I respectfully dissent. I disagree with the majority as to the
facts of this matter, the applicable standard of review, and the controlling precedent as set forth by our Supreme Court in various cases. I would, for the reasons set forth below, reverse.
Appellants Robert and Eva Consaul and Thomas Ahrens (collectively, Ahrens) own a 1.06-acre of undeveloped land in a highly urbanized area of *1803San Diego (City). Ahrens petitioned the superior court for a writ of mandate after their land was downzoned from multifamily residential (R-1000) to single-family dwelling (R1-5000). The superior court denied the petition without stating what standard of review it used. Ahrens timely appealed.
The primary issue presented is whether Ahrens acquired a vested right to develop the property by spending 22 months and $60,000 obtaining all discretionary approvals for their project, including allocations of permits in compliance with City’s Interim Development Ordinance (IDO). The administrative record undisputedly supports Ahrens’s contention they had received all discretionary approvals, but City urges us to limit the vested rights doctrine to cases where the owner had obtained vested tentative subdivision maps, development agreements or building permits.
I would reject City’s suggested limitations. In my view, Ahrens acquired a vested right to develop their property when they received their final allocations under the IDO. (City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1190 [278 Cal.Rptr. 375, 805 P.2d 329].) City’s subsequent action in downzoning the property affected this vested right. Thus, the trial court was required to apply its independent judgment to the evidence presented to it, including the relevant administrative record. Because the record does not reflect the trial court applied its independent judgment, I would reverse.1
Facts
In 1976, Robert and Eva Consaul purchased a 1.5-acre parcel in a highly urbanized area of City. At that time, the property was developed with a single-family residence and two apartments. These structures remain and are located at the top of a hill at the end of a cul-de-sac. Thomas Ahrens has lived in one of the apartments since 1976, acting as the apartment manager for the Consauls. Until the challenged action, the property has been zoned R-1000, permitting development of up to 65 units.
In 1986, Ahrens and the Consauls entered into an agreement to develop the property, with Ahrens purchasing an interest in the land. By this time, most of the surrounding area had been developed. The parties dispute whether the surrounding development is multifamily or single-family, but there is a 250-unit apartment building within 500 feet of the property and very high density to the north, south and west. Directly east is a steep canyon. At the base of the property, there is an area of single-family homes *1804which is topographically separated from the multifamily units circumscribing it on all sides. (See exhibit A.) These single-family homes are constructed with 1 home every 3,000 to 5,000 square feet—a density of 8.7 to 14.5 dwellings to the acre. There is no access to Ahrens’s property from this single-family residential area, and none to any of the other high density multifamily areas located on the ridges above both sides of the single-family homes.
Ahrens retained engineers and surveyors in 1986, and processed a map (in compliance with the Subdivision Map Act) to split the parcel in two. Parcel 1 is at the top of the hill, and contains the existing structures. It remains zoned multifamily (R-1000) and is not involved in this action. Parcel 2 is 1.06 acres, L-shaped, and under the R-1000 designation could have been developed with 54 units. However, there are additional constraints on the development of the site relating to slopes, hillsides, and grading which decrease the total number of units which can be constructed to 44. When the map was processed, City required that access be taken from the top of the hill through the developed high density multifamily area adjacent to parcel 1. This access road serves only this one parcel and will cost in excess of $134,000 to construct. It took City six months to process the map which was recorded in February 1987. Ahrens spent $7,200 processing the map, as well as hundreds of hours to prepare it and meet with City. After the map was recorded, Ahrens began plans for developing the property by hiring an architect, a project planner and a civil engineer. Ahrens’s initial plans were for development of 44 units, consistent with both the adopted land use and existing zoning.
On July 14, 1987, City adopted an amended, revised, comprehensive and very detailed community plan (the Plan) for the area “designed to guide development [] for the next fifteen to twenty years.” The Plan’s stated objective is to promote multifamily infill and to accommodate increased development without significant impact to adjacent land uses or traffic. The subject property is designated on the Plan (which supersedes the Coastal Plan of 1981)) as multifamily. The Plan notes this area of the City has maintained a stable population since 1965, with 70 percent of the area zoned for single-family use and 15 percent zoned for multifamily use. The Plan recognizes this is a highly urbanized community. The Plan was prepared with the assistance of local residents acting as a planning group, who made recommendations to City for changes in both land uses and zoning in this area. Ahrens’s parcel was not one suggested for any changes.
One week after City adopted the Plan (on July 21, 1987), the city council adopted an IDO for the entire City, placing a limitation of 8,000 units, i.e., building permits, allowed to be issued citywide regardless of local plans or *1805zoning. The initial period of the IDO was to be 18 months. Each area was then allocated a “fair share” of these 8,000 annual permits; the subject area (the Peninsula Community) was allocated 96 units per year. Applicants for these permits had to complete stringent requirements for discretionary review, and units were allocated quarterly only.
There have been two amendments to the IDO, including one in 1988. Each of the three IDO ordinances contains detailed procedures, as well as standards and criteria which must be considered in reviewing applications for IDO allocations.
In urbanized areas, the first priority is to be given to “development approvals” granted before the effective date of the ordinance. These “development approvals” include “vesting tentative map, development agreement, or other entitlement which may create a legally vested right to development of the whole or part of the project under California law.” (Italics added.) Even if a developer possessed building permits when the IDO was adopted, no residential development could proceed under those permits unless it met the IDO provisions including the community allocation.
Ahrens learned of the IDO and immediately met with City, who informed them they could not apply for any building permits until they received their IDO allocation. Ahrens complied with the IDO by submitting detailed site plans, grading plans, elevations and locations of all improvements such as buildings, units within the buildings, parking, landscaping and access road. Meetings with City resulted in the development being decreased from 44 to 26 units. When final plans were submitted, City directed Ahrens meet with the local planning group for its input. Ahrens did so, presenting the 26-unit project for the 1.06 acres. The planning group issued no objection to the project, and the plans were returned to City for final processing of the IDO allocation application.
Finally, on November 4, 1988, Ahrens were granted 18 of the 26 unit allocations. They were told they could not process any building permits until they received the final eight-unit allocation, which might be possible during the next quarterly period. On March 2, 1989, Ahrens received the final eight-unit allocation and prepared to obtain financing for their project. The IDO states an applicant who receives a dwelling unit allocation shall have one year to submit to the building inspection department a building permit application form to exercise “the entitlement to the units represented by the allocation.” (Italics added.) This one-year period was also set forth in the November letter to Ahrens.
*1806On April 27, the newly elected chair of the local planning group wrote a letter to City under the subject heading: “Protected Single-Family Neighborhood Maps.” In this letter, the chair states the group voted to suggest Ahrens’s property be investigated for single-family residential zoning. City conceded the interim single-family protection ordinance (INSFPO) adopted by the city council as an urgency on August 9, 1988, does not and never has applied to Ahrens’s property.2 Nevertheless, during this period of evaluation the local planning group reviewed, voted on and recommended a zoning change on Ahrens’s property. Ahrens were never notified of the group’s action and never had the opportunity to present their plans to this newly constituted group.
Notwithstanding the inapplicability of the INSFPO to Ahrens’s property, the San Diego City Planning Commission conducted a noticed public hearing on an item listed as: “Classification of Single-Family Neighborhoods and Related Rezonings and Plan Amendments in Peninsula.” This notice, dated June 30,1989, for a hearing on July 13,1989, was the first time Ahrens were informed of any proposed action on their property. City’s report notes Ahrens’s parcel as vacant, but does not mention the IDO allocations. Ahrens appeared and opposed the rezoning. The planning commission voted, six to zero, to recommend adoption of the item before it—the classification of single-family neighborhoods and related rezonings and amendments to the community plan.3
Thereafter, the city council noticed a public hearing for August 8, 1989. The agenda item is the same as the planning commission’s and includes the subject property rezone. The matter was continued until September 11 to allow Ahrens to present their project to the new planning group. The planning group met on August 17. Ahrens presented their project after counsel asked the board if it had already voted on the rezoning. The response was the group had already voted, despite one member’s admission he had never been advised Ahrens had plans for the vacant parcel, nor had he been advised what stage these plans were in when the group voted to recommend downzoning. According to the chair who had requested Ahrens’s vacant parcel be rezoned, despite the fact the vacant parcel is not subject to the INSFPO, the only purpose for allowing Ahrens to present their project was to comply with the city council’s request. Thus, the group allowed Ahrens to make their presentation but took no action.
*1807Accordingly, as City notes, “In effect, this left intact the Board’s earlier vote recommending a downzoning of the property.”4 At its continued hearing on the classification of single-family neighborhoods, the city council voted unanimously to (1) adopt a resolution approving the protected single-family neighborhood maps and releasing those areas not mapped for classification; and (2) adopt a resolution approving “related amendments to the Community Plan as well as the rezoning of the Ahrens’ property” from R-1000 to Rl-5000.
On December 26, Ahrens filed a petition for writ of mandate in the superior court. They contended the rezoning was invalid on four separate grounds: (a) they had obtained a vested right to develop their property under the theory of promissory estoppel; (b) the rezoning violated City’s promise under the IDO allocation to allow them one year to develop their twenty-six units, and City was estopped from denying them such right; (c) the rezoning constituted an arbitrary and capricious act of “spot-zoning”; and (d) it constituted a taking of their property without just compensation because it rendered their property economically valueless. Additionally, Ahrens alleged the INSFPO did not apply to their vacant parcel, attaching the relevant IDO and INSFPO as adopted and subsequently amended.
City answered the petition and filed a demurrer on the ground that it was not timely filed.5 Ahrens replied. City filed additional and supplemental documents after Ahrens’s reply, including a separate single sheet document entitled, “Request For Judicial Notice.”6 The superior court heard the matter on its law and motion calendar on February 26, 1990, and took it under submission. By minute order dated March 7, 1990, the court ruled, “Plaintiff’s Petition For Writ Of Mandate Is Denied And The Demurrer Is Overruled.” The court made no findings or other rulings, although it stated it would take the matter under submission after Ahrens agreed with its statement that it should “tell me to go back and reread this stuff with a different eye or a different standard, perhaps.” Ahrens timely appealed.
Discussion
I. Judicial Notice and Related Preliminary Matters
The foundation for my review of the merits of this petition begins with a single sheet of paper in this 768-page record. City requested the trial court *1808take judicial notice pursuant to Evidence Code sections 451, 452, and 453 of “the City of San Diego’s Ordinances and Resolutions, the City of San Diego’s Planning Commission Resolutions and all decisional law of other jurisdictions and other public records provided with the Respondent’s Points and Authorities filed in this matter.” Now, without citation to any authority, City requests this court “to take such notice.”
I assume City is requesting that the court take judicial notice under Evidence Code section 459. However, this section requires this court to “take judicial notice of (1) each matter properly noticed by the trial court and (2) each matter that the trial court was required to notice under Section 451 or 453.” The record does not reflect what documents the trial court judicially noticed. The only ruling on any request for judicial notice by City was when the City Attorney discussed hearsay statements regarding two potential discretionary approvals which might remain for this project. When the court noted these hearsay statements were unsupported anywhere in the 597 papers filed with the court, City requested the court “to judicially notice 62.0401 et. seq. today.” The court responded, “I can do that.”
If the court had ruled on City’s request for judicial notice, it would have eliminated most of the record before it, allowing it to focus its attention on the merits of Ahrens’s petition based on the admissible relevant evidence before it. First, City’s admission that the INSFPO never applied to Ahrens’s parcel would have eliminated this portion of the record. Instead, however, the city attorney orally argued the INSFPO supported the rezoning. It attempted initially to do so before this court as well. Because the INSFPO did not apply to Ahrens’s property, this argument is plainly unpersuasive.7
Second, City cited the superior court no authority, and I have found none, for judicially noticing (1) planning department reports relating to a draft ordinance which was never adopted, (2) a draft ordinance which was never adopted, (3) a planning department classification and methodology attached to the draft ordinance which was never adopted, and (4) an IDO information booklet prepared by staff.
This court denied City’s request to judicially notice ordinances which were not before us and records which do not reflect official action. Instead, the focus and crux of this case is the IDO and its provisions as adopted by City.
Finally, for purposes of my decision, I would disregard City’s references throughout its brief to comments made by the City Attorney to the superior *1809court regarding “considerable doubt that the Appellants have obtained the final discretionary approval necessary for their project.” The supplemental declaration of city planner Christopher Jacobs, filed after Ahrens replied to City’s opposition, states, “I do recall receiving telephone calls in spring or early summer 1989 from at least one property owner and from other concerned citizens about the Curtis Street property [City’s designation for Ahrens’s property] as to whether the Planning Department retained any discretionary approval authority over the proposed 26-unit condominium project on the R-1000 zoned property. This answer to this question was no.”
The undisputed admissible and competent evidence before us is that Ahrens had obtained all discretionary approvals for their 26-unit condominium project at the time City took its action to rezone their property. (See exhibit B.) I now turn to the merits of Ahrens’s petition.
II. Standard of Review
Ahrens complied with section 101.0210 of City’s code which requires a party challenging a zoning or rezoning decision by City to file a petition for a writ of mandate under section 1085 of the California Code of Civil Procedure.8 This same section indicates a petition for writ of mandate under section 1094.5 must be filed to attack the grant or denial of a variance, or any administrative decision or permit. By directing the petitioners to section 1085 and then section 1094.5, City’s code is misleading.
A petition for writ of mandate under section 1085 (ordinary or traditional mandamus) is the proper format for challenging a legislative action, whereas section 1094.5 (administrative mandamus) is used when the action being attacked is adjudicatory. “A legislative or quasi-legislative action is the formulation, without regard to a specific set of facts, of a general rule applicable to future situations. An adjudicatory action is the determination of specific rights in regard to a specific fact situation.” (Cal. Administrative Mandamus (Cont.Ed.Bar 1989) § 1.7, p. 7, citing Wulzen v. Board of Supervisors (1894) 101 Cal. 15, 24 [35 P. 353].) Legislative actions create broad, general rules of public policy; adjudicatory actions affect specific individuals. Whether an action is legislative, adjudicatory or a combination of both must be determined by the facts of each individual case. (Horn v. County of Ventura (1979) 24 Cal.3d 605, 613 [156 Cal.Rptr. 718, 596 P.2d 1134].)
Although I agree with City that Ahrens should have set forth the nature of the writ being sought as well as the applicable standard of review before the superior court, I disagree Ahrens should be penalized for this failure by *1810denying them appellate review on the merits. We have been cited no California case, and my independent research has found none, which addresses the specific factual question raised in this case. There is one common thread in all of our Supreme Court cases on land use: whether a challenged action falls under section 1085 or section 1094.5, and the applicable standard of review must be determined on a case by case basis and depends on the facts and the nature of the right being affected by the challenged action. Where a vested right is impinged by an adjudicatory or quasi-adjudicatory action, the reviewing court applies its independent judgment in analyzing the correctness of the superior court’s decision. (Bixby v. Pierno (1971) 4 Cal.3d 130 [93 Cal.Rptr. 234, 481 P.2d 242]; Horn v. County of Ventura, supra, 24 Cal.3d 605; County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902 [251 Cal.Rptr. 267, 760 P.2d 464]; McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348 [261 Cal.Rptr. 318, 777 P.2d 91]; 301 Ocean Ave. Corp. v. Santa Monica Rent Control Bd. (1991) 228 Cal.App.3d 1548, 1556 [279 Cal.Rptr. 636].)
Here, in contrast to the typical rezoning which is often characterized as “legislative” because it serves broad, general public policy9, Ahrens’s parcel was not included with revisions of the local plan and related rezonings in 1987. City then enacted another layer of regulation—the IDO.
The IDO established a process with stringent requirements. Before permits can be allocated under the IDO, “the Administrator”—actually the city manager, city planning director and the city engineer—must all sign the letter allocating permits, affirming they have approved the development plans forming the basis for the application. Additionally, the IDO required Ahrens to present their scaled-down detailed plans to the local community planning group for its input before “the Administrator” would take final action on the IDO application.
Development allotment permit programs, such as this IDO, are not new to this state, and the process involved in such allotments has uniformly been held to be adjudicatory. (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168 [196 Cal.Rptr. 670].)
Although Ahrens labelled their petition for writ of mandate as one under section 1085, they were challenging a rezoning after having received their 26-unit allocations and were given 1 year “to submit to the Building Inspection Department a building permit application form to exercise the entitlement to the units represented by the allocation.” (Italics added.) More importantly, regardless of its caption, the petition clearly alleged Ahrens had *1811a vested right to develop their property in compliance with the approved plans and the IDO allocation. Thus, I conclude the applicable standard of review of Ahrens’s petition is the independent judgment test, and I would reject City’s request to review this record simply for abuse of discretion.
III. The Vested Rights Doctrine
The vested rights doctrine is based on the theory of equitable estoppel. It requires two elements be present before it applies. First, there must be a promise; second, the promisee must show reasonable detrimental reliance on that promise. Citing, among others, Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785 [132 Cal.Rptr. 386, 553 P.2d 546],10 Ahrens contend “that something other than a building permit may amount to sufficient government action to form the basis through which vesting may occur.”
City disagrees, arguing as it did before the superior court that equitable estoppel in land use cases “requires a promise implied by a building permit.” (Italics in original.) In support of this argument, City relies on Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839 [244 Cal.Rptr. 682, 750 P.2d 324], It is this argument and this case which the trial court found persuasive when it rejected Ahrens’s claim to a vested right.
However, in my view, Russ is neither dispositive, much less apposite, here. The question in Russ was the interpretation of a traffic mitigation condition contained in building permits which had already been obtained by the developers and under which construction was in progress. Russ does not hold, as City contends, that the possession of building permits is the sole criteria for applying the vested rights doctrine.
Indeed, the vested rights doctrine is not limited to the possession of building permits. In Youngblood v. Board of Supervisors, supra, 22 Cal.3d 644, our Supreme Court held a developer which had received approval of a tentative map, in compliance with the then-existing land-use plan for the area, could not be denied the right to develop consistent with that approved tentative map, despite a change in the land-use plan prior to the approval of a final subdivision map. The dispositive question was whether the developer had obtained all necessary discretionary approvals, making the issuance of the final subdivision map a ministerial function.
*1812Recently the Supreme Court summarized the vested rights doctrine as one of “fairness,” specifically citing Youngblood. Again, the Supreme Court focused on whether the developer has all the requisite discretionary approvals in order to proceed free of subsequent regulation. (City of West Hollywood v. Beverly Towers, Inc., supra, 52 Cal.3d at p. 1190.)
City obfuscates the effect of the IDO allocation, arguing its power to zone or rezone land and to regulate density of development remained unchanged by the IDO and remained in full force and effect. Although adopting the IDO did not affect City’s power, allocating the permits under the IDO did. The IDO exempted from its provisions, “Development approvals granted prior to the effective date of this ordinance pursuant to a vesting tentative map, development agreement, or other entitlement which may create a legally vested right to development of the whole or part of the project under California law.” (Italics added.) Further, no project could be granted an allocation “unless full zoning code compliance is present and any required discretionary permits approved.” I have already noted paragraph J of the IDO refers to the units represented by the allocation as “the entitlement.” Finally, when City adopted the urgency INSFPO, it exempted from its provisions “any lot or premises with a valid [IDO] allocation granted prior to August 9, 1988.” These references to the units as an entitlement and the treatment afforded a valid IDO, even in an ordinance adopted as urgency legislation, hardly comport with City’s contention the IDO allocation “was an invitation to submit a building permit application and plan check with the Building Inspection Department.”
I conclude, therefore, the allocation was in fact an entitlement, a vested right to proceed with the project in compliance with the discretionary approvals received by Ahrens and upon which they reasonably relied to their detriment.11 Therefore, the trial court erred in failing to apply its independent judgment to the evidence presented to it, including the entire administrative record.
Where, as here, the only admissible, competent evidence is undisputed that a party has acquired all discretionary approvals and the issuance of building permits remained as a ministerial act, the ultimate conclusion to be drawn from such facts is a question of law. Thus, the conclusion of the trial court is not controlling on appellate review. (Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 74-75 [227 *1813Cal.Rptr. 667, 720 P.2d 15].) Because Ahrens’s writ challenged an adjudicatory action of City which involved a vested right, I would reverse and remand with directions to the superior court to grant their petition.12
Respondent’s petition for review by the Supreme Court was denied August 20, 1992.
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In light of my conclusion on the vested rights issue, I would not reach Ahrens’s remaining contentions.
City’s concession is never explained in light of the action it took under the provisions of the inapplicable INSFPO.
Ahrens, in a supplemental declaration, stated they sought to apply for building permits after receiving notice of the intended rezoning but were informed none would be processed. No competent, admissible evidence was presented which refuted Ahrens’s declaration.
City urges this court to carefully consider the comments of a representative of those persons supporting the rezone. I have done so, even though the comments are not material or relevant to the official action taken by City.
The ruling on the demurrer is not part of this appeal.
Although not file stamped, I assume for purposes of discussion that the request was, in fact, filed with the superior court.
It does, however, raise questions regarding the validity of the ordinance purportedly rezoning Ahrens’s property “Into R1-5000 Zone ... In Order To Implement The Single-Family Protection Ordinance.”
A11 statutory references are to the Code of Civil Procedure unless otherwise specified.
(Such as overall amendments to general or local plans followed by related rezonings.)
Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644 [150 Cal.Rptr. 242, 586 P.2d 556], Pardee Construction Co. v. California Coastal Com. (1979) 95 Cal.App.3d 471 [157 Cal.Rptr. 184], and Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21 [227 Cal.Rptr. 226].
At no time did City come forth with any competent relevant evidence that any discretionary permits remained before Ahrens could obtain building permits.
Following publication of our opinion in this case, this court granted City’s petition for rehearing to consider City’s arguments that the court’s opinion: (1) mistakenly concluded the City inappropriately used the INSFPO to rezone the property; (2) incorrectly described the property and its surroundings; (3) improperly concluded no more discretionary permits remained to be obtained for the project; (4) applied an incorrect standard of review; (5) did not clearly set out directions on remand; or (6) in the alternative, if this court did not desire to correct “several analytical and factual errors,” we should depublish the opinion which “would negate any necessity to modify the Opinion.”