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

Robert CONSAUL, et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, Defendants and Respondents.

No. D012162.

Decided: June 13, 1991

Fischbeck & Oberndorfer and William L. Fischbeck, La Mesa, for plaintiffs and appellants. John W. Witt, City Atty., C. Alan Sumption, Sr. Chief Deputy Atty., and Larry E. Renner, Deputy City Atty., for defendants and respondents.

Appellants Robert and Eva Consaul and Thomas Ahrens (collectively, Ahrens) are the owners of a 1.06–acre of undeveloped land in a highly urbanized area of the City of San Diego (City).   Ahrens petitioned the superior court for a writ of mandate after their land was downzoned from multi-family residential (R–1000) to single-family dwelling (R1–5000).   The superior court denied the petition without stating what standard of review it used.   Ahrens timely appealed.

 The major issue presented is whether Ahrens acquired a fundamental vested right to develop the property because they spent more than 22 months and in excess of $60,000 obtaining all discretionary approvals for their project, including allocations of permits in compliance with City's adopted Interim Development Ordinance (IDO).   The evidence in the administrative record undisputedly supports Ahrens's contention they had received all discretionary approvals, but City urges us to limit the vested rights' doctrine to vested tentative subdivision maps, development agreements or possession of building permits.   We reject City's suggested limitations.   We conclude Ahrens acquired a fundamental vested right to develop their property when they received their final allocations under the IDO.   City's subsequent action in downzoning the property affected this fundamental vested right.   Thus, the trial court was required to apply its independent judgment to the evidence presented to it, including the relevant administrative record.   Because the record does not reflect the trial court applied its independent judgment in this case, we reverse.1


In 1976 Robert and Eva Consaul purchased a 1.5–acre parcel of property in a highly urbanized area of City.   At that time, the property was developed with a single-family residence and two apartments.   These structures remain and are located at the top of a hill at the end of a cul-de-sac.   Thomas Ahrens has lived in one of the apartments since 1976, acting as the apartment manager for the Consauls.   Until the challenged action, the property has been zoned R–1000, permitting development of up to 65 units.

In 1986 Ahrens and the Consauls entered into an agreement for the development of the property, with Ahrens purchasing an interest in the land.   By this time the majority of the surrounding area had been developed.   The parties dispute whether the surrounding development is multi-family or single-family, but there is a 250–unit apartment building within 500 feet of the property and very high density to the north, south and west.   Directly east of the property is a steep canyon.   At the base of the property, there is an area of single-family homes which is topographically separated from the multi-family units circumscribing it on all sides.   These single-family homes are built-out with one home every 3,000 to 5,000 square feet—a density of 8.7 to 14.5 dwellings to the acre.   There is no access to the Ahrens's property from this single-family residential area, and none to any of the other high density multi-family areas located on the ridges above both sides of the single-family homes.

Ahrens retained engineers and surveyors in 1986, processing a map, in compliance with the Subdivision Map Act, splitting the parcel in two.   Parcel 1 is at the top of the hill, with the existing structures on it.   It remains zoned multi-family (R–1000) and is not involved in this action.   Parcel 2 is 1.06 acres, L-shaped, and under the R–1000 designation could have been developed with 54 units.   However, there are additional constraints on the development of the site relating to slopes, hillsides, and grading for ingress and egress to the property which decrease the total number of units which can be built-out on the property to 44.   When the map was processed, City required that access be taken from the top of the hill through the developed high density multi-family area adjacent to parcel 1.   This access road serves only this one parcel and will cost in excess of $134,000 to construct.   It took City six months to process the map which recorded in February 1987, and the Ahrens spent $7,200 processing the map, as well as hundreds of hours in preparation of the map and meetings with City staff.   After the map recorded, Ahrens began plans for developing the property by hiring an architect, a project planner and a civil engineer.   Ahrens's initial plans were for development of 44 units, consistent with both the adopted land use and existing zoning on the property.

On July 14, 1987, City adopted an amended, revised, comprehensive and very detailed community plan for the area “designed to guide development [ ] for the next fifteen to twenty years.”   The plan's stated objective is to promote multi-family infill and to accommodate increased development without significant impact to adjacent land uses or traffic movement.   The subject property is designated on the plan (which supersedes the Coastal Plan of 1981) as multi-family.   This 1987 plan notes this area of the City has maintained a stable population since 1965, with 70 percent of the area zoned for single-family use and 15 percent zoned for multi-family in what is recognized and stated to be a highly urbanized community.   The plan was prepared with the assistance and input of local residents acting as a planning group which made recommendations to City staff for changes in both land uses and zoning in this area.   Ahrens's parcel was not one suggested for any changes.

One week after the local community plan was adopted by City, on July 21, 1987, the City Council adopted an Interim Development Ordinance for the entire City placing a limitation of 8,000 units, i.e., building permits, allowed to be issued citywide irrespective of local plans or zoning.   The initial period of the IDO was to be 18 months.   Each area was then allocated a “fair share” of these 8,000 annual permits;  the subject area (the Peninsula Community) was allocated 96 units per year.   Applicants for these permits had to complete stringent discretionary review, and units were allocated quarterly only.   There have been two amendments to the IDO, including one in 1988.   Each of the three IDO ordinances contain detailed procedures which applicants must meet, as well as standards and criteria which must be taken into account in reviewing applications for IDO allocations.   In urbanized areas, the number one priority is to be given to “development approvals” granted prior to the effective date of the ordinance.   These “development approvals” are stated as “vesting tentative map, development agreement, or other entitlement which may create a legally vested right to development of the whole or part of the project under California law.”  (Emphasis added.)   Even if a developer possessed building permits when the IDO was adopted, no residential development could proceed under those permits unless it met the IDO provisions including the community allocation.2

Ahrens learned of the adoption of the IDO and immediately met with City staff, who informed them they could not apply for any building permits until they received their IDO allocation.   Ahrens complied with the IDO submitting detailed site plans, grading plans, elevations and locations of all improvements such as buildings, units within the buildings, parking, landscaping and access road.   Meetings with City staff resulted in the development being decreased from 44 to 26 units.   Final plans were submitted, at which time Ahrens were directed by City staff to meet with the local planning group for its input.   Ahrens did so, presenting the 26–unit project for the 1.06 acres.   The planning group issued no objection to the project, and the plans were returned to City staff for final processing of the IDO allocation application.

Finally, on November 4, 1988, Ahrens were granted 18 of the 26 unit allocations.   They were told they could not process any building permits until they received the final eight-unit allocation, which might be possible during the next quarterly period.   On March 2, 1989, Ahrens received the final eight-unit allocation and prepared to obtain financing for their project.   The IDO states an applicant who receives a dwelling unit allocation shall have one year to submit to the Building Inspection Department a building permit application form to exercise “the entitlement to the units represented by the allocation.”  (Emphasis added.)   This one-year period was also set forth in the November letter to Ahrens.

One month later on April 27, the newly elected chair of the local planning group wrote a letter to City staff under the subject heading:  “Protected Single–Family Neighborhood Maps.”   In this letter the chair states the group voted to suggest Ahrens's property be investigated for single-family residential zoning.   City conceded the Interim Single–Family Protection Ordinance (INSFPO) adopted by the City Council as an urgency on August 9, 1988, does not and never has applied to Ahrens's property.3  Nevertheless, during this period of evaluation of neighborhoods by the planning group, Ahrens's property was reviewed, voted on and recommended for a zoning change by the local planning group.   Ahrens were never notified of the group's action and never had the opportunity to present their plans to this newly constituted group.

Notwithstanding the inapplicability of the INSFPO to Ahrens's property, the San Diego City Planning Commission conducted a noticed public hearing on an item listed as:  “Classification of Single–Family Neighborhoods and Related Rezonings and Plan Amendments in Peninsula.”   This notice, dated June 30, 1989, for a hearing on July 13, 1989, was the first time Ahrens were informed of any proposed action on their property.   The City staff's report notes Ahrens's parcel as vacant but does not mention the IDO allocations.   Ahrens appeared personally and through counsel to oppose the rezoning.   The Planning Commission voted six to zero to recommend adoption of the item before it—the classification of single-family neighborhoods and related rezonings and amendments to the community plan.4

Thereafter, the City Council noticed a public hearing for August 8, 1989.   The agenda item is the same as the Planning Commission's and includes the subject property rezone.   The matter was continued until September 11 to allow Ahrens to present their project to the new planning group.   The planning group met on August 17.   Ahrens presented their project after counsel asked the Board if it had already voted on the rezoning.   The response was the group had already voted, despite one member's admission he had never been advised Ahrens had plans for the vacant parcel or what stage these plans were in when the group voted to recommend downzoning prior to the letter dated April 27, 1989.   According to the chair who had written the letter requesting Ahrens's vacant parcel be rezoned despite the fact the vacant parcel is not subject to the INSFPO, the only purpose for allowing Ahrens to present their project was to comply with the City Council's request.   Thus, the group allowed Ahrens to make their presentation but took no action.

Accordingly, as City notes, “In effect, this left intact the Board's earlier vote recommending a downzoning of the property.” 5  At its continued hearing on the classification of single-family neighborhoods, the City Council voted unanimously to (1) adopt a resolution approving the protected single-family neighborhood maps and releasing those areas not mapped for classification;  and (2) adopt a resolution approving “related amendments to the Community Plan as well as the rezoning of the Ahrens' property” from R–1000 to R1–5000.

On December 26, Ahrens filed a petition for writ of mandate in the superior court.   They contended the rezoning was invalid on four separate grounds:  (a) they had obtained a fundamental vested right to develop their property under the theory of promissory estoppel;  (b) it violated the City's promise under the IDO allocation to allow them one year to develop their 26 units, and City was estopped from denying them such right;  (c) the rezoning constituted an arbitrary and capricious act of “spot-zoning”;  and (d) it constituted a taking of their property without just compensation because it rendered their property economically valueless.   Ahrens alleged the INSFPO did not apply to their vacant parcel, attaching the relevant IDO and INSFPO as adopted and subsequently amended.  (Exhibits 6a, 6b, 6c, 7a and 7b.)

City answered the petition and filed a demurrer on the procedural ground that it was not timely filed.6  Ahrens replied.   City filed additional and supplemental documents with the court after Ahrens's reply, including a separate single sheet document entitled, “Request For Judicial Notice.” 7  The superior court heard the matter on its law and motion calendar on February 26, 1990, and took it under submission.   By minute order dated March 7, 1990, the trial court ruled as follows:  “Plaintiff's Petition For Writ Of Mandate Is Denied And The Demurrer Is Overruled.”   The court made no other findings or rulings, although it stated it would take the matter under submission after Ahrens agreed with its statement that it should “tell me to go back and reread this stuff with a different eye or a different standard, perhaps.”   Ahrens filed a timely notice of appeal.



The foundation for our review of the merits of this petition begins with a single sheet of paper in this 768–page record.   City requested the trial court take judicial notice pursuant to Evidence Code sections 451, 452 and 453 of “the City of San Diego's Ordinances and Resolutions, the City of San Diego's Planning Commission Resolutions and all decisional law of other jurisdictions and other public records provided with the Respondent's Points and Authorities filed in this matter.”   Now, without citation to any authority, City requests this court “to take such notice.”

We assume City is requesting that we take judicial notice under Evidence Code section 459.   However, this section requires this court to “take judicial notice of (1) each matter properly noticed by the trial court and (2) each matter that the trial court was required to notice under Section 451 or 453.”   The record does not reflect what documents the trial court judicially noticed.   The only ruling on any request for judicial notice by City was when the City Attorney began orally arguing hearsay statements regarding two potential discretionary approvals which might remain for this project.   When the trial court properly noted these hearsay statements were unsupported anywhere in the 597 papers filed with the court, City requested the court “to judicially notice 62.0401 et seq. today.”   The court responded, “I can do that.”

If the trial court had ruled on City's request for judicial notice, it would have eliminated the majority of the record before it, allowing it to focus its attention on the merits of Ahrens's petition based on the admissible, competent and relevant evidence before it.   First, City's concession and admission the INSFPO never applied to Ahrens's parcel would have eliminated this portion of the record.   Instead, the City Attorney orally argued the INSFPO supported the rezoning.   It attempts to do so before this court.   Because the INSFPO did not apply to Ahrens's property, this argument is unpersuasive.8

Second, City cited the trial court no authority, and we have found none, for judicially noticing planning department reports relating to a draft ordinance which was never adopted, the draft ordinance which was never adopted, a planning department classification and methodology attached to the draft ordinance which was never adopted, and IDO Information Booklet prepared by staff.

 This court declines City's request that we judicially notice ordinances which are not before us and records which do not reflect official action.   This leaves us with the focus and crux of this case which we find dispositive—the IDO and its provisions as adopted by City.

Finally, for purposes of our decision, we do not consider City's references throughout its brief to comments made by the City Attorney to the trial court regarding “considerable doubt that the Appellants have obtained the final discretionary approval necessary for their project.”   The supplemental declaration of City Planner Christopher Jacobs, filed after Ahrens replied to City's opposition, states in pertinent part:  “I do recall receiving telephone calls in spring or early summer 1989 from at least one property owner and from other concerned citizens about the Curtis Street property [City's designation for Ahrens's property] as to whether the Planning Department retained any discretionary approval authority over the proposed 26–unit condominium project on the R–1000 zoned property.   This answer to this question was no.”

The undisputed admissible and competent evidence before us is that Ahrens had obtained all discretionary approvals for their 26–unit condominium project at the time City took its action to rezone their property.   We now turn to the merits of Ahrens's petition.


Ahrens complied with section 101.0210 of City's Code which requires a party challenging a zoning or rezoning decision by City to file a writ of mandate under section 1085 of the California Code of Civil Procedure.9  This same section indicates a petition for writ of mandate under section 1094.5 must be filed to attack the grant or denial of a variance, or any administrative decision or permit.   City's Code is misleading.

 A petition for writ of mandate under section 1085 (ordinary or traditional mandamus) is the proper format for challenging a legislative action while section 1094.5 (administrative mandamus) is used when the action being attacked is adjudicatory.  “A legislative or quasi-legislative action is the formulation, without regard to a specific set of facts, of a general rule applicable to future situations.   An adjudicatory action is the determination of specific rights in regard to a specific fact situation.”  (Cal.Administrative Mandamus (Cont.Ed.Bar 1989) § 1.7, p. 7, citing Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24, 35 P. 353.)   Legislative actions create broad, general rules of public policy;  adjudicatory actions affect specific individuals.   Whether an action is legislative, adjudicatory or a combination of both must be determined by the facts of each individual case.  (Horn v. County of Ventura (1979) 24 Cal.3d 605, 613, 156 Cal.Rptr. 718, 596 P.2d 1134.)

 Although we agree with City that Ahrens should have set forth the nature of the writ being sought as well as the applicable standard of review before the trial court, we disagree Ahrens should be penalized by denying them appellate review on the merits of their petition.   We have been cited no California case by the parties, and our independent research has found none, which addresses the specific factual question raised in this case.   There is one common thread in all of our Supreme Court cases on land use, namely, whether a challenged action falls under the provisions of section 1085 or 1094.5, and the applicable standard of review must be determined on a case by case basis by the court and depends on the factual situation presented to it as well as the nature of the right being affected by the challenged action.   (Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242;  Horn v. County of Ventura, supra, 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134;  County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 251 Cal.Rptr. 267, 760 P.2d 464;  McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 261 Cal.Rptr. 318, 777 P.2d 91.)

Here, in contrast to the typical rezoning which has been held to be legislative as serving broad, general public policy such as overall amendments to general or local plans followed by related rezonings, Ahrens's parcel was not included with revisions of the local plan and related rezonings in 1987.   City then enacted another layer of regulation—the IDO.

The IDO established a process with stringent requirements.   Before permits can be allocated under the IDO, “the Administrator”—actually the City Manager, City Planning Director and the City Engineer—must all sign the letter allocating permits, affirming they have approved the development plans forming the basis for the application.   In addition, Ahrens were required by City staff to present their scaled-down detailed plans to the local community planning group for its input before “the Administrator” would take final action on the IDO application.   Development allotment permits are not new to this state, and the process involved in such allotments has uniformly been held to be adjudicatory.  (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 196 Cal.Rptr. 670;  Griffin Homes, Inc. v. Superior Court (1991) 229 Cal.App.3d 991, 280 Cal.Rptr. 792.)

Although Ahrens labelled their petition for writ of mandate as within the provisions of section 1085 (ordinary mandamus), they were challenging a rezoning after they had received their 26–unit allocations and were given one year “to submit to the Building Inspection Department a building permit application form to exercise the entitlement to the units represented by the allocation.”  (Emphasis added.)   Therefore, the challenged action was a combination of both adjudicatory as well as legislative functions.   More importantly, the petition clearly alleged Ahrens had a fundamental vested right to develop their property in compliance with the approved plans and the IDO allocation.   Thus, we conclude the applicable standard of review of Ahrens's petition is the independent judgment test.   Accordingly, we reject City's request to review this record under the traditional abuse of discretion standard.


 The vested rights' doctrine is based on the theory of equitable estoppel and requires two elements be present before it applies.   First, there must be a promise, and second, the promisee must show reasonable reliance on that promise to the promisee's detriment.   Citing Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 132 Cal.Rptr. 386, 553 P.2d 546, Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 150 Cal.Rptr. 242, 586 P.2d 556, Pardee Construction Co. v. California Coastal Com. (1979) 95 Cal.App.3d 471, 157 Cal.Rptr. 184, and Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21, 227 Cal.Rptr. 226, Ahrens contend “that something other than a building permit may amount to sufficient government action to form the basis through which vesting may occur.”

City disagrees, arguing as it did before the trial court that equitable estoppel in land use cases “requires a promise implied by a building permit. ”  (Emphasis in original.)   In support of this argument, City relies on Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 244 Cal.Rptr. 682, 750 P.2d 324.   It is this argument and this case which the trial court found persuasive when it rejected Ahrens's claim to a fundamental vested right.   However, the question in Russ was the interpretation of a traffic mitigation condition contained in building permits which had already been obtained by the developers and under which construction was in progress.  Russ does not hold, as City contends, that the possession of building permits is the sole criteria for application of the vested rights' doctrine.

 The vested rights' doctrine is not limited to the possession of building permits.   In Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, 150 Cal.Rptr. 242, 586 P.2d 556, our Supreme Court held a developer which had received approval of a tentative map, in compliance with the then-existing land use plan for the area, could not be denied the right to develop consistent with that approved tentative map, despite a change in the land use plan prior to the approval of a final subdivision map.   The dispositive question was whether the developer had obtained all necessary discretionary approvals making the issuance of the final subdivision map a ministerial function.

Recently the Supreme Court summarized the vested rights' doctrine as one of “fairness,” specifically citing Youngblood.   Again, the Supreme Court focused on whether the developer has all the requisite discretionary approvals in order to proceed free of subsequent regulation.  (City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1190, 278 Cal.Rptr. 375, 805 P.2d 329.)

City obfuscates the effect of the IDO allocation arguing its power to zone or rezone land and to regulate density of development remained unchanged by the IDO and remained in full force and effect.   While the adoption of the IDO did not affect City's power, the allocation of the permits under the IDO did.   The IDO exempted from its provisions:  “Development approvals granted prior to the effective date of this ordinance pursuant to a vesting tentative map, development agreement, or other entitlement which may create a legally vested right to development of the whole or part of the project under California law.”  (Emphasis added.)   Further, no project could be granted an allocation “unless full zoning code compliance is present and any required discretionary permits approved.”   We have already noted paragraph J of the IDO refers to the units represented by the allocation as “the entitlement.”   Finally, when City adopted the urgency INSFPO, it exempted from its provisions “any lot or premises with a valid [IDO] allocation granted prior to August 9, 1988.”   These references to the units as an entitlement and the treatment afforded a valid IDO, even in an ordinance adopted as urgency legislation, hardly comports with City's contention the IDO allocation “was an invitation to submit a building permit application and plan check with the Building Inspection Department.”

We conclude, therefore, the allocation was, in fact, an entitlement, a vested right to proceed with the project in compliance with the discretionary approvals received by Ahrens and upon which they reasonably relied to their detriment.   Therefore, the trial court erred in failing to apply its independent judgment to the evidence presented to it, including the entire administrative record.

Where, as here, the only admissible, competent evidence is undisputed that a party has acquired all discretionary approvals and the issuance of building permits remained as a ministerial act, the ultimate conclusion to be drawn from such facts is a question of law.   Thus, the conclusion of the trial court is not controlling on appellate review.  (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 74–75, 227 Cal.Rptr. 667, 720 P.2d 15.)   Because we have determined Ahrens's writ challenged both a legislative as well as adjudicatory action of City which involved a fundamental vested right, we conclude their petition should have been granted.


The superior court's order denying Ahrens's petition for writ of mandate is reversed.   The case is remanded to the superior court with directions to vacate its order and enter a new and different order granting the petition.   Each party to bear its own costs on appeal.


1.   In light of our decision on the vested rights' issue, we need not reach Ahrens's remaining contentions.

2.   Ahrens referred both the trial court and this court to an article by the City Attorney called, “Growth Management v. Vested Rights:  One City's Experience.”   We have read the article.   We find it irrelevant in light of the clear meaning of the IDO itself which temporarily suspends most vested rights in favor of the IDO allocation.   Because the Ahrens are not attacking the facial validity of the IDO, we do not reach this issue.

3.   City's concession is never explained in light of the action it took under the provisions of the inapplicable INSFPO.

4.   Ahrens, in a supplemental declaration, stated they sought to apply for building permits after receiving notice of the intended rezoning but were informed none would be processed.

5.   City urges us to carefully consider the comments of a representative of those persons supporting the rezone.   We have done so, even though the comments are not material or relevant to the official action taken by City.

6.   The ruling on the demurrer is not part of this appeal.

7.   Although not file stamped, we assume for purposes of discussion that the request was, in fact, filed with the trial court.

8.   It does, however, raise questions regarding the validity of the ordinance purportedly rezoning Ahrens's property “Into R1–5000 Zone ․ In Order To Implement The Single–Family Protection Ordinance.”

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

NARES, Associate Justice.

HUFFMAN, Acting P.J., and FROEHLICH, J., concur.

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