Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CECG00581. Jeffrey Hamilton, Judge.
Costanzo & Associates, Neal E. Costanzo and Michael G. Slater for Defendants and Appellants.
Motschiedler, Michaelides & Wishon and C. William Brewer for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P.J.
This is an appeal from judgment granting a petition for writ of mandate. We will conclude the trial court erred: 1145 Valley View, LLC, (Valley View) was not entitled to the relief ordered, although it might well be entitled to lesser relief on an amended petition. As such, we reverse the judgment and remand the matter for further proceedings.
Facts and Procedural History
Standard of Review
The trial court’s decision in this case was premised on an absence of material factual dispute. On appeal, appellants City of Selma and certain of its elected and administrative officials (collectively, City), responding parties below, contend there were material factual disputes that precluded entry of judgment without an evidentiary trial. Accordingly, review in this case is similar to appellate review of a grant of summary judgment: we will view the facts in the light most favorable to City to the extent City presented substantial evidence of those facts in its declarations and evidence in opposition to the petition for writ of mandate. Our statement of facts is provisional and subject to court or jury factfinding in further proceedings. The current statement of facts merely presents the facts most favorable to City to the extent those facts find some support in the record.
The Original Plan
Valley View obtained vesting tentative and final maps in 2004 and 2005 for a subdivision designated as tract No. 5303. After the infrastructure improvements for phase I of the subdivision were completed, Valley View applied for and was granted building permits for construction of 36 single-family houses. These houses were built in accordance with seven floor plans; Valley View obtained City’s approval of building plans for the seven models.
After the market for new homes collapsed, Valley View apparently rented most of the individual homes to tenants; 12 homes were sold.
The Change in the Business Plan
At some point, Valley View determined that current conditions in the real estate market made it unlikely phase I of the subdivision could be developed successfully through sales of owner occupied homes. In order to avoid building a “ghost town,” Valley View considered other plans for the property that might fit within the existing approvals and the zoning already in place. Although the details of its proposal are not completely clear in our record, it appears that Valley View determined to finish phase I as a single family dwelling rental complex. The original home models, for which City has already provided plan approval, would be built and leased under the terms of state and federal subsidized low- and moderate-income programs.
The subsidized housing program apparently requires that the development have a community center and have on-site management offices, neither of which were included in the original owner occupied development model. A portion of the original tract owned by Valley View had been excluded (“reserved”) from the initial subdivision because it was traversed by an irrigation canal. (Valley View would otherwise have been required to pipe the canal underground.) It now proposed to build the community recreation facility on this reserved parcel. In addition, Valley View planned to place management offices into some of the homes, with the manager living in the rest of the home. The proposal apparently made no provision for the 12 owner occupied homes that would now be scattered around in what was essentially a large rental complex.
This new plan came to the attention of City when it received a request for comment from the California Tax Credit Allocation Committee. City responded that it was strongly opposed to the project and that the developer was not authorized to build a rental complex.
Court Action
Informally, City’s building official told Valley View’s employee no further building permits would be issued for the subdivision until and unless Valley View applied for modification of the subdivision plan and changes were approved by the city council. When Valley View attempted to file applications for building permits, City refused to accept the applications.
Valley View asked if there was a venue for administrative review of this determination not to issue building permits. City responded, in essence, that the application for modification was the administrative process and that if Valley View did not want to file such an application, its relief, if any, lay in the courts.
Valley View filed its petition for writ of mandate on February 20, 2008. After City filed its answer and supporting declarations and the court heard oral argument from the parties, the court issued its order and decision issuing the writ of mandate on May 7, 2008. The court found: “[City has] a current ministerial duty to issue building permits to Petitioner for the construction of single family residences in Tract No. 5303 that are in compliance with the approved tract map and previously approved building plans, without regard to whether the home will be sold to the public or rented by the occupant.” The court ordered: “[City] shall issue building permits for the construction of any and all dwellings that comply with the explicit provisions of the approved vesting tentative and final maps for Tract No. 5303 and City of Selma zoning laws, without regard to whether the dwelling will be rented or sold to the public.” City filed a timely notice of appeal.
Discussion
City approaches this appeal primarily as a due process problem, claiming it was deprived of the right to a trial to resolve contested factual issues. On the present record, we do not consider this to be the relevant problem. In essence, City claims the right to litigate whether Valley View’s proposed development is permitted by the existing subdivision map entitlements. At this stage, however, that question is premature and the issue is not now ripe for adjudication. As a result, we direct our attention to the question that is ripe for adjudication, which is whether Valley View was entitled in law to the relief it sought and was granted. We will go to the heart of our discussion before turning to some more general considerations.
The issuance of a building permit is not necessarily a ministerial duty for mandate purposes. It depends on what the permitting ordinance says. (See Slagle Construction Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 562-564.) For example, the building official may be required or permitted to exercise discretion to determine that all requirements for a permit, such as site plans and plan checks, have been completed and that the permit application addresses a location at which such construction is authorized. Of course, such discretion can be abused -- the building official may mistakenly determine that the plan-check is out of date because of recent code changes, for example -- but that does not change the fact that the building official has the authority to exercise discretion. In order to be entitled to a writ of mandate, Valley View was required to prove City had a ministerial duty to issue building permits. It has failed to introduce into evidence any ordinance that establishes such a duty. Accordingly, we disagree with the trial court’s conclusion that the decision to issue a permit is ministerial.
Valley View’s petition for writ of mandate, as presently framed, does not request that City be ordered to accept for filing Valley View’s completed permit applications. Valley View may well be able to allege and prove that City has a ministerial duty to accept and process such applications. (See, e.g., Building Industry Legal Defense Foundation v. Superior Court (1999) 72 Cal.App.4th 1410, 1417-1418, 1420-1421.) But it has not sought that relief. It has sought instead an order requiring actual issuance of building permits. For reasons set out above, it is not entitled to that relief.
We feel an obligation to briefly address, though only as dicta, the underlying dispute, a dispute not squarely presented by this appeal. We do not prejudge the underlying dispute but, instead, hope to help in its resolution by focusing the parties’ attention on what we believe are the governing principles.
It is not the case that a developer who obtains rights under a subdivision map is entitled to the economic success of its subdivision. Accordingly, it is not the case that a developer is entitled to make unilateral changes in its development plan in an effort to avoid economic failure.
On the other hand, a city has an interest in preventing blight and in preserving its general plan and zoning scheme. A city is not required to permit development that can only succeed if the city’s general plan and zoning scheme are violated. (See Gov. Code, § 65858 [allowing moratorium on, inter alia, issuance of building permits that would conflict with contemplated change in zoning or general plan].) The law does not require a city to turn a blind eye to a developer’s ultimate plan, allowing itself to be slowly backed into a corner while the developer takes intermediate steps that are, individually, permitted by zoning ordinances but are designed to force the city, ultimately, to permit unauthorized development to “save” the project. (See Building Industry Legal Defense Foundation v. Superior Court, supra, 72 Cal.App.4th at p. 1419.)
In City’s view of this case, a view supported by some of the evidence, it is possible Valley View intends to build all of its rental housing and then, claiming that the market will not support that much unsubsidized housing, ask City to permit it to add the facilities necessary to qualify the project for governmental subsidies. At that point, City would be faced with the unacceptable choice of a failed neighborhood if it prohibits construction of the ancillary facilities or a failed general plan if it permits a large rental complex in an area zoned for R-1 residential use. City is not required to let matters get to the point at which such a choice would be required. If it can prove the overall scheme of the development will violate its laws, it is entitled to act by refusing building permits, whether by a moratorium ordinance (see Gov. Code, § 65858) or by administrative refusal to issue building permits on the basis City has not approved the type of development that is, in reality, contemplated by the developer. (See Autopsy/Post Services, Inc. v. City of Los Angeles (2005) 129 Cal.App.4th 521.)
Nevertheless, at this point, City has not exercised its discretion to reach the conclusion that one or more permits should not be issued. Instead, by refusing to accept building permit applications from Valley View, it has thwarted access of Valley View to the very administrative process that could resolve the factual disputes about the nature of its project. Although City has not cited any authority for its refusal to accept and process building permit applications, Valley View similarly has failed to establish any right to circumvent that administrative process by means of a writ of mandate ordering the actual issuance of building permits. As a result, the judgment in its present terms must be reversed.
Disposition
The order for writ of mandate is reversed without prejudice to Valley View’s right to request leave to amend its petition to request appropriate relief.. The matter is remanded for further proceedings. Each party shall bear its own costs.
WE CONCUR: HILL, J., KANE, J.