ARIES DEVELOPMENT COMPANY, Plaintiff and Respondent, v. CALIFORNIA COASTAL ZONE CONSERVATION COMMISSION, Defendant and Appellant; RICHARD E. CHARLES et al., Movants and Appellants.
Civ. Nos. 13781, 13818
Court of Appeal of California, Fourth District, Division Two
May 28, 1975
48 Cal. App. 3d 534
Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, Roderick Walston, Richard C. Jacobs and Charles W. Getz, Deputy Attorneys General, for Defendant and Appellant.
Cooper, Wyatt, Tepper & Plant, Joseph L. Wyatt, Jr., and Mark Wurm for Movants and Appellants.
Barrett, Stearns, Collins, Gleason & Kinney and William N. Willens for Plaintiff and Respondent.
OPINION
TAMURA, J.-These are appeals from actions of the superior court on a petition for writ of mandate filed by Aries Development Company (Aries) to review and set aside a decision of the California Coastal Zone Conservation Commission (Commission) denying Aries’ claim of exemption from the permit requirements of the
The question presented by these appeals is whether the trial court erred in concluding that Aries is entitled to develop a parcel of land in the City of San Clemente (City) without a coastal permit.1 The property, a 1.26-acre parcel, is located on a marine terrace overlooking the Pacific Ocean and lies within the permit area as defined by the Coastal Act. The chronology of the pertinent events is as follows:
In July 1972, Aries made arrangements to purchase the property for $225,000, the price including architectural and engineering plans for the construction of 64 apartment units on the site for which City approval had been previously obtained. However, instead of constructing apartments, Aries wanted to build condominiums. During July and August 1972, Aries had architectural and engineering feasibility studies made for the construction of 45 condominium units on the site.
In September 1972, Aries submitted to the City planning commission a use permit application, accompanied by a site plan, and a tentative tract map.
On October 5, 1972, title to the property vested in Aries and a $1,778,082 construction loan was recorded against it.
On October 11, 1972, the planning commission approved the use permit application, site plan, and tentative tract map.
On October 18, 1972, the City council approved the use permit application and site plan but deferred action on the tentative tract map.
On October 25, 1972, the planning commission accepted and approved an environmental impact report (EIR) on the project submitted by Aries.
On November 1, 1972, the City council took the following pertinent actions: (1) It adopted a resolution establishing interim requirements and procedures for the preparation and submission of environmental impact studies on all projects within the City; (2) it approved Aries’ tentative tract map; and (3) it ordered the EIR on Aries’ project be set for public hearing at the next council meeting.
On November 6, 1972, Aries received a grading permit limited to the proposed underground parking structure.
On November 7, 1972, the Coastal Act was approved by the voters of the state.
On November 15, 1972, the City council held a public hearing on the EIR for Aries’ project and approved the same.
On December 14, 1972, an amended limited grading permit was issued for the underground parking structure.
On or about December 15, 1972, Aries was notified it must comply with the seismic safety element of the City‘s general plan.
On January 23, 1973, a building permit for construction of the condominiums was issued.
On April 13, 1973, redesigned structural plans to satisfy the seismic safety element were approved by the City.
Actual construction of the condominiums commenced on or about April 13, 1973, and continued until the Regional Coastal Commission demanded Aries either secure a coastal permit or an exemption.
The only issue raised by the petition for writ of mandate was Aries’ entitlement to exemption from the permit requirements of the Coastal Act; the petition did not seek judicial review of the permit denial.
The trial court made findings of fact and concluded that by virtue of
Following entry of judgment, the Charles who until then were not parties to the mandate proceeding moved to vacate the judgment. After the motion was filed, but before it was heard, the Commission filed its notice of appeal from the judgment. When the motion came on to be heard, it was ordered off calendar on the ground the movants had no standing in the case.
The Commission contends the trial court erred in concluding Aries had a vested right or statutory entitlement to construct its project without a coastal permit. The Charles contend they became parties of record by filing a motion to vacate the judgment and therefore have standing to attack the judgment for errors of law as well as on jurisdictional grounds. They assail the judgment on basically the same grounds advanced by the Commission.3
From the analysis which follows, we have concluded: (1) The Charles have standing to attack the judgment for errors of law and (2) the trial
I
We first deal with the Charles’ standing to attack the judgment for errors of law.
One who is legally aggrieved by a judgment may, though not initially a party to the action, become a party of record and obtain a right to appeal from the judgment by moving to vacate the judgment pursuant to
As property owners residing in the immediate vicinity of the proposed development, the Charles have an interest in the enforcement of land use laws affecting the quality of the neighborhood. (See Scott v. City of Indian Wells, 6 Cal.3d 541 [99 Cal.Rptr. 745, 492 P.2d 1137]; Residents of Beverly Glen, Inc. v. City of Los Angeles, 34 Cal.App.3d 117 [109 Cal.Rptr. 724]; Tustin Heights Assn. v. Bd. of Supervisors, 170 Cal.App.2d 619, 636 [339 P.2d 914].) The Charles were parties to the proceedings before the Commission and successfully opposed Aries’ claim of exemption. Had the Commission decision been adverse to them, the Charles would have had the right to a judicial review of that decision. (
Aries contends that the notice of appeal filed by the Commission after the Charles’ motion to vacate was filed, but before it could be heard, deprived the Charles of the right to appeal. The contention is without merit. The Charles having become parties of record by filing their motion to vacate, their right of appeal could not be destroyed by the fact that a subsequent event over which they had no control may have divested the court of jurisdiction to rule on the merits of the motion. The right accrued when the motion to vacate was ordered off calendar on the ground the movants lacked standing to bring the motion.
Aries’ contention that the motion to vacate was not timely filed within the 15-day period prescribed by
We proceed to the merits of the appeal.
II
The Coastal Act requires the Commission and Regional Commissions to develop a Coastal Zone Conservation Plan for submission to the
There are two bases for exemption from the permit provisions of the Coastal Act. One is the vested right exemption expressly recognized by
(a) The vested rights exemption.
In this state, one who in good faith reliance upon a building permit performs substantial work and incurs substantial liability in connection therewith acquires a vested right to complete construction notwithstanding an intervening change in the law that would otherwise preclude construction. (Russian Hill Improvement Assn. v. Board of Permit Appeals, 66 Cal.2d 34, 39 [56 Cal.Rptr. 672, 423 P.2d 824]; County of San Diego v. McClurken, 37 Cal.2d 683, 691 [234 P.2d 972]; Brougher v. Board of Public Works, 205 Cal. 426, 434 [271 P. 487]; California Central Coast etc. Conservation Com. v. McKeon Constr., 38 Cal.App.3d 154, 159-160 [112 Cal.Rptr. 903].) The rule is grounded upon the constitutional principle that property may not be taken without due process of law. (See Transcentury Properties, Inc. v. State of California, 41 Cal.App.3d 835, 844 [116 Cal. Rptr. 487].)
In the case at bench, Aries admits it did not receive a building permit until January 23, 1973. Thus, under the express terms of
Although the cases speak of vested rights in terms of reliance upon a building permit (e.g., Brougher v. Board of Public Works, supra, 205 Cal. 426, 434; Spindler Realty Corp. v. Monning, 243 Cal.App.2d 255, 264 [53 Cal.Rptr. 7]; Anderson v. City Council, 229 Cal.App.2d 79, 89 [40 Cal.Rptr. 41]), the Attorney General, both in the court below and in his opening brief on appeal, has argued the case on the assumption that a building permit may no longer be a sine qua non of a vested right.7 He points out that under modern land development practices various governmental approvals are required before the issuance of a building permit, each approval pertaining to different aspects of the project, and suggests that a vested right might arise before the issuance of a building permit if the preliminary permits approve a specific project and contain all final discretionary approvals required for completion of the project.
For the reasons stated below, we have concluded that Aries did not obtain a vested right under the theory on which the case was presented in the court below. Accordingly, we leave for future consideration the question whether the term “building permit” as used in
The trial court based its conclusion that Aries was exempt from the permit provisions of the Coastal Act on the following findings: Prior to November 8, 1972, the City had approved a use permit, specific site plan, tentative tract map and had issued grading permits; the site plan was a detailed and precise plan depicting the exact height and location of the buildings, walkways, recreational facilities, parking structures, etc.; prior
We are not however, bound by those findings and conclusions. The only evidence received by the trial court was the administrative record consisting entirely of documentary material such as minutes of City council and planning commission meetings, permits, correspondence, Aries’ application for exemption, Commission staff recommendations, etc. At the hearing below, there was no basic disagreement as to what was done or when it was done; the only dispute concerned the conclusions to be drawn from the pertinent undisputed facts. Where the facts before the administrative body are uncontradicted, the determination of their effect is a question of law and the findings and conclusions of the trial court, whether the scope of review be the substantial evidence or independent judgment test, are not controlling on appellate review. (David Kikkert & Associates, Inc. v. Shine, 6 Cal.App.3d 112, 116 [86 Cal.Rptr. 161]. See People ex rel. S. F. Bay etc. Com. v. Town of Emeryville, 69 Cal.2d 533, 543 [72 Cal.Rptr. 790, 446 P.2d 790]; Automatic Canteen Co. v. State Board of Equalization, 238 Cal.App.2d 372, 381 [47 Cal. Rptr. 848]; Caro v. Savage, 201 Cal.App.2d 530, 541-542 [20 Cal.Rptr. 286].) We recognize it has been held that where the undisputed facts bearing on a disputed issue do not point in any one direction an appellate court is bound by an inference drawn by the trial court. (Lacy v. California Unemployment Ins. Appeals Bd., 17 Cal.App.3d 1128, 1135 [95 Cal. Rptr. 566].) However, that is not the situation here. Resolution of the issues before us does not require the drawing of any purely factual inferences, but rather the application of law to the pertinent uncontradicted facts. Otherwise stated, our function is to determine the proper legal characterization of those facts. (4b) Unlike Lacy, the evidence in the case at bench is neither sparse nor ambiguous. When the appropriate legal standard is applied to the facts in their proper sequence, it is apparent that this is in no sense a borderline case but rather one which may properly be resolved as a matter of law.
(1) Prior to November 8, Aries had not received all discretionary approvals necessary to proceed with construction.
As shown by the minutes, the City council, at its meeting of October 18, 1972, approved Aries’ use permit application but deferred action on the tentative tract map despite Aries’ plea to approve the map subject to later submission and approval of an EIR. During the meeting the mayor warned Aries that in light of the recent Supreme Court decision (Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 [104 Cal.Rptr. 761, 502 P.2d 1049], Sept. 21, 1972), approval of the map without an EIR might well result in stoppage of the development in midstream.
Thereafter Aries submitted an EIR to the planning commission and the commission approved the same on October 25, 1972.
On November 1, 1972, the City council, as heretofore noted, adopted a resolution requiring EIRs on all projects within the City and establishing procedures for their preparation and evaluation. Under the resolution EIRs were to be first submitted to the planning commission for approval, subject to appeal to the City council; and if the City council was dissatisfied with the planning commission‘s action, or if the project was one of wide public interest, it might order the matter set for public hearing before the council. At that meeting the council approved the tentative tract map but voted to set the EIR for public hearing at its November 15 meeting.
On November 15, 1972, following public hearing on the EIR for Aries’ project, the report was approved.
Approval of an EIR is a discretionary act. (See Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d 247, 263, fn. 8; No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68, 79, fn. 8 [118 Cal.Rptr. 34, 529 P.2d 66].) It necessarily follows that approval of the tentative tract map and site plan was not final until the EIR had been considered and approved by the council. So long as the City retained discretion to approve or disapprove the project, prior approval of the tentative map and site plan was not the final exercise of the City‘s authority over the project. (People v. County of Kern, 39 Cal.App.3d 830, 838 [115 Cal.Rptr. 67].) Indeed, recent
Aries relies upon
Aries’ reliance on the validating provisions of
In the second place, in determining whether Aries acquired a vested right before November 8, 1972, its conduct must be evaluated according to circumstances prevailing before that date. Until
Aries’ reliance upon People ex rel. S. F. Bay etc. Com. v. Town of Emeryville, supra, 69 Cal.2d 533, is misplaced. The issue in that case was the meaning of the word “project” as used in the “grandfather clause” of the McAteer-Petris Act; it did not involve the issue of vested rights.
(2) Even if we accept, for the sake of argument, Aries’ contention that the November 1 approval of the tentative tract map was a final
Once a right has vested, its impairment or destruction must comport with constitutional principles. However, acquisition of the right is grounded on equitable principles of estoppel. (See Spindler Realty Corp. v. Monning, supra, 243 Cal.App.2d 255, 269; Anderson v. City Council, supra, 229 Cal.App.2d 79, 89.) In other words, an owner of property acquires a vested right to construct a building only where the conduct of the government amounts to a representation that such construction is fully approved and legal, subject only to minor alterations, and in reliance on such representation the owner materially changes position. Good faith reliance on a governmental permit is essential to the acquisition of a vested right. (
The uncontradicted facts can lead to but one conclusion, that any work performed by Aries before November 8 was not done in a good faith belief that all final discretionary approvals for the project had been obtained. Rather, it appears without question that Aries entertained substantial doubts about its legal position, that the government did not lull Aries into believing it had received the final green light, and that Aries speeded up its timetable in a calculated effort to escape impending state land-use controls.
The minutes of the City council meeting of October 18, 1972, record a statement by Aries imploring the council to at least issue a grading permit by October 20, basing the urgency on the impending November 7 election on Proposition 20 (the Coastal Act).
On November 3, 1972, the president of Aries wrote to the City engineer informing him that a grading bond had been filed and requesting issuance of a permit in accordance with the understanding with the City that the permit be limited to the parking structure only, be subject to modification, and be issued under a hold harmless agreement. Under the hold harmless agreement, Aries was offering to indemnify the City for any liability the City might incur if it failed to comply with the law. In other words, far from relying on the conduct of the City, Aries was asking the City to rely on its assurances.
On November 6, 1972, the City engineer issued a grading permit “only for the parking structure,” with the express proviso that it “does not
On the very day the November 6 grading permit was issued Aries entered in its records a prepayment or liability of $28,300 for grading work thereunder. One who proceeds with “unseemly haste” bears a risk “that his conduct might bear the stigma of bad faith.” (Russian Hill Improvement Assn. v. Board of Permit Appeals, supra, 66 Cal.2d 34, 39; fn. omitted.) Aries’ entire conduct bears the indelible stamp of “unseemly haste” and lack of good faith.
(3) Finally, if we assume, again for the sake of argument, that final approval was given on November 1, Aries did not perform substantial lawful work and incur substantial liabilities therefor between that date and November 8, 1972.
The trial court made a general finding that Aries expended and incurred liabilities in the total sum of $353,912.11 before November 8. However, most of that sum was for land purchase, architectural and other planning expenses, demolition of an existing structure, and rough grading. All of those activities were completed before November 1 and are therefore irrelevant for the reason they could not have been undertaken in reliance on a final discretionary government approval yet to be obtained. (See Anderson v. City Council, supra, 229 Cal.App.2d 79, 89-90.) “[O]ne who is not yet armed with a presently effective municipal license to proceed with construction must assume the risk that, ‘before final action [has] been taken on [his] application’ [citation], the law might be changed so as to require that his application be denied.” (Russian Hill Improvement Assn. v. Board of Permit Appeals, supra, 66 Cal.2d 34, 40.)
The only expenditure or liability incurred after the November 1 approval was the $28,300 prepaid or incurred on November 6 under the November 6 grading permit. Even as to that sum, Aries listed it as being for grading work performed between November 6 and November 15. Consequently, only a small portion of the sum could have been allocable to work performed before November 8. Furthermore, all grading performed under the November 6 permit was not lawful. Although the trial court found that between November 6 and November 15 Aries
For the foregoing reasons, we conclude Aries was not entitled to an exemption under
(b) The See The Sea exemption.
We next consider whether Aries was exempt from the permit provisions of the Coastal Act under San Diego Coast Regional Com. v. See The Sea, Limited, supra, 9 Cal.3d 888.
In See The Sea the developer received a building permit on December 6, 1972, for the construction of a condominium in the permit area and, prior to February 1, 1973, demolished an existing building, expended $79,000 in construction work and incurred financing charges. The court held the developer was entitled to complete construction without a coastal permit.
The court was confronted with the problem of harmonizing
The court declined to interpret
In response to the contention that this would render
In the case at bench, the only work performed before February 1, 1973, consisted of demolition of an existing structure, rough grading, and limited grading for the parking structure. Demolition of the structure and rough grading were merely preparatory work and, hence, did not constitute construction under See The Sea rationale. What little lawful work was performed under the November 6 grading permit was, as we have seen, insubstantial as a matter of law. Work performed beyond the limits of the November 6 grading permit was unlawful and, hence, could not qualify as construction under the See The Sea exemption.
In any event, the most that Aries would be entitled to perform under its grading permits would be the completion of the work authorized by those permits. (Environmental Coalition of Orange County, Inc. v. AVCO Community Developers, Inc., 40 Cal.App.3d 513, 523 [115 Cal.Rptr. 59].) Under the express provisions of the Uniform Building Code, a “holder of such permit shall proceed at his own risk without assurance that the permit for the entire building or structure will be granted.” (Uniform Building Code, §§ 7006(g) and 302(a).) Work performed under the grading permits before February 1, 1973, does not entitle Aries to go forward with the construction of the project in its entirety.
Judgment is reversed. Appeal from the order on the motion to vacate the judgment is dismissed as moot.8
GARDNER, P. J.-I dissent.
Roscoe Pound once wrote, “To justify an elaborate dissenting opinion the question of law should be one of at least considerable importance.” (Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent (1953) 39 A.B.A.J. 794.) This case presents but an application of existing law to a particular factual situation.1 Since it does not present any question of law of importance, I shall attempt to keep my discussion brief.
My disagreement with the majority is on a rather simple issue-the scope of appellate review. As I understand the rule, if the evidence is without conflict and the decision depends on inferences therefrom, this court is not at liberty to draw its own inferences and decide a case the way we think it should be decided. Where different inferences may reasonably be drawn from undisputed evidence, the conclusions of the trial judge must be accepted by this court. In this case there is no dispute as to the basic facts. From them the trial judge drew reasonable inferences which were favorable to the respondent. The majority simply disagrees with these inferences, calls them a “question of law” and comes to a contrary conclusion. In so doing, I respectfully submit that the majority has simply retried the case-a luxury not afforded this court under our judicial system. Unfortunately, this is a rather common practice which is being used increasingly by result-oriented reviewing courts.
Unless we start with the assumption that all land development is “bad,” there is really nothing very startling about the chronology of events outlined in this case. Even before the Coastal Act, building practices had become quite sophisticated and complicated. No longer does the builder simply go to the city hall with his plans and specifications, have them stamped “approved” and begin building. Building today is a long, involved, drawn out process. Yet the majority read the passage of events in this case into a headlong dash to beat the target date of the Coastal Act.
The point of these observations is that this is no trifling matter from a fiscal standpoint. Aries may be a land developer and a soulless corporation, but its stockholders have lost a lot of money-all expended, the trial court found, in a good faith effort to develop this land with the full approval of the City of San Clemente-and stopped improperly by the Coastal Commission. The trial court found that prior to November 8, 1972, Aries, in good faith and in justifiable reliance on the approvals and permits from the City, had diligently commenced construction of the development, performed substantial lawful work thereon, and incurred substantial expenses and liabilities for the work and materials necessary for construction, and that as of February 1, 1973, Aries had commenced and performed substantial lawful construction on the development. From this, the trial court concluded that pursuant to
(1) The environmental impact report.
At the November 1, 1972 meeting, the City council did approve Aries’ tentative tract map. It is true that at that meeting the City adopted a resolution requiring EIRs on all projects within the City. However, it must be remembered that on October 2, an EIR was submitted to the City planning commission even though there was no City ordinance calling for such a study and on October 25 that EIR was accepted by that body. Then after approving the tentative tract map on November 1, 1972, the City council approved the EIR on November 15, 1972. I find the majority‘s removal of this situation from
(2) Good faith.
The trial judge found good faith-the majority, apparently as a matter of law, finds bad faith. The majority finds that Aries “speeded up its timetable in a calculated effort to escape impending state land-use controls,” because on the “very day” Aries received its grading permit it incurred a liability of $28,300 for grading work and commenced work promptly. This, according to the majority, amounts to “unseemly haste.” Certainly, Aries was in a hurry. They were obligated on a construction loan of $1,778,082. For months they had worked diligently with the City ironing out the wrinkles in an effort to get this operation off the ground. Simple business prudence dictated that the development proceed as expeditiously as possible. As Aries states, if their only concern was beating the deadline of Proposition 20, it could have proceeded on the previously approved plans for the 64-unit apartment.
In words of one syllable, on uncontradicted facts the trial judge drew an inference of good faith. On the same facts, this court now draws an inference of bad faith. This, I submit, we are not at liberty to do.
(3) The performance of substantial work and the incurrence of substantial liabilities.
It is true that of the total of $353,912 expended before November 8, 1972, most was spent for land purchase, architectural, engineering and
The “only” expenditure or liability incurred before November 8 in reliance on a final discretionary governmental approval was the $28,300 laid out for grading. This was the “only” item because that was the “only” item in Aries’ timetable of construction which fell due during that particular period. This was an expenditure which was vital to the overall development and I cannot join in a finding that it was insubstantial as a matter of law. The trial judge took a more realistic view and evaluated the grading job in its entirety. I note that the grading job, when it was finally completed on November 14, was for a total cost of $65,000. The majority complains that this grading was done in excess of the permit. Perhaps so, but the City engineer said that Aries “did in good faith proceed with the grading.” The trial judge so found. Under applicable rules of appellate review, I cannot argue with that finding.
(4) The See the Sea exemption.
Here, we advance the target date to February 1, 1973. As of that time the existing structure had been demolished, lawful grading completed and limited grading for the parking structure completed. The majority finds that since the demolition and rough grading were merely “preparatory” and the work done on the grading permit for the parking structure “insubstantial as a matter of law,” this exemption is not available. But what actually happened?
Prior to February 1, Aries had submitted and approved a tentative tract map, had received a use permit, a demolition permit, a rough grading permit, a final grading permit, an approval of an EIR and a building permit for the entire development. A home of the approximate value of $60,000 had been demolished. The entire property had been cleared and rough graded, a hole for the parking structure excavated and 20,000 yards of dirt removed and exported. Eighty percent of the dirt on the site was removed and replaced to satisfy soils engineering require-
The trial court found that this was lawful construction and from all of the above drew the reasonable inference that substantial lawful construction on the Aries’ project had commenced by February 1, 1973. Again, under applicable rules of appellate review, I cannot argue with that inference.
I would affirm the judgment.
A petition for a rehearing was denied June 18, 1975, and respondent‘s petition for a hearing by the Supreme Court was denied July 23, 1975. Clark, J., was of the opinion that the petition should be granted.