BROADWAY, LAGUNA, VALLEJO ASSOCIATION et al., Plaintiffs and Appellants, v. BOARD OF PERMIT APPEALS OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; PERRY LIEBMAN, Real Party in Interest and Respondent.
S. F. No. 22492
In Bank.
May 26, 1967.
June 21, 1967.
Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
MCCOMB, J.—I dissent. I would affirm the judgment of the trial court in its entirety.
Feldman, Waldman & Kline, Jesse Feldman and Richard B. Morris for Real Party in Interest and Respondent.
Martin & Flandricks and Charles R. Martin as Amici Curiae on behalf of Defendants and Respondents and Real Party in Interest and Respondent.
TOBRINER, J.---- We must decide whether the San Francisco Board of Permit Appeals exceeded the scope of its authority in granting a variance under the circumstances of this case. That variance rested upon the alleged attractiveness of the proposed building, coupled with the belated discovery of subsoil conditions requiring a more costly foundation than anticipated. We conclude that the approval of a variance on such a basis would undermine the foundation of a comprehensive zoning law.
The controversy before us arose in 1963, when a developer (the real party in interest) contacted the Zoning Division of the Department of City Planning concerning a proposal to construct an 11-story, 53-unit apartment building on R-4 property located at 2030 Vallejo Street in San Francisco. The zoning division advised the developer that the proposed structure would contravene the floor area ratio regulations, which comprise the primary bulk and density control mechanism of the City Planning Code.1 The developer nonetheless refused to modify his plans before applying for a building permit in June 1964; in July the zoning division disapproved the developer‘s application.
Confronted with this obstacle to the execution of his project unless he obtained a variance, the developer undertook a study of subsoil conditions on his Vallejo Street property. Although he commenced the study several months after informing the Department of City Planning that the proposed structure was already designed, the developer, and ultimately the Board of Permit Appeals, relied exclusively upon this study to support the assertion that “unusual subsoil condi-
After completing his subsoil investigation, the developer applied for a floor area variance in August 1964. He urged that the “unusual conditions” disclosed by his study would cause unnecessary hardship if the planning code were strictly enforced. He argued further that a variance from the requirements of a “minor” code provision seemed appropriate since his building would possess “attractive features” above and beyond those required by other code provisions.
The variance requested by the developer, however, did not involve a relatively unimportant code provision. On the contrary, the consensus among zoning authorities is that, in terms of controlling population density and structural congestion, the technique of restricting the ratio of a building‘s rentable floor space to the size of the lot on which it is constructed possesses numerous advantages, both theoretical and practical, shared by no other method of controlling building bulk or density.2 The developer in the present case thus sought more than relief from a purely technical requirement of an insignificant ordinance; he requested instead a variance from a regulation which has become a cornerstone of contemporary building codes.
To protect such crucial provisions from circumvention, the City Planning Code prohibits the granting of a variance unless the appropriate persons, beginning with the zoning administrator, have first determined that five specified conditions have been met.3 Having concluded that the developer‘s
Recognizing the need to accord appropriate weight to the expert administrator‘s ruling, the draftsmen of the City Planning Code provided that his determination could be overcome only by relevant and specific findings by the Board of Permit Appeals.4 In reversing the zoning administrator‘s decision in January 1965, the board purported to comply with the planning code by setting forth its findings with respect to all five code conditions. Acting under the mistaken belief that the board‘s ultimate conclusion was thereby insulated from judicial review, the trial court deemed itself powerless to grant a writ of mandate to compel the board to set aside its variance order. The petitioner, an association of interested property owners, then instituted this appeal.
Although the San Francisco Board of Permit Appeals possesses broadly discretionary power in passing upon permit and licensing matters, it plays a more narrowly confined role in the variance area. (See Russian Hill Improvement Assn. v. Board of Permit Appeals (1967) ante, pp. 34, 38 & fn. 8 [56 Cal.Rptr. 672, 423 P.2d 824].) Before granting a variance despite the zoning administrator‘s denial, the board must specify which aspects of the administrator‘s ruling it deems erroneous and must set forth in its findings “the facts relied upon in making [its] determination.” (City Planning Code, § 303(d).) (See Cow Hollow Improvement Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160, 170, 171 (hg. den.) [53 Cal. Rptr. 610].)
This requirement for specific findings differentiates the present case from Siller v. Board of Supervisors (1962) 58 Cal.2d 479 [25 Cal.Rptr. 73, 375 P.2d 411], relied upon in the amicus curiae brief filed in support of respondents. That brief
The presumption that an agency‘s rulings rest upon the necessary findings and that such findings are supported by substantial evidence (see Siller v. Board of Supervisors, supra, 58 Cal.2d at p. 484; City & County of San Francisco v. Superior Court (1959) 53 Cal.2d 236, 251 [1 Cal.Rptr. 158, 347 P.2d 294]), does not apply to agencies which must expressly state their findings and must set forth the relevant supportive facts. (Cf. California Motor Transport Co. v. Public Utilities Com. (1963) 59 Cal.2d 270, 273-275 [28 Cal.Rptr. 868, 379 P.2d 324].) In variance cases, the San Francisco Board of Permit Appeals is such an agency.
In a mandate proceeding to review the granting of a variance by that board, the variance order may be sustained only if the board‘s findings suffice to establish compliance with all of the statutory criteria and are supported by substantial evidence in the record. (See Cow Hollow Improvement Club v. Board of Permit Appeals, supra, 245 Cal.App.2d at p. 171; see generally Jaffe, Judicial Control of Administrative Action (1965) 181-182, 190, 320, 575-586, 600-604, 607, 622.)
The basic difficulty with the board‘s findings in the instant case is not that they lack evidentiary support but rather that they lack legal relevance; even if they are assumed to be correct, those findings simply do not meet the requirements of the planning code.
Viewed in the light most favorable to the board and to the developer, the evidence disclosed by the record before us supports the following findings of fact: (1) After the developer had been told that the proposed building would violate the floor area ratio regulations he undertook a study of his property which revealed that unusual subsoil conditions at that location would increase foundation costs for any structure similar to the one he proposed; (2) such increased costs would render the foundation of the proposed building from
1. Exceptional Circumstances
The first criterion which a variance application must meet is that there be “exceptional or extraordinary circumstances or conditions applying to the property involved, or to the intended use of the property, that do not apply generally to other property or uses in the same class of district.” (City Planning Code, § 302(d).) The board purported to find two such “exceptional circumstances” here: (a) the unusual subsoil condition “applying to the property involved“; and (b) the attractive architectural features “applying to ... the intended use of the property.” Neither of these circumstances, however, satisfies the code criterion.
a. Unusual Subsoil Condition
We turn first to the subsoil condition belatedly discovered by the developer. On the evidence before it, the board could make no finding, nor did it attempt to make one, linking the subsoil condition to the asserted need for a floor area variance. Unlike cases in which topographical conditions prove to be physically incompatible with attempted adherence to a zoning provision,6 the case before us presents no logical relationship between the condition identified and the variance requested.
Admittedly, the soil conditions beneath the developer‘s property restrict its income potential; but the mere fact that a floor area variance would enable the developer to increase the
We recognize that virtually any circumstance which would lead a commercial real estate developer to seek a variance may ultimately be translated into economic terms: the developer attempts to obtain relief from a particular zoning provision in order to augment the earning power or the market value of his property. We must be careful to distinguish, however, between those circumstances which prevent a builder from profitably developing a lot within the strictures of the planning code and those conditions which simply render a complying structure less profitable than anticipated. If conditions which merely reduce profit margin were deemed sufficiently “exceptional” to warrant relief from the zoning laws, then all but the least imaginative developers could obtain a variety of variances, and the “public interest in the enforcement of a comprehensive zoning plan” (County of San Diego v. McClurken (1951) 37 Cal.2d 683, 690 [234 P.2d 972]) would inevitably yield to the private interest in the maximization of profits.
Keeping in mind this fundamental difference between circumstances which prevent a variance applicant from economically developing his property and those which simply reduce his expected earnings, we note that in the present case the board determined only that the “unusual subsoil condition” would increase the cost of the proposed building or of any similar high-rise structure. The board did not determine, however, that the subsoil condition in question would similarly increase the cost of a differently designed building.
Moreover, even if we were to assume, as did the board, that the developer could properly insist upon constructing an apartment building similar to the one he originally proposed, we would still confront a fatally defective record: The board
In this connection, we note that in July 1965 the petitioners sought a writ of supersedeas to halt construction of the building pending appeal. The court denied the writ after the developer filed under penalty of perjury a declaration stating that if he were permitted to proceed with construction he would thereafter modify the building “by removing the top floor and two ground level apartments, even after construction, to meet floor area ratio requirements of the City Planning Code if (he) should lose the appeal.” Thus the developer assured the court that he would make the required modifications if the variance were later held improper. Having implied that he could proceed economically with his project even after altering it to comply with the governing floor area regulations, the developer can hardly claim now that his apartment building will yield an unreasonably low profit unless he is permitted to spread his foundation costs over a rentable floor area beyond that permitted by the code. At most, the developer may urge a reduction in expected revenue; as we have explained, however, such a claim does not rise to the “exceptional” level demanded by the code.
b. Attractive Architectural Features
Nor do the various architectural limitations incorporated in the developer‘s proposed structure constitute “extraordinary ... conditions applying to ... the intended use of the property” (italics added) within the meaning of the first variance criterion.
First, the concept of “intended use of the property” does not encompass the contemplated design of a building to be constructed on that property but refers only to the activity which is to be conducted there.7 Second, an “intended use”
2. Unnecessary Hardship
Even if the circumstances identified by the board could qualify under the first criterion, however, the variance should still have been denied since the developer did not show that, as a result of such circumstances, “literal enforcement of [the floor area ratio regulations] would result in practical difficulty or unnecessary hardship.” (City Planning Code, § 302(d).) The board found: (a) that, since the building would benefit the community, enforcement of the code would work a hardship upon the surrounding neighborhood; (b) that the developer‘s adoption of “superior to code” building standards would impose a hardship upon him if the variance were denied; and (c) that “the subsoil condition obviously constitutes a practical difficulty for development.”
a. Benefit to the Community
With regard to the community benefit, the board‘s finding was neither relevant as a matter of law nor supportable as a matter of fact. Although impact upon the surrounding neighborhood is an important factor in the variance formula, the planning code specifically provides for its consideration under the fourth and fifth criteria.9 In requiring a showing that literal enforcement would cause hardship, the second criterion
Even if it had been legally relevant, however, the board‘s determination that the community would suffer if the floor area regulations were literally enforced would find no support whatever in the evidence. Accepting as true the board‘s finding that the “attractive features” of the developer‘s building would benefit the neighborhood, it does not follow that the community would sacrifice such benefits if the code were strictly enforced. Nothing in the record suggests that if his variance application should be denied the developer would forego his project or eliminate any of its beneficial features; indeed, the developer has indicated the contrary under penalty of perjury. Although a denial of a variance would cut into the developer‘s profit margin, the community derives benefit not from his financial gain but from his conforming building.
b. Superior Building Standards
Turning to the board‘s inclusion of the developer‘s adoption of superior building standards as an element of hardship upon the developer, we need only note that such self-imposed burdens cannot legally justify the granting of a variance. (City of San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 673 [4 Cal.Rptr. 547]; Minney v. City of Azusa (1958) 164 Cal.App.2d 12, 31-33 [330 P.2d 255], app. dism. (1959) 359 U.S. 436 [3 L.Ed.2d 932, 79 S.Ct. 941]; cf. Caccia v. Zoning Board of Review (1955) 83 R.I. 146 [113 A.2d 870, 872].)
c. Practical Difficulty
All that remains of the board‘s findings with regard to hardship is its observation that “the subsoil condition obviously constitutes a practical difficulty for development.” But the only such “difficulty” supportable on this record must stem from the developer‘s claim of increased foundation cost. In this connection, the board simply concluded that any economic
The board‘s characterization of any resulting difficulty or hardship as automatically “unnecessary” in this case must stand or fall with the broad notion that a variance applicant may earn immunity from one code provision merely by over-compliance with others. Since few buildings are designed at planning code minimums,11 variance applications based upon this open-ended theory would soon become commonplace. The board would then be empowered to decide which code provisions to enforce in any given case; that power does not properly repose in any administrative tribunal.12
Entirely apart from “exceptional circumstances” and “unnecessary hardship,” the planning code requires that a variance be denied unless it is “necessary for the preservation of a substantial property right of the [applicant] possessed by other property in the same class of district.” (City Planning Code, § 302(d).) The board‘s findings in this case completely fail to establish compliance with this “parity” requirement.
In this connection, the board simply said: “[Developer] has a right to develop his property, notwithstanding adverse soil conditions. Because the Board finds that the variance in this case amounts to no more than an immaterial breach of the Code fully compensated by features of the building not demanded by the Code, and because the record shows that without the variance [the developer] cannot economically proceed with this attractive building, the Board finds that the variance is necessary to preserve that basic property right of [the developer].”
These findings, whether or not accurate, simply do not relate to the matter at hand. Neither the “immateriality” of the developer‘s breach, nor the extent to which self-imposed building features might “compensate” for it, bears upon the parity issue; nor can we attach any significance to the truism that the developer cannot construct this particular building without the variance he seeks.
Under its findings with respect to “exceptional circumstances,” however, the board offered one conclusion of conceivable relevance to our present inquiry: “This site is adverse for multi-unit development in comparison with similar hillside building lots in this particular area.” If the “adversity” to which the board referred were such that enforcement of the floor area regulations would effectively deprive the developer of the ability to construct a reasonably profitable
Although a variance must be denied unless all five of the specified code conditions have been independently fulfilled, the board‘s findings in the present case fail to establish compliance with the first three of those conditions; the board‘s decision to grant a variance therefore exceeded its statutory authority.
The variance sought by the developer in this case would confer not parity but privilege; to sanction such special treatment would seriously undermine present efforts to combat urban blight and municipal congestion through comprehensive zoning codes. So selective an application of the provisions of the City Planning Code would destroy the uniformity of the zoning laws which is their essence.
The judgment is reversed and the cause is remanded to the trial court with directions to issue a writ of mandate requiring the board to vacate its order awarding a variance and to affirm the zoning administrator‘s original decision denying that variance, and with additional directions to the trial court to grant such further relief as is appropriate.
Traynor, C. J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
MCCOMB, J.—I dissent. I would affirm the judgment of the superior court denying a writ of mandate, for the reasons expressed by Mr. Justice Agee in the opinion prepared by him for the Court of Appeal in Broadway, Laguna, Vallejo Assn. v. Board of Permit Appeals (Cal.App.) 54 Cal.Rptr. 562.
The petition of the real party in interest and respondent for a rehearing was denied June 21, 1967.