Elysian Heights Residents Ass'n v. City of Los Angeles

182 Cal. App. 3d 21, 227 Cal. Rptr. 226, 1986 Cal. App. LEXIS 1688

• Court: California Court of Appeal
• Decided: June 6, 1986
• Docket: B017422
• Status: Published

Opinions

Opinion

COMPTON, Acting P. J.

Elysian Heights Residents Association, Inc., et al., hereinafter appellants, appeal from a judgment of the superior court denying their petition for administrative mandamus. (See Code Civ. Proc., § 1094.5.) By way of this petition, appellants sought the revocation of a building permit issued by respondents City of Los Angeles et al. (City) to Morton Park Associates (Morton) for the construction of a three-story, forty-five unit apartment complex. Pursuant to appellants’ request, and in order to preserve the status quo, we stayed further development of the project pending the outcome of this appeal. We now affirm the judgment and vacate the stay order.

The essential facts are not in dispute and may be summarized as follows. The subject property, located on Morton Avenue in the Elysian Park area of Los Angeles, consists of 5 lots approximately 250 feet in length and 150 feet in width. Morton first became interested in purchasing the parcel for development in March 1984, after reviewing the applicable zoning ordinances and finding that an apartment building with a maximum of 46 units could be constructed on the property. With its investigation completed, and apparently unaware of any specific challenges to, or plans to change, the existing zoning, Morton agreed to purchase the land for $450,000. Following the opening of escrow in April 1984, Morton prepared and submitted architectural and soil plans for the project to the department of building and safety; applied for grading, demolition, and building permits; and obtained approval of purchase money and construction loans in an amount exceeding $1.8 million.

Several months later, in August 1984, escrow closed and Morton was issued grading and demolition permits for the project. After receiving its building permit the following October, the developer demolished three existing structures on the property, commenced clearing and grading operations, excavated and recompacted the soil in accordance with the plans submitted to building and safety, and poured over 140 cubic yards of concrete footings for the foundation. While proceeding with this work, Morton also entered into various contracts with construction contractors and subcontractors for labor and materials needed for the project.¹

In late October 1984, appellants, who were aware of the project and had been monitoring its progress through their city council representative for several months, first attempted to halt construction by appealing the issuance of the building permit to the board of zoning administrators on the ground that the size of the proposed apartment complex exceeded the density limits specified in the City’s general plan for the Silver Lake-Echo Park area.² The applicable provisions of that plan classified the project site as “low-medium one residential,” allowing for seven to twelve dwelling units per gross acre.³

In December 1984, while the administrative appeal was still pending, the department of building and safety, pursuant to the terms of an ordinance imposing a moratorium on all projects which exceeded the zoning and height requirements of the district plan, ordered Morton to immediately cease all construction work. At approximately the same time various homeowner associations filed an action in superior court, entitled Federation of Hillside Canyon Associations, Inc. et al. v. City of Los Angeles (L.A. Super. Ct. No. 526,616), to prevent the City from issuing building permits for development of property inconsistent with the general plan. Before this matter could be heard, however, the zoning administrator ruled on appellants’ appeal, finding that building and safety did not err or abuse its discretion in issuing Morton’s building permit.⁴ This decision was immediately challenged by an appeal to the City’s board of zoning appeals. In the interim, the board of building and safety commissioners conducted a hearing to determine whether Morton had a vested right to continue its construction pursuant to the terms of the City’s moratorium ordinance. Although the commissioners eventually found that vested rights had accrued, a finding required by the moratorium ordinance before construction would be allowed to continue, they stayed their decision pending the outcome of the appeal to the board of zoning appeals.

In January 1985, the superior court, in ruling on the Federation of Hillside Canyon Associations case, supra, issued a writ of mandate requiring the City to bring its zoning ordinances into conformity with the general plan, but denied the petitioners’ request for an injunction against the issuance of building permits for inconsistent development. As a result, in April 1985, the City enacted the interim permit consistency ordinance which generally prohibited the department of building and safety from issuing permits which deviated from the .requirements of the plan. Section 4C of the ordinance exempted those projects: “(1) For which architectural and structural plans sufficient for a complete plan check for a permit for such development were accepted by the Department of Building and Safety and for which a plan check fee was collected on or before the effective date of the ordinance [April 3, 1985], and (2) For which no subsequent changes are made to those plans which change the height, floor area, occupant load, number of dwelling units or number of guest rooms.”

On April 16, 1985, the zoning administrator’s ruling on the legality of Morton’s building permit became final when the board of zoning appeals failed to act on the appeal. The following day appellants filed their petition for administrative mandamus and injunctive relief in the trial court. In denying the relief requested, the court, without specifically referring to the City’s consistency ordinance, determined that because of respondents’ conduct in granting the permit and the expenditures made by Morton prior to the commencement of this litigation, it would not be equitable to terminate the project.⁵ This appeal follows.

We first consider appellants’ contention that the disputed building permit was issued in violation of state statute and was thus void ab initio and must be revoked. The major thrust of appellants’ argument in this regard is that building permits, to be validly issued, must be consistent with a municipality’s general plan. It is, therefore, necessary to determine whether Government Code section 65860 mandates such conformity.

(2) We begin our analysis with the fundamental rule that a court, in interpreting a statute, should ascertain the intent of the Legislature so as to effectuate the purpose of the law. “In determining such intent ‘[t]he court turns first to the words themselves for the answer. ’ [Citation.] We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.] ‘If possible, significance should be given to every word, phrase, sentence and.part of an act in pursuance of the legislative purpose.’ [Citation.] ‘[A] construction making some words surplusage is to be avoided.’ [Citation.] ‘When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’ [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]” (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231 [110 Cal.Rptr. 144, 514 P.2d 1224].)

Applying the foregoing principles to the case at bench, we first note that in recent years the Legislature has enacted a number of statutes as part of the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), the combined effect of which is to require that cities and counties adopt a general plan for the future development, configuration, and character of a city and county and require that future land use decisions be made in harmony with that general plan. (City of Los Angeles v. State of California (1982) 138 Cal.App.3d 526, 530 [187 Cal.Rptr. 893]; Bownds v. City of Glendale (1981) 113 Cal.App.3d 875, 880 [170 Cal.Rptr. 344].) These requirements, forming what is generally referred to as the consistency doctrine, promote a particular nexus between land-use plans and government regulation of land use, such as zoning and subdivision map approval.

The doctrine has its roots in the language of the Standard Zoning Enabling Act (U.S. Dept. of Commerce, The Standard State Zoning Enabling Act, 1922 [rev. ed., 1926.]), which provides that zoning shall be done “in accordance with” a comprehensive plan. (See DiMento, Improving Development Control through Planning: The Consistency Doctrine (1978) 5 Colum. J. Envtl. L. 1.) Under this historical antecedent of the consistency doctrine, violations of the “in accordance with” language were found when (1) only selected areas within a municipality were regulated by zoning; (2) zoning was done by means of an interim ordinance that was enacted by legally questionable government practices; or (3) the zoning ordinance failed to control one or more of the factors it was intended to regulate. (See DiMento, Developing the Consistency Doctrine: The Contribution of the California Courts (1980) 20 Santa Clara L.Rev. 285, 286.)

California’s state planning laws took what some may consider a giant step forward when the Legislature, in 1973, mandated that zoning changes and subdivision approvals be consistent with the local general plan, and that the plan itself be internally consistent. (Lefcoe, California’s Land Planning Requirements: The Case for Deregulation (1981) 54 So. Cal.L.Rev. 447, 488.) Although the Planning and Zoning Law establishes the authority of most local government entities to regulate the use of land (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518-519, fn. 18 [113 Cal.Rptr. 836, 522 P.2d 12]), it commands municipalities to adopt “a comprehensive, long-term general plan for the physical development of the county or city . . . .” (Gov. Code, § 65300.) The plan itself must include, inter alia, a statement of policies, and nine specified elements: land use, circulation, housing, conservation, open-space, seismic safety, noise, scenic highway, and safety. (Gov. Code, § 65302.) Section 65566 requires that acquisition, regulation, and any other actions of the local government related to open space conform to the local open-space plan. Under section 65567, building permits, subdivision maps, and zoning ordinances affecting open space must be consistent with the open space plan. Section 65803 exempts charter cities from the consistency statutes unless they adopt these requirements or fall within the provisions of section 65860. And, sections 66473 and 66474 set forth various requirements for attaining subdivision consistency with general and specific plans.

Most relevant here, of course, is section 65860, which generally requires that county or city zoning ordinances be consistent with the general plan of the county or city, and allows private citizens to bring suit to enforce consistency of zoning with the general plan. Subdivision (d) specifically makes the statute applicable to Los Angeles and establishes a time table for bringing the City’s zoning ordinances into conformity with the general plan.⁶

As can be seen, neither the language of section 65860 nor the statutory scheme in general mandates that building permits be scrutinized for plan consistency. Indeed, had the Legislature intended to fashion such a requirement, it clearly had the power to do so. In this regard, the State Planning and Zoning Law specifically prohibits the adoption or issuance of permits, subdivision maps, or zoning ordinances that are inconsistent with open space plans;⁷ requires that tentative subdivision tract maps be drawn in conformity with the general plan (Gov. Code, § 66474.61, subd. (a)); and allows a court to enjoin issuance of all permits where a general plan is found to be inadequate. (Gov. Code, § 65755.) There is, however, nothing in the legislative history of section 65860 to suggest that the Legislature intended to prohibit the issuance of building permits for projects consistent with the zoning of a particular community but not the general plan. Moreover, there is no mention of any remedies available to halt construction of projects which are not in conformity with the general plan, and no sanctions are provided for noncompliance with section 65860, subdivision (d).

Generally, the enumeration of acts or things as coming within the operation of a statute precludes the inclusion by implication of other acts or things not listed. (Western Pioneer Insurance Co. v. Estate of Taira (1982) 136 Cal.App.3d 174, 181 [185 Cal.Rptr. 887].) Applying this rule to the instant case, we think it clear that the Legislature has purposefully failed to prohibit the issuance of building permits while the consistency process is being implemented. In the absence of any such provision it would ill-behoove any court to indirectly mandate the withholding of permits that are not in conformity with a municipality’s general plan. If the Legislature desires such consistency, it should specifically say so.

Recognizing that amending zoning ordinances to make them consistent with a general plan would take time, the Legislature added subdivision (c) to section 65860 which states; “In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such plan, or to any element of such plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended. ” (Italics added.) The trial court had before it evidence that in 1982 the City had approximately 200,000 lots which had zoning inconsistent with the applicable general plan. If appellants’ contentions were correct, no new building permits could be issued until all inconsistently zoned lots were made to conform to the provisions of the general plan. This would bring new construction in the City to a grinding halt and cause economic havoc. As one commentator has aptly observed, “Halting construction for the years it takes to adopt a general plan [or amend zoning ordinances] works great hardship. During those years of delay, some projects that were once economically feasible will become impracticable. Even those projects that survive the de facto moratorium will be costly to consumers if developers are able to recoup their increased land holding, construction, and borrowing costs through higher prices. For buyers priced out of the market by these delays, the loss may be irretrievable; anyone who doubts it should talk to a renter who could have afforded a house some years ago, but who had been left behind by rising prices. Neither the courts nor the Legislature seem to have understood who really pays the price when zone changes, building permits, and subdivision approvals are withheld pending the adoption of a general plan.” (Lefcoe, California’s Land Planning Requirements: The Case for Deregulation, supra, 54 So. Cal.L.Rev. 447, 489.)

The decision of the Court of Appeal in Hawkins v. County of Marin (1976) 54 Cal.App.3d 586 [126 Cal.Rptr. 754] supports the conclusions reached here. In that case, a religious, social service group sponsored a plan for constructing federally subsidized multiunit housing for the elderly on land owned by an affiliate of the Roman Catholic Church in an area zoned for single-family residences. After an unsuccessful first attempt, the group secured a conditional use permit. Two years after the permit was issued, landowner neighbors of the proposed development brought suit against the county, contending that the project was impermissible under the property’s zoning and, if not, then the county’s zoning regulations were inconsistent with its general plan. The thrust of the argument was that conditional use permits, as well as zoning ordinances, must be consistent with county general plans.

The court readily disposed of the consistency argument by reference to section 65860 and related statutes. “Since use permits issued pursuant to [the] Marin County Code . . . must necessarily conform to its requirements, it follows that if the code section is kept consistent with the general plan, use permits issued thereunder will also be consistent therewith. There is no requirement, however, that such permits themselves be reviewed for consistency with the plan under section 65860. [1Í] As noted, section 65860 applies to zoning ordinances. It says nothing about permits issued pursuant to such ordinances. That a conditional use permit is not an ordinance is obviously true. . . . Moreover, since statutes related in purpose to section 65860 expressly require plan consistency for subdivision maps [citation] and, . . . [open space] projects requiring a building permit [citation], the failure of section 65860 to create a parallel requirement for conditional use permits is significant. We conclude that, in this case, section 65860 is inapplicable to the use permit issued by the County of Marin.” (Hawkins v. County of Marin, supra, 54 Cal.App.3d 586, 594-595.)

Appellants’ reliance on Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176 [203 Cal.Rptr. 401], is totally misplaced. There, a citizens’ group sued Calaveras County and a construction company challenging the issuance of a conditional-use permit for the processing of hydraulic mine tailings in the production of sand and gravel. The complaint alleged the permit was invalid because the noise and safety element of the county’s general plan did not comply with state statutes. The court held that the use permit was ultra vires if the county’s general plan lacked elements required by state law relevant to the use sought. (Id., at p. 1184.)

These facts are inapposite to the case at bench. Appellants have not nor cannot allege that the City’s general plan is in violation of state statute. Rather, appellants want the building permits declared void because the zoning was, and apparently remains inconsistent with the Silver Lake-Echo Park district plan. What appellants fail to grasp, however, is that Morton obtained its building permit consistent with then existing zoning laws. Given the basis for the court’s decision in Neighborhood Action, supra, the case provides no support for appellants’ contention that section 65860 requires consistency review of building permits.

We also think it clear that Morton’s permit was issued in complete compliance with the City’s land use regulations. At the time of issuance nothing in the Los Angeles Municipal Code (LAMC) required consistency between building permits and the general plan. LAMC section 12.21(a)(1)(a) merely mandated conformity between permits and the applicable zoning ordinances.⁸ As previously noted, Morton’s plan to construct a 45-unit apartment complex was in complete accord with then existing zoning laws. Once an applicant has complied with the appropriate land use regulations, the department of building and safety has no discretion to deny issuance of a permit. (LAMC § 81.0203.)

The City’s interim ordinance, which does require permit/plan consistency, was given only prospective application and thus did not affect the validity of Morton’s permit. After balancing competing interests, the city council properly determined that projects which had been approved prior to the ordinance’s effective date, and did not vary from their originally approved plans, were entitled to go forward. As found by the trial court in the Federation of Hillside Canyon Associations case, supra, the enactment of the interim ordinance represented a good faith effort by the City to bring its regulations into substantial compliance with state law. Zoning ordinances are, of course, presumed to be a valid exercise of the police power with every intendment in favor of their validity. “The wisdom of the prohibitions and restrictions is a matter for legislative determination, and even though a court may not agree with that determination it will not substitute its judgment for that of the zoning authorities if there is any reasonable justification for their action.” (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461 [202 P.2d 38, 7 A.L.R.2d 990].) We agree with respondents that for this court to now say that the issuance of Morton’s building permit constituted an abuse of discretion would seriously undermine the city council’s authority to enact land use regulations and invite a further, unending spiral of litigation. It must be remembered that the plan which appellants view as sacrosanct was itself a creature of the City and presumptively can be changed by the City.

Having concluded that the State Planning and Zoning Law does not preclude issuance of permits which may be inconsistent with a community’s general plan, and that Morton’s building permit was issued in compliance with city ordinances, we need not discuss appellants’ remaining contentions.

The judgment is affirmed and the stay order is vacated.

Beach, J., concurred.

1 The value of these contracts represented approximately one-half of the total construction costs. Pursuant to the terms of the agreements, Morton also became liable for all penalties or losses incurred by the subcontractors, and for damages sustained by either the contractors or subcontractors resulting from any breach by the developer.

2 The City’s general plan consists of 35 community or district plans, each for a separate geographic area, which set forth objectives, policies, programs, and planned development for the next 20 years. The most recent Silver Lake-Echo Park district plan, approved by the city council in February 1984, states in pertinent part: “This Plan proposes approximate locations and dimensions for land use. The Plan is not an official zone map and while it is a guide it does not imply any right to a particular zone or to the land use permitted therein. . . . Inasmuch as the Plan shows land use projected as much as 20 years into the future, it designates conditionally more land in some areas for different land uses than may be desirable for many years, [f ] The Plan is subject to periodic review and amendment to reflect changes in circumstances.” (Italics added.)

3 Based on the size and location of the subject property, the district plan would permit Morton to construct a 12-unit apartment building.

4 In arguing their appeal, appellants relied on Government Code section 65860, which requires, inter alia, the City to make its zoning ordinances consistent with the general plan by July 1, 1982. By the time this deadline passed, the zoning on approximately 200,000 parcels of land, scattered throughout the city limits, remained inconsistent with the land uses detailed in the plan. Similar to the position advanced by the petitioners in the Federation of Hillside Canyon Associations case, supra, appellants maintained that because the City had failed to comply with section 65860, it was precluded from issuing Morton’s building permit, and therefore the permit itself was invalid when issued. The zoning administrator flatly rejected these arguments.

5 The trial court’s minute order reads as follows: “The petition for writ of mandate is denied. [1[] The court determines that given the conduct of respondent city in issuing the permits and the expenditures made in anticipation of such issuance and, thereafter, and prior to the date of commencing this proceeding, it would not be equitable toward real party in interest [Morton] to require the project to be terminated. The court declines to rule that the lack of conformity between the project and the applicable community plan renders the permit void. The record . . . supports Morton’s claim that it had spent substantial sums of money prior to this litigation and indeed prior to the moratorium. The harm to the petitioners [appellants herein] from the existence of the structure is of a more intangible sort. In addition, it is entirely possible that amendments to the community plan may, in the future, bring the project into line with the plan.”

6 Government Code section 65860, subdivision (d) provides: “Notwithstanding Section 65803, this section shall apply in a charter city of 2,000,000 or more population to a zoning ordinance adopted prior to January 1, 1979, which zoning ordinance shall be consistent with the general plan of such city by July 1, 1982.” This subdivision has been amended by the Legislature in 1979 to allow the City additional time to bring its zoning ordinances into conformity with the general plan. Before this change in the statutory language a previous amendment had required the City to establish consistency by January 1, 1981.

7 Government Code section 65567 reads as follows: “No building permit may be issued, no subdivision map approved, and no open-space zoning ordinance adopted, unless the proposed construction, subdivision or ordinance is consistent with the local open-space plan.” (Italics added.) This provision is not applicable to Los Angeles, a charter city. (See Gov. Code, §§ 65700 and 65803.)

8 LAMC section 12.21(a)(1)(a) provides in pertinent part: “No building or structure shall be erected, . . . nor shall any building structure or land be used or designed to be used for any use other than is permitted in the zone in which such building, structure or land is located. . . .”