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November 30, 2010


Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. (Super. Ct. No. 07CC12080)

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

Contursi v. City of Laguna Beach



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Steve and Seanne Contursi own a home in Laguna Beach at the top of a slope that goes down to the beach and ocean. While the hill may not quite qualify, under Laguna Beach land use law as a "bluff" (it would have to be 45 degrees to be in that category), it is still pretty steep.

The Contursis want to build a patio and spa behind their home. The problem is, when they built their house, they built it as close to the edge of the slope as possible. That means that any "backyard" construction would have to take place on the downslope.

The point is important because this appeal centers on the terms of the 1996 conditions by which the Contursis' home was constructed in the first place: The City of Laguna Beach (City) contends that those conditions categorically precluded any "downslope" development. The Contursis contend that the conditions contemplated the possibility of further downslope development. As explained in more detail below, as a matter of the construction of the applicable language -- the phrase, "no encroachment onto the slope area" is plain enough -- the City has the better part of that argument.

The Contursis also present a more troublesome issue centering on the idea of unequal treatment: There is no dispute that some of their neighbors have been allowed more intrusive improvements further down the same contiguous slope.

But the City has this comeback: What the neighbors have been permitted is irrelevant, because the record is devoid of all the details concerning the City's approval of the neighbors' projects. Thus, the City argues, we cannot say that those projects were not the result of separate deals that each of the neighbors made with the City, in which those neighbors may have foregone some sort of development elsewhere in return for some downslope development.

The Contursis have not argued, however, either (a) that the City's design review process allows for some kind of impermissible discretion that would allow the City to (unfairly) make such agreements with the neighbors, or (b) more generally, that in making any such "'give and take'" agreements, the City was acting beyond its lawful powers as spelled out in its Municipal Code or other applicable law. Accordingly, the unequal treatment argument also fails. We thus affirm the judgment denying the Contursis' petition seeking to overthrow the City's denial.


1. The 1996 Approval

In the fall of 1995, the Contursis obtained approval from the City's design review board allowing them to build a home on their property located on the ocean side of South Pacific Coast Highway. Here is the first paragraph of the letter, dated April 24, 1996, spelling out the details of the formal letter approval. We reproduce it with original boldface font and underlining:

"At a regular meeting of the Board of Adjustment/Design Review Board of the City of Laguna Beach held Thursday, April 4, 1996, action was taken granting Variance Application 6289 and Design Review 96-006, subject to the conditions that this approval is for the building only without the patio and with no encroachment onto the slope area, a construction fence be placed at the top of the slope along the length of the property, a revised landscape and parking plan be submitted, samples of the color of the building and the roof color are to be submitted at the next hearing; and that approval of Coastal Development Permit 96-03 be returned at the meeting of April 18, 1996. A copy of the adopted resolution is enclosed, stating in detail the action of the Board." (Original bolding.)

The "adopted resolution" to which the letter made reference contains three findings (not relevant to this case) basically saying that the project had minimized the potential for erosion, there was no need for a public access dedication, and there would be no adverse environmental impacts under the California Environmental Quality Act. While there is a section at the end of the resolution for "conditions," the conditions do not mention anything about no downslope development. They merely say that the permission has a two-year expiration date. A second letter was also sent out April 24 from the City. That letter likewise did not mention anything about downslope development. It merely reiterated the two-year window ...

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