The present controversy involves an attempt by the Board of Permit Appeals to authorize the construction of a building which would rise to over twice the maximum height permitted by the governing ordinances of the City and County of San Francisco.
The trial court granted a writ of mandate directing the board to revoke a permit purporting to authorize such construction.
Beginning in 1961, a number of public and private agencies investigated possible height limitations for the northern portion of San Francisco. After holding public hearings in late 1963 and early 1964, the City Planning Commission and the Public Buildings, Lands and City Planning Committee of the Board of Supervisors approved enactment of an ordinance to establish a maximum legal height of 105 feet for buildings constructed in the area involved in this litigation.
On January 22, 1964, HAP Development Company, HAP Development Partnership, and Haas & Haynie Corporation (hereinafter collectively referred to as "the developers") filed with the Central Permit Bureau (hereinafter referred to as "the permit bureau") an application for a site permit, seeking permission to construct a 235-foot-high apartment building at the corner of Polk and Greenwich Streets in San Francisco. On February 10, while the permit bureau was still considering the developers' application, the Board of Supervisors enacted the ordinance recommended by the City Planning Commission and by the Public Buildings, Lands and City Planning Committee. By its terms, the height ordinance was to take effect on March 23, 1964. Since the structure
On March 19, just four days before the effective date of the new height limitation and several weeks after its endorsement by the mayor,
Plaintiff Russian Hill Improvement Association (hereinafter referred to as "the association") filed a timely but unsuccessful appeal to the Board of Permit Appeals protesting the permit bureau's order; on May 4 the board denied the association's application for a rehearing.
Defendants contest the order of revocation on the theory that the Board of Permit Appeals acted properly in testing the permit application under the law which was in effect when the permit bureau approved that application on March 19. Plaintiffs concede that no law then operative rendered the bureau's action unlawful.
Prior to the enactment of section 150, even a permit which had achieved administrative finality could be revoked on the basis of a subsequent change in the zoning laws.
Nothing in the history of section 150 lends the slightest support to the suggestion that it was designed to protect the mere hope that a pending permit application would ultimately receive final approval. We have long held that one who is not yet armed with a presently effective municipal license to proceed with construction must assume the risk that. "before final action [has] been taken on [his] application" (Brougher v. Board of Public Works, supra, 205 Cal. 426, 435), the law might be changed so as to require that his application be denied. (See, e.g., Anderson v. City Council (1964) 229 Cal.App.2d 79, 88-90 [40 Cal.Rptr. 41]; O'Rourke v. Teeters (1944) 63 Cal.App.2d 349, 352 [146 P.2d 983].) Defendants have suggested no reason, historical or otherwise, to suppose that section 150 contemplated a departure from this established rule.
As counsel for the developers acknowledged in oral argument before this court, the central purpose of section 150 is to set a definite date as of which a permittee's rights may be ascertained with certainty. Thus, once a permit has been "lawfully granted" within the meaning of section 150, that section automatically empowers the permittee to complete the approved structure subject only to a requirement of diligent performance.
If we were to construe the statute to afford this sort of partial protection for permit applicants in addition to the total protection which it undeniably provides to permits which have become final, we would achieve nothing germane to the purposes of section 150. Such a construction would simply arm the Board of Permit Appeals with discretionary authority to ignore laws which become effective during the pendency of a permit application. The addition of this option to the already broad arsenal of discretionary weapons available to the board would only compound the uncertainty of all interested parties, a result which would subvert rather than subserve the legislative purpose.
Defendants secondly suggest that the words "issue" and "grant" are synonymous. They insist that those words are used interchangeably in the San Francisco Charter and Municipal Code, and they conclude that, as a linguistic matter, section 150 should be read to protect permits as soon as they have been lawfully "issued" by the permit bureau.
Even on its own rigidly formalistic level, however, defendants' position proves to be untenable.
Defendants correctly note that the Board of Permit Appeals cannot itself "grant" a permit but can only direct the permit bureau to do so. They add, quite properly, that if the order of the permit bureau were not appealed, that action rather than any action taken by the Board of Permit Appeals would constitute the final decision relative to the granting or denial of the permit in question. Although this observation might be of some interest if we were concerned with the question of which agency may grant a permit, it casts no light upon the problem presented by the case before us, since we are here concerned not with who granted the permit but with when it was granted. On that issue, the statutory language is inconclusive; it strongly suggests, however, that a permit has not been "lawfully granted" within the meaning of section 150 until the jurisdiction of the Board of Permit Appeals has been exhausted.
Finally, by holding that a permit is not "lawfully granted" until all administrative action with respect to the permit application has been completed, we preserve municipal power to prevent the circumvention of newly enacted zoning laws. "Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict
By interpreting the section to protect only those permits which have become final, however, we enable municipalities to deter the vast majority of last-minute efforts to race through
Special Height District Ordinance No. 35-64 became effective on March 23, 1964. On that date, the permit which the developers sought had not yet been granted; after that date, no agency could lawfully grant it. Were the Board of Permit Appeals empowered to do so, a tightening of zoning regulations by legislative decree could always be nullified by administrative fiat.
We summarize here the considerations which compel our conclusion that a permit is not "lawfully granted" in the sense envisioned by section 150 until all administrative action
Our ruling that a permit is not "lawfully granted" until the appropriate channels of administrative review have been exhausted enables cities to deter last-minute efforts to circumvent changes in the zoning laws. More broadly, our interpretation of section 150 serves to prevent the proliferation of nonconforming structures. A contrary construction of that section would subvert these objectives, both of which are vital to the achievement of order in the volatile development of modern urban centers.
For the foregoing reasons, we do not read section 150 to endow an appealable order of a subordinate administrative agency with a premature attribute of finality in disregard of the basic purpose of that section and of the City Planning Code of which it is a part.
The judgment is affirmed.
I concur in the judgment.
The petition of appellants HAP Development Co., Haas & Haynie Corp. and HAP Development Partnership for a rehearing was denied March 22, 1967.
Any interpretation of section 150 which would defeat this statutory right to invoke the discretionary authority of the Board of Permit Appeals would be clearly unacceptable in light of the fact that the Central Permit Bureau, unlike the board, is not obliged to accord opposing parties any rights whatever. (Cf. fn. 6, supra.) Accordingly, defendants construe the section so as to preserve the discretionary jurisdiction of the Board of Permit Appeals in this area. (See fn. 10, supra.)
Moreover, when a subordinate administrative agency is authorized initially to "grant" that which an applicant seeks, an appeal from the exercise of such authority does not ordinarily suspend the action under review but only stays proceedings in furtherance of that action. For example, section 117.3 of the San Francisco Charter and section 302(d) of the City Planning Code expressly authorize the Zoning Administrator to "grant" a requested variance when he has determined that the application therefor meets certain prescribed criteria; an appeal from his granting of a variance to the Board of Permit Appeals merely stays all proceedings in furtherance of the Zoning Administrator's action. (San Francisco Charter, § 117.3; City Planning Code, § 303(a).) Yet the Municipal Code provides that, pending appeal in permit cases, "the action from which an appeal is taken ... shall be suspended." (Municipal Code, pt. III, art. 1, § 8.) (Italics added.) One must torture the words of the Municipal Code to conclude that it is the permit, supposedly "granted" by the permit bureau, rather than the action of that bureau in temporarily issuing the permit, which is "suspended" pending appeal. The most plausible inference is that the initial act of "issuing" a permit constitutes something less under the Municipal Code and City Charter than the ultimate "granting" of a permit.
Even as a purely technical matter, however, the argument defendants here advance is simply incorrect. The relevant section of the City Planning Code provides only that an "existing building which conforms to the use regulations but exceeds the height or floor area ratio limitations of this Code shall not be deemed to be a non-conforming building, but no such building shall hereafter be enlarged or structurally altered so as to further increase its height or bulk." (City Planning Code, § 120, as amended by Ordinance No. 35-64, enacted February 10, 1964.) (Italics added.) The section does not suggest that a structure not yet in existence should be deemed a "conforming" building notwithstanding its conflict with the governing height limitations. On the contrary, it expressly states that "[n]o building or structure or part thereof shall be constructed, reconstructed, altered, relocated or otherwise permitted to exceed the height and bulk regulations set forth herein for the use and height districts in which it is located." (Ibid.) We note in passing that this language of section 120 makes no exception for the case of a building "for which a permit has been lawfully granted" (City Planning Code, § 150, subd (d)). Since we have concluded that no permit was "lawfully granted" to the developers in this case, we need not decide whether City Planning Code section 120, as amended in 1964, was intended to abrogate the exception created by City Planning Code section 150, subdivision (d), as enacted in 1960.
The Board of Supervisors might have proceeded otherwise: It might have chosen to adopt an "interim ordinance" to freeze the issuance of all building permits in the northern portion of San Francisco until the new law had become effective. (See Hunter v. Adams (1960) 180 Cal.App.2d 511 [4 Cal.Rptr. 776]; cf. Miller v. Board of Public Works supra, 195 Cal. 477; see, generally, Note, Stopgap Measures to Preserve the Status Quo Pending Comprehensive Zoning or Urban Redevelopment Legislation (1962) 14 W.Res.L.Rev. 135.) The availability of that alternative, however, does not diminish the wisdom, and certainly cannot negate the validity, of the more selective course which the Board of Supervisors in fact chose to pursue on this occasion.