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

BROADWAY, LAGUNA, VALLEJO ASSOCIATION, Michele Weill, Glenn A. Stackhouse, Maude H. Lyons, L.P. Brassy, Plaintiffs and Appellants, v. BOARD OF PERMIT APPEALS OF the CITY AND COUNTY OF SAN FRANCISCO, et al., and Perry Liebman, Defendants and Respondents.

Civ. 23102.

Decided: October 31, 1966

Heller, Ehrman, White & McAuliffe, Caspar W. Weinberger, M. Laurence Popofsky, San Francisco, for appellants. Feldman, Waldman & Kline, Jesse Feldman, Richard B. Morris, San Francisco, for Perry Liebman.

Defendant Perry Liebman is the owner of the subject property, located at 2030 Vallejo Street, San Francisco.   It is zoned R–4, which under Planning Code 1 section 122 requires a floor area ration 2 of 4.8 to 1.

Liebman desired to construct an eleven-story apartment building on the subject property with a floor area ratio of 5.51 to 1.   The Zoning Administrator denied his application for variance.   After full public hearing on appeal from such ruling, the Board of Permit Appeals (hereinafter “Board”) granted the variance and made extensive findings in support of its decision.

Plaintiffs then petitioned the superior court for a writ of mandate to compel the Board to reverse its decision.   The petition was denied and this appeal followed.

 The crucial inquiry here is whether the facts as found by the Board are sufficient to support its decision.   Appellants do not question the facts as stated therein.   Their position is that the Board did not have “the power to grant a variance on the basis of the uncontroverted facts” and that “[a]s a matter of law, the Liebman application for a variance failed to satisfy the variance requirements.”  (Italics added.)

 While the Board, in hearing appeals from the Zoning Administrator's decisions relating to the granting or denial of a variance may exercise its own independent judgment 3 , it can only grant a variance if it finds that the conditions specified in the applicable statute are satisfied.  (Cow Hollow Improvement Club v. Board of Permit Appeals, 245 A.C.A. 160, 53 Cal.Rptr. 610.)

 The conditions precedent to the granting of a variance in the instant case are set forth in section 302(d) of the Code.   The Board concluded that all of the five conditions contained therein had been met.   In making such decision the Board was required to specify in its findings the facts establishing the existence of such conditions (Code § 302(d).)   It was also required to specify wherein the Zoning Administrator had erred or abused his discretion in denying the variance (Code § 303(d)).   These specifications of error will be set forth below in footnotes, as each of the five conditions is considered.

 Condition:  “(1) that there are exceptional or extraordinary circumstances or conditions applying to the property involved, or to the intended use of the property, that do not apply generally to other property or uses in the same class of district;” 4

The Board's specifications in its findings are as follows:

“A. An unusual subsoil condition exists on the lots involved.   According to the testimony of appellant's soils engineer, a member of a nationally recognized soils engineering firm, the site probably contains a buried stream channel or draw, the type and depth of which are not typical of other building sites in hillside areas.   He further testified that because of this exceptional condition:  (1) This site is adverse for multi-unit development in comparison with similar hillside building lots in this particular area;  (2) Foundation costs on the proposed building have been increased from 21/212 to 3 times the cost anticipated without the exceptional soils condition;  and (3) Development of these lots for any multi-story structure similar to the proposed building in excess of 50 feet in height is difficult.”

“B. The Appellant [Liebman] proposes to build according to development standards which are more restrictive in terms of producing the results intended by the Planning Code than are the provisions of the Code themselves.   ZA [Zoning Administrator] himself noted such standards in his Findings.   Therefore, his intended use of the property is unique and constitutes an exceptional circumstance, when compared with the conventional development of property according to the standards found in the Code.

“These high standards were designed to effect many attractive features in terms of the Code's purposes, including:

“(1) 53 relative spacious dwelling units, at a ratio of one unit per 275 square feet of lot area, compared with the 72 units that would be the maximum permissible number of this lot at the R–4 density limit of one unit per 200 square feet of lot area.  (See Findings of ZA paragraph I B 1(a).)

“(2) The building is free standing, with side years of 11 feet where no side yards are required.  (See Findings of ZA paragraph I B 1(b).)   Such side yards provide open corridors of light and air on both sides of the building, a highly unusual feature for an interior lot building, and also a result most consistent with the overall goals of the Code.

“(3) The building covers only approximately 54% of its site, compared with the maximum permitted coverage of 75%.  (See Findings of ZA paragraph I B 1(c).)

“(4) The building has five foot balconies which extend around the building on all sides on its 10 upper floors.   These balconies provide approximately 21,000 square feet of usable outdoor area immediately accessible to the dwelling units.  (See Findings of ZA paragraph I B 1(d).)   The balconies create additional light and air on the sides of the buildings.

“(5) 62 parking spaces, where the Code requires only 53, an increase of 16% over Code Minimum parking.  (See Findings of ZA paragraph I B 1(e).)”

Appellants criticize the Board's consideration of the “attractive features” resulting from Liebman's decision to build more restrictively than required by certain other code provisions.   They argue that these “features” were self-imposed and that the situation is analogous to a self-imposed hardship, such as that in Minney v. City of Azusa, 164 Cal.App.2d 12, 330 P.2d 255.

In the Minney case the applicant took an option on a lot knowing that it was in a district zoned for residences only.   His purpose was to build a church or “Kingdom Hall” for a congregation of Jehovah's Witnesses.   His application for a variance was denied.

Minney complained that it was a hardship upon him not to be allowed to build the church upon the property.   The court said, at page 31, 330 P.2d at page 265:  “Self-induced hardship is not within the purview of the [variance] ordinance.   Only that type of hardship which inheres in the particular property is recognized * * *.”

 Here the hardship arises from the unusual topsoil condition described by the Board.   It is a hardship which inheres in the property itself.   We do not think the situation is at all analogous to that in the Minney case.

 Furthermore, the “attractive features” in no way create a hardship for Liebman or anyone else.   These features are a benefit to the surrounding area.   We think it was proper for the Board to consider these features in determining whether a variance should or should not be granted.

Condition:  “(2) that owing to such exceptional or extraordinary circumstances the literal enforcement of specified provisions of the Code would result in practical difficulty or unnecessary hardship;” 5

Board's specifications:  “The subsoil condition obviously constitutes a practical difficulty for development, if the Code be literally enforced, as noted by the Board under Condition 1.   Also appellant's adoption of ‘superior to Code’ building development standards for the proposed building, imposes practical difficulty and hardship for the appellant in developing the property far beyond that imposed by the literal Code provisions.   This latter self-imposed development discipline, more rigid than the provisions of the Code requirements, will produce results in terms of the basic purposes of the Code which more than offset the variance, as also already noted under Condition 1.   Thus, the Board concludes that the literal enforcement of the Code in the face of these two exceptional circumstances would create practical difficulties and unnecessary hardship for not only the appellant, but also for the surrounding neighborhood.   The last conclusion is based on the fact that the features of the building upon which appellant bases his variance request produce solutions to the common neighborhood objections to moderate highrise development, i.e., loss of view, light and air, overcrowded land, and traffic congestion.”

Condition:  “(3) that the variance is necessary for the preservation of a substantial property right of the petitioner possessed by other property in the same class of district;” 6

Board's specifications:  “Appellant has a right to develop his property, notwithstanding adverse soil conditions.   Because the Board finds that the variance in this case amounts to no more than an immaterial breach of the Code fully compensated by features of the building not demanded by the Code, and because the record shows that without variance appellant cannot economically proceed with this attractive building, the Board finds that the variance is necessary to preserve that basic property right of appellant.”

Condition:  “(4) that the granting of the variance will not be materially detrimental to the public welfare or materially injurious to the property or improvements in the vicinity;” 7

Board's specifications:  “A. On the basis of its foregoing Findings, and its analysis of ZA's conclusions under Conclusions 1 through 3, the Board concludes that the granting of the variance will not be materially detrimental to the public welfare, and not materially injurious to the property or improvements in the vicinity.

“B. The Board finds further that if constructed according to the plans submitted to the Board on this appeal, the proposed building will:

“(1) Provide the vicinity with highest quality multi-unit development.

“(2) Improve all the property in the vicinity through use of multi-unit standards allowing for maximum landscaping, light and air, parking, safety and privacy, as well as minimal traffic density and lot coverage.

“(3) Improve lots which, because of adverse soil characteristics, require extraordinary development costs for any similar multi-unit building in excess of 50 feet.”

Condition:  “(5) that the granting of such variance will be in harmony with the general purpose and intent of this Code and will not adversely affect the Master Plan.” 8

Board's specifications:  “The Board finds that the variance is fully compensated through the attractive features of the proposed building, which features result in a building thoroughly in harmony with the general purposes of the Code and Master Plan.   Paraphrasing the general purposes of the Code as set forth in Section 101, the Board finds that the proposed building will:

“A. Protect and enhance the character and stability of this prime residential area of this Pacific Heights District in which the proposed building is to be built.

“B. Provide exceptional access to light, air and view, exceptionally low lot coverage and population density, exceptional privacy, ease of access and safety from fire.

“C. Promote the purpose of the Code in obviating traffic interference on streets and thoroughfares.

“D. Exemplify the spirit of the Code by affording light and air on all sides of this non-corner lot building, an exceptional result which, if followed by other builders, would lead to supplementing landscaping and use of light and air by adjacent R–4 developments.”

 We are well aware that there are in effect two sets of findings required by the variance ordinance (Code, § 302(d)).   The first consists of the Board's verbatim recitation of the five conditions of the ordinance;  the second, the Board's specification of the particular evidentiary facts which support a finding or conclusion that these conditions do exist.

 It is our opinion that these evidentiary findings constitute substantial evidence and sufficiently support the five findings cast in the language of the ordinance.

The judgment of the superior court denying a writ of mandate is therefore affirmed.


1.   All references to the “Code” are to the City Planning Code, which is contained in Part II, Chapter II, of the San Francisco Municipal Code.

2.   Exclusive of certain space exemptions, this means the ratio of the aggregate gross floor area of a building to the area of the lot upon which the building is located.

3.   Section 303(d) of the Code gives the Board power to consider a variance application de novo on appeal from a decision of the Zoning Administrator and it “may approve, disapprove, or modify the ruling, decision or determination appealed from or, in lieu thereof, make such additional determination as it shall deem proper * * *.”

4.   “ZA [Zoning Administrator] abused his discretion in failing to find that an unusual and adverse subsoil condition exists on the lots involved.   The only competent evidence based upon a professional investigation of the soil which the record contained was supplied by appellant's soils engineer.   A copy of his testimony is part of the record.   Testimony conflicting with such evidence consisted solely of the opinion of a neighbor, also an engineer, who had made no study of the site, and whose qualifications failed to indicate any special familiarity with the soils topography of San Francisco's hilly terrain.“In the light of this abuse of discretion and the further fact that ZA conceded both that the proposed building contains the same attractive features as found by the Board, and that quality of building design is a relevant factor in variance cases, the Board concludes that ZA erred in so interpreting the Code as to conclude that this condition was not met by appellant.”

5.   “The Board concludes that ZA's findings that Condition 2 was not met by appellant is in error, because it was based on an erroneous interpretation by ZA of the Code in regard to the exceptional circumstances shown by appellant.   The Board concludes that ZA's finding is further in error because it would result in a hypertechnical enforcement of a single provision of the Code pertaining to the height and bulk of a building to defeat a project which the Board finds fully governed by the remaining height and bulk limitations of the Code, and which will clearly promote the overall purposes of the entire Code, and completely offset the variance.   The Board finds that such a practice in interpreting the Code would unquestionably discourage architects and builders from looking to imaginative development solutions according to the spirit of the Code.”

6.   “ZA's failure to find that this condition was met by appellant constitutes an abuse of discretion on his part, because such failure is based upon the following erroneous conclusions:“(1) Conclusion (a) of ZA under Condition 3 is immaterial.   In it, ZA himself recognizes the inconclusiveness of comparing development before and after the existing zoning legislation.   Furthermore, in the light of the same evidence the Planning Code was adopted so as to zone R–4 the entire area referred to by ZA.“(2) Conclusion (b) of ZA under Condition 3 is immaterial and irrelevant, because no evidence was introduced in the record which would enable the Board to compare other Floor Area Ratio variance requests with the application before it on this appeal.“(3) Conclusion (c) of ZA under Condition 3 is immaterial and irrelevant, since all the square foot areas noted by ZA are permitted by the Code.“(4) ZA's Conclusion (d) falls with his erroneous Conclusions (a)–(c) upon which it is based.“(5) ZA's comparison of the proposed building with 4 others described in his rehearing request likewise constitutes an abuse of discretion.   Two of the buildings are not comparable because they are located in R–5 districts, while two others are owned by the occupants as distinct from the apartment building appellant proposes.”

7.   “ZA has erred and abused its discretion in connection with Condition 4 in the same respects as pointed out by the Board in its consideration of ZA's errors and abuse of discretion under Conditions 1 through 3 above, because those same erroneous conclusions constitute the basis of ZA's conclusion under Condition 4.”

8.   “A. ZA has erred and abused his discretion in connection with Conditions 5 in the same respects as pointed out by the Board in its consideration of ZA's errors and abuse of discretion under Conditions 1 through 4, because those same erroneous conclusions constitute the basis of ZA's conclusion under Condition 5.“B. ZA's treatment of appellant's case under this condition reflects an erroneous interpretation of the Planning Code.   ZA has disregarded the spirit and fundamental purposes of the Planning Code as set forth in Section 101, in favor of a mechanical, literalistic construction of the Code.   In effect, he has concluded that the Planning Code is so inflexible as to preclude a property owner in this City from imposing higher development standards upon himself than does the Code, if such higher standards can only be reached through an immaterial breach of a minor Code provision, fully offset by these high standards themselves.   ZA pursues this conclusion even when the higher standards advanced by appellant in this case promote the very purposes of the Code established by Section 101:  ‘To protect the character and stability of residential areas * * *;  * * * to promote the orderly development of such areas;  * * * to provide adequate light, air, privacy and convenience of access, and to secure safety from fire * * *;  to prevent overcrowding of land and undue congestion of population;  * * * to obviate the danger to public safety caused by undue interference with existing or prospective traffic movements * * *.’“ZA concedes that appellant's proposed building is clearly designed with these goals in mind.   Nevertheless, in denying appellant a variance ZA has ‘literally enforced’ one section of the Code, Section 122, while side stepping his obligation to enforce the entire Code including Section 101, and including Section 302.   This latter section expressly permits ‘variances from strict application of the Code’ when such variances are ‘in harmony with the general purpose and intent of this Code’, and literal Code enforcement would result in ‘practical difficulties, unnecessary hardships or results inconsistent with the general purposes of this Code’.   As already observed, the Board has found that such results would follow in this case from literal Code enforcement.“ZA's request for rehearing reiterates his hypertechnical approach through is protest that the Board's first decision granting the variance substituted ‘* * * unspecified criteria as guide for variances in place of the provision of the Charter and Planning Code.’  (Page 1 of Request for Rehearing.)   The Board concludes, however, that the Code sets up no criteria for the granting of variances other than the five conditions examined in the foregoing opinion.  (See Section 302 of the Planning Code.)”

AGEE, Justice.

SHOEMAKER, P.J., and TAYLOR, J., concur.

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