*1 In (S. No. Bank. Feb. F. 1967.] HILL IMPROVEMENT ASSOCIATION et al., RUSSIAN Respondents, v. BOARD PERMIT OF Plaintiffs THE CITY AND COUNTY OF SAN OF APPEALS Appellants. al., FRANCISCO et *2 O'Connor, City Thomas M. Attorney, Kenealey, Robert A. Deputy City Attorney, Pillsbury, Sutro, Madison & John B. Bates, Gregory Feeney Noble K. and Thomas E. for Defend Appellants. ants and Heller, Ehrman, McAuliffe, Caspar White & Weinberger W. Popofsky Respondents. and M. Laurence for Plaintiffs and present TOBRINER, J. controversy involves an at- tempt by the Board of Permit to authorize con- building struction of rise to over twice height permitted maximum governing ordinances City County and San Francisco. granted directing The trial court a writ of mandate permit purporting board to revoke authorize con- contending permit in appeal, that the struction. Defendants meaning granted” within the “lawfully sec question was Planning City San Francisco1 time Code of tion operation proposed project from the to immunize height limitation.2 Since the newly enacted Ap pending before the Board of Permit application peals still height effective, we limitation became hold the new when granted” “lawfully to confer time permit was not properly and the trial court immunity under section permit revoked. ordered the
T public private agencies Beginning a number of possible height por- investigated limitations for the northern public hearings in late holding Francisco. After tion of San Planning and the 1964, the early Commission Committee of the Buildings, Lands and Supervisors approved enactment of an ordinance to buildings legal height 105 feet for a maximum establish litigation. area involved this constructed Development HAP January 22, 1964, Company, HAP On Haynie Corporation & Development Partnership, Haas *3 developers”) (hereinafter collectively referred to as “the (hereinafter Permit Bureau to filed with the Central referred application bureau”) permit, an for a permit site as “the seeking apartment 235-foot-high a permission to construct building of Polk and Streets San corner Greenwich at the permit February while the bureau was still On Francisco. developers’ application, Super- the Board of considering the by City Plan- recommended the enacted ordinance visors the Buildings, Lands and ning the Commission By height Planning terms, its the ordinance Committee. the structure March 1964. Since effect on was to take 1 “Any building (d) provides: or for use subdivision Section lawfully granted prior permit to the effective date of has been Code, City Planning date is the where such an to amendment may May completed and used in with the be accordance to diligently approved plans, provided prosecuted that construction started Building completion 304 of the in accordance Section to building Code, deemed be a law or shall thereafter be use building (Amended 200-60, approved April existing fully Ord. or use.” legal Height 2Special No. the maximum 35-64 limits District Ordinance (See City question height Planning property the to 105 on feet. structures 214, 250, proposed 280-283.) here §§ The structure 130 feet that maximum. rise above developers proposed which the would rise far above the max- height permitted newly-enacted imum at that location the ordinance, the Director recommended that developers’ Notwithstanding application the that denied. recommendation, City Planning the voted on Commission approve application. 12 to the March just days four On March before the effective date the height new limitation and several its weeks after endorsement mayor,3 the the bureau entered order which approved developers’ application the and transmitted to them “permit subject a document described its face on as a issued days appeal Appeals.” within Board expense the document admonished to incur no un- right appeal lapsed. til the had Improvement Hill (herein- Plaintiff Russian Association after to as “the association”) timely referred filed a but Appeals protest- unsuccessful Board of Permit ing order; May bureau’s on 4 the board denied application rehearing.4 association’s On the associa- petition, superior developers’ tion’s court ordered the site permit revoked. theory
Defendants contest the order of revocation on the that Board of Permit properly testing acted permit application under the law which inwas effect when approved application bureau on March 19. operative Plaintiffs concede that no law then rendered the By bureau’s action unlawful.5 the time the matter had however, governing reached the of Permit Appeals, clearly prohibited develop law structure described application. ers’ had Since the bureau made no 3 "by signed Mayor tío. 35-64 Ordinance on oí San Francisco February 21. 25; appealed April 4The association on March on 20 the Board of concurred bureau’s March 19 order. The applied rehearing April 28; May association for a on on 4 the board application denied that vote of two. three to 19, however, properly 5Even on March bureau could have deny permit application ground its discretion to exercised on illegal by the structure described therein would soon rendered pending *4 (Brougher (1928) ordinance. v. Board Public Works 205 of 487]; Harney, Ap Cal. 426 P. Charles L. Inc. [271 v. Board Permit of (1961) peals Cal.App.2d 442, 870].) Cal.Rptr. 195 446-447 The case [15 ‘ ‘ manifestly before us not one in which the enactment of the ordinance [any] attempt developers’] plans.” stemmed from to frustrate [the (Sunset Cemetery (1961) Cal.App.2d 115, View Assn. v. Kraintz 196 Cal.Rptr. 317]; (1957) 123-124 see Munns v. [16 also Stenman 152 Cal.
38 ,6 19 underlying March the reasons its record of order suspended operation law,7 had of the since that order controversy necessarily the Board Per came before of entire question facing Accordingly, the Appeals ele novo. the mit granted, whether the should was whether board had been lawful. bureau suspended of the the order Ap Board of Permit do novo review the Since permit procedure,8 the peals integral part the entire is an of discretionary broadly with board, agency entrusted as an apply ordinarily ordi power, bound to deci administrative at of the in force the time nances final pre the time at of effect sion, rather than the ordinances proceedings bureau.9 liminary before 150, by contend im permits changes outstanding munizing ordinances, exception uniformly an created to this principle law. As recognized of administrative defendants in section, statutory immuni terpret it clothes by a ty is issued lawful order of the moment change notwithstanding any governing- permit bureau, permit application by pending do novo law review contrary, public hearings 67].) App.2d [314 543 P.2d On preceded which the enactment of the new ordi official recommendations filing permit application placed nance and "fully power proceeding to exercise on notice [the] ultimately adoption in the ordinance . . ." [resulted] which . (Fla. 275-276; (Sharrow City 1955) 274, Note, 83 v. Dania see So.2d Pending Subsequently Proposed (1958) Building or Permits—Effect of Building Permits, Legislation Applications and Enacted on 34 109, 112.) Dame Notre Law. (1943) Lindell Co. v. Board Permit 23 6As we noted in 4], nor P.2d neither the San Francisco Charter the the Cal.2d San Francisco [144 findings provides for of fact or law permit bureau. 7"Pending Appeals, Permit the action from decision Board of suspended." (Municipal pt. . . is taken . shall be III, 1, 8.)§ art. Superior (1959) County Court San Francisco v. 8See & Cal.Rptr. 294]; Lindell Co. v. 248-249 347 P.2d [1 Cal.2d Appeals, supra, Contrast the more 23 Cal.2d 313-315. narrowly Appeals in the variance of the Board confined role Improvement Club v. Board Cow Hollow area. 610].) Cal.Rptr. (1966) Cal.App.2d 169-171 [53 that, general rule, change pend "a of law as a 9Defendants concede hearing ing future acts. trary in relation to must be followed an administrative body con would issue orders Otherwise (Ziffrin, existing legislation." 78 Inc. United v. States 465]; Esperdy see Fassilis v. U.S. L.Ed. S.Ct. also (2d Cir. 1962) 429, 432.) 301 F.2d
39 Appeals.10 concluded, however, We have Board requires departure 150 that section from traditional principles law since that of section contem- plates only protection those which have at- of finality process.11 tained the administrative
II
150,
permit
Prior
to the enactment of section
even
which
finality
had
could
achieved administrative
be revoked on the
per
change
basis of a
laws.12 The
"
’’
immunity
post
win
from such
ex
mittee could
facto
revoca
only
portion
by constructing
tion
a substantial
of the struc
upon
in good
ture
his
faith
authorized
reliance
prior
permittee
delayed
law.13 A
who
construction in the face
impending
might
of an
amendment
laws
find
progressed
enough
qualify
that he had not
far
time to
proceeded
immunity;14
unseemly
one who
ran
haste
might
stigma
risk that his conduct
bad
bear the
of
faith.15 No
permittee
facile formula informed the
how to strike the deli
immunity.
cate balance which would afford the desired
150,
immunity
provides prior
10As defendants read
section
which
finality merely conditional;
only
urge
to administrative
defendants
that
ignore
the section authorized the Board of Permit
the 105-
height limitation,
required
foot
not that it
the board to do
fn.
so.
infra.)
finality only
right
11A
achieves such
rvlien the
to invoke the
discretionary reviewing authority
of the Board of Permit
has
been exhausted. Thus a
issued
bureau becomes
10-day period following
final at the conclusion of the
the order which
permit,
appealed
issued that
if such order has not been
that
time.
Otherwise,
40-day
becomes final
at the conclusion of the
period
filing
timely
following
appeal. (Municipal
pt. III,
of a
I,
8, 14;
§§
Appeals,
art.
2d
supra,
Lindell Co. v. Board
23 Cal.
of
303, 323.)
Brougher
Works,
v.
supra,
12See
Public
205 Cal.
432-
435;
(1925)
Miller v. Board
Works
total which have become which it final, nothing germane we would achieve purposes of section 150. Such a construction would simply arm discretionary authority ignore laws which become during effective application. pendency aof option addition of this already discretionary weapons broad arsenal of avail- only compound able to the board would uncertainty all parties, interested a result which would subvert rather than legislative purpose. subserve the
Ill seriously disputing Without this analysis, defend independent arguments ants advance two support of their interpretation They suggest of the section. view, that, first unless adopt encourage repeated petitions their we shall *7 rehearing Appeals by before the Board of Permit those who postpone granting wish to of a until a new ordi operative. argument upon nance has become This relies defend unsupported Ap ants’ peals assertion that of Permit empowered grant rehearings to without limitation as contrary abrogate right 18A conclusion would of all interested parties, by secured section 39 of the San Francisco Charter and Municipal Code, part III, urge article sections 14 and to in formal hearings Appeals issuing impropriety before the Board of Permit of zoning change, notwithstanding a the change. in conflict with an imminent issuing of such a before the effective date of that lawfulness (See 5, supra.) fn. Any interpretation statutory of section 150 which would defeat this right discretionary authority to Ap- invoice the of the Board of Permit peals clearly light unacceptable would be of the fact that the Central Bureau, board, (Cf. obliged Permit opposing unlike the is not to accord parties any rights 6, supra.) Accordingly, whatever. fn. defendants preserve discretionary jurisdiction construe the section so as to of Appeals the Board of supra.) Permit in this area. fn.
42 point fact, In of the Board of
to time.19
possesses
authority.
part III,
such
8 and 14
Sections
of
Municipal
provide
Code
of the
both
the Board
article
final
Appeals must enter its
order not later than 40
of Permit
appeal.
filing
it of the first
days after the
secondly suggest that the
“issue” and
words
They
“grant”
synonymous.
insist that those words are
are
interchangeably in the San
Charter and Mu
Francisco
used
that,
they
linguistic
as a
nicipal Code,
matter,
and
conclude
protect permits
they
read to
as soon as
150 should be
ap
lawfully “issued”
bureau.20 In
have been
proaching
argument,
recall the admonition of Learned
we
this
“
of the surest indexes of a
and
is one
mature
Hand:
[I]t
jurisprudence not to make a fortress out of the
developed
(2d
(Cabell
1945)
Markham
dictionary.
v.
Cir.
148
. . .”
Markham v.
(1945)
nom.
326
affd. sub
Cabell
F.2d
193].)
66 S.Ct.
L.Ed.
404
U.S.
[90
rigidly
level, however, defend
formalistic
on its own
Even
Contrary
proves
be untenable.
position
ants’
portions
Fran
assertions, the relevant
of the San
defendants’
do not
use
words
cisco Charter
instead, they employ
interchangeably;
“grant”
“issue”
departmental
concept
the initial
to describe
“issuance”
Appeals,
the Board of Permit
but
is reviewed
action which
disposition
concept
“granting”
for the
of
reserve
final
evidently
Lindell Co. v. Board
misread
19Defendants have
Contrary
assertion,
supra,
Appeals,
to defendants’
23 Cal.2d
say
grant
hi Lvndell that
the Board
could
did
time”;
rohearings
rehearings
“without
limitation as
we said
‘ ‘
granted
grounds
as to
without
limitation
could
(23
(Italics added.)
at
Cal.2d
thereof.”
jurisdictions
20Although
interpret
in other
have
courts
had occasion
analogous
immunity provisions
(see, e.g., City
to that of section 150
(1929)
124]; City
109
422
New Britain v. Kilbourne
Conn.
A.
[147
(1926)
427];
Shreveport v. Dickason
IV by holding that Finally, “lawfully grant- is not respect ed” until all administrative action with application completed, preserve municipal power has been prevent newly the circumvention of enacted laws. objective nonconforming “Given to eliminate uses, throughout generally country courts follow a strict hearing investigations . 21"After . . and such further as the Board [of may necessary deem . . . the Board concur Appeals] may issue, the action of the authorized department transfer or revoke the or the action permit, may overrule of said department and order that granted, or restored, to be permit the case denied, permitted as transferred, (Municipal 14.) (Italics added.) may § be.” art. Code, pt. III, ‘ ‘ On the issuance of any any ... . . . who permit, deems person that his or . . interest . will be property adversely affected . . . may (Municipal §30.) the Board of Permit Appeals.” Code, pt. art. Ill, “ (Italics added.) Board] [The may concur the action of the depart to issue ment authorized such license or by the permit, or, vote of four may overrule the action of such members, department order that granted, (San or license be or refused.” restored, Francisco (Italics added.) Charter, 22Both the San Francisco Charter and the afford numerous indications in addition to those noted above that the “issu “granting” ance” are not to be viewed as equivalent. Thus, section 39 of example, the San Francisco Charter authorizes Permit Appeals to “order that the permit ... . . . (italics added), revoked, it be as would have refused” granted” more if the appropriate were deemed “lawfully as soon as the bureau had issued it. agency when a Moreover, subordinate is authorized ini- “grant” tially which an applicant seeks, an appeal from the *9 enlargement omit- their extension or policy against [footnote Diego supra, 37 McClurken, San v. Cal.2d (County ted].” of policy, light we loathe to of this basic are 683, 687.)23 In all statutory immunity to who obtain the lure of extend approval during preliminary the inevi- permit bureau’s the zoning a ordinance the enactment of interval between table interpretation of section Yet the and its effective date. precisely promise that would hold out espoused defendants encourage thus eleventh-hour eva- protection and would zoning of the laws. sions protect only By interpreting section to those the municipalities final, however, enable which have become through majority efforts to race of last-minute deter the vast ordinarily authority suspend the action under does not exercise of such review but only stays proceedings that in furtherance of action. For 302(d) example, of to Francisco Charter and section of the San section 117.3 Zoning City Planning expressly the authorize Administrator the Code ‘‘ ’’ grant appli requested he the when has determined that a variance criteria; appeal prescribed certain an his therefor meets cation merely stays to the Board of all granting of a variance Zoning (San proceedings in furtherance of the Administrator’s action. City 303(a).) Charter, § 117.3; § Yet Francisco that, pending eases, appeal Municipal action from which provides “the Code ’’ (Munici suspended. taken . . . an is shall (Italics added.) pt. III, pal Code, § must art. One torture the Municipal permit, supposedly it is to conclude that of the Code words bureau, “granted” rather than the action that bureau issuing “suspended” pending temporarily permit, appeal. is which ‘‘ ’’ issuing plausible per inference is that the initial act of a The most something less under the Code and mit constitutes than Charter “granting” permit. the ultimate a developers in this connection that the structure 23Defendants insist though build, limit, proposed constitute this over twice as tall as lawful would not “non-conforming building.” Regardless accuracy a of the obviously characterization, principle Indeed, it evades the at stake. dispositive, put if the defendants would be labels were deemed hard upon present explain that section 150 in their reliance case: The title of Buildings “Non-conforming Uses, is General.” matter, however, purely argument a technical Even as defendants simply here advance ning incorrect. The relevant section Plan “existing building provides that conforms to height regulations floor use but exceeds the or area ratio limitations non-conforming building, not be a of this Code shall be deemed to but building enlarged structurally or no such as shall hereafter altered so height (City Planning Code, 120, its bulk.” to further or increase 35-64, February 10, 1964.) (Italics as Ordinance No. enacted amended suggest added.) yet that not section does not structure existence “conforming” building notwithstanding be deemed a its conflict should height contrary, governing expressly limitations. On the it with the states that " building part or structure or thereof o shall be con [n] reconstructed, altered, structed, permitted relocated or otherwise regulations height bulk set forth herein use exceed the height (Ibid.) passing in which it is located.” We note districts permit procedures. upon gamut Thus, the enactment of municipality ordinance, may new simply set the effective date of that ordinance so that opera will become any permit tive before thereafter issued becomes final.24 Sure ly, section 150 was not intended to frustrate this method of delays discouraging exploitation inherent in the municipal legislative process. Under circumstances of this developers case, private interest of the must therefore “yield public interest compre the enforcement aof plan.” (County Diego San McClurken, hensive v. 683, 690.) supra, 37 Cal.2d Special Height District Ordinance No. 35-64 effec- became date, tive March 1964. On that on which the sought yet had granted; after date, lawfully grant agency could it. Were the Board of Permit *10 Appeals empowered so, tightening to do zoning regula- always by legislative tions decree could nullified admin- istrative fiat. compel We here the summarize considerations which our permit “lawfully granted”
conclusion that a is not in the sense 150 until envisioned section all administrative action language exception building this of section makes no for the case of a permit lawfully granted” (City Planning Code, “for which a has been (d)). “lawfully subd Since have concluded that no ’’ developers granted Planning case, City to the in this we need not decide whether Code as in section amended was intended to abro- gate by City exception Planning the created Code section subdivision (d), as in 1960. enacted case, example, 24In the instant even if the bureau had February day issued a on the after the new height enacted, filing ordinance had been of an within the following days finality postponed would have of the bureau’s order days (see thereby supra), any preventing for another 40 permit fn. becoming By providing final before March 23. operative ordinance would become of after on March the San Francisco Board effectively Supervisors guaranteed that no issued the bureau height enacted, subsequently the new limitation had been chal lenged Appeals, possibly before the could become final escape operation in time to of the new ordinance. Supervisors might proceeded might The Board of have otherwise: It ‘‘ ’’ adopt have chosen to interim ordinance to freeze the issuance of building permits portion all in the northern of San Francisco until new law had become Hunter effective. v. Adams 180 Cal. Works, App.2d Cal.Rptr. 776]; Miller cf. v. Board supra, the 477; see, generally, Note, Stopgap 195 Cal. Measures to Preserve Pending Zoning Comprehensive Redevelopment Quo Status or Urban Legislation (1962) availability 14 W.Res.L.Rev. of that alternative, however, wisdom, certainly does not diminish the cannot negate validity, of the more selective course which the Board of Supervisors pursue in fact to chose on this occasion. permit application completed, has been and that regarding the developers’ permit granted immunity therefore under principles 150: Under traditional of adminis section law, de the Board of its novo re trative apply zoning at the is bound to ordinances in effect view decision, final not those in force at the time of its time of any agency. preliminary proceedings before subordinate De that section 150 of the have failed to demonstrate fendants exception enacted an to this basic rule. Code contemplated Although protection section pursuant permits against revocation final although the changes ordinances, uncertainty previous inherent rules sought eliminate the 150 did post revocation, section “ex facto” governing such pend expectancy that a protection a mere any not ing application create finally approved. might opposition this in arguments two Defendants’ erroneously first assumes that terpretation stand. The cannot indefinitely postpone rehearing could repeated petitions for permit; yet Munic building a valid effective date of fixing the date when a possibility ipal precludes that argu Defendant’s second final must be entered. order “issued” with attempt equate that is ment, an separate treatment ac “granted,” overlooks that is one Charter and those two words corded preliminary departmental connotes a “issuance” there Code: disposition designates final “granting” action, whereas Appeals. by the Board of the matter “lawfully until granted” ruling that a Our review have appropriate channels of circum- last-minute efforts to deter cities to enables exhausted interpreta- broadly, our laws. More changes in the vent *11 non- prevent the proliferation 150 serves to tion of section contrary section A construction conforming structures. which are vital to objectives, both of these subvert would achievement development of modern in the volatile of order centers. urban 150 to reasons, not read foregoing we do For a subordinate appealable order of endow disregard finality premature attribute agency and of that section purpose the basic part. is a of which judgment affirmed. The Traynor, J., Peters, J., Mosk, J., Burke, Peek, J., C. J.,* concurred.
McComb, J., judgment. concur in the I petition appellants Development HAP Co., & Haas Corp. Haynie Development Partnership and HAP for a rehearing denied March 1967. No. In Bank. Mar.
[Crim. 1967.] In re Corpus. WILBUR EUGENE STREETER on Habeas assign sitting Supreme Court under *Retired Associate Justice ment the Chairmanof the Judicial Council.