Gabric v. City of Rancho Palos Verdes

• Decision Date: 07 September 1977
• Citation: 140 Cal.Rptr. 619,73 Cal.App.3d 183
• Court: California Court of Appeals Court of Appeals
• Parties: George S. GABRIC, Petitioner and Appellant, v. The CITY OF RANCHOS PALOS VERDES, Gunther W. Buerk, Francis D. Ruth, Robert E. Ryan, Marilyn Ryan and Ken Dyda, Respondents. Civ. 47615.

Page 619

140 Cal.Rptr. 619

73 Cal.App.3d 183

George S. GABRIC, Petitioner and Appellant, v. The CITY OF RANCHOS PALOS VERDES, Gunther W. Buerk, Francis D. Ruth, Robert E. Ryan, Marilyn Ryan and Ken Dyda, Respondents.

Civ. 47615.

Court of Appeal, Second District, Division 2, California.

Sept. 7, 1977.

Hearing Denied Nov. 17, 1977.

Gordon C. Phillips, Torrance, for petitioner and appellant.

Richards, Watson, Dreyfuss & Gershon, by Arnold Simon, Los Angeles, for respondents.

BEACH, Associate Justice.

George S. Gabric appeals from a denial by the trial court of his petition for writ of mandate seeking to compel the City ¹ to issue a building permit to appellant.

FACTS:

Appellant applied for a permit to build a two-story single family residence on his lot No. 44, in Tract 25376, in the City of Rancho Palos Verdes. As part of his application, appellant answered and filed with the City in October 1974, a 'Preliminary environmental questionnaire.' On December 5, 1974, the city planning director issued and filed a so-called 'Negative declaration.' That declaration determined that the building of appellant's home would not have a significant effect on the environment. As a result appellant was entitled to the permit to build. Also the declaration eliminated the need to file an environmental impact statement, based on the reasons stated as follows:

'1. No significant views will be obstructed.

'2. Minimal grading is required.

'3. The aesthetic quality of the neighborhood will not be adversely affected.

'4. No change in use or density will be incurred.'

The questionnaire was answered and submitted by appellant and the negative declaration made by City's planning director pursuant to section 4 of City Ordinance No. 54 ten in effect. Part of section 4 reads:

'Notwithstanding any other ordinance or code of the City of Rancho Palos Verdes, no building permit or grading permit shall be issued unless a finding can be and is made that the construction or grading will not have a significant effect on the environment.'

However, the decision of the planning director was appealed by Mrs. Elza Cortes, an adjacent neighbor purportedly representing a homeowners association. The appeal was to the Environmental Assessment Committee of the City. That committee found that petitioner's proposed two-story residence would 'impair views' and was 'not in harmony with the neighborhood.' Petitioner, appellant herein, appealed that decision to the City Council which affirmed the Environmental Assessment Committee's decision on March 18, 1975. The Council found 'neighborhood has been developed to protect views, house will destroy character of neighborhood, lot is on a ridge, existing two-story houses minimize view obstruction and do not obstruct views, the whole neighborhood would be adversely affected by this construction, cumulative effect of this house plus adjacent lot development as two-story dwellings would be substantial, existing two-story houses are on pads substantially below houses above them and back on a hill and do not obstruct view.' City terefore refused to issue the building permit to appellant, whereupon appellant Gabric filed petition in superior court for writ of mandate. The petition was denied.

CONTENTIONS OF APPEAL:

Appellant contends that City did not apply its own ordinances properly in denying petitioner's building permit. Even assuming that the appropriate procedures were followed, appellant contends that respondent's decision is not supported by substantial evidence. Respondent (City) refutes appellant's claims and additionally seeks to justify its conduct by the argument that even if not so at the time of application, the height limitations now in effect in the City preclude granting of a permit.

DISCUSSION:

We agree with appellant and we reverse the judgment of the trial court.

1. The City employed improper procedure.

City justifies its conduct by asserting that it had the authority to enact zoning laws that would prohibit all buildings for an interim period. City argues that appellant was thereby only temporarily denied a building permit under an interim zoning ordinance, pending the adoption of a general master plan. That is not entirely true nor is it the issue. Neither the right to impose a prohibition against building either temporarily or permanently through appropriate zoning is in dispute. The authority of a city to enact such ordinances is not questioned. In effect, the City claims it did the right thing simply because it had the power to do the right thing. But the record clearly discloses that the City ignored its own ordinances and misapplied the law. We deal here not with a prohibition against building but with a question of whether all conditions, including the condition of the negative declaration, precedent to the right to receive a building permit were met by appellant at the time of his application. At the time of the application, there was no prohibition against building and there was no prohibition against building a two-story house on the lot where petitioner sought to build. The two-story feature of the home was the only item upon which Mrs. Cortes based her objection. There was no dispute as to other building plans or requirements.

On the appeal to the City Council, the only issue should have been: 'Should an environmental impact report be required irrespective of the determination made by the planning director that such report was not required? However, the City Council abused the appeal hearing process by (1) using the occasion of the hearing to decide whether the building of petitioner's home would or would not have a 'significant impact on the environment' and (2) by using this decision to justify its denial of a permit simply because o the probable future, but yet undetermined, zoning action of the City. City was unsure and undecided about what the future zoning ordinance would permit. It contemplated and expected to change the ordinance. Construction during this uncertainty could have been prohibited by appropriate interim zoning. But at the time of Gabric's application there was no such interim zoning ordinance forbidding building the home. That omission certainly cannot be patched up by forbidding the building and relying on an 'environmental' decision. The procedural impropriety is compounded because such a decision was not in issue and totally unsupported. City, however, relies on its 'findings.' These findings are the unsupported conclusion that the home would cause some sort of detrimental environmental effect. The Council's decision was not based upon evidence of any failure of Gabric to comply with existing law. The declaration of City's planning director so admits. It states: 'The City's denial of Mr. Gabric's building permit application was a temporary denial only because the City had not yet completed its general plan and other zoning proposals for single family residential areas.'

As to item (1) above, the City proceeded as though an environmental impact statement had in fact been submitted and as if the matter and issues which thereby would have been framed were properly before the City Council. Such broader issues were not before the City Council. As to item (2) above, the City denied appellant Gabric a building permit not because appellant failed to meet any zoning or building requirements or failed to comply with the law, but because City was contemplating the future adoption of a new zoning ordinance. By such admitted denial of the permit, City did not follow any law, rule, or ordinance interim or regular then in effect. At trial and here City argues that a city has authority to pass interim zoning laws which may forbid or limit certain uses of private property. On appeal City additionally argues that in any event its ordinances were soon thereafter changed to forbid building of houses higher than sixteen feet. This new ordinance, No. 66, was passed after the City's decision but before trial. This second argument based on Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, is inapplicable to the case at bench, as we shall discuss later in this opinion.

Zoning Ordinance No. 54 provided for two districts within the City. In one district a building moratorium had been imposed. In the other district, which includes appellant's lot, there was no such moratorium. The City had recently been incorporated in 1973. As a result it had not yet completed passage of all needed ordinances. Before incorporation as a city, the area was an unincorporated part of Los Angeles County and the county Ordinance No. 1494 was the zoning ordinance then in effect. After incorporation City promptly adopted Los Angeles County zoning Ordinance 1494, as an interim zoning ordinance. By numerous extensions and reenactments, this interim zoning ordinance was continued beyond the first interim period provided for under the urgency ordinance. At the time of appellant's application for permit, Ordinance No. 54 was in effect. The county's zoning ordinance by reference also then in effect permitted two-story buildings on appellant's lot. Under that zoning law, many two-story homes had already been built in the same neighborhood where appellant sought to build his home.

There was no prohibition in any zoning ordinance or building code of the City against building the type or height of home which appellant proposed. It follows that the objection of the neighbor Mrs. Cortes, must rest solely upon the alleged failure of appellant's construction to qualify for the 'environmental' exclusion allowed in Ordinance No. 54. However, this exclusion was properly based on the negative declaration, that the construction of the home would have no significant impact or effect upon the environment. This decision was properly made by the planning director pursuant to and in accordance with Ordinance No. 54. Procedurally at that point appellant thereby became...