Eskeland v. City of Del Mar CA4/1
224 Cal. App. 4th 936
| Cal. Ct. App. | 2014Background
- Property owner Jon Scurlock sought to demolish and rebuild a house on a steep, irregular lot in Del Mar; the proposed new house would occupy the existing building pad and remain ~9–11 feet from Seaview Avenue, thereby encroaching on the City’s 20-foot front-yard setback.
- Design Review Board and Planning Commission reviewed the project; both concluded siting the house on the existing pad minimized slope disturbance, retaining-wall bulk, and view impacts, and recommended/approved a conditional variance from the 20-foot setback.
- Neighbors, including Stephen and Nahida Eskeland, appealed to the City Council; the Council declined a de novo hearing, making the Planning Commission’s conditional approval final.
- Eskelands filed a CCP §1094.5 petition for writ of administrative mandamus challenging the variance approval, arguing (inter alia) the municipal code forbids expanding nonconforming structures and that the City’s findings lacked substantial evidence.
- The trial court denied the petition; the Court of Appeal affirmed, holding the municipal code does not bar seeking a variance to change an existing nonconformity and that substantial evidence supported the variance findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the municipal code prohibits granting a variance that increases a structural nonconformity | Eskelands: §30.76.050 absolutely bars any enlargement/expansion of a structural nonconformity, so a variance that increases nonconformity is impermissible | City/Scurlock: Right to continue a nonconformity and the separate right to seek a variance are distinct; §30.76.050 governs continuation rights, not the availability of variances; remodel >50% requires compliance with code but variances remain available | Held: The code does not preclude applying for/receiving a variance that increases nonconformity; provisions are separate and variances are available when statutory standards are met |
| Whether substantial evidence supports finding special circumstances (size, shape, topography, surroundings) depriving the lot of privileges enjoyed by similarly zoned lots | Eskelands: Many nearby lots share topographical limits; proposed design itself alters pad and slopes so uniqueness is overstated | City/Scurlock: Record shows 50-foot front-to-back drop, limited level pad, irregular street curvature, and evidence that moving the house west would increase grading, retaining walls, loss of open space, and create a steep driveway | Held: Substantial evidence supports the Planning Commission’s special-circumstances findings |
| Whether granting the variance constituted a special privilege or de facto rezoning | Eskelands: Allowing expansion of nonconformity is a special privilege unavailable to others; approval effectively rezones | City/Scurlock: Variance was narrowly for setback, residential use remains allowed, many nearby properties have setback variances; degree of variation is limited | Held: No special privilege or rezoning; variance limited in scope and supported by record |
| Whether an alternate development plan could have avoided the need for a variance | Eskelands: A redesign (move house ~10–11 ft west) could meet setback; alternatives weren’t meaningfully considered | City/Scurlock: Alternatives were studied; moving house would increase adverse slope impacts, retaining walls, driveway steepness, and view/privacy problems | Held: Substantial evidence supports finding that alternatives would not avoid the hardships identified and would cause greater adverse impacts |
Key Cases Cited
- Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974) (variance review focuses on special circumstances and substantial-evidence standard)
- Fukuda v. City of Angels, 20 Cal.4th 805 (1999) (presumption of correctness for administrative findings)
- Ideal Boat & Camper Storage v. County of Alameda, 208 Cal.App.4th 301 (2012) (variance denial affirmed where voter initiative expressly barred discretionary actions inconsistent with zoning)
- Zakessian v. City of Sausalito, 28 Cal.App.3d 794 (1972) (financial hardship tied to unique property condition can support variance)
- Miller v. Board of Supervisors, 122 Cal.App.3d 539 (1981) (agency may consider aesthetic/open-space impacts when granting variances)