EDWARDS v. STEELE (1979)

Martin Dale Edwards appeals from a summary judgment granting a writ of administrative mandamus.

Edwards owns residential property in San Francisco. He applied for a zoning variance. (See San Francisco City Planning Code (hereafter C.P.C.), s 305.) R. Spencer Steele, the Zoning Administrator for the City and County of San Francisco, denied the application. (See Charter of the City and County of San Francisco (hereafter Charter), ss 7.502, 7.503.) Edwards appealed to the Board of Permit Appeals. (See Charter, ss 3.651, 7.503; San Francisco Municipal Code (hereafter Muni.Code), pt. III, art. I, ss 8, 10; C.P.C., s 308.2.) The board reversed the decision of the zoning administrator. The administrator nevertheless refused to grant Edwards a variance.

Edwards sued for a writ of mandamus (Code Civ.Proc., ss 1084-1086) to compel Steele and other defendants to issue the variance. The trial court issued an alternative writ (Code Civ.Proc., s 1087). Defendants answered (Code Civ.Proc., s 1089). Steele and the city and county also cross-complained for a writ of administrative mandamus (Code Civ.Proc., s 1094.5) to obtain judicial review of the decision of the Board of Permit Appeals in favor of Edwards.

Edwards moved for summary judgment (Code Civ.Proc., s 437c) granting the writ of ordinary mandamus and denying the writ of administrative mandamus. Defendants moved for a summary judgment denying the writ of ordinary mandamus and granting the writ of administrative mandamus. The superior court denied Edwards' motion for summary judgment and granted defendants' motion. The court thereby reversed the decision of the Board of Permit Appeals in favor of Edwards. Edwards appeals.

The city code provides that, if an applicant appeals from a decision of the zoning administrator, the “Board of Permit Appeals shall fix the time and place of hearing, which shall be not less than five (5) nor more than fifteen (15) days after the filing of said appeal, and shall act thereon not later than forty (40) days after such filing.” (Muni. Code, pt. III, art. I, s 8. See also Id. at s 14.) The time limits of the Municipal Code are mandatory and jurisdictional, absent an extension under authority of law if it would be impossible, impracticable, or futile to hear and decide an appeal during the prescribed period, due to circumstances beyond a party's control. (See Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 34, 42, 56 Cal.Rptr. 672, 423 P.2d 824; Ursino v. Superior Court (1974) 39 Cal.App.3d 611, 618-622, 114 Cal.Rptr. 404; McDonald's Systems of California, Inc. v. Board of Permit Appeals (1975) 44 Cal.App.3d 525, 548-549, 119 Cal.Rptr. 26 (Elkington, J., dissenting). But see Id., at pp. 529-548, 119 Cal.Rptr. 26 (majority opinion by Sims, J.).)

Edwards appealed from the decision of the zoning administrator on May 7, 1976. The hearing before the Board of Permit Appeals was initially set for May 26, 1976, more than 15 days after the time Edwards filed the appeal. There is nothing in the record as to why the hearing was scheduled in violation of the 15-day rule of the Municipal Code. There is no showing that there was an extension under authority of law because it would have been impossible, impracticable, or futile to hold the hearing within the 15-day limit, due to circumstances beyond a party's control. Moreover, Edwards requested that the hearing be postponed from May 26 until June 16. There is nothing in the record justifying this extension.

The Board of Permit Appeals was scheduled to meet on June 16, but did not do so because the number of members in attendance did not constitute a quorum. The board then met on June 23, heard Edwards' appeal, and voted to reverse the decision of the zoning administrator. However, section 308.2 of the City Planning Code requires that the board issue a written decision concerning variance appeals. The board did not issue a written decision until September 13, 1976. This decision was not issued within the 40-day time limit of the Municipal Code. There is nothing in the record justifying this delay.

The Board of Permit Appeals therefore had no jurisdiction to vacate the decision of the zoning administrator, both because the hearing was not held within the 15-day time limit and because the board did not issue a written decision within the 40-day time limit. The trial court did not err when it entered a summary judgment granting a writ of administrative mandamus reversing the decision of the board, on the ground that the board acted in excess of jurisdiction. (See Code Civ.Proc., s 1094.5, subd. (b).)

Affirmed.

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J., and POCHE, J., concur.