JAMES HUNLEY v. DARRELL GEORGE

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Court of Appeal, Second District, California.

JAMES HUNLEY, Plaintiff and Appellant, v. DARRELL GEORGE et al., Defendants and Respondents.

B215223

Decided: January 27, 2010

James Hunley, in pro. per., for Plaintiff and Appellant. Rutan & Tucker and Robert W. Owen for Defendant and Respondent Darrell George.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

John Hunley appeals an order denying a petition for writ of mandate.  (Code Civ. Proc., § 1085.)   The petition sought an order directing Darrell George, the city manager of the City of Duarte, to enforce an order issued by the City of Duarte Architectural Review Board directing Hunley's neighbor, John Hardin, to comply with a City of Duarte (City) building code provision that limits the height of fences, hedges and walls on rear and side residential yards to six feet.  (Duarte Mun.Code, § 19.24.050, subd. (h)(3)(A).) 1

The trial court denied the writ petition, ruling it lacked authority to order the City to prosecute a code enforcement matter.   The trial court also found the evidence presented in opposition to the petition showed the wall substantially complied with the code.

On appeal, Hunley contends the trial court relied on a false declaration submitted by the City to show the wall substantially complied with the code and this case does not present an issue of prosecutorial discretion but enforcement of an existing order.

We conclude the trial court properly denied Hunley's writ petition and affirm the order.

BACKGROUND

1. Hundley's writ petition.

In October of 2007, Hardin put an 18-inch vinyl fence addition on top of a block wall that runs around the back and side yards of his residence in the City of Duarte without first securing a building permit.   The City of Duarte Municipal Code section 19.24.050(3)(A), permits such walls only if they do not exceed six feet in height.   Hunley complained about the wall and a code enforcement officer informed Hardin he needed a building permit for the extensions.   After Hardin applied for a permit, the City's staff found the fence, in some areas, was seven feet seven inches from the grade of the property.

Hardin applied for a variance from the height requirement based on safety concerns.   The City's Architectural Review Board denied Hardin's request and ordered “the unpermitted vinyl extensions ․ removed within 30 days․”

Hardin thereafter imported dirt to raise the grade of his backyard one foot.   After Hardin raised the grade of his backyard, the City inspected the wall, found it substantially complied with the code and granted the building permit.   Hunley complained to the City that the wall did not comply with the order of the Architectural Review Board because the height of the outside of the wall was unchanged by the grade increase on the inside of the wall.   Receiving no satisfaction, Hunley sought a writ of mandate to compel the city manager, Darrell George, to enforce the order directing Hardin to comply with the municipal code.

2. The City's response.

The City responded it had determined the wall complied with the height limitation and had issued a final permit.   The City asserted a building inspector went to the property on April 8, 2008, took measurements from five different locations of the rear and side yard and found at least 90 percent of the fencing complied with the height limit and the remainder was approximately two inches over the limit.   The inspector determined the wall substantially complied with the code and signed off on the final building permit.   A notation of the approval dated April 15, 2008, indicated the vinyl extension enhanced the “aesthetic value” of the property.2

The City further asserted it had prosecutorial discretion concerning whether to initiate a code enforcement action against any particular property.

3. The trial court's ruling.

The trial court issued a tentative decision denying the petition, essentially for the reasons stated in the City's response.

At the hearing on the petition, the trial court indicated it lacked authority to override the city manager's discretion to enforce the laws.   Also, the wall appeared to be in substantial compliance with the code.   The trial court conceded photographs submitted by depicted “a pretty big fence with people standing next to it, ․ unless those people are extremely short people-“ Hunley represented the man standing next to the wall in the pictures was six-feet tall.   When the trial court asked how Hunley could explain the statements of the inspector, Hunley responded the inspector was lying.

The trial court then suggested that even if the inspector's declaration were false and the fence was eight feet high, the trial court lacked authority to order the City to prosecute a code enforcement action.   The trial court adopted its tentative decision denying the writ petition.

CONTENTIONS

Hunley contends the trial court abused its discretion and failed to apply the proper legal standard.   He further contends the trial court improperly determined the fence complied with the height restriction based on hearsay evidence or, alternatively, the trial court improperly declined to decide the issue.

DISCUSSION

Hunley argues the trial court's finding it could not compel the city manager to institute an abatement proceeding ignores the City's previous initiation of a code enforcement action against Hardin which resulted in a final order directing Hardin to remove the unpermitted vinyl extension of the fence within 30 days.   Hardin asserts the City improperly approved the fence because it remained seven feet in height when measured from the outside.

Hunley asserts a fair reading of the municipal code subjects both sides of Hardin's wall to the six-foot height limitation.   Thus, the wall remains in violation of the code on the outside walls which are seven feet seven inches high in some areas, a difference that precludes a finding of substantial compliance.  (Assembly v. Deukmejian (1982) 30 Cal.3d 638, 649 [substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the statute].)

Hunley argues his only remedy at this point is a writ of mandate directing the city manager to enforce the order.   Hunley claims the doctrine of prosecutorial discretion does not apply to a final administrative decision.   Hunley asserts the matter is at the sentencing stage and the authority to select among sentencing options is not controlled by the prosecutor.  (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516;  People v. Tenorio (1970) 3 Cal.3d 89, 94.)

Hunley's contention is meritless.   The City found Hardin's wall was in substantial compliance with the code and, even if it was not, the City has prosecutorial discretion as to whether to enforce the height limitation.   (People v. Birks (1998) 19 Cal.4th 108, 134;  People v. Andrews (1998) 65 Cal.App.4th 1098, 1102.)   This is so regardless of whether the matter be deemed the initiation of an enforcement action or a decision to continue to pursue the existing action.   Consequently, the trial court properly concluded it lacked authority to direct the city manager to pursue the asserted violation of the Duarte Municipal Code.

DISPOSITION

The order is affirmed.   Hunley shall bear costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Duarte Municipal Code section 19.24.050, subdivision (h)(3)(A) states:  “Fences, hedges, walls and retaining walls not greater than six feet in height, shall be permitted on or within all rear and side property lines on interior lots․”.  FN1. Duarte Municipal Code section 19.24.050, subdivision (h)(3)(A) states:  “Fences, hedges, walls and retaining walls not greater than six feet in height, shall be permitted on or within all rear and side property lines on interior lots․”

FN2. The City asserts there were two inspections, one on April 8, 2008 and another on April 15, 2008.   However, the document dated April 15, 2008, does not reflect the name of the inspector and thus may be a written summary of the inspection of April 8, 2008..  FN2. The City asserts there were two inspections, one on April 8, 2008 and another on April 15, 2008.   However, the document dated April 15, 2008, does not reflect the name of the inspector and thus may be a written summary of the inspection of April 8, 2008.

CROSKEY, J. KITCHING, J.