MARTINEZ v. CITY OF SAN DIEGO

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 1, California.

J.C. MARTINEZ et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.*

No. D014080.

Decided: February 24, 1992

Sullivan Cummins Wertz McDade & Wallace, J. Michael McDade and Barry J. Schultz, San Diego, for plaintiffs and appellants. John W. Witt, City Atty., C. Alan Sumption, Chief Deputy, Deborah A. Hollingsworth and Leslie J. Girard, Deputies, for defendants and respondents.

J.C. Martinez, Robert Martinez, and Carlo Martinez (collectively Martinez) appeal a judgment denying their petition for a writ of administrative mandamus challenging the City of San Diego's (City) denial of a Planned Infill Residential Development (PIRD) permit and tentative subdivision map.   Martinez claims the City's decision was an abuse of discretion and was not supported by adequate findings or substantial evidence.   We conclude no substantial evidence supports the City's findings or decision and reverse the judgment.

ISSUES

Was there substantial evidence to support the City's findings and decision to deny the PIRD permit and tentative subdivision map?   Were there adequate findings to support the City's decision?

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Martinez applied to the City for a PIRD permit and tentative subdivision map to develop a residential project referred to as Vista De Alcala (Project).   The Project was to be built on 2.26 acres located in the Normal Heights neighborhood of the Mid–City community in the City of San Diego.   The land consists of hillside property adjacent to 35th Street.   The plans for the Project call for the existing one-story house to be removed and replaced with four new houses lining a private drive on the property.   The land would be subdivided into six parcels with the four new single-family homes being built on four of the parcels.   The new house adjacent to 35th Street would be a single-story residence and the three new houses on the canyon rim behind the first house would be two-story residences.   A substantial portion of the land would become subject to an open space easement, although such portion is also currently subject to hillside review restrictions.

Access to all of the new houses from 35th Street would be by means of a private drive 114 feet long and 24 feet wide.   The average setback for the new houses would be 150 feet from 35th Street, while the typical setback for houses in the immediate neighborhood is 50 feet.   The new houses would be in excess of 2,000 square feet which is substantially larger than the typical one-story bungalows existing along 35th Street.

After the application was filed, Martinez revised the Project several times pursuant to suggestions by staff of the City's planning department.   An environmental impact report (EIR) prepared by the environmental quality division of the planning department outlined a number of environmental impacts that would occur if the Project proceeded as planned.   However, after discussing mitigation measures, the EIR concluded all impacts would be “non-significant or mitigated below a level of significance.”   One impact noted was the potential destruction of a large number of rare and sensitive Coast White Lilac plants.   In mitigation of this danger, the EIR accepted a biology/brush management program which would attempt to tag and save these plants.   Another impact of the Project would be increased soil erosion risks.   The EIR concluded the alternative brush management plan would minimize such impact.   The EIR also noted the Project would place future residents in close proximity to high-volume vegetation with a significant fire hazard, an impact which would be minimized by the brush management program.   As to visual impact, the EIR concluded the design of the Project “would be compatible with the existing neighborhood character of development,” and the visual aesthetics impact of the Project was determined to be not significant.   The EIR then discussed two alternatives to the Project which would avoid or reduce the environmental impacts noted in the EIR.   The first alternative discussed was the “no project” alternative, leaving the land in its current state.   The second alternative was the “reduced density” alternative which would reduce the number of houses to two or three.   However, the EIR concluded mitigation measures could reduce the environmental impacts of the Project to a level of less than significant.   The EIR also contained a number of letters from neighbors and concerned persons in response to the draft EIR.   In general, these letters expressed opinions and concerns the Project would be incompatible with the neighborhood, would increase risks of soil erosion and fire hazards, and would adversely affect rare species of natural vegetation.

A hearing was then held before the City's planning director and subdivision board (planning department) as to whether the PIRD permit and tentative map should be approved.   The planning department denied the PIRD permit and tentative map, based upon specific findings that are substantially similar to the subsequent findings by the city council as discussed below.

Upon Martinez's appeal to the planning commission, that body decided to approve the PIRD permit and tentative map.   In particular, the planning commission found the Project to be compatible with the existing character of the surrounding neighborhood.

The planning commission's decision was appealed to the city council by seven appellants consisting primarily of residents of the neighborhood in which the Project would be built.   On March 13, 1990, the city council held a public hearing at which it heard testimony in support of and in opposition to the appeal.   Prior to the hearing, the members of the city council received copies of the EIR, the planning department report opposing the Project, the various appeal letters, and other related documents.   At the hearing, the city council heard from residents of the neighborhood and from representatives of the Normal Heights Community Association, the Sierra Club, and the planning department regarding their specific objections to and concerns regarding the Project.   The central theme of their testimony was that the Project is incompatible with the surrounding community and, in addition, could result in damage to rare plant species and wildlife habitat.   The city council also heard from supporters of the Project who argued the Project is compatible with the neighborhood.   The city council granted the appeal and denied the PIRD permit and tentative subdivision map.

The findings supporting the city council's decision to deny the PIRD permit were, in relevant part:  (1) the Project will “not fulfill an individual and/or community need and will adversely affect the General Plan, the community plan or the existing neighborhood,” and “will adversely impact the surrounding areas by creating a development pattern which is inconsistent with adjacent properties,” and “design of this project, which locates three of the four residential units in the westerly portion of the site with an average front yard setback exceeding 150, [sic] feet is not consistent with the development pattern in the neighborhood,” and “the siting of the buildings and their relationship to the private road and each other is inconsistent with the development pattern of this neighborhood,” and “the establishment of this new development pattern will negatively impact this community by intensifying the development pattern which has been previously established in the surrounding neighborhood thereby resulting in adverse impacts on the existing neighborhood”;  (2) the Project “will be detrimental to the health, safety, and general welfare of persons residing or working in the area and will adversely affect other property in the vicinity,” and “[b]ecause of the siting and setbacks of the new units being proposed by this project, an adverse impact to this community will result through the encouragement of additional alternatives to the present development pattern of this neighborhood,” and “[t]his change to the existing development pattern will adversely affect adjacent properties”;  and (3) the Project “will not comply with the relevant regulations in the Municipal Code.”

The findings supporting the city council's decision to deny the tentative subdivision map were, in relevant part:  (1) the map for the Project is “inconsistent with the General Plan and the Mid–City Community Plan which designate the area for residential use,” and “will not retain the community's character by encouraging orderly, sequential development compatible in its intensity with surrounding existing and future land development”;  (2) the “design and proposed improvements for the map are not consistent with the zoning/development regulations,” because the Project “is not compatible with the existing character of the surrounding neighborhood”;  (3) the “site is not physically suitable for residential development,” and the “harmony in scale, height, bulk, density and coverage of development creates a [non]compatible physical relationship to surrounding properties for which this area has been planned”;  (4) the “site is not physically suitable for the proposed density of development,” and the “development as proposed would be out of character with the surrounding neighborhood”;  and (5) the “design of the subdivision and the proposed improvements are not likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat based upon the findings of Environmental Impact Report No. 87–0269,” although “a finding has been made pursuant to subdivision (c) of Section 21081 of the Public Resources Code that specific economic, social, or other considerations make infeasible the mitigation measures or project alternatives identified in the environmental impact report.”

Martinez's petition for writ of administrative mandamus was denied.

ANALYSIS

Standard of Review

 Code of Civil Procedure 1 section 1094.5 establishes abuse of discretion as the standard of review for petitions for writs of administrative mandamus in tentative map approval situations.  (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651, fn. 2, 150 Cal.Rptr. 242, 586 P.2d 556.)  Section 1094.5, subdivision (b) states in part:

“Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”

Accordingly, we must determine whether (1) substantial evidence existed in support of the City's findings and its decision, and (2) the City's findings are legally sufficient to uphold its decision.  (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 510, 113 Cal.Rptr. 836, 522 P.2d 12;  McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 182, 131 Cal.Rptr. 462.)

With respect to supporting evidence, section 1094.5, subdivision (c) states that “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.”   We must resolve any reasonable doubts in favor of the City (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 514, 113 Cal.Rptr. 836, 522 P.2d 12), for whose judgment we may not substitute our own (McMillan v. American Gen. Fin. Corp., supra, 60 Cal.App.3d at p. 182, 131 Cal.Rptr. 462).

 Further, as to the substantial evidence requirement, it is for the City “to weigh the preponderance of conflicting evidence [citation].”   (Id. at p. 186, 131 Cal.Rptr. 462.)  “Courts may reverse an agency's decision only if, based on the evidence before the agency, a reasonable person could not reach the conclusion reached by the agency.”  (Ibid., original italics.)   The City may properly consider testimony and other evidence that may not be admissible in a court of law.  (Carmel Valley View, Ltd. v. Board of Supervisors (1976) 58 Cal.App.3d 817, 823, 130 Cal.Rptr. 249.)   In the Carmel Valley View Ltd. case, the court determined that the testimony of a county health department official, given in narrative and opinion form, was “substantial evidence supporting rejection of the tentative map.”  (Ibid.)  Further, the City is not bound by any of the findings of the planning commission and is free to exercise its independent judgment as to the evidence before it.   As one court stated:

“[T]he [City] is invested with complete power to hear and determine the entire controversy before it, is free to draw its own conclusions from the conflicting evidence before it, and in the exercise of its independent judgment in the matter, to affirm, modify or overrule the action of the [planning commission].”  (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 906 [165 Cal.Rptr. 401].)

Therefore, we are restricted to reviewing the evidence before the City to determine whether it contains substantial support for the City's findings and decision.

 As to the findings requirement, the City's findings are adequate and sufficient to support its decision if they (1) enable Martinez “to determine whether and on what basis” to seek review of the decision, and (2) apprise this reviewing court of the basis for the City's decision.  (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at p. 514, 113 Cal.Rptr. 836, 522 P.2d 12.)   Although the City's findings must “bridge the analytic gap between the raw evidence and ultimate decision or order” (id. at p. 515, 113 Cal.Rptr. 836, 522 P.2d 12), they do not require great specificity.  (Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1356, 263 Cal.Rptr. 214.)   Findings are “to be liberally construed to support rather than defeat the decision under review.”  (Ibid.)

 In exercising our appellate function, we are in the same position as the trial court which was exercising an essentially appellate function in reviewing the City's findings and substantial evidence in support of the City's findings and decision.  (Carmel Valley View, Ltd. v. Board of Supervisors, supra, 58 Cal.App.3d at p. 820, 130 Cal.Rptr. 249.)   Accordingly, we are not bound by the conclusions of the trial court regarding the City's findings and the existence of substantial evidence.

PIRD Ordinance

San Diego Municipal Code section 101.0930 sets forth the City's PIRD ordinance.   The purposes of the PIRD ordinance include the following:

“to facilitate development ․;   to assure compatible planning of residential development in terms of grading and landform alterations, site arrangement, product type and architectural features and density;  to encourage innovative and imaginative planning ․;  [and] to use for development ․ properties, in such a manner to achieve minimum disturbances of the natural terrain and vegetation while preserving a sense of neighborhood and community open space and to permit stricter application of design criteria to assure compatibility with established neighborhoods while still allowing greater flexibility than is possible through strict application of conventional zoning and subdivision regulations.”  (San Diego Mun.Code, § 101.0930(A).)

According to the provisions of the PIRD ordinance, the planning director must grant a PIRD permit if all of the following facts are found to exist:

“2.a. The proposed use will fulfill an individual and/or community need and will not adversely affect the General Plan, the Community Plan or the existing neighborhood.

“b. The proposed use, because of conditions that have been applied to it, will not be detrimental to the health, safety and general welfare of persons residing or working in the area, and will not adversely affect other property in the vicinity;  and,

“c. The proposed use will comply with the relevant regulations in this Code.”  (San Diego Mun.Code, § 101.0930(E).)

In particular, the PIRD ordinance mandates that a proposed project not “adversely affect” the existing neighborhood or other properties in the area.   However, the PIRD ordinance fails to define the meaning of the phrase “adversely affect.”   As a result, we must interpret the phrase “adversely affect” in order to apply the ordinance to the facts in this case.

Interpretation of the PIRD ordinance is a question of law to be decided by the court.  (Evid.Code, § 310, subd. (a).)  The phrase “adversely affect” does not have a clear, objective meaning.   Standing alone, “adversely affect” is ambiguous and could lead to arbitrary or discretionary determinations by the City in granting or denying PIRD permits.   Since the PIRD ordinance is part of the City's zoning and land use laws, it directly affects fundamental property rights of landowners.   Accordingly, we must interpret its operative phrases narrowly so as not to unfairly deprive property owners of their expectant property rights.   The same narrow interpretation is required by the “takings” clauses of the Constitutions of California and the United States.  (Cal. Const., art. I, § 7;  U.S. Const., 14th Amend., § 1.)

 We interpret the phrase “adversely affect” to mean to impact in a substantial, negative manner the economic value, habitability, or enjoyability of properties in the neighborhood.   Such impacts must be able to be objectively evaluated so as to limit the possibility of arbitrary application of the PIRD ordinance.   Examples of such substantial, negative impacts would include:  significant reductions in property values;  extraordinary or unusual noise, noxious fumes, or other nuisances;  creation of substantial traffic congestion or hazards;  and substantial impact upon or interference with public services.   In light of the need to narrowly construe the phrase “adversely affect,” discretionary or subjective factors, such as mere aesthetics of a proposed development, cannot constitute a legitimate basis for denial of a PIRD permit.   Accordingly, a permit cannot be denied merely because a proposed development is different from the design or aesthetics of the existing neighborhood.

No Substantial Evidence to Support the City's Findings and Decision to Deny a PIRD Permit

 The City's decision to deny a PIRD permit for the Project was based upon its findings described in detail above.   Its first finding essentially concludes the Project will “adversely affect ․ the existing neighborhood.”   The finding discusses the factual basis for its conclusion by stating that the Project would create “a development pattern which is inconsistent with adjacent properties,” as the predominant development pattern locates residential structures within 50 feet of a public street.   Further, the finding states 3 of the new houses will be set back an average of 150 feet which is inconsistent with the neighborhood development pattern, and the siting of houses in relationship to the private road is inconsistent with the development pattern.   The City concludes the development pattern of the Project would negatively impact the existing neighborhood.   The second finding essentially found the Project would “adversely affect other property in the vicinity.”   The second finding described the nature of the Project and concluded the siting and setbacks of the new houses would adversely impact the community through encouragement of alternatives to present development patterns and would adversely affect adjacent properties.

Thus, the City essentially based its denial of the PIRD permit upon the grounds the setbacks of the houses would be greater than is typical in the neighborhood and the houses would be arranged around a private road unlike most other houses in the neighborhood which are directly adjacent to 35th Street.   Although such facts reveal Project differences from most of the existing neighborhood properties, they do not show the neighborhood or nearby properties would be “adversely affected.”

Nor does the record of the testimony and other evidence considered by the city council reveal any substantial evidence showing the Project would “adversely affect” the neighborhood or nearby properties.   The EIR concluded any adverse environmental impacts of the Project could be mitigated to a level of insignificance.   The planning department's report recommending denial of the PIRD permit essentially based its position upon the difference in setbacks, private drive, and development pattern of the Project.   However, the report cited no substantial, negative impacts of the Project upon the economic value, habitability, or enjoyability of properties in the neighborhood.   In addition, at the hearing the city council heard testimony from a number of concerned citizens and organizations who opposed the Project.   A representative of the Normal Heights Community Association testified as to the incompatibility of the Project with the existing neighborhood.   Also, a representative of the Sierra Club testified as to possible adverse impact of the Project upon existing wildlife and rare and natural habitat.   However, such risks are insignificant in light of the mitigation measures described in the EIR.

 Thus, looking at the whole record in the light most favorable to the City, we find no substantial evidence to support the City's findings and decision to deny the PIRD permit.   Mere conclusions of incompatibility and a showing of different setbacks provide no objective, substantial impact upon the economic value, habitability, or enjoyability of neighboring properties.   Further, the encouragement of similar developments in the future in the neighborhood cannot be a legitimate basis for denying the PIRD permit.

In a similar case, residents objected to the construction of a two-story home.   In Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 200, 140 Cal.Rptr. 619, the city council denied a building permit for the home, because it would “affect the character” of the neighborhood.   The court not only found no support for that conclusion, but it also found that all zoning and related laws had been satisfied.  (Id. at p. 200, 140 Cal.Rptr. 619.)   Accordingly, the court held the permit should be issued.  (Id. at p. 204, 140 Cal.Rptr. 619.)

The case at hand is similar to Gabric.   Whereas in Gabric residents complained the building would “affect the character” of the neighborhood, residents in this case objected to the Project because it would be “incompatible” with the neighborhood.   We, like the court in Gabric, cannot conclude such concerns are a legitimate basis for denying the PIRD permit under existing laws.

 We also conclude the City and all interested persons have had a full opportunity to raise all concerns regarding the Project.   An EIR was completed and comments were received regarding the EIR from opponents.   The planning department conducted a full review of the Project and issued a report.   The city council heard testimony and received evidence.   Yet, in this extensive record, there exists no substantial evidence the Project would “adversely affect” the neighborhood or nearby properties.   To the contrary, the record shows that all requirements of the PIRD ordinance were met.   Accordingly, we hold the PIRD permit must be issued by the City.2

Since we have concluded no substantial evidence exists in support of the City's findings and decision to deny the PIRD permit, we need not address whether the City's unsupported findings were legally sufficient to support its decision to deny the permit.

Tentative Subdivision Map

San Diego Municipal Code section 102.0400 states a proposed subdivision “shall meet all of the requirements of the Subdivision Map Act and the requirements of this Code․”   The Subdivision Map Act is found in Government Code sections 66410 through 66499.37 and sets forth standards for the findings required to approve or disapprove a tentative subdivision map.  Government Code section 66473.5 states:

“No local agency shall approve a tentative map ․ unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan ․ or any specific plan․

“A proposed subdivision shall be consistent with a general plan or a specific plan only if the local agency has officially adopted such a plan and the proposed subdivision or land use is compatible with the objectives, policies, general land uses, and programs specified in such a plan.”

San Diego Municipal Code section 102.0401 essentially restates the provisions of the first paragraph quoted above.

Further, San Diego Municipal Code section 102.0401 essentially restates provisions found in Government Code section 66474 and requires the City deny approval of a tentative map if any of the following findings are made:

“(a) That the proposed map is not consistent with applicable general and specific plans․

“(b) That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans.

“(c) That the site is not physically suitable for the type of development.

“(d) That the site is not physically suitable for the proposed density of development.

“(e) That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat.”

The City's findings in support of its denial of the tentative subdivision map are described in detail in the factual summary above.   The City essentially found the first four disqualifying findings listed in San Diego Municipal Code section 102.0401 existed.   These findings were the basis for its denial of the tentative subdivision map.

 As to the first finding, the City found the Project “is inconsistent with the General Plan and the Mid–City Community Plan which designate the area for residential use,” and also the Project would “not retain the community's character.”   As to the second finding, the City found the Project “is not compatible with the existing character of the surrounding neighborhood.”   As to the third disqualifying finding, the City found the site is “not physically suitable for residential development.”   In explanation of this finding, the City stated the “harmony in scale, height, bulk, density and coverage of development creates a [non]compatible physical relationship to surrounding properties for which this area has been planned.”   As to the fourth disqualifying finding, the City found the site was not physically suitable for the proposed density and the Project “would be out of character with the surrounding neighborhood.”   These findings by the City clearly show the reasons for the City's denial of the tentative subdivision map for the Project were essentially that the Project was incompatible and out of character with the existing neighborhood.

As to whether substantial evidence existed in support of the City's findings and decision to deny the tentative map, we hold there was no substantial evidence in support of the City's denial of the tentative subdivision map for the Project.   There was no evidence showing the Project was inconsistent with the general plan or the Mid–City community plan.   There was no evidence the site of the Project was not physically suitable for the proposed type of development or the proposed density of development.   Because the only grounds for denying the tentative map was the City's erroneous conclusion the requirements of the PIRD ordinance were not met, we hold the tentative subdivision map must be approved by the City.

DISPOSITION

The judgment is reversed and the cause remanded to the trial court which is directed to issue a writ of administrative mandamus requiring the City to grant Martinez the relief prayed and to grant such further relief consistent with this opinion.   Appellants to recover their costs for this appeal.

FOOTNOTES

FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   If the City desires to prohibit projects based upon design, site arrangement, or other factors, it must adopt an ordinance with objective standards by which a project can be evaluated and which does not allow arbitrary action by the City in the performance of its quasi-judicial function in granting or denying of a permit.   The PIRD ordinance, in its current form, does not set forth such objective standards.

WORK, Acting Presiding Justice.

HUFFMAN and NARES, JJ., concur.