McDonald's Systems of California, Inc. v. Board of Permit Appeals

Decision Date15 January 1975
Citation44 Cal.App.3d 525,119 Cal.Rptr. 26
CourtCalifornia Court of Appeals Court of Appeals
PartiesMcDONALD'S SYSTEMS OF CALIFORNIA, INC., Plaintiff and Respondent, v. BOARD OF PERMIT APPEALS OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. Civ. 34793.

Thomas M. O'Connor, City Atty., Philip J. Moscone, Deputy City Atty., San Francisco, for defendant and appellant.

Michael L. Ohleyer, Titchell, Maltzman, Mark, Bass & Ohleyer, San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

The Board of Permit Appeals of the City and County of San Francisco has appealed from a judgment which granted petitioner, the successful applicant for a permit to alter an existing building to accommodate a restaurant, a peremptory writ of mandate ordering the board to set aside its decisions of July 31, 1972, and June 5, 1972, which purported to overrule the issuance of the permit. The trial court found that the board's decision of July 31, 1972, was void for lack of jurisdiction, that there was not substantial evidence in the record from the hearing over which the board had jurisdiction to support the board's decision of June 5, 1972, and that, in the alternative, that earlier decision was vacated by the granting of the petition for the abortive rehearing.

The board does not contend, as it might, that if the rehearing procedure continued beyond the period in which the board could exercise jurisdiction, without a further decision either concurring in or overruling the action of the department, the first decision would stand. (See Code Civ.Proc., § 660; and Whitley v. Superior Court (1941) 18 Cal.2d 75, 80--82, 113 P.2d 449 (overruled on another issue Dempsey v. Market St. Ry. Co. (1943) 23 Cal.2d 110, 116--117, 142 P.2d 929) and cf. text below.) Although the board does not specifically concede that the evidence before it on June 5, 1972, was inadequate as a matter of law to sustain the decision rendered that day, it indirectly concedes such was the case. 1 Regardless of the reason, the board has presented no argument attacking the trial court's finding that there is not substantial evidence in the record to support the decision of June 5, 1972, and has failed to discuss the evidence elicited at that hearing. Therefore the point is deemed waived and the finding must stand. (Webster v. Board of Dental Examiners (1941) 17 Cal.2d 534, 543, 110 P.2d 992; Title G. & T. Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363, 30 P.2d 515; Duncan v. Ramish (1904) 142 Cal. 686, 689--690, 76 P. 661; and see 6 Witkin, Cal. Procedure (2d ed.1971) Appeal, § 425, pp. 4391--4392.)

The controversy, therefore, revolves about whether the board, because of provisions found in the municipal code, 2 was precluded from acting later than 40 days after May 18, 1972, the date an appeal was filed with the board by two interested parties who requested it to overrule the department of public works and to order it to refuse the permit. 3 The board contends that the 40-day time limit found in sections 8 and 14 of article 1 of part III of the municipal code are neither mandatory nor jurisdictional because on the one hand they conflict with the charter provision establishing the board, or, in the alternative, because, in any event, they do not apply to a rehearing authorized by section 16. The applicant, with some semblance of authority in support, 4 insists that the provisions of the municipal code are valid, and that they require final action by the board, including any action on rehearing, not later than 40 days after the appeal is filed.

It is concluded on the facts and the applicable law that the provisions of the municipal code are not invalid because of an alleged conflict with the charter provisions, that the 40-day time limitation although mandatory does not serve to divest the board of jurisdiction when it has granted a timely request for rehearing, that such an interpretation is consistent and reconcilable with pronouncements in prior decisions and that under the facts of this case there was no abuse of discretion in continuing the rehearing as was done. The judgment must be reversed, and since the trial court never determined whether the order of July 31, 1972, which overruled the approval of the permit, was sustained by sufficient evidence, the matter is remanded for such a determination.

The permit in question was issued May 17, 1972. It is admitted and the court found that an appeal was filed May 18, 1972, requesting the board to overrule the issuance of the permit. A hearing was held on June 5, 1972, and at the conclusion of the hearing the issuance of the permit was overruled by the vote of four of the five members present.

On June 14, 1972, the applicant requested the board to grant it a rehearing. 5 Applicant's letter reads in part, 'We respectfully request that this petition be considered by the full membership of the Board at a meeting duly called and that the rehearing be conducted before the full membership of the Board.' 6 There was no meeting of the board on June 19, 1972, and the matter would ordinarily have been calendared for June 26. The board's answer and return to the petition for mandate alleges 'that on or about June 23, 1972 petitioner (applicant) asked the Executive Secretary of respondent (the board) to continue said request for rehearing to July 10, 1972 . . ..' The findings recite 'it is admitted by respondent (the board) that on or about June 23, 1972, it requested a continuance of the rehearing until July 10, 1972.' In the absence of any replication or proof in the record to the contrary the allegations of the answer and return must be accepted as true. (Code Civ.Proc., § 1091; Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 891, 103 Cal.Rptr. 354.) It is assumed the recital in the findings is a clerical error in the designation of the party responsible.

The minutes of the board for July 10, 1972 (see fn. 6 above) recite: 'Request for rehearing on Appeal 6410 was granted, rehearing scheduled for July 17.' It does not appear whether or not there was any appearance by applicant. In any event the matter was called for hearing on July 17, 1972, and the following entry appears in the Minutes: 'Appeal No. 6410 was on calendar for rehearing today. Joe Belardi and Harry Mahari spoke against the proposed McDonald's restaurant. The following persons appeared in favor of the permit: Attorney Michael Ohleyer and Robert Devine representing McDonald's, Russel Kyle, Becky Schattler, Ray Lisader, architect William Abend, Mrs. Willie Glover and Gene Chase. Bud Johnson of the Laborers Union and Orville Luster also spoke. The matter stands submitted, and this appeal was continued for consultation with the City Attorney. This appeal will be on Calendar for a ruling before the full five-man Board.' A review of the record of that hearing reveals that no objection was interposed to the board's proceeding at that time by the attorney for the applicant or anyone else. The attorney presented a consultants' study which showed that there would be no serious vehicular traffic increases as a result of the proposed restaurant operation, and pictures of the neighborhood. He referred to the architects' sketch of the building as altered, and he presented petitions in favor of the restaurant development and a booklet describing the proposed operation. He fully argued the merit of applicant's position and presented the witnesses from the district in favor of the application. Because a question had arisen as to whether the operation as planned would comply with offstreet parking requirements of the planning code, the president of the board announced, '. . . we'll take it under submission and ask for a City Attorney's opinion. This is a consensus of three against two. We'll proceed with that understanding.' The attorney for the applicant voiced no objection, and proceeded to introduce the applicant's architect as a witness. After the board had heard from applicant's manager, a representative of the planning department, and another witness in favor of the permit, the applicant's attorney advised the president of the board that he had no other witnesses and he was prepared to submit the matter. At the conclusion of the hearing applicant's attorney acknowledged that he understood the matter was being referred to the city attorney and he expressed a misgiving that this matter could be determined the following Monday. 7

On July 24, 1972, no reply had been received from the city attorney. On July 31 the city attorney addressed a letter to the board which concluded, '. . . I am unable to state, as a matter of law, that it will have exceeded its jurisdiction if it votes to overrule the issuance of a permit.' The minutes of the board reflect: 'Further hearing was held on Appeal 6410, Attorney Michael Ohleyer and architect William Abend spoke for the permit holder, and Joseph Belardi appeared in opposition to the permit. After discussion of the City Attorney's opinion and consideration of all other circumstances, the board voted 4 to 1 to overrule the granting of this permit.' The record of this hearing contains no objection to the jurisdiction of the board. After preliminary remarks the attorney for the applicant addressed the board as follows: 'Mr. President, I would add this, that it is my understand (sic) from a reading of the transcript that the matter was submitted according to your statement, except for further hearing as to the Opinion of the City Attorney. ( ) A good deal of evidence went in and that is what I would like to speak to at this point.' He thereafter argued that the provisions of the planning code upon which the protestants relied did not apply and presented applicant's architect as a witness. The four to one vote to overrule the issuance of the permit concluded the hearing.

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