No. C075761.

SHELDON COMMUNITY RESIDENTS EXPOSING WRANGLER UNFAIRNESS et al., Plaintiffs and Appellants, v. CITY OF ELK GROVE, Defendant and Respondent, JOSEPH HENDERSON et al., Real Parties in Interest and Respondents.

Court of Appeals of California, Third District, Sacramento.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115


Plaintiffs, a group of Elk Grove residents (Residents), filed a petition for writ of administrative mandamus seeking to overturn a zoning variance granted to their neighbor. Defendant City of Elk Grove approved the variance to allow a garage with guest quarters within the property-line setback required by the city's zoning code. The trial court denied the writ petition.

Residents now contend (1) the city council did not have authority to approve the variance, (2) the trial court erred and abused its discretion in denying the writ petition, and (3) the city's approval of the variance violated Government Code section 65906.

We conclude the city had authority to grant the variance, we need not rely on the trial court's analysis or conclusions in reaching our decision in this case, the city's approval of the variance is supported by substantial evidence, and the approval did not violate Government Code section 65906.

We will affirm the judgment.


In an effort to increase California's housing supply, the Legislature enacted Government Code section 65852.2 to encourage local governments to enact ordinances allowing and regulating second dwelling units (sometimes called "granny flats"). (Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 545-546.) In 2006, the City of Elk Grove adopted such an ordinance, expressing the intent "to expand housing opportunities for low income and moderate income or elderly households by increasing the number of rental units available within existing neighborhoods while maintaining the primarily single-family residential character of the area." (Elk Grove Mun. Code, ch. 23.90, § 23.90.010.)

In late 2007, Real Parties in Interest Joseph and Michele Henderson applied to the city for a permit to build a "new four car garage with attached guest house." At the time, the zoning code distinguished between a second dwelling and a guest house. The zoning code defined a second dwelling as providing for "living, sleeping, eating, cooking and sanitation" but defined a guest house as having "sleeping, living and bathroom provisions, exclusive of kitchen or cooking facilities." (Elk Grove Mun. Code, ch. 23.90, former § 23.90.020 (2006).) Absent a cooking facility, a guest house could not be used or rented as a separate dwelling for permanent living quarters without a conditional use permit. (Ibid.)

When next-door neighbor Michael Hardy heard about the proposal to build the garage and guest house, he reminded the Hendersons that the neighborhood deed restrictions (CC&Rs) prohibited second dwellings. The Hendersons responded that the new structure was not a second dwelling because there would be no cooking facility.

In response to the Hendersons' permit application, the city required plan review corrections in December 2007 and June 2008. On June 24, 2008, the city issued a building permit allowing a 1200 square-foot guest house (with no stove) attached to a 2500 square-foot garage. The garage would face the street and have guest quarters in the back beside an existing pool.

On the same day the city issued the permit to the Hendersons, Hardy complained to the city that the 11-foot setback between his property line and the newly-permitted structure was much smaller than the city's zoning code required. The city determined that if the new structure was indeed a guest house, the zoning code required a setback equal to the height of the building (stated as 28 feet) but a setback of only five feet would be acceptable if the structure was re-characterized as a second dwelling.

On July 29, the city halted the construction project, telling the Hendersons they could either move the structure to conform to setback requirements for guest houses or keep the existing setback and reclassify the structure as a second dwelling. To consider the building a second dwelling, the city was willing to construe a microwave oven as a cooking facility, but it warned that the municipal code required a $25,000 fee for all second dwellings.

The city ultimately issued a new permit characterizing the structure as a second dwelling. The city did not require a change in the setback and it did not collect the $25,000 second-dwelling fee. The city denied Hardy's requests for reconsideration and appeal.

In November 2008, Hardy and his wife, Melissa McMillon, filed a petition for writ of administrative mandamus seeking an order requiring the city to hear their appeal. The Hendersons finished construction on the structure in March 2009. A little over two years later, the trial court issued a peremptory writ of mandamus requiring the city to vacate the building permit and hear Hardy's appeal. In July 2011, the planning commission held a hearing, rescinded the building permit and declined to reissue it.

The city's municipal code at the time provided that when final action on a permit application was delayed for more than 60 days, the city had to apply the "regulations in effect at the subsequent hearing." (Elk Grove Mun. Code, ch. 23.04, § 23.04.060.)1 The building-height setback and cooking facility definitions had been amended in late 2008, several months after the Hendersons' building permit issued, and those new definitions applied at the 2011 hearing; accordingly, the planning commission found that the microwave oven did not qualify as a cooking facility and the structure could not be considered a second dwelling. The planning commission added that even if the structure was a second dwelling, the new setback rules required a setback equal to its 28-foot height. The planning commission concluded the structure was illegal and non-conforming and subject to potential abatement and demolition.

On September 15, 2011, the planning commission held a hearing to consider the Hendersons' request for a variance. On November 3, following another hearing, the planning commission denied the variance.

But on December 14, 2011, after another hearing, the city council granted the Hendersons a variance, allowing the structure to remain unmodified. In February 2012, Residents filed a petition for writ of administrative mandamus challenging the variance. In November 2013, the trial court denied the writ petition because the equities favored the Hendersons.


Residents contend the city council did not have authority to consider the variance. Not so. The city's municipal code expressly provides that planning commission variance decisions are reviewable by the city council. (Elk Grove Mun. Code, ch. 23.14, § 23.14.060.)

Residents further argue the trial court erred and abused its discretion in denying the writ petition. However, as the parties acknowledge, we are not bound by the trial court's analysis or conclusions. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 816.) In reviewing a petition for writ of administrative mandamus brought pursuant to Code of Civil Procedure section 1094.5, our inquiry includes "whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Code Civ. Proc., § 1094.5, subd. (b), see id. at subd. (c).)

We have already concluded the city had jurisdiction to consider and approve the variance. In addition, there is no contention the city council hearing was procedurally unfair. Thus, we turn to whether the city abused its discretion in granting the variance. Independent judgment review of an administrative mandamus proceeding is limited to administrative decisions that substantially affect a vested fundamental right. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) Here, petitioners did not demonstrate a threat to their vested fundamental rights. To trigger independent review on administrative mandamus, a court must find the petitioner has a preexisting right "`of sufficient significance to preclude its extinction or abridgment by a body lacking judicial power.'" (Whaler's Village Club v. California Coastal Comm. (1985) 173 Cal.App.3d 240, 252, italics omitted.) A property owner has no vested fundamental right in whether a neighbor obtains a zoning variance. (Markley v. City Council (1982) 131 Cal.App.3d 656, 665.)

In cases not involving a vested fundamental right, like this case, we determine whether the challenged decision is supported by substantial evidence in light of the entire record. (Bixby v. Pierno, supra, 4 Cal.3d at pp. 142-144.) Under such review the petitioner has the burden of proving the agency's decision was invalid. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335-336 (Desmond).) As part of our review we presume the agency performed its official duty and that its findings were supported by substantial evidence. (Ibid.) The petitioner must prove otherwise. (Ibid.)

Here, the city tracked the requirements of Government Code section 65906 and found there are "special circumstances applicable to the property, including size, shape, topography, location or surroundings, such that the strict application of the Zoning Code deprives such property of privileges enjoyed by other property in the vicinity and under identical land use zoning district classifications." The city also cited the applicants' good faith reliance on a city-approved building permit and the waste and expense that would be required under a strict application of the code. In addition, the city noted features on the property (including a pond and softball field) that distinguished it from neighboring properties and made relocation of the structure impractical.

The city found the structure did not "constitute a special privilege inconsistent with the limitations upon other properties in the vicinity" and that granting the variance would not "adversely affect the interests of the public or the interests of residents and property owners in the vicinity of the premises in question." It found that the structure had been built in compliance with 2008 regulations and that other residents who applied at the same time would have been held to the same standards.

Moreover, the city found that granting the variance would not adversely affect the public or nearby property owners. The city found that the setback of 11 feet was consistent with a 2008 setback requirement of five feet. The city noted that although the adjoining neighbor opposed the variance, other neighbors supported it. The city determined that the hardship of removing or moving the structure outweighed any harm to neighbors if the structure remained.

The city also found that the variance was consistent with the city's general plan and zoning code because the structure maintained the rural character of the area and was built in conformity with the zoning code that existed when the building permit was issued.

We conclude the city's findings are supported by substantial evidence. Aerial photographs in the record show that the structure is a significant distance from the street and a significant distance from Hardy and McMillon's house. The property is different from neighboring properties. The Hendersons obtained a permit from the city to build the structure and completed construction with approval from the city. Based on our review of the record, we agree with the city that granting the variance did not unduly harm the public or nearby property owners, but requiring the Hendersons to demolish or move the structure would impose a significant burden on the Hendersons.

Residents now argue there is insufficient evidence of a burden to the Hendersons because only the garage portion of the structure would have to be moved. But they do not cite evidence in the record supporting their assertion and we have found none. It is their burden to prove the city's decision is not based on substantial evidence. (See Desmond, supra, 21 Cal.App.4th at pp. 335-336.)

In addition, Residents claim the variance adversely affects the public and the surrounding property owners. But the only evidence they cite is to Hardy and McMillon's consistent opposition to the permit and variance and their assertion that the structure adversely impacts their property. Residents allege a deprivation of "openness" but the record shows the structure is a significant distance from other homes and the street, and the variance is small. They do not provide more tangible evidence, such as diminution of property values or other measurable injury. (Compare San Marino v. Roman Catholic Archbishop (1960) 180 Cal.App.2d 657, 673-674 [variance denied because proposed use would increase noise and congestion and decrease area property values].) Residents have failed in their burden to prove the city's decision was not based on substantial evidence.

Residents further argue the variance is inconsistent with the city's general plan. They cite language in the general plan providing that properties like theirs are assets to be "protected from urban encroachment." Residents interpret this to mean structures should not be "up against property lines." But the granting of a variance is within the discretion of the city and will not be disturbed by the courts absent proof that such discretion was abused. (Allen v. Humboldt County Bd. Of Supervisors (1966) 241 Cal.App.2d 158, 163 [noting the dearth of cases disallowing variances]; see also Miller v. Board of Supervisors (1981) 122 Cal.App.3d 539 and Zakessian v. City of Sausalito (1972) 28 Cal.App.3d 794 [upholding variances].) We conclude substantial evidence supports the city's decision and there was no abuse of discretion.

Residents claim the city's approval of the variance violated Government Code section 65906. In describing Government Code section 65906, the California Supreme Court explained that a comprehensive zoning plan could affect owners of some parcels unfairly if no means were provided to permit flexibility. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 511.) In an effort to achieve substantial parity and perhaps also insulate zoning schemes from constitutional attack, the Legislature authorized variances. (Ibid.) The variance procedure is a means to remedy a disparity of privileges. (Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 925.) For example, in Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, because the variance was small and the lot had unusual physical features, the variance provided a remedy for an otherwise disadvantaged homeowner.

Here, the variance was small (a matter of feet far away from neighboring homes), the property is different from neighboring properties, and the city applied the language of Government Code section 65906 in making its findings. We have already concluded the city's findings are supported by substantial evidence. The claims made by Residents lack merit.


The judgment is affirmed.

ROBIE, Acting P. J., and HOCH, J., concurs.


1. The code was subsequently amended to provide that a permitted structure becomes a lawfully existing building after a building inspection. (Elk Grove Mun. Code, ch. 23.04, § 23.04.060.)


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