Saad v. City of Berkeley

Decision Date18 April 1994
Docket NumberNo. A061045,A061045
Citation30 Cal.Rptr.2d 95,24 Cal.App.4th 1206
CourtCalifornia Court of Appeals
PartiesMitri SAAD and Sonya Y. Saad, Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Appellants.

Katzoff & Riggs, Robert R. Riggs and Ron Bochner, Berkeley, CA, for Mitri and Sonya Saad.

Manuela Albuquerque, City Atty., Thomas S. Brown and Christine S. Daniel, Deputy City Attys., Berkeley, CA, for City of Berkeley.

KLINE, Presiding Justice

Introduction

Appellants and cross-respondents the City of Berkeley, its City Council and Board of Adjustments (hereafter collectively the City) denied respondents and cross-appellants Mitri and Sonya Y. Saad (the Saads) a use permit for construction of a large single family residence on their lot at 25 Del Mar Avenue. The Alameda County Superior Court granted the Saads' petition for writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 on the ground that one of three findings made by City in support of the permit denial was "inherently ambiguous" and not supported by substantial evidence. The court remanded the matter to the City for reconsideration in light of its ruling. The City appeals from the judgment granting the writ of mandate. The Saads cross-appeal from the judgment insofar as it refuses to compel the City to issue the use permit. We shall reverse the judgment issuing the writ and direct the superior court to deny it.

Statement of the Case and Facts

The property is located at 25 Del Mar Avenue in the Berkeley Hills and is zoned as R-1 H, which allows single family residences under strict regulations applicable to the sensitive hill terrain. The front part of the property consists mostly of a flat or gradually sloping area. This area extends approximately 30 to 38 feet northward from the edge of Del Mar Avenue. At the edge of this sloping area is a steep cliff with a sheer drop of approximately 12 feet. Thereafter, the topography slopes downward at a ratio of approximately 1.5 horizontal feet to 1 vertical foot.

In 1987, the former owner of the property, Jacklyn Nevelow, applied for a use permit to build a single family home on the property. Neighbors opposed the Nevelow application by correspondence and testimony before the City's Board of Adjustments and the City Council. The City Council, on appeal from the Board of Adjustment's granting of the use permit, remanded the application for review after preparation of an environmental initial study, including an updated soils report. No further action was taken by Nevelow.

The Saads acquired the property in 1989. They applied for a use permit pursuant to the City's Zoning Ordinance. Their first application (Proposal No. 1) was for a 3,350 square foot, three-story, structure (including a 450-square foot garage) with a height of 33 feet (28 feet is normally the maximum permitted height under Zoning Ordinance § 14.2(a)) and with a 1.5-foot setback (20 feet is the minimum setback under Zoning Ordinance § 5A.6.)

Prior to the date set for public hearing on the use permit, the City received many written objections advising the City that the structure, as proposed, would block the views and solar access of neighboring houses, was out of character with the height and bulk of surrounding homes, would create a threat of landslide to homes downhill from the property site, and would generate traffic and drainage problems.

At the March 26, 1990 public hearing on Proposal No. 1, neighbors of the property reiterated their concerns. In light of the controversy, the Board referred the matter to mediation between the neighbors and respondents to try to work out a compromise.

Following one mediation session, the Saads submitted revised plans (Proposal No. 2), eliminating one bedroom, reducing the bulk of the structure to 2,920 square feet, and locating the structure 2.5 feet further back from the street. Neighbors again protested that the new proposal did not alleviate any of their objections. A petition from neighbors received by the Board stated that the structure would be incompatible with nearby homes, would create traffic and drainage hazards, and would block neighbors' views and solar access. Following the Board's denial of a permit for Proposal No. 2 on those grounds, the Saads appealed to the City Council.

Before the appeal was heard, the Saads submitted a third proposal (Proposal No. 3), reducing the bulk of the proposed structure to 2,525 square feet, eliminating one story, and reducing the average height of the building to 28 feet. In eliminating the bottom story, however, the Saads proposed that the structure not rest on the ground, but upon piers and cross-beams.

At the October 2, 1990 hearing set for the appeal of the denial of Proposal No. 2, the Board did not consider either that proposal or Proposal No. 3. Instead, the City Council remanded the matter to the Board to allow it to consider the merits of Proposal No. 3. The hearing on remand for Proposal No. 3 was set for November 8, 1990. The Board again received letters and testimony from neighbors expressing concern that Proposal No. 3 was seismically unsafe, created traffic and drainage problems, was out of character in size and bulk with surrounding homes, and would obstruct the views and solar access of surrounding homes. In light of these continuing objections, the Board continued the hearing and again referred the proposal to mediation.

Rather than participate in mediation on Proposal No. 3, the Saads submitted a fourth proposed structure (Proposal No. 4) on February 5, 1991. Proposal No. 4 added a third story to the building, increased the gross floor area to 2,620 square feet, and raised the average height of the building by 54 percent to 43 feet. This increase in bulk was accomplished by moving the entire structure 16 feet further back from the street, and 35 feet further down the cliff. In order to build on the face of the cliff, it was proposed the structure be built atop 20 foot piers and supported by cross beams. The hearing on Proposal No. 4 was held on March 11, 1991. The Board again received oral and written testimony regarding the potential hazards and impacts posed by the proposed structure. Evidence was again presented that Proposal No. 4, even more than its predecessors, raised questions as to potential fire hazards, instability, seismic safety, traffic hazards, and adequate drainage. In addition, evidence was presented that the size and mass of the structure was out of character with surrounding homes and that the structure would obstruct the views and solar access of surrounding homes.

The Board's discussion reflected its belief that the new proposal had changed little from Proposal No. 3, and had created additional problems. Accordingly, the Board denied the use permit application for Proposal No. 4. In support of its decision to deny the application, the Board made the following express findings:

"1. The extreme slope and other characteristics of the site created necessary and logical limitations on the size of the dwelling unit that can be built there. The structure, as proposed by the applicant, is not compatible with the site for the following reasons:

"a. The structure, as proposed, would have a detrimental effect on views from dwellings to the east of the site.

"b. The bulk and the massing of the proposed structure on the steep slope would create a towering effect detrimental to the welfare of the residents located down slope of the site.

"2. As designed, the project may not adequately mitigate potential fire and earthquake hazards to neighboring residents and properties."

The Saads appealed to the City Council. On July 9, 1991, the City Council unanimously upheld the Board's denial of the Saads' permit application, and adopted the findings of the Board as its own.

On October 4, 1991, the Saads filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure sections 1094.5 and 1085 requesting that the court direct the City to grant the use permit application. The Saads argued the City's decision was not supported by legally adequate findings and the findings were not supported by substantial evidence. **

The court subsequently ruled that the City's first two findings regarding view impairment and the towering effect of the proposed structure were specific, well considered and supported by substantial evidence. The court expressly found that the first two findings complied as a matter of law with Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12 (Topanga I ). However, the court found also that the third finding that the project "may not adequately mitigate potential fire and earthquake hazards ..." was "inherently ambiguous and not supported by substantial evidence." Based upon the inadequacy of this single finding, the court granted the petition for writ of administrative mandamus, and remanded the matter for reconsideration by the City. Judgment in favor the Saads was entered on January 4, 1993. The City appealed and the Saads cross appealed from that judgment.

I. Standard of Review

The grant of a land use permit or variance is an adjudicatory act. A proceeding under Code of Civil Procedure section 1094.5 is the exclusive remedy for judicial review of the quasi-adjudicatory administrative action of local level agencies in these circumstances. (City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718, and fn. 2, 279 Cal.Rptr. 22; Cal. Administrative Mandamus (Cont.Ed.Bar 1989) § 1.4, p. 5.)

The parties disagree as to the appropriate scope of review under section 1094.5 both in the trial court and on this appeal. The Saads argue that the trial court erred in refusing to conduct a de novo review of the City's actions and that we should exercise our...

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