proposed residential second unit was "architecturally incompatible with the overall neighborhood character and the primary residence in terms of scale, colors, materials and designs for trims, windows, roof, roof pitch and other exterior physical features" (Finding No. 7); that development of the second unit would "present a threat to the public health, safety and welfare in that the second unit would result in excessive neighborhood noise and would create traffic and parking problems" (Finding No. 8); that "[s]pecial conditions or unique characteristics of the subject property and its location or surroundings are not established" (Finding No. 9); and that "[a] second unit is not suitable in this location, is out of character with the surrounding neighborhood and would be an intrusion into the neighborhood" (Finding No. 10). In support of these findings, the Board cited the administrative record on appellants' application for a land use permit, County Ordinance Code sections 82-24.1002 and 26-2.2008, and the "on-site observations and comments" by a member of the Board at the public hearing.

Appellants filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5, asking the court for a writ of mandate and injunctive relief ordering the County and the Board to vacate the decision denying appellant's application and to issue a land use permit for the residential second unit. The trial court denied appellant's petition on the ground that appellants had failed to establish either that Finding No. 10 was not supported by substantial evidence in the record, or that that finding was legally irrelevant to the denial of the request for a land use permit.

In its decision, the trial court stated: "Specifically, [appellants] do not point to evidence that a [residential] second unit is not out of character with the surrounding neighborhood. There is substantial evidence in the record that the second residential unit would be out of character because the surrounding streets at the moment contain only single-family dwellings.

"[Appellants'] argument that Finding No. 10 is irrelavant [sic ] is not raised in the petition and is not supported by any authority.

"Finding No. 10 supports Finding No. 8: development of the second unit will present a threat to public health, safety, and welfare contrary to one of the requirements for a land use permit (C.C.C.Ord.Code § 82-24.1002(13)). It was within the discretion of the [Board and the County] to take the concerns of the neighbors into account and to decide that the public welfare would be served by denying the permit; that ... Finding No. 10 ... is sufficient to support the denial of [appellants'] application for a land use permit."

On this basis, the trial court denied appellant's petition for writ of mandate and entered judgment for the County. This appeal followed.

II. STANDARD OF REVIEW

In bringing their petition for writ of administrative mandamus, appellants argued that the County Board prejudicially abused its discretion. Under Code of Civil Procedure section 1094.5, subdivision (b), "[a]buse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." Both in the trial court and on appeal, appellants have conceded that this is not a case in which the trial court is authorized by law to exercise its independent judgment on the evidence, and thus that abuse of discretion is established only upon a determination that the findings of the administrative body were not supported by substantial evidence in the light of the whole record. (Code Civ.Proc., § 1094.5, subd. (c); Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29 [substantial evidence standard used when no fundamental vested right involved].)

The scope of our review of the subject administrative agency action in this case is identical with that of the superior court. The same substantial evidence standard applies, and the issue is whether the findings of the County Board were based on substantial evidence in light of the entire administrative record. (Bixby v. Pierno (1971) 4 Cal.3d 130, 149, fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242; Zuniga v. County of San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1530-1531, 267 Cal.Rptr. 755; County of San Diego v. Assessment Appeals Bd. No. 2 (1983) 148 Cal.App.3d 548, 554-555, 195 Cal.Rptr. 895.) Moreover, because the trial court did not exercise its independent judgment in reviewing the Board decision, but instead applied the substantial evidence test, we must examine the findings made by the Board itself to determine whether they were supported by substantial evidence, rather than limiting ourselves to a review of the findings made by the trial court. (Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 211, 98 Cal.Rptr. 467, 490 P.2d 1155; Bixby v. Pierno, supra, 4 Cal.3d at pp. 143-144, fn. 10, 93 Cal.Rptr. 234, 481 P.2d 242; Cal. Administrative Mandamus (Cont.Ed.Bar 1989) §§ 4.162-4.163, 14.27, pp. 205-207, 463-464.)

Under current interpretations of the substantial evidence test as applied in review of administrative agency action, we must examine all relevant evidence in the entire record, considering both the evidence that supports the administrative decision and the evidence against it, in order to determine whether or not the agency decision is supported by "substantial evidence." (Universal Camera Corp. v. Nat'l Labor Rel. Bd. (1951) 340 U.S. 474, 488-490, 71 S.Ct. 456, 465-466, 95 L.Ed. 456; Bixby v. Pierno, supra, 4 Cal.3d at p. 149, fn. 22, 93 Cal.Rptr. 234, 481 P.2d 242; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 635-639, fn. 22, 83 Cal.Rptr. 208, 463 P.2d 432; Zuniga v. County of San Mateo Dept. of Health Services, supra, 218 Cal.App.3d at pp. 1530-1531, 267 Cal.Rptr. 755; County of San Diego v. Assessment Appeals Bd. No. 2, supra, 148 Cal.App.3d at pp. 554-555, 195 Cal.Rptr. 895.) For this purpose, "substantial evidence has been defined in two ways: first, as evidence of ' " 'ponderable legal significance ... reasonable in nature, credible, and of solid value' " ' (Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 773, fn. 9 [148 Cal.Rptr. 1, 582 P.2d 88] ); and second, as ' "relevant...