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HomeMy WebLinkAboutMINUTES - 03071995 - D.1 Contra TO: BOARD OF SUPERVISORS Costa I ROM: HARVEY E. BRAGDON °0A 'S Count DIRECTOR OF COMMUNITY DEVELOPMENT . o DATE: February 22 , 1995 s�'� �ovrirt SUBJECT: Appeal of Robert P. Doty, Catherine Garza, Renee Benoit, and David Garrard from the Administrative decision of the Community Development Department Relative to Building Plan and Permits for 16 Beverly Court, Kensington SPECIFIC REQUEST (S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Deny the appeal of Robert Doty et al and uphold the decision of the Zoning Administrator and allow construction of the homes at 16B and 16C Beverly Court to proceed without further review or public hearing, or 2 . Grant the appeal of Robert Doty et al and require a public hearing before the Zoning Administrator to review the compati- bility of the structures with the surrounding neighborhood and require that the builders halt construction until a hearing has been held. FISCAL IMPACT None. BACKGROUND/REASONS FOR RECOMMENDATIONS In approximately November of 1994 the Sabatimanis presented plans for constructing two houses on Beverly Court in Kensington. The lots on which the construction was proposed are approximately 4 , 000 sq. ft. in size and are located in a zoning district (R-6) which requires 6 , 000 sq. ft. Construction, therefore, required a design review under the "Small Lot Ordinance" (Ord. No. 92-44) . Staff reviewed the design and found it to be compatible with other homes on the block. CONTINUED ON ATTACHMENT: X YES SIGNATURE RECOMMENDATION OF COUNTY ADMINISTRATOR _ RECOMMENDATION OF BOARD COMMI TEE APPROVE OTHER SIGNATURE(S) ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact:Mary Fleming - 646-2031 Drig: Community Development Department ATTESTED cc: County Counsel - Diane Silver PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY , DEPUTY 2 . The proposed homes were two story homes with a maximum height of 26 ft. (35 ft. is allowed in an R-6 district) and were proposed to be built within all of the required setbacks. Staff then required that the property owner have the plans reviewed and "signed off" by potentially affected neighbors. Beverly Court is 'a short, narrow lane off of Ardmore Road. The land has six small lots fronting on it with four existing homes. The builders, the Sabatimanis, own and occupy one home, own and are remodeling another. The Andersons own the other two homes. Janet Anderson indicated that the plans were acceptable to her. Another property owner, Mr. Petty, occupies a home on Ardmore Road that has a clear view of the subject properties. Due to a personal dispute between the Sabatimanis and the Pettys, staff sent a letter to Mr. Petty asking him to contact the County if he had any objections to construction of the homes. No response was received. Staff determined that due to topography and vegetation that no other property owners would be impacted by the design of the new homes. The builders were asked to contact the Doty's who live on Ardmore Road and back up to the new homes but due to the heavy vegetation and the fact that they are uphill it was determined that they would not be impacted by the design of the homes. Attached you will find the letter of appeal, a response letter from the Sabatimanis with a draft agreement and letters of support for the homes. The Doty/Garzas and their neighbors, the Garrard/Benoits, have filed an appeal claiming that the County did not follow the proper procedure in granting the building permits. Prior to its amendment in 1992 , when an application was filed to build a single family residence on a legal non-conforming substan- dard lot, the planning agency had no discretion to deny such applications unless a variance was required, e.g. setbacks, etc. In part, the Small Lot Ordinance was amended in 1992 to allow review and approval by the Zoning Administrator of the location, size, height and design of a house to be located on a substandard lot prior to issuance of a building permit. (Staff report to Planning Commission, 4/28/92 , attached. ) As first presented to the Planning Commission, the summary of the Small Lot Ordinance revision required mandatory review by the Zoning Administrator. (Proposed ordinance presented to Planning Commission 4/28/95, attached. ) As adopted by the Board of Supervisors, however, the ordinance provides that the Zoning Administrator my review (and approve, conditionally approve or deny) the location, size, height and design of a single family dwelling on a substandard lot that otherwise qualified for the small lot occupancy exception and that such review may be done through a public hearing. (Ord. No. 92-44 , § 1, Summary, attached; codified in C.C.C. Ord. Code § 82-10 . 002- (c) ) The staff report attached to the June 9 , 1992 Board Order adopting the small lot occupancy ordinance amendment stated, "The provision to allow for review and approval by the Zoning Administrator in appropriate circumstances of the location, size, height and design of the proposed dwelling on a qualifying lot will help to blend in small lot homes with the surrounding established neighborhood. " (Staff report, June 9 , 1992 , attached, emphasis added. ) The Community Development Department is the planning agency charged with initially administering and interpreting zoning ordinances which are contained in Title 8 of the Contra Costa County Ordinance Code (C. C. C. Ord. Code § 26-2 . 808) . The Community Development Department has looked at a substantial number of situations which involve the application of the Small Lot Ordinance since its 1992 3 . amendment. For almost three years, the department has consistently interpreted the Small Lot Ordinance, as amended, to give the department discretion to determine whether or not a public hearing should be held. The department has established a policy for small lot building plans. It will review building plans on small lots to determine if the proposed structure is compatible with the neighborhood. If the proposed modification is minor in nature and does not appear to impact neighbors or change the character of the existing home and meets all of the zoning and building regulations, the department will clear it without noticed public hearing for building permit issuance by the Building Inspection Department. If the proposal , however, could have a detrimental effect on the neighborhood or is substantial in nature, i.e. generally, new single family dwellings, from a second story addition or major modification to the exterior of an existing home, the department has adopted a notification process whereby the applicant must submit the plans to the neighbors that might be affected for their review and signature. If the potentially affected neighbors sign-off and staff feels that the structure is compatible with the surrounding neighborhood and meets all of the zoning and building regulations, the plans will be cleared without a noticed public hearing for a building permit to be issued by the Building Inspection Department. If, however, the proposed structure appears to be incompatible with the neighboring homes or if a potentially affected neighbor objects in a timely manner, the Zoning Administrator may consider scheduling a noticed public hearing. In this way, virtually all proposed new residences on small lots go through a process whereby impacted neighbors are notified and/or a public hearing is held. The intent to give the department wide discretion in deciding whether a public hearing should be held was supported by a request from at least one of the supervisors shortly after the 1992 amendment. Supervisor Powers requested that building permits on substandard lots be certified without additional hearings because small lots provide affordable housing, particularly in the redevelopment areas (memo from Supervisor Tom Powers to Val Alexeeff, GMEDA Director, 7/31/92 , attached) . This policy and intent was confirmed by a staff member in an inter- office memo on August 27 , 1992 . As the memo stated, new resi- dences on substandard lots could be subject to a public hearing or notification process, but Zoning Administrators could require a sign-off from affected neighbors, homeowners associations and/or local PAC's or MAC's prior to making a decision regarding the need for a public hearing or notification (August 27 , 1992 , inter-office memo attached) . Staff has consistently interpreted the term "may" in the Small Lot Ordinance as allowing the department discretion to decide whether or not a public hearing would be appropriate in any particular case. This policy has been consistently applied and was applied in the matter that is now the subject of this appeal . The overwhel- ming number of small lot applicants have not been required to go- to a public hearing. To the best of staff's knowledge, this appeal is the first time that the discretion of the Zoning Administrator in deciding whether to hold a public hearing has been challenged. Public hearings have been held in a very small percentage of cases. In this matter, staff reviewed . the application for approval of a single family dwelling on a substandard lot according to the established policy described above. Neighbors were contacted and they "signed off" they were satisfied that the proposed dwelling was compatible with the neighborhood. D. 1 4 . Accordingly, the Zoning Administrator decided on or about December 19, 1994 not to hold a public hearing. The plans were cleared by the planning agency for building permit issuance on December 21, 1994 . An appeal may be taken from a planning agency decision made by the Zoning Administrator by filing a written notice of the appeal with the Community Development Department within a 10 day period from the decision of the Zoning Administrator (C. C. C. Ord. Code § 26-2 . 2406) . No timely appeal was filed pursuant to section 26-2 .2406. This appeal was filed on February 8 , 1995, 29 days after the building permit was issued. (Copies of the two building permits and plan clearance by planning agency attached. ) Apparently, there are two decisions which are the subject of this appeal: the decision by the Zoning Administrator not to hold a public hearing and the appeal from the issuance of the building permit. Although the building permit issuance (January 10, 1995) may be appealed during the 30 day period available under Chapter 14-4 of the Contra Costa County Ordinance Code, it is not clear that a timely appeal has been taken from the Zoning Administrator's December 19 , 1994 decision not to hold a public hearing under the Small Lot Ordinance exception. Appellants requested a stop work order pending the resolution of this appeal . The Building Inspector determined and informed Mr. Doty by telephone that he was not aware of any violations relating to the building permit which would allow him to issue a stop work order pursuant to the stop work provisions of Contra Costa County Ordinance Code Section 72-6. 014 . Because of the appellants' allegations concerning a possible mandatory requirement for public hearings when small lot plans are reviewed, the Community Development Department has adopted a new interim policy. The department is now requiring public hearings on all small lot plan reviews until either the Board of Supervisors ratifies the Community Development Department's interpretation of the ordinance as giving the Zoning Administrator discretion whether a noticed public hearing should be held or the Small Lot Ordinance is amended. MLF/aa BDIX/Doty.MF ;03/03/95 17:14 '0415 $52 5816 SHUTE,HIRALY Z001/001 SHUTE, MIHALY 6 WEINBEKCER. Z.CLEMM-rrsRUTE, JP. ATTO&NEYS AT LAW LAUREL L. IMPII-r, AJCP MARK 1.WEtwulitclik 306 NAtM5 3TAXET UP4^N P6AXNEIL MARC A.WRALY,P.C. 3AN PPLANCISCO. C,^,UF0R.'-N1A 04102 MAN M.L-N-ON ELIZABETH M. DODD RACHEL b.HOOVER, TZLSPN0WE;(4W 552-7272 OF C*VW11L ELLEN J.CA"In TEL1C0P11X:,411) S62-5816 CHRIST"'!H.TAYLOPL TAMARA 5.CAL NTXX ILUSON FOLK RICHARD S.TAYLOP. HANK MIMS RECEIVED W&ANNAM T. PP.F-JCM X610 W 3UPER March 3, 1995 6:1995 VIA P_=_8JMI_LZ CLERK BOARD OF SUPERVISORS NM Board of Supervisors COSTA CO. I STA Contra Costa County 651 Pine Street Martinez, CA 94553 Re: Appeal of Building Permit for a Beverly Court. ftnsinicrton Dear Members of the Board of Supervisors: This firm represents Robert Doty and Cathy Garza in their appeal of the County's decision to grant a building permit for 16 Beverly Court and we submit the attached letter to County Counsel on their behalf. At the February 28, 1995 public hearing held by the County on the Doty/Garza appeal, County staff asserted that the challenge to the County's decision not to hold a public hearing prior to issuance of the building permit may be time barred because Doty/Garza did not file their appeal within 10 days of the date this particular decision was made. Staff, however, agreed that the challenge to the building permit itself is timely. In response to this assertion by County staff, the Board requested an opinion from County Counsel regarding the timeliness of the Doty/Garza appeal regarding the county's failure to hold a public hearing prior to issuance of the permit. The comments of County Counsel at that hearing indicated that it was inclined to agree that Doty/Garza could not challenge the County's failure to hold a public hearing prior to issuance of the building permit. As set forth in the accompanying letter to Counsel, such a conclusion would be contrary to well-established law and could subject the County to damages for violation of Doty/Garza's constitutional rights. The Doty/Garza appeal challenges the County's issuance of a building permit to 16 Beverly Court in part on the grounds that the County failed to give adequate notice and an opportunity to be heard prior to its issuance. Such 03/03%95 16:42 0415 552 5816 SHUTE,NIHALI 16002412 Board of Supervisors March 3, 1995 Page 2 notice and an opportunity to be heard is required not only by the County Code, but also by the federal constitution. The failure to provide notice and an opportunity to be heard renders the building permit for 16 Beverly Court invalid. Thus, the Doty/Garza challenge to the validity of the building permit, which staff agrees is timely, properly includes a challenge to the procedures by which the permit was issued. The Board also should recognize the impossible burden that staff's interpretation would place on property owners. In essence, staff has argued that Doty/Garza were required to file an appeal of a decision of which they were never given notice. Under staff's interpretation, Doty/Garza, and every other property owner in the County for that matter, would be required to call the planning staff everyday on the off chance that it might have issued a discretionary decision that affects their property rights. Not only does the County legally bear the responsibility for providing such notice, it surely would not want to subject property owners and County staff to such an onerous procedure. Finally, in addition to the fact that the law mandates notice and an opportunity to be heard prior to issuance of a building permit on a small lot, the equities in this case weigh heavily in favor of granting a hearing. The Sabatimanis knew from the start that Doty/Garza objected to their building plans. However, County staff were somehow led to believe, we assume by the Sabatimanis, that Doty/Garza would not be impacted by the project, even though they are adjacent property owners. Based on these representations, the County did not provide notice to Doty/Garzaof its intention to issue the building permit without a public hearing. As soon as Doty/Garza learned that the Sabatimanis had received a building permit (the day the bulldozers arrived) , they contacted the County and the Sabatimanis. Doty/Garza attempted to work out some compromise with the Sabatimanis and they even offered to pay some of the costs that would be caused by the delay. The Sabatimanis refused to discuss the issue with Doty/Garza and proceeded with full-scale construction. These actions do not reflect the actions of a party acting in good faith; they should not fora► the basis for the County's decision to deprive Doty/Garza of their constitutional rights. 03.03.95 16:43 0415 552 5816 SHUTE,MIH9LT Z 003412 Board of Supervisors March 3, 1995 Page 3 Thank you for your attention to this matter. Yours truly, SHUTE, MIHALY & WEINBERGER ELLISON FOLK cc: County Counsel Robert Doty/Cathy Garza Patricia Curtain aow�ooz�crs 03.03%95 16:43 $415 552 5816 SHUTE,MIHALY 004412 SHUTE, MIHALY b WEINBERGER E.CLEMENT SHUTE, ATTORNEYS AT LAW LAUREL L. IMPETT, A1CP MARK 1.WEINBERGER 396 MAYES STREET URBAN PLANNER MARC D.MIMALY.P.C. PRA' M.LAYTON &AN FRANCISCO, CALIFORNL°. 94102 ELIZABETH M. L>ODD RACHEL B.MOOPER TELEPHONE:;415) 552-7272 O!COUNSEL ALLEN J.CARBER TELECOPIER:(415) 552-5616 CHRIM W.TAYLOR TAWN,%A S.CALA,-7ER ELL15ON FOLK RICI- R S TAYLOR HANK BATES SUSANNAI-I T, FR_NC]4 - 1LEED W, SUPER March 3, 1995 RECEIVED VIA FACSIMILE FMIAR 6 1995 Victor J. Westman, Esq. CLERK BOARD OF SUPERVISORS Contra Costa County Counsel CONTRA COSTA CO. County Administration Building Martinez, CA 94553 Re: Appeal of Building Permit for 16 Beverly Court, Kensington Dear Mr. Westman: This firm represents Robert Doty and Cathy Garza in their appeal of the County's decision to grant a building permit for 16 Beverly court and we submit this letter on their behalf. At the February 28, 1995 public hearing held by the County on the Doty/Garza appeal, County staff asserted that the challenge to the County's decision not to hold a public hearing prior to issuance of the building permit may be time barred because Doty/Garza did not file their appeal within 10 days of the date this decision was made. Staff, however, agreed that the challenge to the building permit itself is timely. As set forth in this letter, the County's distinction between the decision not to hold a public hearing and the decision to grant the building permit is legally (and for that matter, practically) irrelevant. Doty/Garza have challenged the issuance of the permit on the grounds that the County failed to comply with the notice and hearing procedures established in the County's small lot building ordinance. The County's failure to notify Doty/Garza of the County's intention to issue a building permit for 16 Beverly Court also violates the express provisions of the county's own requirements for giving notice of the intention to render an administrative decision. This failure to give notice, in an of itself., is sufficient grounds for invalidating the building permit. Furthermore, the County's failure to give adequate notice and opportunity to be heard to Doty/Garza prior to 03%03%95 16:44 'x`415 552 5816 SHL"MMIRALT Z 005.012 victor J. Westman, Esq. March 3, 1995 Page 2 the issuance of the building permit violated their constitutional right to due process. - As -discussed in this letter, the building permit issued to 16 Beverly Court is invalid and the County is required to give Doty/Garza and other affected neighbors the opportunity to comment on the matter before issuing a valid permit that incorporates appropriate conditions to mitigate the building's impact on the surrounding community. Failure to do so could result in the invalidation of the permit by a court as well as an award of damages against the County for violation of Doty/Garza's constitutional rights.' I. The Doty/Garza Challenge to the Building Permit for Failure to Comply With Required Notice and Hearing Procedures—Is Not Time Barred As mentioned above, Doty/Garza challenged the County's issuance of the building permit for 16 Beverly Court in part because the County failed to comply with established procedures for giving notice and an opportunity to be heard prior to issuing the permit. Doty/Garza Appeal, dated 2/7/95, at pp. 2-3. Although County staff has asserted that any challenge to the failure to hold a public hearing must be filed within 10 days of the date that decision was made, staff has failed to acknowledge that the permit itself may be challenged and overturned because it was issued in violation of established notice and hearing requirements. Earn v. County of Ventura, 24 Cal. 3d 605 (1979) (holding that adjoining property owner may challenge development approval on the grounds that the local agency failed to comply with notice and hearing requirements) ; Drum v. County of Fresno, 144 Cal. App. 3d 777, 783 (1983) (permit granted "without the mandated reasonably adequate notice cannot be construed as granting a privilege beyond that of which notice was given. ") Thus, Doty/Garza's timely appeal of the issuance of the building permit properly incorporates a challenge to the County's failure to give notice of its intention to issue a building permit and to grant Doty/Garza an opportunity to be heard on this matter. Counsel's suggestion that the only issue raised by appeal of the building permit is its substantive compliance with the provisions of the Small Lot Ordinance calling for mitigation of impacts is therefore without merit. 1 We would also note that this principles of law set forth in this letter apply to the Garrard/Benoit appeal also pending before the County. 03.03/95 16:45 '0415 552 5816 SH17E.MIKU fm 006,012 victor J. Westman, Esq. March 3, 1995 Page 3 A. Issuance of a Building Permit on a Small Lot Is a Discretionary Decision Which Requires the County Give to All Affected Property Owners Notice and an QRRor+unity to Be Heard Doty/Garza have challenged the County's failure to comply with its own procedures regarding notice and hearing prior to the issuance of a building permit for development on a substandard lot without a hearing. As set forth in County Ordinance 26-2.2104, the Zoning Administrator is required to "mail or deliver notice of intent to decide the application pursuant to Government Code Section 65901 and the notice provisions of Section 26-2.2004. " Section 2.6- 2.2004 requires notice to be sent to "all owners of real property within three hundred feet of the subject land . ." The failure to provide notice to Doty/Garza who own property within 300 feet of 16 Beverly Court has resulted in a violation of the County Code and, more importantly, the constitutionally-based requirements for notice and an opportunity to be heard. In Horn v. County of Ventura, the California Supreme Court established that "[d]ue process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest." 24 Cal. 3d at 612. The California Courts also have established that, "the property interests of adjacent landowners are at stake in a land use proceeding, and that procedural due process protections are therefore invoked." Hayssen v. Sonoma County, 171 Cal. App. 3d 400, 404 (1985) (citing, Scott v. City of Indian Wells, 6 Cal. 3d 541, 549 (1972) ) . Thus, government agencies must give notice and an , opportunity to be heard before they render a discretionary, adjudicatory decision that will affect adjoining property owners. Ho v. county of ventura, 24 Cal. 3d at 612, 616. Pursuant to the Small Lot Development Ordinance, the decision to issue a building permit for a residence on a small lot is a discretionary act. The ordinance specifically gives the Zoning Administrator the discretion to "approve[] or conditionally approve[]" a building permit for a single family residence on a small lot. This "conditional" approval empowers the Zoning Administrator to attach conditions to the "location, size, height, and design of the proposed dwelling . . . in order to provide relative compatibility with and minimize impacts on the surrounding neighborhood." County Ordinance No. 92-44 (codified at 03 03 85 16:45 '0415 352 5818 SHLTE.MIH�LI' (33007-'022 Victor J. Westman, Esq. March 3, 1995 Page 4 82-10.002 (c) ) .2 This power ,to review a building permit application for its consistency with more general policies designed to ensure "compatibility with and minimize impacts on the surrounding neighborhood" is the hallmark of a discretionary, adjudicatory decision. Friends of Westwood v. City of Los Angeles, 191 Cal. App. 3d 259, 273 (1987) (power to "conditign .this building permit or otherwise modify this project" renders decision to issue building permit a discretionary act) (emphasis in original) . As the decision to issue a building permit for development on a substandard 'lot .is an adjudicatory, discretionary decision, the County was required to give adequate notice and opportunity to be heard to adjacent landowners prior to issuing the permit for development an 16 Beverly Court. B. The County Failed to Comply With These Constitutional Regu r ments 2n Nprn v. ceunty oE_Yentura, the Supreme Court established the basic requirements for adequate notice prior to making a discretionary administrative decision: "(Tlhat notice must, at a minimum, be reasonably calculated to afford affected persons the realistic opportunity to protect their interests. " 24 Cal. 3d at 617. As set forth in Horn v. CoIMty of Ve tura, such notice should consist of mailing to adjacent property owners and posting of notice in a prominent location in the vicinity of the project site. 14. at 618: see also, Gov't Code g§ 66901, 65905, 65091 (requiring public hearing prior to issuance of variance, use permit, or equivalent development permit and proscribing notice to all property owners within 300 feet of adjoining property) . The County Ordinance incorporates these provisions. County Ordinance 26-2.2004, 26-2.2104. 2 County staff agrees that the 1992 amendment to the Small Lot Ordinance gives the planning agency discretion to review and conditionally approve or deny building permits on small lots. 3 we would also note that because the issuance of a building permit for a small lot is a discretionary decision, it is subject to the requirements of the California Environmental quality Act, Public Resources Code section 21000, St sea. . Friends of Westwood, 191 Cal. App. 3d at 272-73. 03 03.85 16:46 $415 552 5816 SME,MIHALI 2008/012 Victor J. Westman, Esq. March 3, 1995 Page 5 No one disputes in this case that the County staff did not give notice of their intent to issue a building permit for 16 Beverly Court to Doty/Garza (who are adjacent property owners) prior to the time the permit was issued. Furthermore, no notice of the intention to issue the permit was posted in the vicinity of the project site. - . Finally, no notice of the County's decision not to hold a public hearing on building permit application and to only take written comment by was sent to Doty/Garza. Such notice, however, is required by law.4 Had the County complied with its own procedures for acting upon applications for building permits on small lots, it would not have run afoul of the constitutional and state law requirements for notice and hearing applicable to this case. Even assuming County staff has correctly determined that the Small Lot Ordinance does not require a public hearing, the County failed to comply with its normal procedures designed to ensure that affected property owners are afforded adequate notice and an opportunity to be heard prior to the issuance of a building permit on a small lot. As set forth in an August 27, 1992 memorandum setting forth staff policy with regard to administration of the Small Lot Ordinance: "All new residences will go through a, public hearing/notification process. " 8/27/92 Memorandum at p. 1. This public hearing can only be avoided if affected neighbors "sign-off" on the proposed plans. =. If the County intends to treat the application "administratively,l, notices will be sent out immediately. Id. ' at p. 2.5 • These notices must be sent to "all owners of property within three hundred feet of the subject property." County Ordinance 26- 2.2004, 26-2.2104 . If the County receives a request for a public hearing in response to this notice, it must then schedule a public hearing. ° In addition to being legally irrelevant, the reasons given by County staff for failing to send such notice to the Doty/Garzas are factually inaccurate. 5 - For this reason, we believe that staff's decision to require a public hearing on every application for a building permit on a substandard lot is somewhat extreme. Staff policy as evidenced in the August 1992 memorandum and the staff report on this appeal has been to require a public hearing whenever an application for a new residence on a substandard lot is filed and the applicant obtains the sign-off of affected property owners. Compliance with this customary policy would have been sufficient to satisfy the concerns of the Doty/Garzas. , 03.03/95 16:47 0415 552 5816 SHUTE,MEALY [1009.012 Victor J. Westman, Esq. March 3, 1995 Page 6 in this case, alter the Sabatimanis failed to obtain the "sign-off" of, all affected property owners, including Doty/Garza, the County did send notice of its decision to issue an administrative decision to one affected property owner, John Petty. . This notice, however, was never sent to Doty/Garza, in contravention of the customary. practice in the County and .the requirements of state and constitutional laws C. The Failure to Comply with constitutional Requirements for Notice and an opportunity to Be Heard-Could, Subject_ the County to DgAi ges The County's failure to give Doty/Garza the constitutionally mandated notice and opportunity to be heard could subject the County to damages for violation of their federal constitutional rights to due process. Title 420 section 1983 of the United States Code entitles Doty/Garza to damages for a "deprivation of any rights, privileges, or immunities secured by the . Constitution. . . . " 42 U.S.C. § 1983. Hgrn -Y, -County ofyentura clearly establishes a constitutional right to notice and an opportunity to be heard before the County could issue a building permit in this case. Failure to provide constitutionally required notice may form the basis of a section 1983 claim for damaq'es. See Hayssen v. Sonoma County, 171 Cal.. App. 3d at 409. Furthermore, Doty/Garza would be* entitled to an award of attorneys fees in a legal action challenging the County0a issuance of the building permit to 16 Beverly Court. Federal law (42 U.S.C. S 1488) explicitly authorizes an award of fees to successful plaintiffs in civil rights 6 County staff asserts that it determined that the Doty/Garzas would not be affected by the proposed building and on that basis decided not to send them notice of the intention to treat this matter administratively. - Under the County Code, state law and the holding of Horn _ County of Ventura, adjacent -property owners are presumptively entitled to notice of development on neighboring property. The determination that the Doty/Garzas would not be affected cannot be arbitrarily made by County staff. In the Hayssen, however, the court determined that the publication in a local newspaper and the posting in the vicinity of the project of the intent to issue a permit satisfied due process requirements. 171 Cal. App. 3d at 407. 03/03/95 16:48 0415 552 5816 SHTIT,3fMLY 16,'012 Victor 3. Westman, Esq. March 3, 1995 Page 7 cases. State law (Code of Civil Procedure 1 1021.5) also provides for an award of attorneys fees where a successful plaintiff enforces an important. public right, such'as the constitutional right to due process. HaZM v. county of Ventura, 24 Cal. 3d at 620. D. The Sabatimanis Have No Vested Right to Proceed With Their Building In, contrast .to the constitutional rights of Doty/Garza that have been violated by the County,'s failure to give adequate notice of its intention to issue a building permit, the Sabatimanis have not acquired any vested right to continue with construction of their building. It is black .letter law in California that a property owner only acquires a vested right to proceed with a development where the owner has incurred substantial financial liability in good faith reliance on a building permit. Avco CommunitX peva oaers,, Inc. v. Sauth_C a4 st Reg g1mJ Camm,1n, 17 Cal. 3d 785, 791 (1977) . Where a permit has not been validly issued, no vested right can accrue -- even where the permitting agency, riot the property owner, is at fault. Pettitt V. City of Fresno, 34 Cal. App: 3d 813, 824 (1973) . As established in Drum v. Fresno unto a permit confers no rights beyond those for which notice was given. 144 Cal. App. 3d at 783. Thus, a permit granted without any notice, such as occurred in this case, confers no right to proceed with develcpment.8 Furthermore, if a developer has any reason to doubt the validity of a permit, it may not, in good faith, rely on that permit. Aries DAY.-Co. v. California Coastal Zone Conservation Coln, 48 Cal. App. 34 .534, 548 (1975) . In this case, the Sabatimanis were aware that Doty/Garza objected to the design of the building for 16 Beverly Court. Yet, they represented to the County either that Doty/Garza would not be affected by their building plans or that Doty/Garza did not object to the plans neither of which is true. in both cases, the Sabatimanis knew that Doty/Garza considered themselves to be affected by the proposed building and they knew that Doty/Garza would not agree to the decision to treat this matter without the a Although the Doty/Garzas requested a stop work order, the County claimed there ways no legal basis for issuing one. However, the failure to provide adequate notice prior to issuance of a permit is grounds for issuing a stop work order. DMm- y—County Fresno, 144 Cal. App. 3d at 784-85. 03/03:95 16:48 0415 $52 5816 SHUTE,KIERLT 011:012 Victor a. Westman, Esq. March 3, 1995 Page 8 public hearing. Although the Sabatimanis are quite familiar with the notice and hearing requirements normally employed by the .County prior to the issuance of a small lot building permit when there is neighborhood opposition to the proposed building, the Sabatimanis proceeded to obtain their permit without first going through these procedures. That the Sabatimanis continued work on their building after Doty/Garza learned of the issuance of the permit and informed the Sabatimanis that they planned to appeal. the permit further undermines any claim that they might make concerning a vested right to proceed with their building. Although Doty/Garza immediately informed the Sabatimanis that they believed the permit was invalid and even offered to work out some way of compensating the Sabatimanis for the delay that might be caused by the filing of an appeal, the Sabatimanis continued to construct their building at full speed. Such actions on the part of the Sabatimanis do not display 'good faith. Aries„Dev�, 48 Cal. App. 3d at 549 ("One who proceeds with 'unseemly haste' bears a risk 'that his conduct might bear the stigma of bad faith. '") II. The Failure to Give Notice of the county's Intention to Treat This Matter Administratively Tolle the Applicable Statute of Limitations Even if one accepts County staff's opinion that Doty/Garza was required to file an appeal of the County's specific decision to issue the building permit without a public hearing, the County's failure to give notice of its intention to treat this matter administratively tolls the applicable statute of limitations. Schroeder v. city of New ork, 371 V.S. 208, 214 (1962) (establishing that where a government agency fails to give adequate notice, the applicable statute of limitations will not bar a challenge to that decision) . Since the County failed to give Doty/Garza Notice of its intention to issue the building permit application without a public hearing, the County cannot now claim that Doty/Garza failed to file a timely challenge to that decision. The logic of this legal principle is clear: Doty/Garza could not file a timely challenge to a decision of which they had no notice. III. Conclusion As set forth in this letter, Doty/Garza's timely appeal of the' County's issuance of the building permit for 16 Beverly Court properly includes a challenge to the County's failure to provide adequate notice and an 03/03/95 16:49 0415 552 5816 S=E,NISALI Z 012.012 w victor J. Westman, Esq. March 3, 1995 Page 9 opportunity to be heard prior to issuance of the permit. This failure to provide the required notice violated Doty/Garza's constitutional rights to due process and it renders the permit invalid. Unless the County wishes to subject itself to damages and attorneys fees associated with this violation of Doty/Garza's constitutional rights, it is required to rescind the building permit and hold a .public hearing on the matter. If the County- determines, after proper notice and a hearing, to issue a permit to the Sabatimanis, under the provisions of the Small Lot Ordinance, this permit should incorporate appropriate measures to mitigate the buildings impact on the surrounding neighborhood. Yours truly, SHUTE, MIHALY & WEINBERGER ELLISON FOLK cc: Board of Supervisors Robert Doty/Cathy Garza Patricia Curtain P COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Date: March 7, 1995 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy Countd unsel Re: Appeal of Robert P. Doty et al . : Timeliness of appeal This is in response to Supervisor Rogers' request that this office advise the Board of Supervisors whether the Doty appeal is timely. As stated in the Community Development Department staff report to the Board dated February 22, 1995, this appeal apparently arises from two actions : the decision by the zoning administrator not to hold a public hearing and secondly, the issuance of the building permit . Under the provisions of the small lot ordinance (C.C.C. Ord. Code Chapter 82-10) if plans for a single family dwelling on a small lot otherwise qualify, the ordinance provides prior to issuance of a building permit, the location, size, height and design of the proposed dwelling may be reviewed and approved or conditionally approved by the zoning administrator after a public hearing in order to provide relative compatibility with and minimize impacts on the surrounding neighborhood. " (C.C.C. Ord. Code § 82- 10 . 002 (c) ) If the Board of Supervisors determines or is satisfied that, under the provisions of the small lot ordinance quoted above, a public hearing (or the timely opportunity to request such) is required whenever review of the location, size, height, and design of the proposed dwelling is performed, then it appears that the Contra Costa County Ordinance Code procedure for variance permits would be applicable . Pursuant to the Code' s variance permit procedure, the planning department is to mail or deliver notice of intent to decide a Board of Supervisors 2 March 7, 1995 variance application to all owners of real property within 300 feet of the subject property (C. C.C. Ord. Code §§ 26-2 . 2004, 26-2 . 2104) . The notice provides the neighboring property owners with an opportunity to request a public hearing on the variance application within a prescribed time period (C.C.C. Ord. Code § 26-2 . 2104 : minimum ten (10) days . ) If a hearing is requested, the zoning administrator reviews and decides site, development, elevation, and other factors involved. (C.C.C. Ord. Code § 26-2 . 1204) Applications for variances may be decided without public hearing when the notice requirements have been complied with and no request for hearing has been received within the time allowed. (C.C. C. Ord. Code § 26-2 . 2102) The variance procedure concerning notice and opportunity to be heard under our County Ordinance Code was not completely followed in this matter. Although notice was given to some of the neighbors surrounding the subject property, apparently, notice was not mailed to appellant Doty'. Therefore, if the Board of Supervisors determines that a hearing (or an opportunity to request such) was required to review the proposed building plans under the small lot ordinance (C. C. C. Ord. Code § 82-10 . 002 (c) ) , it would appear that the Code' s notice and hearing requirements for variances should have been followed. (see Horn v. County of Ventura (1979) 24 Cal . 3d 605; Drum v. County of Fresno (1983) 144 Cal .App. 3d 77) Appellants challenge on procedural due process grounds is timely, as part of the building permit appeal, if a public hearing is required for small lot reviews . If, however, the Board determines that the 1992 small lot ordinance amendment did not create a mandatory public hearing (or timely notice of an opportunity to request such a public hearing) requirement and rather, the decision whether to hold such a hearing was left entirely to the discretion of the zoning administrator, then an argument can be made that the statute of limitations has run for an appeal from the zoning administrator' s decision not to hold a public hearing. According to the February 22, 1995 staff report to the Board, the zoning administrator' s decision not to hold a public hearing in connection with the review of the small lot building plans (C.C.C. Ord. Code § 82-10 . 002 (c) ) was made on December 21, 1994 . There is a ten (10) day period for filing a written notice of appeal from a decision of the planning agency. (C.C.C. Ord. Code § 26-2 . 2406) ' We note that appellant Doty apparently had knowledge of the plans for the proposed dwelling on the small lot as evidenced by the draft agreement which he prepared and forwarded to the owners of the property on November 20, 1994, approximately one month before the zoning administrator decided not to hold a public hearing for the small lot review. Therefore, although appellant may have had actual notice of the building plans and/or the zoning administrator's decision not to hold a public hearing, this is a matter to be addressed principally between appellants and the property owner and is not part of our inquiry here. Board of Supervisors 3 March 7, 1995 Under this section, the last day for appealing the planning agency' s decision was December 31, 1994 . No timely appeal was filed pursuant to this section. Under the County Ordinance Code' s general appeal provisions (C. C.C. Ord. Code Chapter 14-4 ; § 14-4 . 002) , there is a thirty (30) day period to appeal an action taken by a county official pursuant to the Code . This thirty (30) day appeal period to appeal the decision not to hold a public hearing expired on January 20, 1995 . Therefore, under either provision of the County Ordinance Code, the time to appeal the zoning administrator' s decision not to hold a discre- tionary public hearing to review compatibility of the proposed residence with the surrounding neighborhood in terms of height, location, size and design has expired. The appeal in this matter was not filed until February 8, 1995, 51 days after the zoning administrator decided not to hold a public hearing. It is well established that local entities may create shorter limitation periods than otherwise provided by statute if the state has not fully occupied the area, i .e. if there is no preemption (Pan Pacific Property Inc. v. County of Santa Cruz (1978) 81 Cal .App. 3d 244, 252) . As the court stated in the Pan Pacific Property case, the California Supreme Court, when confronted with an ordinance that provided that zoning decisions were final within 30 days, refused to hold the local limitations period invalid. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal .3d 247) At the time of the Friends of Mammoth decision, applicable statutes allowed a 180 day period in which to initiate litigation concerning decisions of the zoning administrator and decisions on zoning permits . (See former Gov. Code §§ 65901, 65903 : statutory appeal time is now 90 days . ) The Pan Pacific Property case held that the state legislature did not intend to occupy the field in this area (Id. 252) . The statutes which authorizes local governments to enact zoning ordinances (Gov. Code § 65800 et seq. ) contain no limitation periods within with such ordinances must be challenged. (Id. 252) In addition, the court quoted Government Code section 65800 which states Of ' The legislature declares that in enacting this chapter it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters. ' (Italics added. ) " (Id 252 . ) As stated in the February 22 , 1995 staff report to the Board, the Community Development Department has indicated its consistent interpretation of the 1992 small lot ordinance amendment as giving the zoning administrator the discretion to decide whether or not to hold a public. hearing. As noted in the staff report, the overwhelming number of small lot reviews have been performed without a public hearing. For over three years, staff indicates it has been interpreting the Small Lot Ordinance as allowing the zoning administrator discretion whether or not to hold a public hearing. Board of Supervisors 4 March 7, 1995 Staff has prepared procedures setting forth how the zoning administrator would exercise its discretion. Construction of a statute by officials charged with its administration or by the enacting body is entitled to great weight unless it is clearly erroneous or unauthorized. Rivera v. City of Fresno (1971) 6 C3d 132, Cas taneda v. Holcomb (19 81) 114 CAM 939, City of Walnut Creek v. County of Contra Costa (19 8 0) 101 CAM 1011, City of Los Angeles v. Silver (1979) 98 CA 3d 748 . We note that while planning staff recalls what it intended and what it believes the Board of Supervisors intended when the amendment to the small lot ordinance was adopted, the written documentation submitted with the February 22, 1995 report to the Board is somewhat ambiguous on supporting this point and could also be construed to indicate that staff in 1992 accepted the Code' s variance provisions for notice and an opportunity to be heard as required for Small Lot Ordinance applications . Unless the Board of Supervisors is satisfied that the Small Lot Ordinance was not intended to and does not mandate a hearing or at least an opportunity to request a hearing, we have no basis from the record before the Board to conclusively advise that a noticed public hearing (or timely opportunity to request such hearing) is not required by the County Ordinance Code . If it is required, then it would appear that as to the Board, the Doty appeal is timely filed and not barred by any administrative .appeal filing date . DJS/amc :df djs-3\a:\appea1.dot ADDENDUM TO ITEM D.1 MARCH 7, 1995 On February 28, 1995, the Board of Supervisors deferred to this date the decision on the Administrative Appeal of Robert P. Doty, Catherine Garza, Renee Benoit, and David Garrard from the administrative decision of the Community Development Department relative to plan and permits for 16 Beverly Court, Kensington. Victor Westman, County Counsel, presented his opinion on the jurisdiction of the Board in the appeal, and on the timliness of the appeal. The Board discussed the issues including holding a public hearing on this matter and a possible work stop order. Supervisor Rogers moved to hold a public hearing on the matter; ask for a review of the question of whether a stop work order should be issued and direct staff to hold the public hearing on the matter as quickly as possible. Supervisor Torlakson seconded the motion and clarified that the hearing would be before the Zoning Administrator. Supervisor Rogers concurred. IT IS BY THE BOARD ORDERED that a public hearing be HELD as soon as possible by the Zoning Administrator on the plans for 16 Beverly Court, Kensington ; and the Building Inspection Department is REQUESTED to reconsider the appropriateness of a stop work order for that site.