San Francisco Planning & Urban Renewal Ass'n v. Central Permit Bureau

30 Cal. App. 3d 920, 106 Cal. Rptr. 670, 1973 Cal. App. LEXIS 1263

• Court: California Court of Appeal
• Decided: February 28, 1973
• Docket: Civ. 31380
• Status: Published

Opinions

Opinion

CALDECOTT, J.

This is an appeal from a judgment of the Superior Court of the City and County of San Francisco denying appellants San Francisco Planning and Urban Renewal Association and individual petitioners (hereinafter referred to as SPUR), a writ of mandate. Appellants sought an order revoking a permit the City and County of San Francisco had granted to the real party in interest San Francisco Chatmar Associates (Chatmar), for the construction of a highrise hotel.

On November 26, 1971, a petition for writ of mandate was filed in the Superior Court of the City and County of San Francisco by SPUR. The petitioner requested that the respondents City and County of San Francisco Central Permit Bureau, Planning Commission and Board of Permit Appeals (hereinafter Agencies) revoke a site permit granted to Chatmar Associates for construction of a Holiday Inn Hotel. The writ was requested on the ground that the proposed building violated the height and bulk limitation of the “Urban Design Plan.” The petition was denied and judgment entered on December 13, 1971. The appeal is from the judgment.

On August 26, 1971, the city planning commission, by resolution, adopted, as an amendment to the Master Plan of the City and County of San Francisco, the “Urban Design Plan” which had been under study for several years. The plan was first published in May of 1971; public presentation had been made in May; and hearings held in July. On August 26, 1971, the city planning commission also adopted a resolution which declared its intention to reclassify property in accordance with the bulk and height limitation of the Urban Design Plan. Recognizing that additional study of the plan was necessary, the commission adopted for its guidance, until the board of supervisors enacted the proposed plan, an “outline of interim, height and bulk controls.” Approximately one year later, on July 31, 1972, the board of supervisors adopted the Urban Design Plan, and the ordinance was signed into law by the mayor on August 18,1972.

On June 21, 1971, Chatmar filed a site permit application for a Holiday Inn at the corner of Pine Street and Van Ness Avenue in San Francisco. Chatmar had first informally approached the San Francisco Planning Department in the middle of 1969 with a proposed highrise hotel for that location. Chatmar purchased the land in November 1969 and in May 1970. In July 1970, the planning department staff advised the developers that, although their amended proposal did not violate the existing zoning laws, it would not be in accord with the height and bulk restrictions of the forthcoming Urban Design Plan. The developers did not apply for a permit at that time and had no further contact with the planning department until one year later when they filed their application for a site permit. The developers stated that they had been engaged in obtaining financing during this period.

The site permit was not issued by the central permit bureau at the time the application was made, because the preliminary plans disclosed the building would greatly exceed the height and bulk guidelines of the Urban Design Plan. The application was then called up for a decision by the planning commission.¹

At its regular meeting on September 16, 1971, the planning commission considered reports on the project, the effect of section 302(e) of the city Planning Code and the Urban Design Plan.

The record is clear that the plans submitted by Chatmar complied with the existing zoning laws. It is also clear that the plan differed substantially from the provisions of the Urban Design Plan, particularly as to the height and bulk of the building. At the hearing it was the director of planning’s interpretation that the interim controls of August 26, 1971 did not apply to the Chatmar project.

At the hearing, witnesses, both for and against approval of the application for the permit, appeared. Those favoring the granting of the permit pointed out the economic benefits to the city to be derived from the project and those opposed spoke of the undesirable effects of the project on the residential character of the neighborhood and the unfortunate effect on the city because of its height and bulk. The planning commission approved the application. The permit was issued on October 14, 1971.

Appellants appealed to the permit appeals board which, in a de novo hearing on November 8, 1971, concurred in the planning commission’s decision. No additional evidence was taken at this hearing. A request for rehearing was denied on November 22, 1971. On November 26, 1971, the petition for writ of mandate was filed in the superior court commencing the judicial procedures upon which this appeal is based.

The following are the issues raised, on this appeal.

I. Are the respondent zoning Agencies bound to apply the interim zoning controls in existence at the time of their respective hearings on the site permit application?

II. Did the board of permit appeals fail to follow the procedures, prescribed by the Charter of the City and County of San Francisco for obtaining a variance from the zoning ordinance?

III. Does the “Due Process” clause require that the board of permit appeals make findings of fact when exercising its appellate powers?

IV. Are amendments to the Planning Code adopted subsequent to the final administrative agency’s action binding upon the appellate court?

V. Was an environmental impact report required in this case?

I

Are the respondent zoning Agencies bound to apply the interim zoning controls in existence at the time of their respective hearings on the site permit application?

Section 302(e) of the Planning Code of the City and County of San Francisco cited by appellants provides in part: “302(e) Effect upon permit applications. No application for a building permit ... or for any other permit ... for a new use of property, filed subsequent to the day that ... a resolution of intention has been adopted for the reclassification of such property . . . shall be approved by the Department of City Planning while proceedings are pending on such reclassification . . . unless the construction and use proposed . . . would conform both to the existing classification of such property . . . and also to the different classification . . . under consideration in those proceedings; . . .” (Italics added.)

The basic contention of the appellants is that the respondent Agencies were required under section 302(e) to apply the interim zoning controls in effect at the time of their action and that the Agencies did not have discretion to disregard these controls merely because a site permit application was filed before the controls were enacted. This contention is repeated, in various forms, throughout the appellants’ argument as though the mere repetition of a false premise will endow it with credence.

We are unable to agree with appellants’ interpretation of section 302(e). The wording of the section is clear. The section provides that no application for a building permit filed subsequent to the resolution of intention shall be approved. It is undisputed that the proposed building of Chatmar complied with the requirements of the existing zoning laws and in fact the plans were modified so that they would comply. The power and authority of the planning commission are set out in the city charter and the Planning Code. There is, however, in section 302(e), if certain conditions exist, a restriction on the power to issue a building permit. Those conditions are: (1) that a resolution of intention has been adopted by the planning commission and, (2) the application for the building permit was filed subsequent to the adoption of this resolution. Both conditions must be present. Here, there is no question that a resolution was adopted but it is equally clear that the application was filed prior to, not subsequent to, the date of adoption. Thus section 302(e) is not applicable. Appellants attempt to circumvent the provisions of this section by claiming there is an ambiguity in the section or that a loophole was intentionally created. However, the legislative history of the section shows that the board of supervisors was aware of the section and as recently as 1968 considered a proposed amendment to the section and refused to adopt it.

Appellants emphasize that public policy disfavors nonconforming uses. This is a correct statement of the law but appellants overlook the fact that at the time the permit was granted and for almost a year thereafter the law was not the proposed law that appellants refer to, but the existing Planning Code and Chatmar’s proposed structure conformed to the existing law.

We will not discuss in detail the other arguments raised by appellants concerning section 302(e). Basically their position would require a rewriting of section 302(e) by this court to delete the requirement that the application for a permit be filed subsequent to the adoption of a resolution of intention. Appellants apparently would have the section provide that before approval an application must comply with both the existing law and the proposed changes. As previously stated this was not the intention of the section and the board of supervisors actually went out of its way to limit the effect of the section to “subsequent applications.” If the intention were to apply it to all permits, prior and subsequent, this could have been accomplished by simply omitting a few words. This was not done.

Appellants claim that even if the Agencies had discretion to approve the application they were bound to follow the proposed Urban Design Plan as the standard upon which to base an exercise of discretion. This argument was raised in City & County of S. F. v. Superior Court, 53 Cal.2d 236, 252 [1 Cal.Rptr. 158, 347 P.2d 294], and the court stated that it was proper to follow the standard prescribed by the existing law, as was done in this case. The fact that the Agencies could use the proposed law as a standard, in certain situations, is immaterial here as they did not and were not required to do so.

Appellants maintain that the mere filing of an application under section 302(e) does not create a vested right in the permit. Neither respondents nor Chatmar claim that it does. Here, all the filing did was to exempt the application from the restriction of section 302(e); the vested right was a different matter. However, as respondents were exempt from the interim controls under section 302(e) the permit was legally issued. As the permit was legally issued and as substantial work was done under the permit after it became final and before the ordinance was amended, a vested right was obtained in the permit and future changes in the height and bulk limitations in the zoning laws would not affect it.

Appellants claim that the interim controls provided for in section 302(e) have been recognized by the California Supreme Court as a legitimate method of preventing the creation of nonconforming structures just prior to zoning laws. However, it is not necessary to misread section 302(e) to accomplish this. In Russian Hill Improvement Assn. v. Board of Permit Appeals, 66 Cal.2d 34 [56 Cal.Rptr. 672, 423 P.2d 824], the court pointed out that the rush for permits before a new zoning ordinance can be adopted is defeated by holding that the board of permit appeals applies the law in effect at the time of its approval. This would mean that in most cases the new zoning ordinance would become effective before the final administrative action on the permit had been completed. As the board of permit appeals applies the law in effect at the time of its approval, the last-minute permit applications would have to comply with the new law. In the present case the new law did not go into effect before the final administrative action because, as the planning commission stated, additional study and hearings on the proposal were necessary. In fact the new law did not become effective for over a year after Chatmar’s application was filed. It is questionable if tills could be termed a last-minute application, considering that it was filed a year before the law was amended.

II

Did the board of permit appeals fail to follow the procedures, prescribed by the Charter of the City and County of San Francisco for obtaining a variance from the zoning ordinance?

Amicus curiae argues that although the proposed building complied with the zoning ordinances in effect at the time the site permit application was filed, that when the board of permit appeals heard and ruled on the petitioners’ application, the interim limitations of the Urban Design Plan were in effect, and thus a variance would be required. The amicus curiae points out that under Russian Hill Improvement Assn. v. Board of Permit Appeals, supra, 66 Cal.2d 34, 46, “. . . the Board of Permit Appeals in its de novo review is bound to apply the zoning ordinances in effect at the time of its final decision, not those in force at the time of preliminary proceedings before any subordinate agency.” The fallacy of amicus cmiae’s argument lies in the fact that it assumes that this application was subject to the interim limitations of the Urban Design Plan. As we have stated above, the interim limitations did not apply to this application and the board of permit appeals properly applied the zoning ordinances in effect at the time of its decision. As the building complied with the requirements of those ordinances, a variance was not necessary and in fact could not have been granted by the administrative agency as a variance is granted only for an exception to the existing zoning code. Thus the question of a variance is not applicable to this case.

III

Does the “Due Process” clause require that the board of permit appeals make findings of fact when exercising its appellate powers?

The amicus curiae contends that specific findings are required by the charter and Planning Code in cases such as the instant action in which the purport of the board’s decision is to grant a variance.

As previously stated no variance was required in this case and none was granted. Furthermore, no provision of the charter or Planning Code has been cited that requires that findings be made. In fact, the court stated in City & County of S. F. v. Superior Court, supra, 53 Cal.2d 236, at page 241, footnote 2, “Neither the San Francisco charter nor related sections of the municipal code governing permit procedure provide for the making of any findings of fact by the central permit bureau on original applications or by the board of permit appeals.” The three cases cited by amicus curiae are of no help. California Motor Transport Co. v. Public Utilities Com., 59 Cal.2d 270 [28 Cal.Rptr. 868, 379 P.2d 324] and May-Day Realty Corporation v. Board of Appeals (1970) 107 R.I. 235 [267 A.2d 400], are based on specific code sections that require findings of fact to support a decision. As stated above, there is no such legislative requirement affecting the Agencies here concerned. In the third case cited, Goldberg v. Kelly, 397 U.S. 254 [25 L.Ed.2d 287, 90 S.Ct. 1011], the court stressed the grave consequences of the termination of the only means of livelihood of a welfare recipient and the necessity of due process protection at the initial termination hearing. The court stated at page 271 [25 L.Ed.2d at p. 301], “. . . the decision maker’s conclusion as to a recipient’s eligibility must rest solely on the legal rules and evidence adduced at the hearing. [Citations.] To demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on [citation], though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.” The court distinguished termination of welfare payments from “the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are included.” As the court pointed out it required a statement of the reasons, not formal findings of fact, for the administrative agency decision to insure, in welfare payment cases, that the decision rested solely on legal mies and evidence adduced at the hearing. There is no indication in Goldberg, in fact the indication is to the contrary, that findings of fact would be required of an administrative agency in a zoning hearing.

ÍV

Are amendments to the Planning Code adopted subsequent to the final administrative agency’s action binding upon the appellate court?

Appellants maintain that where there is a change in statutory law during a mandamus proceeding or an appeal therefrom, the appellate court must apply the law in effect at the time of its decision, citing City & County of S. F. v. Budde, 139 Cal.App.2d 10 [292 P.2d 955, 294 P.2d 503], and Renken v. Compton City School Dist., 207 Cal.App.2d 106 [24 Cal.Rptr. 347]. Appellants point out that this rule has been held applicable in zoning matters, citing Wheat v. Barrett, 210 Cal. 193 [290 P. 1033] and West Coast Advertising Co. v. City & County of San Francisco, 256 Cal.App.2d 357 [64 Cal.Rptr. 94], Appellants further contend, in the instant case, that section 150(d) of the San Francisco Planning Code² does not create an exception to this principle of administrative law because section 150(d) is not applicable until the permit is “lawfully granted” and a permit is not “lawfully granted” until a final decision is made in the review process, which includes judicial review. This contention is without merit. Russian Hill Improvement Assn. v. Board of Permit Appeals, supra, at page 43, held that a permit is lawfully granted as of the date of completion of all administrative action. Thus section 150(d) is controlling here and the subsequent amendments to the Planning Code are not applicable.

The two cases cited by appellant, Wheat v. Barrett, supra, 210 Cal. 193 and West Coast Advertising Co. v. City & County of San Francisco, supra, 256 Cal.App.2d 357, are distinguishable. In each of these cases the permit had not been issued, the proposed structure did not conform to the law, and no construction had been commenced. The court in the mandamus action did not compel the issuance of a permit for a structure that did not comply with the law. In the present case, the proposed building did comply with existing law.

Respondents also point out that even if this court were bound by the Planning Code as amended, sections 302(f) and 302(g) continue the immunity to revocation of their lawfully granted permits established by section 150(d). However, as previously stated, the amendments to the code, including these two sections do not apply here.

V

Was an environmental impact report required in this case?

Appellants further contend that the respondent Agencies failed to require an environmental impact report pursuant to the provisions of the Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) and cites Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 [104 Cal.Rptr. 761, 502 P.2d 1049] in support of this contention. The December 5, 1972, amendments to the Environmental Quality Act (§§ 21065, 21169, 21170 and 21171) are dispositive of this issue. The recently enacted amendments state: “21169. Any project defined in subdivision (c) of Section 21065 undertaken, carried out or approved on or before the effective date of this section and the issuance by any public agency of any lease, permit, license, certificate or other entitlement for use executed or issued on or before the effective date of this section notwithstanding a failure to comply with this division, if otherwise legal and valid, is hereby confirmed, validated and declared legally effective. . . . 21170. (a) Section 21169 shall not operate to confirm, validate or give legal effect to any project the legality of which was being contested in a judicial proceeding in which proceeding the pleadings, prior to the effective date of this section, alleged facts constituting a cause of action for, or raised the issue of, a violation of this division and which was pending and undetermined on the effective date of this section; provided, however, that Section 21169 shall operate to confirm, validate or give legal effect to any project to which this subdivision applies if, prior to the commencement of judicial proceedings and in good faith and in reliance upon the issuance by a public agency of any lease, permit, license, certificate or other entitlement for use, substantial construction has been performed and substantial liabilities for construction and necessary materials have been incurred.”

The permit for the construction was issued prior to the effective date of the amendments and the pleadings in this action do not allege facts constituting a cause of action or raise the issue of the Environmental Quality Act. The requirements of the act therefor are not now applicable in this case.

The judgment is affirmed.

Draper, P. J., concurred.

Opinion

1 In San Francisco an application for a permit is first submitted to the central permit bureau. The bureau refers the application to the various city departments and agencies concerned and these agencies review and report whether the project complies with the Planning Code. Ordinarily, as long as the plans and specifications for the project are in conformity with the applicable ordinances, a permit is issued as a matter of course. However, the planning commission may invoke its discretionary power to review at a public hearing an application which nevertheless raises a significant question.

2 Planning Code.section 150(d) provides: “[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 . . . may be completed and used in accordance with the approved plans, provided that construction is started and diligently prosecuted to completion . . . , and such building or "use shall thereafter be deemed to be a lawfully existing building or use.” (Italics added.) This section has subsequently been renumbered and amended.