Langsam v. City of Sausalito

• Decision Date: 26 March 1987
• Citation: 190 Cal.App.3d 871,235 Cal.Rptr. 672
• Court: California Court of Appeals Court of Appeals
• Parties: Martin LANGSAM et al., Petitioners and Respondents, v. CITY OF SAUSALITO et al., Respondents and Appellants. A030097.

Page 672

235 Cal.Rptr. 672

190 Cal.App.3d 871

Martin LANGSAM et al., Petitioners and Respondents, v. CITY OF SAUSALITO et al., Respondents and Appellants.

A030097.

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

March 26, 1987.

Gary T. Ragghianti, San Rafael, for petitioners and respondents.

E. Clement Shute, Jr., Rachel B. Hooper, Schute, Mihaly & Weinberger, San Francisco, for respondents and appellants.

BENSON, Associate Justice.

The City of Sausalito appeals from the judgment of the superior court granting the petition for a peremptory writ of mandate ordering the city to issue a building permit to petitioners for the remodeling of the second floor of a building to create offices. We affirm the judgment.

Petitioners and respondents Martin Langsam and Donald K. Olsen (petitioners) are, respectively, the owner and the architect for the Marin Theatre Building located on Caledonia Street in the City of Sausalito. The building was constructed in 1914 and has been owned by the Langsam family for 70 years. Mr. Langsam is a lifetime resident of Marin County. He was raised in Sausalito and his principal business is there. The property had been in use for almost two decades when Sausalito enacted its first zoning ordinance in 1931. Since World War II a movie theatre has operated on the ground floor of the building while the upper floor has been used as a storage area.

On February 16, 1984, petitioners applied to the city for a building permit to convert 3,000 square feet of the second floor of the Marin Theatre Building to office space. No exterior alteration, structural alteration or expansion to the building was proposed. The building is located in a commercial-residential district of the city and the proposed use of office space is a permissible use as of right in the district.

The director of public works and the planning department staff determined no planning commission or city council review of the application was required by the Sausalito Municipal Code and that since no discretionary review was required, the proposed remodeling was exempt from the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; Cal.Admin.Code, tit. 14, § 15300.1.) In a written memorandum dated May 8, 1984, the city attorney also determined the project was exempt because no discretionary review was required.

In 1963, Sausalito adopted zoning ordinance No. 630 which required owners to provide off-street parking for the occupants of their buildings. The ordinance also contained a grandfathering provision that exempted existing buildings from the requirement to provide parking spaces. At the time of this enactment, the Marin Theatre Building was being used as a theatre on the ground floor and for storage on the second floor.

The permit to remodel the second floor was issued on May 14, 1984. It was "drawn" by petitioners on June 21, 1984. On June 25, 1984, several Sausalito citizens appealed the issuance of the permit to the planning commission of the city sitting as a board of adjustment. The director of public works thereupon issued a stop work order to petitioners. The board of adjustment voted to deny the permit. Petitioners appealed the board's decision to the city council which denied petitioners' appeal by resolution dated October 16, 1984. On October 19, 1984, petitioners filed a petition for writ of mandate under both Code of Civil Procedure sections 1094.5 ¹ and 1085 ² seeking a peremptory writ ordering the city to issue them the requested permit. Petitioners ultimately abandoned its 1094.5 writ and proceeded under 1085. The trial Court granted the writ under Code of Civil Procedure section 1085 and this appeal by the city followed.

The city raises two arguments on appeal: (1) that the city council properly construed the city's off-street parking ordinance to prevent conversion of the second floor of the building to office use unless off-street parking were provided and (2) that the court erred in ruling the action was governed by section 1085 rather than section 1094.5.

Petitioners contend the city council's interpretation of the off-street parking ordinance was lacking in legal foundation, arbitrary and without evidentiary support and that the applicable rules of statutory construction support petitioner's interpretation of the statute. Petitioners also assert the action was properly determined to be an action in traditional or ordinary mandamus under section 1085 because the city's duty to issue the permit was ministerial and the hearings before the city council were legislative or quasi-legislative in nature.

The city's 1963 zoning ordinance was in effect when the chief building inspector approved the petitioners' remodeling permit in May 1984. The parties agree that two provisions contained in the 1963 ordinance, 10.210.2 and 10.210.1(i), are germane to the issues before us.

Section 10.210.2, the "grandfather clause" provides, inter alia: "(a) Nothing in this Title shall be construed as requiring the provision of additional parking spaces for any structure legally existing at the time of the effective date of this Title except as provided in subsection (i) of Section 10.210.1 hereof or as may be required in the authorization of any Conditional Use Permit or Variance.

"(b) No structure as it exists at the time of the effective date of this Title shall be deemed to be nonconforming solely by reason of the lack of off-street parking spaces, provided that any portion of the premises being used for off-street parking in connection with any such building shall not be reduced."

Section 10.210.1(i) provides: "CHANGE IN USE--ADDITIONS AND ENLARGEMENTS: Whenever on any parcel there is a change which creates an increase of more than ten (10) percent in the number of off-street parking spaces required by the tables in this Section, additional off-street parking spaces shall be provided as follows:

"The number of spaces required for the incremental change less the number of spaces, if any, in excess of the requirements of the tables in this Section before the change. Increases shall be computed by measuring:

"Residential Uses--Number of units or bedrooms

"All Other Uses--Floor area, occupancy limit or number of berths."

Table No. 7 accompanying zoning ordinance No. 630 sets forth the number of off-street parking spaces required for different uses. It requires one parking space for each 300 square feet of office space and one parking space for each four seats in a theatre.

In essence, the plain meaning and effect of the two provisions was to provide protection to grandfathered structures, such as the Marin Theatre Building from the requirement of additional parking spaces. However if a subsequent change in the structure were to result in a use which would increase by 10 percent the number of off-street parking spaces required, then such spaces would have to be provided before a permit would issue. Determination of an increase would be measured solely by resort to an accompanying table which was an integral part of the ordinance.

Petitioners here, prior to their application for the permit had removed 90 seats from the theatre thereby, according to table No. 7, reducing the off-street parking requirements for the structures use as a theatre by 22 1/2 spaces. The proposal for 3,000 square feet of second floor office space would, according to table No. 7, require 10 off-street parking spaces. Thus the proposed change to the structure did not create "an increase of more than ten (10) percent in the number of off-street parking spaces required by the tables," but in fact resulted in a decrease. The city attorney and the planning staff accepted this offset when they approved the issuance of the permit.

At trial the city stated that "[a]s a general rule, [it] does not challenge the legality of meaningful parking offsets, where the proponent's increase of parking demand in his project area is matched by his simultaneous reduction of parking needs in that area." Here, the city argues that section 10.210.1(i) must be construed to require that any offset allowed by the ordinance should be an offset that would "truly reduce" the consequences of the increased demand generated by the proposed change in use. Stated another way, the city asserts that the ordinance must be construed to allow for consideration of parking offsets only if such offsets actually mitigate the consequences on the traffic and parking congestion expected to result from the proposed change in use. The city points to the fact that the theatre operates in the evenings and on weekends whereas the offices can be expected to generate parking needs during weekday business hours.

In effect, what the city asks us to do is to add a requirement which is not contained in the ordinance. This we cannot do. "In construing a statute the function of the judge is simply to ascertain what in terms or substance is already there and not to insert what has been omitted or omit what has been inserted. (Code Civ.Proc., § 1858.) Under the guise of construction the court will not rewrite a law [citation]; it will not supply an omission [citation]; and it will not give the words an effect different from the plain and direct import of the terms used. [Citation.]" (Estate of Tkachuk (1977) 73 Cal.App.3d 14, 18, 139 Cal.Rptr. 55.) Where, as here, the ordinance clearly states that the offset is to be determined by reference to specific tables, we find no ambiguity "which is a prerequisite to any further judicial interpretation or clarification of its language.... The Code of Procedure section 1858 likewise admonishes and restrains judicial interpretation to this effect." (Alpha Therapeutic Corp. v. County of Los Angeles (1986) 179 Cal.App.3d 265, 271, 224 Cal.Rptr. 498.)

The city cites Leslie Salt Co. v. San Francisco Bay Conservation, etc., Com. (1984) 153 Cal.App.3d 605, 614, 200 Cal.Rptr. 575, in support of its...