by Joel Ellinwood, AICP

California’s Court of Appeal buried the vested rights argument of a Los Angeles (“City”) business six feet under in upholding the City’s revocation of a building permit and denial of a certificate of occupancy. The court ruled for the City despite the purchaser’s purported reliance on the permit in acquiring the building and the expenditure of nearly a quarter million dollars on improvements in the six month period after the original issuance of the permit. The City pulled the permit after the applicant, doing business as “1-800-AUTOPSY,” applied for a sign permit which would prominently display the name. It was then, the City claimed, when it first realized the nature of the business and determined that it is a prohibited use within the applicable zone in the Foothill Boulevard Corridor Specific Plan area. The business, Autopsy/Post Services, Inc., (“APS”) applied for an exception to the use restrictions, but the Planning Commission denied it, ruling that an private autopsy business was the equivalent of a morgue or mortuary which are permitted uses only in an industrial zone. After administrative appeals within City government, APS filed a mandate action claiming vested rights. The trial court denied the writ and APS appealed.

The Court of Appeal noted that Planning Commission found that APS could still utilize the building for retail sales and offices related to its mail-order business, but that practical difficulties made the building unsuited for the use of the facility to perform autopsies. Access to the property was limited to a single front entrance, necessitating delivery of cadavers across the public sidewalk in sight of pedestrians and other businesses. The only available parking for deliveries was located on the street. APS’s founder and president, Vidal Herrera, claimed that, before APS purchased the building, he met with a unnamed Department of Building and Safety supervisor and told him he wanted to use the building to perform autopsies, and was given “the okay.” The building permit was taken out in the name of the contractor. Mechanical testing and approval for the installation of an autopsy table for an undisclosed location was obtained under another business name used by APS, “Otreum ‘Le Labatory.'”

The trial court observed that APS concealed the true nature of its business by not disclosing its name in the permit application and by describing its business in the application as a “medical laboratory.” At the hearing, the court observed that, “a medical laboratory, in common understanding, does examine and test bodily tissue and bodily fluids, but it’s delivered to them in a little bottle, you know, not inside a corpse.” The court addressed this evidence of bad faith, found no vested right to the permit, and stated that because APS had no vested right to the permit, it would apply the substantial evidence test to the administrative decision to revoke the permit.

Though the opinion does not state any new law, the facts should be labeled as potentially hazardous to your health. Reading them could cause you to die laughing.

Autopsy/Post Services, Inc. v. City of Los Angeles (2005) 129 Cal.App. 4th 521.

Joel Ellinwood is a senior associate with Abbott and Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.