IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
March 28, 2011
M. CATHERINE EDDY, PLAINTIFF AND APPELLANT,
PLACER COUNTY BOARD OF SUPERVISORS, DEFENDANT AND RESPONDENT; CRAIG E. HILT ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.
(Super. Ct. No. SCV24519)
The opinion of the court was delivered by: Raye, P. J.
Eddy v. Placer County Bd. of Supervisors
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In a neighborhood of 20-acre-minimum lots, plaintiff M. Catherine Eddy objects to the 20-foot variance granted her neighbors who, based on Placer County's mistaken designation of their front yard as their side yard, built a house 20 feet too close to a partially improved easement. The trial court denied her petition for a writ of mandate to vacate the board of supervisors' denial of her appeal of the planning commission's grant of the variance. On appeal, she contends there is no finding or substantial evidence to support a finding that her neighbors' property differs substantially and in relevant aspects from other parcels in the neighborhood as required by Government Code section 65906. We disagree and affirm.
Real parties in interest Craig and Lisa Hilt own two contiguous lots in a residential forest zone in Placer County. In 2002 they applied for a building permit to construct a single-family residence on one of the lots. Because 90 percent of this lot contains slopes ranging from 30 to 50 percent and approximately 80 percent of the lot is heavily forested, the majority of the lot is not suitable for the construction of a house.
The Placer County Code requires a front yard setback for a structure of 50 feet and a side yard setback of 30 feet. The front yard setback is based on which boundary of the parcel abuts an adjacent road or street, or the edge of any public or private road easement. In establishing the setback requirements for the Hilts' building permit, Placer County (County) used an outdated parcel map that failed to depict a road easement running along the southwest property line. The Hilts indicated that the access would be the northwest property line, and indeed, the front door of the home faces the northwest property line. Thus, the northwest boundary of the Hilts' property was designated as the "front yard," requiring a 50-foot setback, and the southwest property line was designated as the "side yard," requiring a 30-foot setback.
In June 2002 the County issued a building permit. The setbacks were inspected on May 1, 2003, and the foundation of the home was poured on May 9.
In reality, a 50-foot road easement runs along the southwest boundary, although only a 19-foot segment of the 50-foot easement is improved with a gravel surface. Eddy does not use the gravel road and does not need it for access to her property. Nevertheless, in September of 2007, over four years after the Hilts poured the foundation for their house, Eddy filed a complaint with the Placer County Code Enforcement Division asserting that the home's location violated the 50-foot setback requirement.
Because the Hilts' predecessor had failed to file an updated parcel map depicting the easement and the County had used the existing parcel map to establish the setback requirements, the County advised the Hilts to apply for a variance to remedy the technical violation. The Hilts complied. On August 7, 2008, the zoning administrator approved the variance over Eddy's objection. She appealed to the Placer County Planning Commission (Planning Commission), and when she lost, she appealed to defendant Placer County Board of Supervisors (Board). Both bodies held hearings, admitted evidence, and made findings in support of their decisions to uphold the issuance of the variance and to reject Eddy's appeal. The evidence and findings will be set forth in relevant part in the discussion that follows.
The County issued a certificate of occupancy, and the Hilts reside in their home with their minor children. The road has only 19 feet of gravel on it. The planning department advised that it was unlikely the road would be improved to 50 feet in the future because it only serves two additional properties, one of which is owned by the Hilts. Nevertheless, the County determined that even if it is improved in the future, the variance would not impact the integrity of the road as the residence is 30 feet outside the road easement.
The trial court denied Eddy's petition for a writ of mandate. The court explained: "[T]he 'whole record' contains evidence of the nature of the Hilts' property compared to surrounding properties. The administrative record contains testimony and other evidence that the Hilts' property has unique characteristics, making it different from nearby parcels. Such differences include unique shape, topography, suitability for construction, accessibility, condition of recorded maps, and other differences." The trial court identified those pages in the administrative record on which the evidence could be found.
The court further held: "Additionally, the administrative record demonstrates that the location, condition and existence of the road easement which is the basis for Eddy's complaint and the variance, are notably unique to the property. Pursuant to the stipulation filed by the parties on September 14, 2009, the administrative record includes all of the documents and exhibits considered by the Planning Commission, as well as the transcript of the appeal hearing before the Board of Supervisors on February 24, 2009. The record makes clear that the documents and exhibits considered by the Planning Commission were reviewed by the Board of Supervisors as well. Petitioner's argument that the Board's findings when considered alone are insufficient--and without regard to the evidence--is contrary to both the applicable case law and to the parties' stipulation." Eddy appeals.
DISCUSSION I Standard of Review
"A local government's grant of a variance is a quasi-judicial act subject to judicial review under Code of Civil Procedure section 1094.5." (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884 (Craik).) "Section 1094.5 clearly contemplates that at minimum, the reviewing court must determine both whether substantial evidence supports the administrative agency's findings and whether the findings support the agency's decision. Subdivision (b) of section 1094.5 prescribes that when petitioned for a writ of mandamus, a court's inquiry should extend, among other issues, to whether 'there was any prejudicial abuse of discretion.' Subdivision (b) then defines 'abuse of discretion' to include instances in which the administrative order or decision 'is not supported by the findings, or the findings are not supported by the evidence.' (Italics added.) Subdivision (c) declares that 'in all . . . cases' (italics added) other than those in which the reviewing court is authorized by law to judge the evidence independently, 'abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.' [Citation.]" (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515 (Topanga).)
The grant of the variance in this case must be sustained, therefore, if there is substantial evidence to support it. (Cow Hollow Improv. Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160, 171.) We, like the trial court, "must determine whether the evidence before the Board, viewed in the light most favorable to the respondent, sustains the findings under review." (Ibid.) Eddy has the burden to demonstrate that the administrative record does not support the findings. (SP Star Enterprises, Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 469.)
At its essence, the courts play a supervisory role in reviewing a governmental agency's decision-making process. Thus, there can be no abuse of discretion unless that process is flawed. "By focusing . . . upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing court's attention to the analytic route the administrative agency traveled from evidence to action." (Topanga, supra, 11 Cal.3d at p. 515.)
Scrupulous judicial review of the grant of variances safeguards the social compact essential to the integrity of a zoning ordinance. "Whereas the adoption of zoning regulations is a legislative function [citation], the granting of variances is a quasi-judicial, administrative one. [Citations.] If the judiciary were to review grants of variances superficially, administrative boards could subvert this intended decision-making structure. [Citation.] They could '[amend] . . . the zoning code in the guise of a variance' [citation], and render meaningless, applicable state and local legislation prescribing variance requirements. [¶] Moreover, courts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests." (Topanga, supra, 11 Cal.3d at pp. 517-518.)
II Substantial Evidence Supports the Findings
Government Code section 65906 sets forth two prerequisites for a variance. They are:
1. "Because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification."
2. "Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated."
Pursuant to Government Code section 65906, the Board made the following express findings:
"1. There are special circumstances applicable to the subject property, including the heavy tree coverage, the steep slope of the property, and the canyon on-site. Approximately 90 percent of the project site contains slopes ranging from 30 to 50 percent, which increases towards the east of the property, and therefore, a majority of the subject property is unsuitable for the construction of a residence. Additionally, the site contains heavy tree coverage, with approximately 80 percent of the project site covered with trees, which also limits the availability of a suitable building site. Although there may appear to be other buildable areas on-site, these areas are developed with sewage disposal leach lines and repair areas.
"In addition, there are special circumstances associated with the location and use of the road easement to the subject property. The easement runs along and terminates on a small portion of the subject property and the neighboring parcel to the southeast. Should this portion of the easement be improved in the future for access to the adjoining lot, there would only be three parcels taking access from this section of the easement and it is unlikely that the existing residence on the subject parcel would have a negative impact to the potential improvement of the easement.
"Therefore, the granting of the Variance to allow for a reduced front yard setback to the road easement would not negatively impact the community, nor does it create a situation in the future that would negatively impact the adjoining parcel which may utilize that portion of the road easement running along the subject property.
"Because of such circumstances, the strict application of the Zoning Ordinance has been found to deprive the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classifications.
"2. It is the Board of Supervisors' determination that the granting of this Variance will not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and in the same zone district as the structure is a 2,992 square foot single-family dwelling which is an allowed use within the Residential Forest zone district.
"3. The Variance does not authorize a use that is not otherwise allowed in the zone district, given that residential uses are allowed within the Residential-Forest zone district.
"4. The granting of this Variance does not, under the circumstances and conditions applied in this particular case, adversely affect public health or safety, is not materially detrimental to the public welfare, nor injurious to nearby property or improvements, given the subject property is 20 acres in size and the house is positioned such that it will not negatively affect neighboring properties. Additionally, the distance of the house from neighboring residences and property lines allows sufficient area to meet fire-safe standards.
"5. The Variance is consistent with the Placer County General Plan."
The record is replete with evidence in support of the Board's findings. The zoning administrator found there were special circumstances applicable to the Hilts' property, including the slope of the property and the substantial tree coverage. His decision was based on the contents of the staff report as well as his own field review of the property. Eddy appealed the zoning administrator's decision to the Planning Commission.
The development review committee prepared an in-depth analysis of the Eddy appeal for the Planning Commission. The report provides an excellent summary of the evidence. "The Variance findings contained in the staff report to the Zoning Administrator cite the heavy tree coverage, the steep slope of the property, and the canyon located on site as special circumstances applicable to the subject property. Heavy tree coverage and sloping terrain are conditions common in the vicinity. The location of the residence has a slope of 15 percent, which is the most level area on the property and is limited to a small portion of the 20 acre site. Approximately 90 percent of the project site contains slopes ranging from 30 to 50 percent, which increase towards the east of the property and, in addition, approximately 80 percent of the project site contains heavy tree coverage. Therefore, a majority of the subject property is unsuitable for the construction of a residence.
"In addition, the location and use of the road easement present additional special circumstances to the subject property. The portion of the road easement which creates a front yard setback requirement on the subject property is simply a paper easement, in that the easement is not passable nor improved. The easement runs along and terminates on a small portion of the subject property and the neighboring parcel to the southeast (which is also owned by the applicant). This portion of the road easement is impassable and is not utilized by the appellant, nor is the road easement needed for the appellant to access her property. Should this portion of the easement be improved in the future for access to the adjoining lot (which is owned by the applicant), there would only be two parcels taking access from this section of the easement and it is unlikely that the existing residence on the subject parcel would have a negative impact to the potential improvement of the easement. Therefore, the granting of the Variance to allow for a reduced front yard setback to the road easement does not harm the appellant, nor does it create a situation in the future that would negatively impact the adjoining parcel which may utilize the portion of the road easement running along the subject property."
Eddy challenges the sufficiency of the evidence. For the most part, she simply reargues the evidence. For example, she objects to the Board's conclusion that the sloping and tree coverage justified the variance when, in her view, the house could have been constructed on the lot without violating the setback requirements. When more than one inference can be reasonably deduced from the facts, we cannot substitute our deductions for those of the Board. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Eddy's attempt to reweigh the evidence is to no avail.
But the crux of her appeal focuses not on the evidence pertaining to the Hilts' property; it focuses on the evidence regarding similarly situated property in the neighborhood. She insists, as she did at every step in her appeal process, that the Hilts failed to produce evidence of "privileges enjoyed by other property in the vicinity and under identical zoning classification." (Gov. Code, § 65906.) She argues that in the absence of comparative data about other properties, the variance constitutes a prohibited special privilege inconsistent with the limitations upon other properties in the vicinity. The Planning Commission, the Board, and the trial court rejected her contention. So do we.
As the trial court set forth in its decision denying Eddy's petition, "the 'whole record' contains evidence of the nature of the Hilts' property compared to surrounding properties." For example, the narrow and steep configuration of the Hilts' property is "[u]nlike the surrounding properties." The Hilts' property is a "triangular shape, unlike the other properties in the vicinity." The slopes on the Hilts' property contain 40-foot contours, "unlike the other properties in the vicinity."
To be sure, the unique shape, topography, and suitability for construction distinguished the Hilts' property from other properties in the vicinity. But as the trial court aptly recognized, it was the existence, location, and condition of the unimproved road easement that was "notably unique to the property." We agree with Placer County Counsel that the application of the front yard setback requirement to a house inadvertently constructed 20 feet too close to the unimproved easement servicing only 3 lots would have had a disparate impact on the Hilts' property.
Craik, supra, 81 Cal.App.4th 880 provides a fitting template. In Craik, as here, special circumstances included the shape of the property, the size of usable area on the parcel, the lack of developable area on the parcel, the topography of the parcel, and the location of the parcel. (Id. at p. 887.) Because the property was small and the back yard was unusable, the property owner was granted six variances to various zoning restrictions, including a lot line setback. (Id. at pp. 886-887.) Most of the residences were developed before the general plan, zoning ordinance, and regulations were adopted, and most did not comply with the later established lot line setbacks. (Id. at p. 886.)
The "special circumstances" needed to justify the granting of a variance, the court found, included much more than the unique physical attributes of the property. In Craik, the special circumstances included the counterintuitive notion that regulations which abstractly applied to everyone, in reality only impacted a few parcels. The court explained: "Thus, defendant could reasonably accept that there is a disparity between properties. That the abstract impact of the regulations suggests a need to rezone does not negate that the practical impact is limited and could be considered disparate. The point here is that plaintiffs define disparity in one way and defendant defines disparity in another way. Neither construction is unreasonable. We therefore defer to defendant's construction." (Craik, supra, 81 Cal.App.4th at p. 890.)
Similarly, the front yard setback requirement ostensibly applies to everyone in Foresthill. But here the easement constitutes a special circumstance for several reasons. It did not appear on the parcel map the County used in calculating the setback requirements before the Hilts built their house. In the absence of the easement, their front yard abutted the northeast property line and they complied with the 50-foot setback requirement. It was not until the house was built that Eddy complained and the County, in discovering the paper easement, determined that the side yard was, in actuality, the front yard and the house was 20 feet too close to the southwest boundary.
As a result, if the County did as Eddy demanded and enforced the 50 foot setback requirement, the location and use of the road easement vis-a-vis the required setback distance to the edge of the easement only impacts the Hilts' two parcels and one other parcel. As in Craik, the practical impact is disparate to the Hilt parcel.
Indeed, the Board made the express finding that the easement itself constituted a special circumstance. The Board found "there are special circumstances associated with the location and use of the road easement of the subject property. The easement runs along and terminates on a small portion of the subject property and the neighboring parcel to the southeast. Should this portion of the easement be improved in the future for access to the adjoining lot, there would only be three parcels taking access from this section of the easement and it is unlikely that the existing residence on the subject parcel would have a negative impact to the potential improvement of the easement. [¶] Therefore, the granting of the Variance to allow for a reduced front yard setback to the road easement would not negatively impact the community, nor does it create a situation in the future that would negatively impact the adjoining parcel which may utilize that portion of the road easement running along the subject property."
In sum, a governmental entity in granting a variance must find "special circumstances" to justify a variance so as not to bestow a "special privilege" to one property owner at the expense of his or her neighbors. (Gov. Code, § 65906.) Here there is abundant evidence throughout the whole record to support the zoning administrator, the Planning Commission, and the Board's determinations that the Hilts' parcel was unique vis-a-vis the other parcels in the vicinity and the existence of the easement itself added an additional unique aspect to the property. The belated discovery that an easement even existed would, if Eddy's position had been sustained, deny the Hilts the privilege of inhabiting their home unless they knocked down the part of the house that encroached into the 50-foot setback.
Eddy disagrees with the inferences drawn by the Board, but as the court in Craik concluded, an appellate court cannot supplant an administrative agency's decision as long as the decision is supported by substantial evidence. (Craik, supra, 81 Cal.App.4th at pp. 884-885.) The unique attributes of the property coupled with the discovery of the easement constitute the very kind of special circumstances the statute requires and disabuse any notion that the Hilts were granted a special privilege in derogation of the zoning ordinance.
III The Findings
Eddy urges us to forego an assessment of the evidence because the findings alone are deficient. She complains "there is not one word in the findings concerning the nature or conditions of other properties in the vicinity in the same zone as the Hilts' property." She insists the Board failed to "bridge the analytic gap between the raw evidence and ultimate decision" by failing to make a comparison of the Hilts' parcel with surrounding properties. (Topanga, supra, 11 Cal.3d at p. 515.) She concludes that evidence scattered throughout the record, no matter how weighty or compelling, cannot compensate for the lack of requisite findings. She misunderstands Topanga, misconstrues the findings, ignores the governing legal principles, and proposes an absurd result.
In Topanga, the grant of the variance was not for a single-family residence, as in this case, but for the nonconforming development of a mobile home park on a 28-acre parcel. "By granting variances for tracts of this size, a variance board begins radically to alter the nature of the entire zone. Such change is a proper subject for legislation, not piecemeal administrative adjudication." (Topanga, supra, 11 Cal.3d at p. 522.) Concerned, therefore, that the entire parcel had in actuality been rezoned in the guise of a variance, the court concluded that the administrative agency had granted the developer a "special privilege" prohibited by Government Code section 65906. (Topanga, at p. 522.) There was no evidence, and consequently no findings, that the subject property differed substantially and in relevant aspects from other parcels in the zone to rebut the special privilege allegation and justify the variance. (Ibid.)
Our case is entirely different. The Board made express findings about the special conditions applicable to the Hilts' parcel as well as a finding that the granting of the variance did not constitute the grant of a special privilege. Moreover, the Board also found that the strict application of the zoning ordinance would "deprive the subject property of privileges enjoyed by other properties in the vicinity and under identical zone classifications." These findings do not satisfy Eddy because they do not set forth comparative data and provide a more detailed comparative analysis between the Hilts' property and other properties in the vicinity. She expects specificity and detail that is not required for us to sustain the Board's decision.
We do not need the kind of data comparison set forth in the findings to "bridge the analytic gap" or to follow "the analytic route the administrative agency traveled from evidence to action." (Topanga, supra, 11 Cal.3d at p. 515.) The findings demonstrate the Board considered the evidence, understood the law, and based on the evidence before it concluded there were special circumstances to justify the variance that would not amount to a special privilege. Moreover, "[t]he findings need not be stated with the precision required in judicial proceedings. [Citation.] They may properly incorporate matters by reference and even omissions may sometimes be filled by such relevant references as are available in the record." (Craik, supra, 81 Cal.App.4th at p. 884.)
Eddy would have the Hilts tear down at least part, if not all, of their entire house because one of the Board's findings was, in her view, technically deficient. She insists we cannot consider hardship as a justification for the variance, particularly where, as here, the hardship was self-induced. (Minney v. Azusa (1958) 164 Cal.App.2d 12, 31.) We disagree. The record contains substantial evidence that the County issued the setback requirement based on an inaccurate parcel map that did not depict the easement and led the County to designate what should have been the front yard as the side yard. Thus there was ample evidence to support the Board's reasonable inference that the Hilts were not to blame for building their house too close to the easement. Eddy's complaint about the relocation of the house as a demonstration of the Hilts' nefarious intentions is another possible inference, one we reject as we must defer to the Board's reasonable deduction from the evidence before it.
We conclude there is substantial evidence to support the findings, and there are sufficient findings to guide our review of the Board's analysis. Consequently, we can find no abuse of discretion. The County granted a variance to homeowners who, based on the County's calculation of the setback requirements, constructed their home on the small amount of buildable space on their sloping, forested lot. The unique characteristics of their parcel, coupled with the location of the easement servicing their lots and one other, distinguished their parcel from that of the properties in the vicinity. The Board properly determined that the variance was justified by these special conditions and the integrity of the zoning ordinance would be preserved because the Hilts had not been granted a special privilege.
The judgment is affirmed. Defendant Placer County Board of Supervisors shall recover costs on appeal.
We concur: BUTZ, J. MAURO, J.
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