Agana Beach Condo Home Owners Association v. Untalan

Opinion

LU?

IN THE SUPERIOR COURT OF GUAM

AGANA BEACH CONDOMINIMUM HOME OWNERS' ASSOCIATION and ) SPECIAL PROCEEDINGS CASE 9 GERALD LOPEZ, ) NO. SP0112-11

10 Petitioners, DECISION AND ORDER vs. 12 CARLOS R. UNTALAN, DIRECTOR OF 13 THE DEPARTMENT OF LAND 14 MANAGEMENT, GOVERNMENT OF GUAM, 15 Respondent, 16

17 and

Is PORTIA SEELY, PRISCILLA SHERFY, 19 JEANNE WIMETT, 20 FLORENCE HAIR, ANTHONY H. INOCENTES, trustee of the 21 Estate of Margarita H. Inocentes,

22 Real Parties in Interest. 23 INTRODUCTION 24 This matter was assigned to the Honorable James L. Canto II on August 11, 2014, and 25 came before the Judge on reversal and remand of a prior court's decision in Agana Beach 26 Condo. Homeowners' As sn v. Mafnas, 2013 Gu am 9 and Petitioners Agana Beach 27 Condominium Home Owners' Association, and Gerald Lopez's petition for writ of mandate, 28

Page 1 of 8 filed October 21, 2013. Having considered the parties' briefs and the applicable law, the Court

now issues the following Decision and Order.

BACK GRO UND A detailed factual and procedural background of this case prior to the instant petition for

6 writ of mandate can be found in Agana Beach Condo . Homeowners ' As s n v . M a f n a s, 20 13

7 Guam 9 ¶¶ 3-9 . In Agana Beach Co n d o ., the Supreme Co u rt o f Gu am' s maj o ri t y opinion held

8 that the prior court erred in the following manner:

9 The trial court erred when it denied the petition for writ of mandamus for lack of 10 st andi ng because the Ho meo wners are beneficially interested as adj o i ni ng l ando wners t o t he subject p roperty. The trial court also erred in denying the II petition for lack of subject matter jurisdiction because the trial court possesses subject mat t er j u ri sdi ct i o n o ver t he mandamus action seeki ng to annu l t he 12 Director's approval of a split-zone change. Improper verification was not grounds 13 t o di smi ss the case for lack of subject mat t er j u ri sdi ct i o n. On remand, the Homeowners shall have the opportunity to correct this defect. Furthermore, the 14 trial court erred in ruling the case was moot, because the only relief sought in the 15 petition pertained to the Director's actions in approving the split-zone change, and this relief has not yet b een afforded or obviated by the present zoning situation. 16 Lastly, although the trial court did not analyze the issue of indispensable parties, which was broached by the Director on appeal, we remand the case to proceed 17 after joining the successor Lessors, who we determine are necessary parties to the 18 Agana Beach Condo.,2013 Guam 9 ¶ 72. 19 Si nce the Gu am Su preme Co u rt ' s decision, Portia Seel y, Priscilla Sherfy, Jea nne 20 Wi met t , Florence Hair, an d Ant h o ny H. Inocentes, trustee o f th e Estate of Ma r ga rita H. 21 Inocentes, have been added to the case as real parties in interest. 22 On October 21, 2013, Petitioners filed a new verified petition for writ of mandate. 23 Citing Public Law 25-131 and 21 GCA § 61214, Petitioners argue that the then-Director of the 24 Depar t ment o f L a n d Management (hereinafter " D L M " ) wrongfully appro ved Marci ano V. 25 Pangilinan's request for a split-zone change, from dual-zoned Commercial and R-2, a multi- 26 family dwelling, to an entirely commercial zone, when Pangilinan was only a lessor and not a 27 pro pert y o wner. (Pet., 1-5, Oct. 21, 2013). 28

Page 2 of 8 On January 13, 2014, Respondent filed an opposition to the petition. Respo ndent argu es

that the legislative intent behind 21 GCA § 61214 allows a lessee to step into an owner's shoes.

(Opp'n Pet., 5, Jan. 13, 2014). Furthermore, Respondent contends that the terms of the lease grant lessee Pangilinan the rights of a property owner to develop the property, and that other jurisdictions support this interpretation. Id. at 6-7.

On February 4, 2014, Petitioners filed a reply. Petitioners reassert that Public Law 25- 1 3 1 , co di fi ed at 2 1 GCA § 61214, was enacted to provide relief to property owners of split-

8 zo ned lot s, no t lessees. (Repl y, 6-8, F eb. 4, 2014). Furthermore, Petitioners dispute

9 Respondent's theory that the lessee steps into the owner's shoes, claiming that the language of 10 the lease does not support Respondent's interpretation. Id . at 8-11.

1I

12 DISCUSSION 13 1. Petition for Writ of M andate 14 Unde r Gua m la w: "Mandamus relief is an extraordinary remedy employed in extreme

15 situations." A. B. Won Pat Guam Intern. Airport Auth ex rel. Board of Directors v. Moylan,

16 2005 Guam 5 ¶ 10 (quoting Guam Publ'ns, Inc. v. Super. Court, 1996 Guam 6 ¶ 10). A wri t o f

17 mandate may be issued by "any court, [except a commissioner's court or police court,] to any 18 inferior tribunal, corporation, board, or person to compel the performance of an act which the

19 law specially enjoins, as a duty resulting from an office, trust, or station." 7 G C A 31202 20 (2013).1 Put si mpl y, the "pri mary purpose o f mandamus i s the enfo rcement o f a plain,

21 nondiscretionary legal duty to act." Bank of Guam v. Reidy, 2001 Guam 14 ¶ 13 (citations

22 omitted). The burden is on the petitioner to show that a writ should issue. Gu a m E l ect i o n 23 Comm'n v. Responsible Choices for All Adults Coal., 2007 Guam 20 ¶ 26.

24 As a threshold issue: (1) Petitioners most show that there is no plain, speedy, and 25 adequate remedy at law, and (2) the petition must be a verified petition of the party beneficially

27 'Because 7 GCA § 31202 is derived from California Code of Civil Procedure §1085, California case law construing 28 the identical statute is persuasive. Guam Fed of Teachers r rel. Rector v. Perez, 2005 Guam 25 ¶ 23 (citations omitted).

Page 3 of 8 1 interested. 7 GCA § 31203 (2013). The Supreme Court of Guam has already determined in this

2 case t hat P et i t i o ners l ack a pl ai n, speedy, and adequ at e remedy at l aw and t hat mandamus is an

3 "appropriate remedy to seek redress of an alleged illegal action affecting the Homeowners' 4 rights." Agana Beach Condo., 2013 Guam 9 ¶ 32. Further, the Supreme Court of Guam found

5 that the Petitioners are beneficially interested due to their geographical nexu s as adjoining 6 landowners. Id. at ¶ 33. Given this plus the fact that the petition for writ of mandate filed

7 October 21, 2013 was a verified petition, Petitioners have met their initial burden. 7 G C A § 8 31203 (2013).

9 Seeking guidance from California case law, the Supreme Court of Guam has articulated

10 additional requirements which must be met before writ of mandate may issue. See Perez, 2 0 0 5

1I Guam 25 IN 23-28. In reviewing a petition for mandamus relief, the petitioner must also show 12 "(1) [a] clear, present and usually ministerial duty on the part of the respondent; and (2) [a] 13 clear, present and beneficial right in the petitioner to the performance of that duty." R ei d y, 2001

14 Guam 14 ¶ 14. Thu s "[m]andamus will not issue to compel performance of an act by one not 15 havi ng a cl ear, present, and usually ministerial duty to perform that act." Id. (citing Baldwin-

16 Lima Hamilton Corp. v. Super. Ct., 25 Cal.Rptr. 798, 805 (Ct.App. 1962)). Mandamus relief

17 seeks to enforce this nondiscretionary legal duty to act. Id .

18 In this case, the Court must determine whether the Director of DLM has a clear, present,

19 and usually ministerial duty to rescind an approval of a lessee 's split-zone change on the subject 20 property where both the former and current 21 GCA § 61214 entitles a "property owner" of a lot

21 with two separate zoning designations to select one of them to apply to the entire lot. Crucial to

22 the Court' s analysis is the meaning of "property owner" as used in 21 GCA § 61214.

24 II. The Me a ning o f " Property Owner"

25 At the time of Pangilinan's split-zone change application, 21 GCA § 61214 stated as 26 follows:

27 Whenever a lot has two (2) separate zoning designations within its boundaries, the 28 property owner shall have the right to select one of the two (2) zones and t o have it apply to the entire lot. Upon receiving a written request by a property owner to

Page 4 of 8 correct a split-zoning situation, t he Dire ctor o f the Depart ment o f Land Management shall approve the request, shall process all necessary documents to reflect the approval, and shall update all official maps of the Island to indicate the zone which the property owner has chosen. Agana Beach Condo., 2013 Guam 9 ¶ 5 n.3 (emphasis added) (citing 21 GCA § 61214 (2005)).2 T he pa rtie s dis pute the me a ning of "prope rty owne r. " Petitioners a rgue tha t Portia

Seeley, Priscilla Sherfy, Jeanine Witten, Florence Hair and Anthony Inocentes, trustee of the Estate of Margarita H. Inocentes, are the only property owners of the property in question.

(Reply, 4, Feb. 4, 2014). They assert that Pangilinan, as lessee, did not have authority to apply

for the zoning change under the language of the statute. Id. at 7-8. Respondent argues that the

legislative intent behind 21 GCA § 61214 allows a le ssee the right to s te p into the owne r's 10 sho es. (Opp'n Pet., 4-6, Jan. 13, 2014). Accordingly, Respondent posits that Pangilinan, as II lessee , had the right to apply for the zoning chan ge. Id . 12

13 a. Legislative Intent 14 In all cases involving statutory construction, the starting point of analysis is the language 15 employed by the legislature. American T obacco Co. v. Patterson, 456 U.S. 63, 68 (1982) 16 (citations omitted). Generally, courts assume "that the legislative purpose is expressed by the 17 ordina ry me a ning o f the words us e d. " Id . (ci t i n g R i ch a rd s v. United States, 369 U. S. 1 , 9 18 (1962)). Ho wever, this presumption i s subject to limitations. S ee G r i n v. Ocea n i c 19 Contractors, Inc., 458 U.S. 564, 571 (1982) ("[I]n rare cases the literal application of a statute 20 will produce a res ult demo nst rabl y at o dds wi th the intentions of its drafters, an d those 21 intentions must be controlling."). 22 23 r Former 2l GCA § 61214 was repealed and reenacted by Guam Pub. L. 31-098:2 (Sept. 30, 2011 ). Agana Beach 24 Condo., 2013 Guam 9 15 n.3. The wording was changed, but the current statute is substantially similar in effect. to. The current 21 GCA § 61214(a) provides as follows: 25 (a) Split- Zone Election. Whenever a lot is affected by a zoning boundary which creates two (2) separate zoning designations within its boundaries, the property owner of such affected lot shall 26 have the right to select one (1) of the two (2) zones, and to have it apply to the entire lot. Upon receiving a written request by a property owner in elect a zoning designation for the affected lot, 27 the Director of the Department of Land Management shall approve the request, shall process all necessary documents to reflect the approval, and shall update all official maps of Guam to indicate 28 the zone which the property owner has chosen. 21 GCA § 61214(a) (2013)(emphasis added).

Page 5 of 8 With respect to 21 GCA § 61214, the Committee Report on March 30, 2000 for Bill No.

367, de s igne d to add a ne w s e c tion c ha pte r 61 of the Gu am Co de Anno t at ed rel at i ve t o resolving split-zoned situations, sheds light on the legislative intent of the statute.3 The R epo rt

by t he Legi sl at i ve Co mmi t t ee o n Land, Agri cu l t u re, Mi l i t ary Affai rs and t he Art s pro vi des t hat

Bill No. 367 was introduced to remedy the problem that surfaced when single-family housing 6 was constructed, the building plans were approved, and building permits were issued, yet all in

7 violation of zoning law due to the "two hundred (200) foot" problem.4 (Decl. James M. Maher,

s Exhibit 1, Feb. 4, 2014). Thus the bill was introduced, and signed into law, to remedy such a 9 problem which might arise when structures are built on certain real property.

l0 In this case, paragraph 10 of the lease provides that Pangilinan, as tenant and lessee, has

r the right to "erect on said premises such building or structures as he desires." (Decl. James M.

12 Maher, E xhi bi t 6 , F eb. 4 , 2 0 1 4 ). Therefore, the Courts finds that a lessee who has the right to

13 bu i l d st ru ct u res o n l eased pro pert y fal l s wi t hi n t he pu rvi ew o f a st at u t e desi gned t o hel p t ho se

14 who constructed a building in light of the "two hundred (200) foot" problem inherent in a split-

15 zo ned lo t. Invariably, lessees with rights to erect buildings would be affected in the same 16 manner as lessors. To find otherwise would lead to pragmatic quagmires where a lessor, who

17 was granted the right to build structures and install fixtures and equipment as he desired, would

is be prevent ed fro m bu i l di ng any resi dent i al o r co mmerci al st ru ct u re, even t ho u gh he co nt ract ed

19 for that right in the lease and has full permission by the owner to do so. See People v. Taman,

20 2013 Gua m 2 2 ¶ 15 (considering pragmat i c qu agmi res and absu rd co nseq u ences wh en 21 interpreting the meaning of a statute). Thi s reaso ning falls in line with the legislature' s intent

22 as expressed in other zone change laws on Guam. See 21 GCA § 61632 ("A proposed [zone]

23 change my be initiated by the [Territorial Land Use] Commission or by an application directed

26 r Bill No. 367 was signed into law as Public Law No. 25-131. 27 4 The Committee Reports states: "The Chairman explained that he introduced the bill to correct action by previous legislatures who blanket rezoned private property along the major rights-of-ways and 200 feet into their boundaries 28 to the Commercial zone. This caused lots that straddled the 200 foot boundary line to be zoned both the old zone and the new commercial zone." Hence the Court's reference to the "two hundred (200) foot" problem.

Page 6 of 8 to the Commission by any person owning or leasing real property within the area covered by the zone.") (emphasis added).

b. Case Law in Other Jurisdictions

Furthermore, the Supreme Court of Guam has instructed that "[w]here a statute contains

an undefined term, it is useful to reference other courts' interpretation of that term." Carlston v.

Gu a m T el . Au t h ., 2002 Guam 15 ¶ 21 (citations omitted). There are no cases in this jurisdiction

that specifically address the meaning of "property owner" as set forth in 21 GC A § 61214.

9 Thus, the Court looks to courts in other jurisdiction for guidance.

10 The Supreme Court of Minnesota has articulated that an owner of real property includes

II a "person who has usufruct, control, or occupation of real estate, whether his interest in it is an

12 absolute fee, or an estate for years under a lease." Parker v. St. L. R. Co., 82 N.W. 673, 673 13 (Minn. 1900) (citations omitted). Accordingly, a tenant for a term of years is deemed an owner

14 of the property. Id. In the context of eminent domain, New York courts have held that an 15 owner of property includes "all persons having any estate, interest or easement in the property

16 to be taken, or any lien, charge or encumbrance thereon." People v. Thornton, 106 N.Y.S. 704,

17 705 (App. Div. 1907).

18 In the context of zoning regulations, Connecticut courts have recognized "the possibility

19 that a tenant for a great number of years may, because of such factors as the length and nature of

20 i t s t enancy, i t s fo rmal assu mpt i o n o f real est at e pro pert y t ax l i abi l i t y, and i t s abi l i t y, u nder i t s

21 lease, to deal with the property almost as if it were, in effect, a fee holder, be deemed an owner

22 o f t he pro pert y fo r pu rpo ses o f a part i cu l ar zo ni ng o rdi nance o r st at u t e." P erg a men t No rwa l k 23 Corp. v. Kaimowitz, 49 6 A.2d 217, 221 n.5 (Conn. App. Ct. 198 5). Kansas co u rt s have al so

24 held that a lessee may be considered a property owner. Bonanza, Inc. v. Mclean, 747 P.2d 792,

25 796 (Kan. 1987).

26 Considering the cases in other jurisdictions and that (1) the lease term is for a period of

27 sixty (60) years, (2) the lessee is responsible fo r the utility charges and the real estate taxes on

28 the property, and (3) the lessee has the right to erect buildings and structures at will on the

Page 7 of 8 property, the Court finds that lessor Pangilinan had the right to apply for a split- zone change as

a "property owner" as that term is contemplated by the statute (See Decl. James M. Ma he r, E xhi bi t 6 , F eb. 4 , 2 0 1 4 ). Correspondingly, the Court finds that the Director of DLM had the

ri ght , i f no t t he affi rmat i ve du t y, t o appro ve t he appl i cat i o n. Therefore, the Director of DLM

ho l ds no clear, pres ent, an d usually ministerial du t y to resc ind the appro val o f lessee

P angelinan ' s split-zone change on the subject property. See Reidy, 2001 Guam 14 ¶ 14.

For these reasons, Petitioners' petition for writ of mandate is denied.

9 ///

10 //

II CONCLUSION 12 Based upon the foregoing, Petitioners Agana Beach Condominium Home Owners' 13 Association and Gerald Lopez's petition for writ of mandate is hereby DENIED. 14

15 SO ORDERED this I67Hday of September, 2014. 16

18 HONORABLE JAMES L. CANTO II 19 Judge, Superior Co urt o f Gua m 20 21 22 23 24 25

26 SERVICE VIA COURT BOX 27 I actnc.dedge Nn a copy of the original hello was plaud in the

28 £! S D

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