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District Court of Appeal, First District, Division 2, California.

Edward L. SILLER et al., Petitioners and Appellants, v. BOARD OF SUPERVISORS OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents; MASON-PINE, INC., a corporation, and John R. Cahill, President, Real Parties in Interest and Respondents.*

Civ. 19811.

Decided: May 17, 1962

Lawrence W. Jordan, Jr., Bernard P. McCullough, Rogers, Clark & Jordan, San Francisco, for appellants. Dion R. Holm, City Atty., of the City and County of San Francisco, Bernard J. Ward, Deputy City Atty., San Francisco, for respondents, Bd. of Supervisors of the City and County of San Francisco. Jacobs, Sills & Coblentz, Donald M. Cahen, San Francisco, for real parties in interest and respondents Mason-Pine, Inc. and John R. Cahill.

Petitioners appeal from the judgment denying their application for a peremptory writ of mandate.

Petitioners brought this action to obtain a peremptory writ of mandate directing the San Francisco planning commission and board of supervisors to set aside a building variance granted to Mason-Pine, Inc. Petitioners alleged that they were the owners of real property located within 300 feet of property owned by Mason-Pine; that on or about February 1, 1960, Mason-Pine filed with the planning commission an application for a variance from certain offstreet parking requirements of the zoning ordinance of the City and County of San Francisco; that the commission conducted hearings and, on March 31, 1960, contrary to the advice of its professional staff, voted to grant the variance requested; that petitioners, as adjoining property owners, then filed an appeal to the board of supervisors; that the matter was heard by the board on July 5, 1960, and that the decision of the planning commission was thereafter affirmed. Petitioners further alleged that no evidence of special circumstances and unnecessary hardship, as required by the terms of the zoning statute, was presented to the planning commission on behalf of Mason-Pine, and that the commission was therefore without power to grant the variance applied for.

Upon return to the alternative writ and after hearing, the trial court denied petitioners' application and discharged the alternative writ.

The sole question to be determined is whether the planning commission, in view of the reocrd, possessed the right to grant the variance in favor of Mason-Pine. In order to resovle this issue, it becomes necessary to consider both the nature of the parking regulations from which Mason-Pine was exempted and the scope of the evidence upon which the commission based its decision.

On March 31, 1960, when Mason-Pine was granted its variance by the commission, Article 4.5 of the San Francisco Planning Code (Chapter II, Part II, San Francisco Municipal Code), in effect since 1955, set forth certain off-street parking requirements. Section 111 provided that the interpretation and purposes of this article should be as follows: ‘The interpretation and application of the provisions of this Article shall be made in the light of a good faith attempt on the part of the Board of Supervisors to take a step toward relieving traffic congestion and to enhance the public safety, convenience and welfare by requiring ample parking facilities in connection with dwelling units hereafter constructed.’ Section 112 set forth certain definitions to apply throughout the article: ‘* * * (b) Dwelling Unit. The words ‘dwelling unit’ mean a room or suite of rooms that is designed for, or is occupied by, one family doing its own cooking therein and having only one kitchen. * * * (d) Off-Street Parking Space. The words ‘off-street parking space’ mean an off-street area within the building housing the dwelling unit, or on the lot where the building is located, not less than one hundred sixty (160) square feet in area, net, exclusive of access or maneuvering area, or ramps, columns, or the like, to be used exclusively as a temporary storage space for one private motor vehicle. Each required parking space shall be of usable shape, independently accessible and properly maintained.' Section 113 provided: ‘The number of off-street parking spaces required for dwelling units hereafter constructed in the City and County of San Francisco shall be one off-street parking space for each dwelling unit.’ Section 114 provided: ‘The City Planning Commission may, upon application, grant variances from and of the provisions of Section 113 of this Article, after public notice and hearings, if it is of the opinion that special circumstances exist in the particular case, and that unnecessary hardship would result from the strict interpretation and enforcement of such provisions. * * *’

Although the sections above quoted made it compulsory for all apartment buildings constructed after 1955 to contain one offstreet parking space for each dwelling unit within the building and further required that each parking space be not less than 160 square feet and independently accessible, the planning commission granted Mason-Pine a variance entitling it to construct an apartment building containing 190 dwelling units and only 174 parking spaces, none of which were either independently accessible or 160 square feet in area.

Prior to granting this variance, the commission conducted three hearings. From the evidence, and from the plans submitted by Mason-Pine, it appears that the proposed building was to contain 19 stories, consisting of 190 dwelling units; 114 were to be one-bedroom units, and the remaining 76 were to be ‘efficiency units' consisting of one room with adjoining kitchenette and bath. The building was to be located on the corner of Mason and Pine Streets, within five blocks of San Francisco's central financial district and the Union Square shopping area, and allegedly was designed for use by moderate income tenants desiring to live within walking distance of their places of work. There was evidence that only 25–50% of such moderate income tenants would own automobiles and that parking lot operators in the vicinity of the proposed site had storage parking stalls available. Mason-Pine claimed also that if denied a variance, it would be compelled to decrease the number of proposed dwelling units in order to comply with the one-for-one parking space requirement. Such a change in design would result in larger apartments with correspondingly higher rents, which was not the type of structure Mason-Pine wished to build. Mason-Pine's attorney made a statement during his argument before the board of supervisors that in the opinion of Cahill Brothers, the developers of the project, further excavation to provide additional garage space would be unsafe on the hillside where the building was located.

In opposition to the variance application, there was testimony that Mason-Pine had purchased its property with full knowledge of the applicable one-for-one parking requirement; that the area of the proposed construction had a very acute parking problem, both during the day for office parking and at night for Nob Hill visitors. There was also evidence that those persons able to pay the rents proposed by Mason-Pine would be very likely to own automobiles, and that another floor of garages could easily be added to the proposed building.

Appellants now contend that none of the evidence presented on behalf of Mason-Pine was sufficient to sustain the commission's finding that enforcement of the off-street parking regulations against it was obviated by special circumstances and unnecessary hardship, as required by section 114. Appellants also assert that the statement by Mason-Pine's attorney that further excavation would be dangerous must be disregarded by this court, since it was hearsay and unsubstantiated by any other competent evidence. We agree with appellants' contentions.

Although it is true that administrative hearings are conducted under much more liberal rules of evidence than are actual court trials, it is nevertheless the rule that a finding based upon hearsay evidence alone may not be upheld unless it was based upon a type of hearsay which would be admissible over objection in civil actions. (Gov.Code, § 11513, subd. (c); Steen v. Board of Civil Service Com'rs (1945) 26 Cal.2d 716, 726–727, 160 P.2d 816; Armistead v. City of Los Angeles (1957) 152 Cal.App.2d 319, 324, 313 P.2d 127.) In the case at bar, Mason-Pine's attorney, Mr. Friel, was certainly not testifying to any fact within his own knowledge when he informed the board of supervisors, in the course of his argument, that Cahill Brothers believed further excavation would be dangerous. Mr. Friel was personally without engineering experience and would clearly not have been entitled to opine on this subject. Furthermore, Mr. Cahill himself testified at all three hearings before the planning commission and at no time asserted there would be dangers in further excavation. Under these circumstances, Friel's statement was hearsay which fell within none of the exceptions recognized by the courts. Since the record before the commission and the board contains no other competent evidence regarding the risks of hillside excavation, this factor may not be relied upon in support of the variance granted to Mason-Pine.

As to the remainder of the evidence presented to the planning commission and the board of supervisors, appellants do not contend that it was inadmissible, but assert only that it did not constitute a sufficient showing of special circumstances and undue hardship. The rule is well established that the granting or denial of a variance rests largely in the discretion of the body designated for that purpose. (County of San Diego v. Mc Clurken (1951) 37 Cal.2d 683, 691, 234 P.2d 972.) Where a variance is granted, it is presumed that official duty was performed in the making of the required investigation, and that the existence of the necessary facts was found. (Miller v. Planning Commission (1956) 138 Cal.App.2d 598, 602–603, 292 P.2d 278.) It is also the rule that the decision of a municipal body to grant or deny a variance will not be disturbed by the courts in the absence of a clear and convicing showing of an abuse of discretion. (Flagstad v. City of San Mateo (1957) 156 Cal.App.2d 138, 141, 318 P.2d 825.)

However, section 114 specifically provides that a variance from the off-street parking requirements can be granted by the planning commission only upon a showing of special circumstances and undue hardship. In our opinion, there has been no showing whatever that Mason-Pine would suffer undue hardship from the enforcement of the parking regulations.

The planning commission, as above noted, may not be deemed to have based its finding of hardship on the dangers of further excavation, since the only evidence on this issue was the unsupported hearsay testimony offered by Friel during his argument before the board of supervisors. Once this testimony is excluded from consideration, it becomes apparent that the only other evidence relating to hardship consisted of Mr. Cahill's testimony that enforcement of the one-for-one parking requirement would compel Mason-Pine to construct larger dwelling units and charge a higher rental, and that ‘the variance should be granted rather than demanding a long involved change in the law.’ It also becomes apparent that Mason-Pine made no attempt to controvert the evidence that it had purchased its building site with full knowledge of the parking regulations then in effect.

Under these circumstances, it is evident that there was no showing of the hardship required by section 114. In Minney v. City of Azusa (1958) 164 Cal.App.2d 12, 330 P.2d 255, the court commented upon the unnecessary hardship required under an ordinance authorizing zoning variances. The court stated, at pages 31–32, 330 P.2d at pages 265, 266: ‘Self-induced hardship is not within the purview of the ordinance. Only that type of hardship which inheres in the particular property is recognized,—such as inability to use it for purposes of its existing zoning caused by the prevailing uses of surrounding property. * * * One who purchases property in anticipation of procuring a variance to enable him to use it for a purpose forbidden at the time of sale cannot complain of hardship ensuing from a denial of the desired variance. [Citations].’ Similarly, in City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 4 Cal.Rptr. 547, the court quoted with approval from the Minney case (p. 673, 4 Cal.Rptr. 547) and restated the rule that a zoning variance may be granted only upon a showing of genuine hardship. ‘Defendants have not demonstrated any ‘unnecessary hardships' which would require the granting of the variance. The evidence reveals that the defendants purchased the variance lot subsequent to the enactment of the present zoning ordinances and that it was zoned R–1 at the time of purchase. Since then the lot has been consistently used, in violation of the zoning restrictions, for both parking and recreation. No doubt continued use of the variance lot for these purposes would be of great benefit to the defendants, but the fact remains that the lot was purchased with full knowledge of its restrictions, and furthermore, the expansion program undertaken by the defendants was promulgated in the face of those same restrictions. * * * Thus, while there is no doubt that some hardship exists, such hardship is the result, not of external circumstances, but of defendants' own expansion program. This is not enough to entitled defendants to relief.’ (Pp. 672–673, 4 Cal.Rptr. p. 557.) In the present case, respondents do not deny that Mason-Pine purchased its building site with full knowledge of the one-for-one parking regulations. Neither do they contend that a denial of the variance would result in any hardship to Mason-Pine other than the financial outlay necessary to revise its proposed apartment scheme. Respondents assert, to the contrary, that the ‘restrictive tests' for hardship set forth in the Minney and City of San Marino cases should not be deemed controlling. Respondents contend that the California courts have in fact upheld the granting of variances solely upon a finding of economic difficulty such as that present in the case at bar. In support of this position, respondents cite Flagstad v. City of San Mateo, supra; Jackson v. City of San Mateo (1957) 148 Cal.App.2d 667, 307 P.2d 451; Bradbeer v. England (1951) 104 Cal.App.2d 704, 232 P.2d 308; and Childs v. City Planning Comm. (1947) 79 Cal.App.2d 808, 180 P.2d 433. An examination of these authorities does not bear out respondents' contention.

In the Flagstad case, the court upheld the granting of a zoning variance permitting the construction and operation of a service station in a multi-family residence zone. The evidence before the city council revealed that the property in question was located on El Camino Real, at one of the busiest intersections in the City of San Mateo. It further revealed that property to the north and south was zoned for commercial use and that there were already gas stations on two of the corners in the same intersection as the applicant's property. There was also evidence that the size of the parcel would not permit construction of an apartment house which would yield a return commensurate with the value of the land.

In the Jackson case, the city council granted a zoning variance allowing construction of an office building in an area zoned residential. The evidence in support of the variance showed that the property in question was adjacent to a main highway and was undesirable for medium priced or more expensive homes. The property was also adjacent to a shopping center and was the only remaining property in the area which was of a size adequate for the proposed commercial use. It was further shown that an attempt to develop the property under its present zoning status would be “the highest form of economic futility.” (148 Cal.App.2d p. 669, 307 P.2d p. 452.) The court held that the variance had been properly granted.

The Bradbeer case involved a variance allowing property zoned one-family residential to be put to a multiple family use. The evidence before the city council showed that the area was in the vicinity of a refinery, a racetrack, oil wells, horse barns, churches, motels, and duplexes. There was evidence that single-family residences would be one of the worst uses to which the property could be put, and that such a use would be economically impossible. In addition, there was evidence that the developers of the property had already expended substantial sums on plans, services and materials in connection with the contemplated project. The granting of the variance was upheld.

In the Childs case, the applicant was granted a variance to construct a service station in a two-family district. The property in quesion was located at an intersection of which two corners were unimproved, and the third corner contained a drive-in market, drug store, and beauty parlor. There was evidence that the two intersection streets were main arteries designated as truck and bus routes and that the property was adaptable only for retail use, the prohibition of which would result in economic loss. The variance was upheld.

In each of these four decisions, there was ample evidence of the type of hardship required under the Minney and City of San Marino cases. In the Minney case, the court specifically made mention of inability to use property for purposes of its existing zoning caused by the prevailing uses of surrounding property. In the City of San Marino case, the court similarly set forth the requirement that hardship be the result of external circumstances rather than the applicant's own acts. Both of these requirements were clearly fulfilled in the decisions relied upon by respondent, since in all four cases there was abundant evidence that prevailing uses in the vicinity of the property had rendered it totally unsuitable for a use consistent with its zoning classification. In the instant case, there was no evidence whatever that Mason-Pine's property was not readily adaptable to a use in conformity with the San Francisco parking regulations. Indeed, the evidence revealed that such an adjustment could easily be made but that Mason-Pine had voluntarily chosen to develop plans in conflict with the parking requirements.

Although it is true that the four cases upon which respondents rely did place some emphasis upon economic factors (including, in the Bradbeer case, the development expenditures of the applicant), these decisions are certainly not authority for the rule that self-induced economic hardship alone is sufficient to compel the granting of a variance. Furthermore, there was no showing in the present case that the denial of a variance would result in a return incommensurate with the value of the land, economic futility, economic impossibility, or economic loss, as in the cited authorities. The most that can be assumed in favor of Mason-Pine is that it undoubtedly considered moderate income housing to constitute the most economically advantageous use of its property. There was certainly no showing that Mason-Pine could not reap substantial monetary rewards from a use in accordance with the parking regulations. The rule of the Minney and City of San Marino cases makes it clear that an applicant is not entitled to a variance merely because he may incur some hardship in effecting an alteration of his proposed construction.

Under these circumstances, it becomes unnecessary to determine whether Mason-Pine made a sufficient showing of the ‘special circumstances' required under section 114. Since there was no evidence that unnecessary hardship would result from a denial of the variance applied for, the planning commission was without authority to grant it.

The judgment denying appellants' petition is reversed, with directions to the trial court to issue a peremptory writ of mandate as prayed.


KAUFMAN, P. J., and AGEE, J., concur.