Hawthorne Savings & Loan Assn. v. City of Signal Hill

• Citation: 19 Cal.App.4th 148,23 Cal.Rptr.2d 272
• Decision Date: 04 October 1993
• Docket Number: No. B066509,B066509
• Court: California Court of Appeals Court of Appeals
• Parties: HAWTHORNE SAVINGS AND LOAN ASSOCIATION, Plaintiff and Appellant, v. CITY OF SIGNAL HILL, Defendant and Respondent.

Page 272

23 Cal.Rptr.2d 272

19 Cal.App.4th 148

HAWTHORNE SAVINGS AND LOAN ASSOCIATION, Plaintiff and Appellant, v. CITY OF SIGNAL HILL, Defendant and Respondent.

No. B066509.

Court of Appeal, Second District, Division 7, California.

Oct. 4, 1993.

As Modified on Denial of Rehearing

Oct. 28, 1993.

Review Denied Dec. 30, 1993.

Stephen D. Sawyer, Long Beach, McKenna & Fitting, Aaron M. Peck, Andrew J. Yamamoto, Rogers & Wells, Aaron M. Peck and Andrew J. Yamamoto, Los Angeles, for plaintiff and appellant.

Rutan & Tucker, David J. Aleshire, David B. Cosgrove, and Carrie E. Phelan, Costa Mesa, for defendant and respondent.

JOHNSON, Associate Justice.

This is an appeal by Hawthorne Savings and Loan Association (Hawthorne) from a judgment denying a peremptory writ of mandate under section 1094.5 of the Code of Civil Procedure and thereby affirming the City of Signal Hill's order requiring demolition of substandard residential buildings belonging to Hawthorne. We issued an order staying demolition of the buildings pending disposition of this appeal. We now reverse the judgment denying the writ and remand the matter to the superior court for further proceedings.

FACTS AND PROCEEDINGS BELOW

Hawthorne is the owner of improved property in the City of Signal Hill (City) known as the Angeline Court apartments. Hawthorne acquired this property through foreclosure on a deed of trust executed by the former owner, Welter. Through a series of stays obtained in the bankruptcy court, Welter managed to stave off foreclosure proceeding for nearly two years. In the meantime, Welter allowed Angeline Court to fall into such a state of dilapidation the City ordered the tenants to vacate in May 1990. The buildings are now boarded up and the property fenced and patrolled by security guards at Hawthorne's expense.

Between 1988 and 1991 the City attempted without success to get the former owners to repair the buildings. The City acknowledges during that time Hawthorne had no control over the property and was not responsible for the dilapidated conditions. Hawthorne acquired title to the property in early November 1991.

A few weeks after Hawthorne acquired title to Angeline Court the City served Hawthorne with a notice and order to demolish the buildings within 120 days. Accompanying In January 1992 a hearing was held on Hawthorne's appeal from the demolition order. Hawthorne presented testimony from a licensed contractor who had inspected the property and estimated it could be restored to the way it was for approximately $300,000. The contractor stated he had come up with his figures the week before and despite efforts to meet with the City's building department no meeting had taken place prior to the hearing on the appeal. Nevertheless, Hawthorne represented to the city council it was prepared to go ahead with repairs to the building. Members of the public were allowed to speak. All of them opposed repair and favored demolition of the buildings. The city council then voted unanimously to deny the appeal and directed city staff to proceed with the demolition.

the order was a list of approximately 170 code violations existing in the buildings. Hawthorne filed an appeal to the city council sitting as the City's Board of Appeal. In the notice of appeal, Hawthorne contended it had not had sufficient time to evaluate whether to attempt to repair the code violations and pointed out it was not in possession of the property when the building became dilapidated. Hawthorne also noted it had installed a fence around the property and hired security guards to meet the City's concern the property was a harbor for vagrants and criminals.

In denying the appeal, the city council made findings of fact the buildings presently contained the housing code violations stated in the demolition order; the property is unsafe for dwelling purposes; the buildings are so dilapidated and deteriorated as to be "unsuitable candidates for repair;" no plan for repair was submitted by Hawthorne and Hawthorne's oral presentation at the hearing "failed to convince the board of appeals that repairs would be made or that proposed repairs would address the extensive building code defects found to exist on the property." The council further found the property to be a fire hazard and a harbor for vermin and insect infestation.

Based on those findings, among others, the city council denied Hawthorne's appeal and ordered demolition in accordance with the notice and order previously served on Hawthorne. Hawthorne filed a petition for writ of mandate challenging the denial of its appeal as an abuse of discretion. (Code Civ.Proc., § 1094.5.) The petition and argument in the superior court focused primarily on the alleged deprivation of procedural due process at the board of appeal hearing, e.g., failure to swear witnesses, failure to afford cross-examination and lack of opportunity to present rebuttal evidence.

The trial court denied the petition on three alternative grounds: First, Hawthorne's appeal was untimely and not in the proper form. Second, Hawthorne failed during the hearing to raise any of the procedural objections it was now asserting; therefore the objections were waived. Third, substantial evidence supports the City's decision to demolish the buildings. In support of the latter ground the court stated Hawthorne had failed to present any plans for rehabilitation or any timetable for when that rehabilitation might be accomplished.

The trial court issued an order staying demolition of the buildings for 10 days to allow Hawthorne to perfect an appeal and petition for a further stay in the appellate court. The stay was conditioned on Hawthorne providing a 24-hour security guard on the premises. We granted a further stay of demolition, on the same condition, pending disposition of Hawthorne's appeal. ¹

DISCUSSION

I. BY ACCEPTING HAWTHORNE'S APPEAL AND CONDUCTING A HEARING THE CITY WAIVED ITS CLAIMS THE APPEAL WAS UNTIMELY AND NOT IN THE PROPER FORM.

The City contends Hawthorne failed to file a timely appeal in proper form and, therefore, has no basis for complaining about the procedures followed by the city council or the council's decision to go ahead with the demolition. We find the record does not support the City's contention.

The City has adopted the Uniform Code for the Abatement of Dangerous Buildings. ² Section 501 of the Uniform Code provides an appeal shall be filed within 30 days from the date of service of a notice of demolition and shall contain certain information including a verified statement of the relief sought and the reasons why the protested order should be reversed. Section 502 of the Uniform Code provides "[f]ailure ... to file an appeal in accordance with the provisions of Section 501 shall constitute a waiver of [the] right to an administrative hearing and adjudication of the notice and order or any portion thereof."

The record shows an order of demolition was contained in a letter to Hawthorne dated November 18, 1991. In a letter dated December 20, 1991, from Hawthorne to the City, Hawthorne states it is "reiterat[ing]" its "formal appeal of your notice and order dated November 18, 1991." This letter goes on to state five grounds why the demolition order should be reversed. The letter is not verified.

A transcript of the city council meeting of January 21, 1992, shows the council took up the matter of demolishing the subject property. The transcript refers in several places to Hawthorne's "appeal" of the demolition notice and contains a recommendation by the city planning director to "deny the appeal." The transcript also contains the following explanation by the city planning director to the council: "Hawthorne Savings has appealed the notice and order [of demolition]. The city council pursuant to the administrative code shall serve as the appeals board in this hearing and the responsibility of the board will be to decide on the appeal but not to interpret the code or the requirements of uniform code."

At the conclusion of the hearing, a motion was made to "deny the appeal." The motion passed unanimously and the planning staff was directed to prepare a proper resolution for the council. This resolution, adopted by the city council, provides in relevant part that it is a resolution "of the City Council of the City of Signal Hill, California, acting as the board of appeals denying the appeal of the notice and order dated November 18, 1991, submitted by Hawthorne Savings and Loan Association...." The resolution refers in several other places to the "appeal" of the demolition order by Hawthorne and the "hearing" conducted by the city council sitting as the board of appeal. It further appears from the resolution the city council, sitting as the board of appeals, took evidence and made findings of fact and reached a decision "to deny the appeal presented by Hawthorne Savings and Loan...."

The foregoing evidence compels the conclusion the City waived any defects in the timing and form of Hawthorne's appeal from the demolition order. (Cf. Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222-223, 239 Cal.Rptr. 470.) Hawthorne's statement in its December 20 letter that its purpose was to "reiterate Hawthorne's formal appeal" of the City's November 18 order suggests an appeal was filed within the 30-day period even though it is not in the record before the court. Furthermore, the evidence refutes the City's claim it allowed Hawthorne to present its arguments against demolition as a mere courtesy. To the contrary, the city council sat as a board of appeal, heard

                evidence, made findings of fact, and reached a decision "to deny the appeal."   References to Hawthorne's "appeal" appear throughout the record of the hearing and the resolution subsequently adopted.  Having treated Hawthorne's protest of the demolition as an appeal in all respects, the City cannot seek to cut off review of its decision on a ground never raised during

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