Sounhein v. City of San Dimas

This appeal involving two homeowners, Earl Sounhein and Alana Sounhein (hereinafter referred to as the Sounheins), arises out of their application to the City of San Dimas and the City Council of San Dimas (hereinafter collectively referred to as the city) for a permit to build a second residential dwelling unit on their own property. The unit is to be built on the property which the Sounheins occupy. In a prior appeal brought by the city before this court, we affirmed the granting of a peremptory writ of mandate ordering it to vacate an ordinance prohibiting second residential units on any lot in the city. We required the city "to process the Sounheins' application under the standards set forth in [Government Code] section 65852.2, subdivision (b)."1 (Sounhein v. City of San Dimas (1992) 11 Cal.App.4th 1255, 1262 [14 Cal.Rptr.2d 656].) The city processed the Sounheins' application and issued a conditional use permit, in pertinent part, subject to the following conditions: "To maintain use of the second residential dwelling unit, the owner of the subject property shall be the occupant of the primary residence or the second residential dwelling unit. . . . [¶] . . . Upon sale of the property, the subsequent owner shall file an affidavit with the City stating that the owner is an owner occupant. Failure to satisfy this *Page 1193 condition shall be grounds for revocation of the use permit." The Sounheins filed a motion for a supplemental writ of mandate challenging that condition which the trial court denied. The denial of that supplemental writ of mandate and the validity of the disputed conditions imposed by the city is the subject of this appeal. I believe that the express provisions of section 65882.2, subdivision (b) prohibited the city from imposing the additional requirement that the future buyer of the premises be an owner occupant and hence dissent from my colleagues' analysis.2

This appeal involves an issue of statutory construction. The construction and interpretation of a statute is a question of law which is necessarily considered de novo on appeal. (Burden v.Snowden (1992) 2 Cal.4th 556, 562 [7 Cal.Rptr.2d 531,828 P.2d 672]; California Teachers Assn. v. San Diego Community CollegeDist. (1981) 28 Cal.3d 692, 699 [170 Cal.Rptr. 817,621 P.2d 856].) Our Supreme Court has held: "The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] `In determining intent, we look first to the language of the statute, giving effect to its "plain meaning."' [Citations.] Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. [Citation.] Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]" (Burden v. Snowden, supra, 2 Cal.4th at p. 562; accord, Trope v. Katz (1995) 11 Cal.4th 274, 279 [45 Cal.Rptr.2d 241, 902 P.2d 259].)

Section 65852.2 was enacted as a response to the Legislature's declaration that the supply of housing in California was insufficient to meet the demand and the imbalance was likely to become worse. (§ 65852.1503; Wilson v. City of LagunaBeach (1992) 6 Cal.App.4th 543, 545 [7 Cal.Rptr.2d 848].) *Page 1194 This statute allows local governments to enact their own ordinances under section 65852.2, subdivision (a), allowing and regulating second units in single family and multifamily zones where they would otherwise be prohibited. In the alternative, if the local governments do not enact such an ordinance, then under section 65852.2, subdivision (b), they must grant a conditional use permit for second units which meet the requirements set forth in that section. (Ibid.; see Historical Note, 36C West's Ann. Gov. Code (1983 ed.) § 65852.2, p. 62.) Section 65852.2, subdivision (b)(1) through (b)(3), which are dispositive of the present appeal provides, in pertinent part: "(1) When a local agency which has not adopted an ordinance governing second units in accordance with subdivision (a) or (c) receives its first application on or after July 1, 1983, for a conditional use permit pursuant to this subdivision, the local agency shall accept the application and approve or disapprove the application pursuant to this subdivision unless it adopts an ordinance in accordance with subdivision (a) or (c) within 120 days after receiving the application. Notwithstanding Section 65901, every local agency shall grant a special use or a conditional use permit for the creation of a second unit if the second unit complies with all of the following: [¶] . . . [¶] (2) No other local ordinance, policy, or regulation shall be the basis for the denial of a building permit or a use permit under this subdivision. [¶] (3) This subdivision establishes the maximum standards that local agencies shall use to evaluate proposed second units on lots zoned for residential use which contain an existing single-family dwelling. No additional standards, other than those provided in this subdivision or subdivision (a), shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant."4

Looking to the plain meaning of the statute in context, the city was prohibited by section 65852.2, subdivision (b) from imposing the condition *Page 1195 which restricted the future use and sale of the property. Section65852.2, subdivision (b) lists statutorily defined conditions and standards for the second residential unit. However, there is no condition about future owners or real property transfers. Section65852.2, subdivision (b)(2) specifically prohibits any other local ordinance, policy, or regulation from being used as a basis for denying a use or building permit. Further, section 65852.2, subdivision (b)(3) specifically states the statute sets forth the maximum standards that may be used to evaluate the second units and provides that "[n]o additional standards, other than those provided in this subdivision or subdivision (a), shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant." The fact that the statute provides for no additional standards and then allows one exception evidences the fact the city may not impose further restrictions or expand upon them. (Cf. Provigo Corp. v. Alcoholic Beverage Control AppealsBd. (1994) 7 Cal.4th 561, 565 [28 Cal.Rptr.2d 638,869 P.2d 1163]; Cianci v. Superior Court (1985) 40 Cal.3d 903, 921 [221 Cal.Rptr. 575, 710 P.2d 375]; Desmond v. County ofContra Costa (1993) 21 Cal.App.4th 330, 338-341 [25 Cal.Rptr.2d 842].) Section 65852.2, subdivision (b)(2) states without equivocation "[n]o" other ordinance, policy, or regulation shall be the basis for the denial of a use permit. "No" means no. *Page 1196

Even if there were an ambiguity in the statute itself, a proposition I respectfully reject, the legislative history of section 65852 is as clear as the statutory language — no additional restrictions other than those enumerated by the Legislature may be imposed by a municipality upon homeowners who desire to provide additional housing on their property. Section65852.2 was adopted in 1982 as section 2 of Senate Bill No. 1534. While pending before the Senate Committee on Local Government, a staff analysis stated: "Senate Bill 1534 would establish the maximum standards to be used to evaluate proposed second residential units. SB 1534 would require that no additional standards could be imposed except locally adopted rent control ordinances or that the applicant for a permit be an owner occupant." (Rep. prepared for Sen. Com. on Local Government on Sen. Bill No. 1534 (Apr. 14, 1982) p. 2.) When the legislation was pending in the Assembly, a report prepared for all of the Assemblypersons stated: "2) Permits local governments to adopt ordinances authorizing the creation of second residential units within or attached to an existing single-family unit. [¶] 3) Requires local governments which do not adopt such ordinances to grant permits for the creation of second residential units which are attached to an existing single-family home if: [¶] a) It meets local building code requirements on home additions. [¶] h) It does not involve an increase of more than 10% in the floor space of the existing dwelling to which it is attached. [¶] c) It is not intended for sale and may be rented. d) It is approved by the local health officer, where a private sewage disposal system is being used, if required. [¶] e) The lot is zoned for single-family or multifamily use. [¶] f) The lot contains an existing single-family detached unit. [¶] g) The second unit is attached to the existing residence and is located within the living area of the existing dwelling. [¶] h) Any construction conforms to, among other things, height, lot coverage, architectural review fee charges, and other zoning requirements generally applicable to residential construction in the zone which the property is located." (Rep. prepared by the Assem. Office of Research for Sen. Bill No. 1534 (Aug. 18, 1982) pp. 1-2.) The foregoing analysis is fully consistent with the statutory language which requires the issuance of a permit under the present circumstances. More critically, after a painstaking review of the entire extensive three-inch thick compilation of materials by the Legislative Intent Service which includes a thorough analysis of every conceivable perspective on Senate Bill No. 1534, I have been unable to find a single sentence which suggests that anybody contemplated section 65852, subdivision (b) granted the power to a municipality to impose the condition at issue here — prohibiting a subsequent buyer of residence from doing what the statute permits, renting one's own property. Hence, not only does the express language of section 65852, subdivision (b) preclude the city from acting as it did but the legislative history warrants a similar conclusion. The supplemental petition should not have been denied on any ground relevant to section 65852.2. *Page 1197

One remaining issue requires a limited remand. Because the trial court concluded section 65852.2 did not prevent the city from interposing the condition which is the subject of the present dispute, there was no resolution of the statute of limitations question presented by section 65907, subdivision (a). There was evidence the Sounheins failed to challenge the city's action on their conditional use permit within the time limitation set forth in section 65907, subdivision (c). There was also evidence before the trial court the city agreed to defer litigation on the conditional use permit contention. These constituted conflicts in the evidence as to the estoppel contention of the Sounheins, a fact-bound determination. (PlattPacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319 [24 Cal.Rptr.2d 597, 862 P.2d 158]; Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 266 [42 Cal.Rptr. 89, 398 P.2d 129].) Under these circumstances, remand would be appropriate because this court cannot make a factual determination concerning the statute of limitations and estoppel contentions of the parties. (International Aerial Tramway Corp. v. Konrad, Doppelmayr Sohn (1969) 70 Cal.2d 400, 406, fn. 6 [74 Cal.Rptr. 908,450 P.2d 284]; Yee v. Mobilehome Park Rental Review Bd. (1993)17 Cal.App.4th 1097, 1109 [23 Cal.Rptr.2d 1]; Zak v. State Farmetc. Ins. Co. (1965) 232 Cal.App.2d 500, 504-507 [42 Cal.Rptr. 908] ; see City of National City v. Wiener (1992) 3 Cal.4th 832, 850-851 [12 Cal.Rptr.2d 701, 838 P.2d 223] (conc. opn. of Baxter, J.); Pasadena Medi-Center Associates v. SuperiorCourt (1973) 9 Cal.3d 773, 779-780, fn. 6 [108 Cal.Rptr. 828,511 P.2d 1180].) I would remand so as to allow the experienced and knowledgeable trial judge to resolve the section 65907, subdivision (a) statute of limitations and estoppel issues.

A petition for a rehearing was denied August 19, 1996.

1 Unless otherwise indicated, all future statutory references are to the California Government Code.
2 The city's contention the Sounheins' exclusive remedy for challenging the condition of approval for their conditional use permit was a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 is without merit. Generally, a city's decision on conditions of use permits is properly challenged by a petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5 (Cf. Briggs v.City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 644-645 [47 Cal.Rptr.2d 29].) However, if compliance to prior peremptory writ of mandate is not complete then the trial court retains jurisdiction to enforce its prior judgment. (Stoneham v. Rushen (1984) 156 Cal.App.3d 302, 310 [203 Cal.Rptr. 20];King v. Woods (1983) 144 Cal.App.3d 571, 576-577 [192 Cal.Rptr. 724]; Code Civ. Proc., § 1097) The motion in the present case was a continuation of the previously filed petition. No provision of law prohibits the use of a postwrit motion to compel compliance with a former court order such as occurred in this case.
3 Section 65852.150 states: "The Legislature finds and declares that second units are a valuable form of housing in California. Second units provide housing for family members, students, the elderly, in-home health care providers, the disabled, and others, at below market prices within existing neighborhoods. Homeowners who create second units benefit from added income, and an increased sense of security. [¶] It is the intent of the Legislature that any second-unit ordinances adopted by local agencies have the effect of providing for the creation of second units and that provisions in these ordinances relating to matters including unit size, parking, fees and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create second units in zones in which they are authorized by local ordinance."
4 As amended effective January 1, 1995, section 65852.2, subdivision (b) provides, in pertinent part: "(1) When a local agency which has not adopted an ordinance governing second units in accordance with subdivision (a) or (c) receives its first application on or after July 1, 1983, for a conditional use permit pursuant to this subdivision, the local agency shall accept the application and approve or disapprove the application pursuant to this subdivision unless it adopts an ordinance in accordance with subdivision (a) or (c) within 120 days after receiving the application. Notwithstanding Section 65901, every local agency shall grant a special use or a conditional use permit for the creation of a second unit if the second unit complies with all of the following: [¶] (A) The unit is not intended for sale and may be rented. [¶] (B) The lot is zoned for single-family or multifamily use. [¶] (C) The lot contains an existing single-family dwelling. [¶] (D) The second unit is either attached to the existing dwelling and located within the living area of the existing dwelling or detached from the existing dwelling and located on the same lot as the existing dwelling. [¶] (E) The increased floor area of an attached second unit shall not exceed 30 percent of the existing living area. [¶] (F) The total area of floor space for a detached second unit shall not exceed 1,200 square feet. [¶] (G) Requirements relating to height, setback, lot coverage, architectural review, site plan review, fees, charges, and other zoning requirements generally applicable to residential construction in the zone in which the property is located. [¶] (H) Local building code requirements which apply to detached dwellings, as appropriate. [¶] (I) Approval by the local health officer where a private sewage disposal system is being used, if required. [¶] (2) No other local ordinance, policy, or regulation shall be the basis for the denial of a building permit or a use permit under this subdivision. [¶] (3) This subdivision establishes the maximum standards that local agencies shall use to evaluate proposed second units on lots zoned for residential use which contain an existing single-family dwelling. No additional standards, other than those provided in this subdivision or subdivision (a), shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant. [¶] (4) No changes in zoning ordinances or other ordinances or any changes in the general plan shall be required to implement this subdivision. Any local agency may amend its zoning ordinance or general plan to incorporate the policies, procedures, or other provisions applicable to the creation of second units if these provisions are consistent with the limitations of this subdivision. [¶] (5) A second unit which conforms to the requirements of this subdivision shall not be considered to exceed the allowable density for the lot upon which it is located, and shall be deemed to be a residential use which is consistent with the existing general plan and zoning designations for the lot. The second units shall not be considered in the application of any local ordinance, policy, or program to limit residential growth."
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