Drum v. Fresno County Dept. of Public Works

• Decision Date: 10 June 1983
• Citation: 192 Cal.Rptr. 782,144 Cal.App.3d 777
• Court: California Court of Appeals Court of Appeals
• Parties: Robert E. DRUM et al., Plaintiffs and Respondents, v. FRESNO COUNTY DEPARTMENT OF PUBLIC WORKS et al., Defendants and Appellants. COUNTY OF FRESNO, Plaintiff and Appellant, v. Robert E. DRUM et al., Defendants and Respondents. Civ. 6056/F122.

Page 782

192 Cal.Rptr. 782

144 Cal.App.3d 777

Robert E. DRUM et al., Plaintiffs and Respondents, v. FRESNO COUNTY DEPARTMENT OF PUBLIC WORKS et al., Defendants and Appellants.

COUNTY OF FRESNO, Plaintiff and Appellant, v. Robert E. DRUM et al., Defendants and Respondents.

Civ. 6056/F122.

Court of Appeal, Fifth District, California.

June 10, 1983.

As Modified on Denial of Rehearing

July 8, 1983.

Hearing Denied Sept. 29, 1983.

Floyd R.B. Viau, County Counsel, and Thomas J. Riggs, Chief Deputy County Counsel, Fresno, for defendants, plaintiff and appellants.

Robert E. Drum and Terry L. Drum, in pro. per.

Fullerton, Lang, Richert & Patch, Douglas E. Noll, Oren, Oren & Oren and Donald E. Oren, Fresno, for plaintiffs, defendants and respondents.

ANDREEN, Acting Presiding Justice.

Following the issuance of a zoning variance and building permit, respondents Robert and Terry Drum commenced construction of a two-story addition to their home. The structure was to have a garage on the ground floor and two bedrooms and bath on a second story. Deeming it in excess of the terms of the variance, the appellant, County of Fresno (hereafter County), issued a stop-work order.

The Drums filed a petition for an alternative writ of mandate against the County. The County filed a complaint for injunctive relief, and a request for a preliminary injunction. The matters were consolidated for hearing. From an adverse judgment in both matters, the County appeals.

FACTS

The Drums requested a variance by filing an application with the County which stated "Variance to waive front and side yard requirements to allow 9' front yard and 8' side yard to construct 36' by 26' garage. Original garage converted to storage and utility room with major plumbing alteration. To remove auto and recreation vehicles from driveway."

A narrative explanation accompanied the application and dealt exclusively with the Drums' need for a garage to house their vehicles and how this would enhance the neighborhood by reducing unsightly on-street parking and prevent mischief to the vehicles. The narrative also recited, "We have discussed our plans and reviewed the siteplan with our neighbors to see if there were any objections. There are none as indicated by our neighbors' signatures on the attached letter."

The letter, which is in the form of a petition and bears 18 signatures, reads in full:

"We have reviewed Mr. Drum's site plan to waive front and side yard requirements to allow nine (9) foot front yard and eight (8) foot side yard. This will allow for the construction of a 36-foot by 26-foot garage. It will not be detrimental to the neighborhood and will provide shelter and security for vehicles now parked on driveway."

At the time the application and narrative were submitted the Drums also submitted a site plan showing the existing structures on his property and showing the proposed new garage to be located within the required front and side yard setbacks. The site plan does not indicate the garage will be a two-story structure.

In each of the documents signed, filled out, or prepared by respondent the variance is described as one for a "garage"; no mention is made of a two-story structure or of living quarters to be included in or on top of the proposed garage.

In October 1979, a staff analyst with the planning department, Mr. Poeschel, prepared and caused to be sent a notice of hearing to all property owners within 600 feet of the Drum property as required by state and local codes. The notice of hearing described the proposal as one to reduce the setback requirements to allow construction of a garage.

Prior to the hearing Mr. Poeschel prepared a staff report for the planning commission. It referred to the site plan submitted by the Drums which depicted the proposed garage. The staff report referred only to the necessity for the proposed garage within the side yard and front yard setbacks and did not mention or allude to any accessory living quarters.

On November 8, 1979, the hearing on the variance was held before the Fresno County Planning Commission. At the hearing, Poeschel submitted the staff report to the commission. The staff report prepared for the planning commission referred to the site plan prepared by Drum which depicted the "proposed 936 square foot garage." The staff report discussed the findings of fact which the planning commission was required to make before it could grant the variance, and the discussion related solely to the fact that there was no existing garage, that other variances for garages and carports had been granted in the same neighborhood, that the construction of a garage would clear the driveway of parked vehicles, that the resulting shortened driveway might be dangerous and that a 36-foot by 26-foot garage might have a significant visual impact on the neighborhood.

At the conclusion of Poeschel's report, respondent testified before the commission on his own behalf and in support of the variance. He discussed the need for a proposed garage within the setbacks but made no mention of the proposed structure being two stories or containing any living quarters. He also submitted to the commission the petition signed by his neighbors. No one appeared in opposition to the proposed variance. The matter was submitted to the commission which approved the variance application. The motion for approval was limited to granting the variance only for the allowance of the construction of a garage.

The resolution adopted by the Fresno County Planning Commission stated:

"WHEREAS, Variance Application No. 2527 was filed ... seeking to reduce ... setback requirement ... on a lot ... in the R-1-AH ... Zone District....

"NOW, THEREFORE, BE IT RESOLVED that this Commission hereby adopts the proposed findings of fact in the attached Report; and

"BE IT FURTHER RESOLVED that this Application is hereby granted."

After the variance was granted, respondents decided to add the second story, containing two bedrooms and a bath with enclosed staircase. On January 11, 14, 17, 18, and 29 of 1980 they submitted the plans for the two-story structure to the Fresno County Department of Public Works, in ever-increasing detail at the department's direction.

On February 6, 1980, all of the required documentation had been included on the plans and the building plans and specifications were approved by the department and the building permit for a two-story addition was issued. ¹

Between February 19 and February 22, 1980, Mr. Robert Grim, the supervisor of the division of the Fresno County Public Works Department which issues building permits, received a number of telephone calls from neighbors of the Drums questioning whether the second story being constructed on the Drums' new garage was permitted by the variance. Over the course of the next few days Mr. Grim discussed the issue with Mr. Drum and legal counsel. He concluded that no stop-work order should be issued. He later reviewed the file on the Drum variance and listened to a tape recording of the planning commission hearing at which the variance was granted. He concluded the variance was limited to a waiver of the front and side yard setback requirements for a garage only and not for second-story accessory living quarters. Thereafter, the County delivered a stop-work order at the job site of the construction. The stop-work order states:

"Failed to comply with variance number 2527 which permits the construction of a garage only and permit being issued in error."

This litigation ensued.

WAS ADEQUATE NOTICE OF THE PROPOSED CHANGE GIVEN TO THE NEIGHBORS?

The court found the planning commission had authority to make the variance conditional but did not do so. The court noted that Government Code section 65906 provides variances "shall be subject to ... conditions" and Fresno County Zoning Ordinance (FCZO) section 877(B)(6)(c) provides the commission "shall approve, approve with stated conditions, or disapprove" the application for a variance. The court held that once the variance of the setback requirements was granted without further conditions the Drums were free to build any height building allowable. The Drums' property is zoned to allow two-story buildings and therefore the unconditional grant of a variance, the court concluded, permitted the construction of the two-story structure.

This essentially is respondents' position on appeal also: the variance is silent about the height of the proposed structure and, absent such a stated condition, respondents are free to build up to the two-story height limits of their zone. As the court stated, "once [the variance was] granted, the Drums' intention [to build a garage] did not rise to a 'stated condition' without specific mention by the Commission and is therefore inconsequential in the posture of the case at bar." This reasoning would be correct and would support affirming the trial court's conclusions and orders but for the due process and statutory problem of insufficient notice, which was raised below.

Notice and an opportunity to be heard are due process prerequisites for adequate administrative proceedings. (Anderson Nat. Bank v. Luckett (1944) 321 U.S 233, 240-247, 64 S.Ct. 599, 603-07, 88 L.Ed. 692.) Granting a variance is an administrative or quasi-judicial matter and as such requires, at a minimum, due notice and a fair hearing. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612-615, 156 Cal.Rptr. 718, 596 P.2d 1134; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517, 113 Cal.Rptr. 836, 522 P.2d 12; Kennedy v. City of Hayward (1980) 105 Cal.App.3d 953, 165 Cal.Rptr. 132.) State and local law therefore require notice of the hearing on the variance be given to nearby property owners. (Gov.Code, §§ 65901, 65905; FCZO, § 877(B)(5)(c).)

Neither the state statutes nor the local ordinance specify in particular what the contents of the required notice must be. (Ibid.) Decisional law makes...