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STEVE CONTURSI et al v. CITY OF LAGUNA BEACH

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


November 30, 2010

STEVE CONTURSI ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF LAGUNA BEACH, DEFENDANT AND RESPONDENT.

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

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

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.

FACTS

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 of approval and further cautioned the Contursis that no building permit could be issued for another 20 days so as to allow neighbors time to appeal the design review board's decision.

2. The 1997 Slope Failure

Construction began. Neighbors objected about alleged modifications to the "upper levels" of the house, and the issue came before the City's design review board when the Contursis sought a deck addition in late 1996. The need for approval of a deck addition was necessitated because a "surveyor's error" had apparently resulted in the house being built one and one-half feet closer to the ocean than originally planned. In fact, it appeared that the house was now right up against an imaginary "string line" beyond which no development had been permitted. In fact, one member of the design review board opined that a "mistake" in the "grading and construction" of the house had perhaps already even resulted in some degradation of the slope. There was a series of review board continuances of the matter until January 30. A week before that meeting, though, a "small superficial slope failure occurred," prompting the Contursis to withdraw their application. Pictures in the record showing the condition of the slope after this "failure" practically show the house as sitting on the edge of a cliff.

3. The 1999 Plan

In 1999, the Contursis tried again, submitting an application to build a concrete and stone in-ground spa and new patio. The design review board denied the application because, to quote the relevant minutes of the meeting, "the feeling was unanimous that the conditions placed on the original approval should stand."

4. The 2006 Plan

Finally, in April of 2006, the Contursis submitted another application with plans for a patio and spa, this time very similar to the 1999 plans. Basically, the plans called for decking in the back of the house, then a lower level of flagstone patio with a spa. There is no dispute that these plans called for "downslope" development beyond the original "string line."

This time, after the design review board's rejection of the application, the Contursis appealed to the full city council. They lost again. The City's mayor noted that a spa might leak, and worried about the "safety" of locating a spa on the slope.

5. The 2007 Reconsideration

Because the City had sustained the review board's denial of the application "based on geotechnical safety concerns," and since the concerns had been "raised after the public hearing was closed," and without "complete information" on the subject, the City agreed to reconsider the matter. And in fact a geotechnical consultant hired by the Contursis reported that the project "would not adversely affect adjacent properties with due precaution during construction." Further, the consultant did not see anything unsafe about the proposed development.

Even so, the city council denied the application. The dispositive factor was the original 1996 approval that contemplated "no encroachment onto the slope area."

6. The Litigation

The Contursis filed this action in mid-November 2007 for a writ of mandate seeking to rescind the City's denial of their application. The trial court took the matter under submission in October, and formally denied the petition on November 21.

We now quote applicable portions of Judge Chaffee's ruling explaining his decision:

"Petitioners agreed with the original 04-1996 conditional approval prohibiting encroachment onto the slope beyond the string line; that is the finding that should have been challenged. Instead, Petitioners accepted the condition and built the residence up to the edge of the original ocean side string line limit. They should have challenged the decision to approve based on the condition that there be no further encroachment on the slope. They should not have built on the string line until that challenge was resolved. Here, they belatedly seek relief from that decision. [Record citation.]

"Petitioners argument that the request to provide a landscape plan that included a patio showed an intent to allow further encroachment also fails. The 1996 approval clearly stated that it was approved without the patio and conditioned on no further encroachment on the slope. The provision allowing for a future approval of landscaping and a small patio at the top of the slope was not a green light to contradict the clear meaning of the condition not to further encroach on the slope and to maintain the natural character of the slope. [Record citations.]" . . . .

"Although petitioners had evidence at the last appeal via a geotechnical report that the requested improvements could be made and ensure stability of the slope, that is not enough to overturn the decision. The fact that petitioner[s] could stabilize the area using grading and installation of a network of 30 foot caissons contradicts the desire of the [Design Review Board] and City to keep the area in its natural state. Stability is not the only issue; and is not necessarily a controlling issue. It appears the installation of a network of caissons would destroy the natural slope.

"As to the subject request, the [Design Review Board] relied on the entire history of the project and the original conditional approval. It again denied the request. At the 12-05-06 appeal to the City Council the Council appears to have gone off on a tangent and raised a new issue of safety; and relied on safety as a basis for denying the request.

"After petitioners threatened to sue, a rehearing was set for 09-18-07. At that hearing, the safety issue was reviewed, but also a review of the entire project including the original conditional approval was considered. The denial resulting from the 09-18-07 hearing was based on the original conditional approval and the subsequent history of continually preserving the purpose of their conditional approval, maintaining the slope in its natural state. The 09-18-07 hearing to reconsider the 12-05-06 was de novo, and it appears that the entire history of the project was before the Council. [Record citation.]

"The original approval was conditioned on no further encroachment on the slope. and the subsequent history of maintaining that original decision conforms to the requirement that substantial evidence supports the decision to deny the subject request to build on the slope."

The Contursis then brought this appeal from the judgment.

DISCUSSION

1. The Terms of the Original Conditional Approval

We have reproduced most of Judge Chaffee's thorough and cogent decision because it gets to the heart of the case: The Contursis agreed to the 1996 conditions, which precluded any downslope development, and then, after building their house so they had no room for any backyard development, tried to back out of the "deal." If the no-downslope terms of the 1996 condition were unreasonably onerous, they should have challenged them at the time.

That leaves the Contursis with the argument that the 1996 approval did not really categorically preclude any downslope development. For this argument, the Contursis rely on resolution, 96-015, adopted on April 18, 1996: "Mr. Sabaroff, made a motion, seconded by Mr. Goldstein, to adopt Resolution 96-015 for CDP 96-03, based on findings 1L, 2b, & 3b with the condition that all recommendations and conclusions in the Geotechnical report of Stoney Miller dated 11/2/89 be adhered too [sic] with special attention given to A1, C5, G & K. Mr. Goldstein, made a motion, seconded by Mr. Oligino to approve the landscape, exterior and roof colors. Mr. Sabaroff voted against the landscape plan. The motion carried unanimously." (Original bolding removed.)

On page 28 of the Administrative Record, there is a "staking plan" (which mentions "landscaping") that appears to have been approved in resolution 96-015. Assuming we are looking at it correctly, it does indeed appear to show a patio on a "lower level" in what appears to be the house's backyard.

The Contursis also rely on the April 24, 1996 letter, the first paragraph of which we have quoted above, which made reference to a "revised landscape and parking plan be submitted."

To be sure, the City might, in approving resolution 96-015, have specifically addressed the issue of downslope development. However, the very letter of April 24 on which the Contursis rely is unambiguously plain on the topic. We quote it again, this time italicizing the dispositive language:

"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." (Italics added, original bolding removed.)

In context, the reference to any "revised landscape and parking plan" plainly means that the City contemplated that new plans would be drawn that would avoid any "encroachment onto the slope area."

We need only add that the Contursis themselves obviously understood the "no encroachment" condition at the time: If they really believed that the "staking plan," with its contemplation of a slightly lower level patio, had been approved inconsistent with the City's no encroachment language, they might have sought clarification from the design review board, or, as Judge Chaffee alluded to, challenged it at the time.

2. The Neighbors' Developments

Perhaps the Contursis' best argument is that the City has not had a blanket policy of precluding "downslope" development on the very slope in question. There are plenty of nearby properties (best shown in a series of black and white photographs at pages 292 through 295 of the Administrative Record) which appear to have been allowed significantly more extensive development than the Contursis' relatively modest patio and spa.

But the argument has not been properly developed. As framed, the Contursis' argument is that the "no encroachment" condition is "inconsistent" with similar improvements made by neighbors.

Such an argument, however, necessarily rests on foundations that, at least in this case, were never developed and are not developed in the Contursis' briefing.

The argument raises a host of questions on which the Contursis' briefing is silent: Did the Laguna Beach Municipal Code properly allow the design review board, in 1996, to preclude all downslope development? Were there any changes since 1996 that allowed downslope development by the neighbors? Does the design review board have the authority to preclude all downslope development, but then vary such a preclusion if a property owner trades it for some kind of other concession (say, a smaller footprint for the house)? When, precisely, were the neighbors' downslope developments put in? Did the Contursis have the right to challenge them at the time? And -- perhaps most importantly -- can it be said that the geological aspects of the various downslope developments in the record are substantially the same?

We note, in this regard, that the pictures on pages 292 through 295 of the Administrative Record show widely varying slope heights, angles and distances to the beach. We further note that it is the City that asks us to take judicial notice of its design review ordinance, Laguna Beach Municipal Code section 25.05.040. And that ordinance is reasonably clear that the design review board is authorized to have projects designed in a manner that "best" shows "sensitivity to the natural conditions of the site" (subdivision (H)) including a minimization of grading (subdivision (H)(4)), which suggests that the applicable law is a case-by-case approach to items such as patio and spa design on slopes. (We grant the City's request for judicial notice of its ordinances.)

Judge Chaffee's decision noted that the time for the Contursis to have challenged the blanket preclusion of downslope development on their property was in 1996, when they might easily have made the case (at the administrative level) that the blanket preclusion was unfair as to them. Thus on this record we cannot say that the preclusion was necessarily unfair or unconstitutional.

3. Other Issues

We deal with the Contursis' other arguments summarily. Their point that the proposed spa (easily) meets setback requirements is irrelevant because the preclusion of all downslope development was a matter of the preservation of the natural hillside slope. And, as just discussed, the Contursis have presented no argument that the City's design review board does not have the authority to preclude such development. The argument that there is no evidence of lack of safety is irrelevant because there are other interests the City could legitimately take into account, such as the maximization of the slope's "natural state." And the question of whether their property is in an "environmentally sensitive" area is also irrelevant if the City had the right, in 1996, to preclude all downslope development.

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

WE CONCUR: BEDSWORTH, J. MOORE, J.

20101130

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