RUSSIAN HILL IMPROVEMENT ASSOCIATION v. BOARD OF PERMIT APPEALS OF CITY AND COUNTY OF SAN FRANCISCO

Reset A A Font size: Print

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

RUSSIAN HILL IMPROVEMENT ASSOCIATION et al., Plaintiffs and Respondents, v. BOARD OF PERMIT APPEALS OF the CITY AND COUNTY OF SAN FRANCISCO, et al;  Defendants and Appellants.

Civ. 22516.

Decided: August 12, 1966

Thomas M. O'Connor, City Atty., of the City and County of San Francisco, Robert A. Kenealey, Deputy City Atty., of the City and County of San Francisco, San Francisco, for appellants:  Board of Permit Appeals. Pillsbury, Madison & Sutro, John B. Bates, Noble K. Gregory, Thomas E. Feeney, San Francisco, for appellants HAP Development Company, Haas & Haynic Corporation and HAP Development Partnership. Heller, Ehrman, White & McAuliffe, Caspar W. Weinberger, M. Laurence Popofsky, San Francisco, for respondents.

Plaintiffs filed this action for mandamus and declaratory relief against numerous defendants, including the Central Permit Bureau of the City and County of San Francisco, the Board of Permit Appeals of said city and county, and H.A.P. Development Company (hereafter referred to as “HAP”).   The complaint presents six counts.   The primary purpose of the action was to compel the revocation of a site permit previously issued to defendant HAP.

The trial court issued an alternative writ and, after hearing, found in plaintiffs' favor on the first count of the complaint and dismissed the remaining five counts.   Defendants filed notice of appeal from the judgment granting plaintiffs the peremptory writ of mandate prayed for.

The trial court made the following findings:  that on January 22, 1964, defendant HAP filed with defendant Central Permit Bureau an application for a site permit to construct a 27–story, 152–unit, 235–foot–high apartment building at the corner of Polk and Greenwich Streets in San Francisco;  that said application was accompanied by architects' plans, specifications and drawings which described and illustrated the general features of the project;  that on February 10, 1964, the Board of Supervisors of the City and County of San Francisco passed a special height district ordinance which embraced the proposed apartment house site and which limited structures within the district to a maximum height of 105 feet;  that said ordinance was signed by the Mayor of the City and County of San Francisco on February 21, 1964, and became effective as an amendment to the City Planning Code on March 23, 1964;  that on March 12, 1964, the City Planning Commission held a public hearing on defendant HAP's application for a site permit and voted to approve said application;  that the plans submitted by defendant HAP were also approved by the Department of City Planning, the Bureau of Fire Prevention and Public Safety, the Bureau of Building Inspection and the Bureau of Engineering;  that on March 19, 1964, four days before the special height district ordinance became effective, defendant Central Permit Bureau made its order approving defendant HAP's application for a site permit and issued it a document which was entitled “permit” and which stated on its face that it was “issued subject to appeal.  * * *   Incur no expense, under this permit, until right of appeal has lapsed” (in our opinion, good advice to the applicant—but not a limitation on the permit);  that on March 25, 1964, plaintiff Russian Hill Improvement Association filed a timely appeal to defendant Board of Permit Appeals from the order made by defendant Central Permit Bureau;  that on April 20, 1964, the Board of Permit Appeals, after hearing, affirmed the issuance of the site permit;  that plaintiff Russian Hill Improvement Association thereafter applied for and was denied a rehearing before the Board of Permit Appeals.

The court further found that section 150, subdivision (d), of the City Planning Code of San Francisco (part II, chapter II, of the San Francisco Municipal Code), provided that “[a]ny building or use for which a permit has been lawfully granted prior to the effective date of an amendment to the City Planning Code, where such date is subsequent to May 2, 1960, may be completed and used in accordance with the approved plans, provided that construction is started and diligently prosecuted to completion in accordance with Section 304 of the Building Code, and such building or use shall thereafter be deemed to be a lawfully existing building or use.”  (Emphasis supplied.)

The court concluded that on March 23, 1964, when the special height district ordinance became effective, a permit had not been “lawfully granted” to defendant HAP within the meaning of section 150, subdivision (d), and that plaintiffs were therefore entitled to a writ of mandate compelling revocation and permanent suspension of such permit and denial of defendant HAP's application therefor.   Judgment was accordingly entered.

The sole question presented by this appeal is whether the lawful granting of a permit, as this phrase is sued in section 150, subdivision (d), of the City Planning Code of San Francisco, means (1) the issuance of the permit by the Central Permit Bureau or (2) the approval of such action by the Board of Permit Appeals.

Defendants contend that a permit is lawfully granted when issued by the Central Permit Bureau and that the judgment appealed from, being based upon the contrary conclusion, must be reversed.   We agree.

Section 1 of the Public Works Code of San Francisco (part II, chapter X, of the San Francisco Municipal Code) creates the Central Permit Bureau and provides that all applications for permits enumerated in the succeeding section shall be filed with the bureau and that, upon the filing of approval by all interested departments and bureaus, “the Central Permit Bureau shall issue the permit applied for * * *.”

Section 2, subdivision (a), of the Public Works Code of San Francisco, provides that the Central Permit Bureau shall receive applications for permits for the erection of any building.

Section 301 of the Building Code of San Francisco (part II, chapter I, of the San Francisco Municipal Code) makes it unlawful for any person “to commence or proceed with the construction * * * of any structure * * * without first obtaining a building permit therefor from the Central Permit Bureau * * *.”

Section 302 of the Building Code of San Francisco states that any person desiring a building permit shall file with the Central Permit Bureau a written application accompanied by plans and specifications.

Section 304 of the Building Code of San Francisco provides for the issuance of permits by the Central Permit Bureau and states in pertinent part that “A permit issued shall be construed to be a license to proceed with the work * * *.”   The section also sets forth the various time limits, contingent upon the total estimated cost of the particular project, within which all work to be performed under a building permit must be completed.

Section 305.1 of the Building Code of San Francisco provides that “A site permit may be issued by the Central Permit Bureau for the construction of a structure upon approval of preliminary drawings * * *.”   The section also provides that “When the detailed plans and specifications are in accordance with the nature, character, extent and cost indicated by the preliminary plans and specifications, an additional permit will not be required * * *.”

Article I, part III, of the San Francisco Municipal Code, pertains to permit procedure and provides, pursuant to section 30, that “On the issuance, denial or revocation of any permit, any applicant for a permit who is denied such permit, or any permittee whose permit is ordered revoked, or any person who deems that his interest or property, or that the general public interest will be adversely affected as the result of operations authorized by or under any permit granted or issued * * * may appeal to the Board of Permit Appeals” (emphasis supplied).

Section 8, article 1, part III, of the San Francisco Municipal Code, provides in pertinent part that the action from which an appeal is taken “shall be suspended” pending decision by the Board of Permit Appeals.

Section 14, article 1, part III, of the San Francisco Municipal Code, requires the Board of Permit Appeals to conduct a hearing and provides that it may then “concur in the action of the department authorized to issue, transfer or revoke the permit, or may overrule the action of said department and order that the permit be granted, restored, denied, or permitted to be transferred, as the case may be.”

 We are convinced that under these sections of the San Francisco Municipal Code, the Central Permit Bureau is the agency authorized to grant or deny permits of the type issued to defendant HAP and that the Board of Permit Appeals is vested with appellate jurisdiction only.   Such construction is in accord with prior decisions, wherein the courts have characterized the Board of Permit Appeals as a body empowered to review the acts of departments authorized to issue, grant or deny licenses or permits and to affirm or overrule such acts.  (Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 313–315, 144 P.2d 4;  Greif v. Dullea (1944) 66 Cal.App.2d 986, 998, 153 P.2d 581;  Board of Permit Appeals v. Central Permit Bureau (1960) 186 Cal.App.2d 633, 639–640, 9 Cal.Rptr. 83;  Iscoff v. Police Commission (1963) 222 Cal.App.2d 395, 409, 35 Cal.Rptr. 189.)

 Plaintiffs suggest that there is a crucial distinction between the words “issue” and “grant” and that the Central Permit Bureau is authorized only to issue a document entitled “permit,” whereas the “granting” of such permit does not occur until the Board of Permit Appeals concurs in the bureau's action.   This contention finds no support whatever in the above-mentioned sections of the San Francisco Municipal Code, and it is apparent that in section 30, article 1, part III, of such code, the two terms are used interchangeably to describe acts which the Central Permit Bureau is empowered to perform.   Moreover, plaintiffs' assertion that a permit can only be “granted” by the Board of Permit Appeals overlooks the fact that in any instance where the Central Permit Bureau issues a permit and such action is not appealed, the Board of Permit Appeals never acquires jurisdiction over the matter and the bureau's action thus constitutes the final decision relative to the granting or denial of the permit.   It appears to us that a ruling that the bureau is empowered to “grant” a permit where no appeal is taken but is immediately divested of such power by the filing of an appeal which might ultimately be found totally lacking in merit, cannot logically be sustained.

 We are satisfied from our consideration of the various sections above discussed that the Central Permit Bureau, and not the Board of Permit Appeals, is the agency authorized to grant or issue permits.   We summarize and reiterate—sections 1 and 2, subdivision (a), of the Public Works Code of San Francisco, authorize the bureau to “issue” building permits, and sections 301 and 304 of the Building Code of San Francisco provide that a building permit shall be “obtained” from the bureau and that such permit shall be deemed “a license to proceed with the work.”   Section 305.1 of the Building Code of San Francisco authorizes the bureau to issue a site permit, such as that obtained by defendant HAP, and provides that under certain circumstances, no additional permit will be required.   Section 8, article 1, part III, of the San Francisco Municipal Code, provides for “suspension” of the bureau's action pending an appeal to the Board of Permit Appeals.   Section 14, article 1, part III, of the San Francisco Municipal Code, provides that if the board should overrule the action appealed from, it may “order that the permit be granted, restored, denied, or permitted to be transferred.”   This latter section is of particular significance, since it clearly shows that the board, unlike the bureau, does not possess the power to grant or deny a permit in its own right and can, at most, direct the bureau to do so.

In the light of the foregoing, the trial court erred in concluding that defendant HAP's site permit had not been lawfully granted within the meaning of section 150, subdivision (d), of the City Planning Code of San Francisco prior to the effective date of the special height district ordinance.

The judgment is reversed.

SHOEMAKER, Presiding Justice.

AGEE and TAYLOR, JJ., concur.