Failure Of City To Comply With Its Charter, Zoning Code and the Topanga Case, Requires Reconsideration And Proper Findings For Use Permit And Variances

By Katherine J. Hart

In West Chandler Boulevard Neighborhood Association v. City of Los Angeles (2011) 198 Cal.App.4th 1506, the Court of Appeal, Second Appellate District, considered the validity of the City of Los Angeles’ (“City”) grant of a conditional use permit, height variance and parking variance to a group (“Chabad”) operating a synagogue in a residential neighborhood within the City.

Starting in 1981, the City granted Chabad a conditional use permit and parking variance to operate a synagogue in an R-1 zone for a congregation of 45 people. The variance allowed the synagogue to maintain seven spaces, as opposed to 20, as normally required under the City’s zoning code. Approximately 25 years later, the congregation had grown to 200 people.

As a result, in March 2007, Chabad applied to the City for a demolition permit to demolish the existing one-story building and two variances – one to construct a 16,000 square foot, three-story building of 45 feet (instead of 36 feet in height), and the second to allow five parking spaces instead of the required 83 spaces.

The City prepared a mitigated negative declaration (“MND”) for the project finding that the environmental impacts of the project would be reduced to less than significant with mitigation.

The City held a public hearing on the application on February 4, 2008, where various residents voiced concerns about the impacts of the project on parking and views, among others. Then in November of 2008, the City’s Zoning Administrator (ZA) conditionally approved Chabad’s application, including a conditional use permit for Chabad to build a larger synagogue in the R-1 zone, but reducing its size by around 6,000 square feet to 10,300 square feet. The ZA denied the height variance request, but approved the variance request for five parking spaces, and limited the hours of operation from 7:00 a.m. to 10:00 p.m. The neighbors appealed the ZA’s determination to the area planning commission. But, Chabad also appealed asking for an even larger building and longer hours of operation than in the original application.

The area planning commission held a hearing on the appeals in February of 2009. It sided with the neighbors in granting their appeal and denying Chabad’s appeal. Specifically, the area planning commission made findings that the project was too large for the size of the lot, would be materially detrimental to the character of the neighborhood, was inconsistent with the City’s general plan, and lacked sufficient parking.

In June 2009, pursuant to the City charter, the City council asserted jurisdiction over the planning commission’s decision and scheduled a hearing for three days later. At that hearing one of the council members proposed to modify the project as approved by the ZA, deny the neighbors’ appeal of the ZA’s decision, and grant Chabad’s appeal of the ZA’s decision. The council did not provide the neighbors an opportunity to address the council member’s proposal. Ultimately, the council voted for the council member’s proposal to modify the project and grant Chabad a conditional use permit to construct a 12,000 square foot synagogue, 28 feet high, and with five parking spaces. The neighbors timely appealed the council’s decision to the superior court.

The trial court denied the neighbors’ petition for writ of mandate on the grounds that the findings made by the City council in support of the conditional use permit and the parking variance were supported by substantial evidence; it also determined that the neighbors had somehow waived their due process rights and CEQA claims.

The appellate court reversed, granting the writ and ordering the City to comply with its own charter and zoning code in reviewing the ZA’s determinations. It first found that the council had the authority, under the City charter, to review the planning commission’s decision on the conditional use permit and variance, but that in doing so, the council “stepped into the shoes of the planning commission.” The appellate court also held that the neighbors did not waive the issue of whether the City council violated the holding in the Topanga case and the City’s own zoning code by failing to explain and make findings as to why the Zoning Administrators’ decision was incorrect. Finally, the appellate court held that in reviewing the conditional use permit, the City council was required to make its decision based on the record, as to whether the Zoning Administrator erred or abused her discretion, and it was required to base its decision on the variance only on the evidence and findings of the ZA and the City council was only entitled to modify the ZA’s decision, as it did, by making specific findings as to how the ZA erred, which it did not do. Thus, the appellate court determined City council abused its discretion by failing to make the proper findings as required by the Topanga case. The court declined to address the issue of whether the City council violated the neighbor’s due process rights in refusing to allow them to speak at the City council hearing on the conditional use permit and variance.

Commentary

To the extent this case discusses the charter city of Los Angeles, it obviously has limited application. However, it has a more widespread application for the legal premise that all jurisdictions – especially charter cities – must comply with their charters and codes, and the Topanga case in making findings in adjudicatory approvals. While most local codes provide that review by a council or board of supervisors is de novo, this case illustrates that charter cities are not so restricted. As an aside, we believe that general law cities and counties can adopt similar types of administrative appeal ordinances; whether appeals of land use permits should be limited or de novo is a matter of local preference.

Katherine J. Hart is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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