Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS098719. Dzintra Janavs, Judge.
Leo A. Schwartz for Plaintiff and Appellant.
Jenkins & Hogin, Christi Hogin and Gregg Kovacevich for Defendant and Respondent.
CHAVEZ, J.
Andrew Gombiner (appellant) appeals from a judgment denying his petition for writ of mandate (petition). After the City of Malibu (respondent or “the city”) denied appellant’s application for a determination that his five-unit apartment building qualified for legal nonconforming status under the city’s municipal code, appellant filed the petition, seeking to force respondent to recognize all five units as legal nonconforming. The trial court denied the petition, finding that respondent’s action in denying appellant’s application was not arbitrary, capricious or entirely lacking in evidentiary support and that respondent’s decision was therefore not invalid. We affirm.
CONTENTIONS
Appellant contends that: (1) a lawful use of real property existing at the time a zoning ordinance becomes effective cannot be prohibited when it is not a public nuisance; (2) respondent’s loss of records deprived appellant of the ability to effectively establish that his five-unit apartment building was legal nonconforming; (3) the city’s ordinance gave appellant the right to maintain his property as a five-unit building; and (4) appellant was denied due process because he was afforded no opportunity to present evidence to respondent before respondent made its determination. In addition, each party argues that the other is guilty of laches.
FACTUAL BACKGROUND
This case involves an apartment building located at 25362 Malibu Road in the City of Malibu. Appellant purchased the property in 1989. The building, which was originally constructed in 1966, has five covered parking spaces. At the time of its construction, the property was under the jurisdiction of the County of Los Angeles. In March of 1991, jurisdiction over the property was transferred from the County of Los Angeles to the newly formed City of Malibu.
Appellant claims that when he purchased the property, he was advised that it was originally constructed as a five-unit building. He further claims that he had no knowledge of any zoning violation when he purchased the property. Respondent, on the other hand, contends that the structure was originally built with three units and that there is no evidence to suggest that the two additional units were legally added.
1. Correspondence between the parties regarding the property
In November 1992, respondent, acting in response to a citizen complaint, conducted a review of the approvals of the structures at the subject property and a site inspection to verify compliance with the approvals. By letter dated November 18, 1992, James Donovan, respondent’s senior building inspector at the time, informed appellant that the inspection had revealed that additional units had been added or created that were not in compliance with the approvals. Specifically, the letter noted that the property was approved for a three-unit apartment structure and a five-car garage with storage use above the garage. The letter directed appellant to discontinue “all non-conforming, unapproved occupancy uses and to restore the site to the status dictated by the approvals on file.”
In August 1993, appellant wrote to respondent’s building inspector, informing him that appellant intended to have one of the illegal units vacated in response to the city’s demand. However, respondent never received confirmation that either of the illegal units was vacated. In October 1997, appellant submitted an application to respondent for conversion of the five-unit building into a four-unit condominium. The City Planning Commission denied the application because the existing parking was not adequate to meet the city’s parking requirements. However, the Planning Commission approved a tentative map for a three-unit condominium.
In January 1999, appellant wrote a letter to the city’s Building and Safety Supervisor suggesting that respondent vacate a portion of Malibu Road, thus creating additional parking for appellant’s building. In January 2000, appellant’s attorney wrote a letter to City Code Enforcement Officer Gail Sumpter indicating that appellant was negotiating the purchase of an adjacent property that he hoped to use to provide the requisite additional parking for his two extra units. The letter stated that, upon acquiring the land, appellant intended to reapply to respondent for the additional units on the subject property based on the increased area available for parking. Respondent indicates that it is unaware of whether appellant ultimately purchased the adjacent property.
On February 14, 2000, appellant’s attorney again wrote to Sumpter, assuring her that “prior to the 90-day period you provided in your January 10, 2000 correspondence, the tenant in the fifth unit will be asked to leave.” On March 15, 2000, appellant applied to the city for a building permit to remove all kitchen facilities in the lower unit in order to return the area to a recreation area. In a section entitled “Description of Work,” appellant’s contractor described the work as “Removal of all kitchen facilities in lower unit (rec room & gym[)] to return area to existing condition as originally approved.” Respondent states that it has no evidence as to whether appellant ever completed the work authorized by the permit.
2. Appellant’s efforts to locate pertinent records
Appellant states that once his application to convert the property into a four-unit condominium was denied, he began his efforts to establish that the building was approved as a five-unit building prior to enactment of Title 17 of the Malibu Municipal Code, section 17.60.020(A) (section 17.60.020(A)). He went to the Los Angeles County Department of Building and Safety and was informed that all relevant records were turned over to the City of Malibu when it became a city. However, he was informed by the city that the county’s files could not be located.
Section 17.60.020(A) provides: “Any structure which was lawfully erected or was entitled to be erected as of March 26, 1993 by virtue of Section 17.02.040(C), and which does not conform to the design and development standards or lot development criteria of this title, or any subsequent amendment thereto, may be continuously maintained and shall be treated in all respects as though in full compliance with this title.”
While he was unable to obtain copies of the building permits or plans for the original apartment building construction, appellant was able to obtain a 1974 “Residential Income Building Record” from the County Tax Assessor which identified the building as having five units. Appellant also located a 1994 property data record which described the property as having five units and also indicated “Yrblt/Eff: 66/66.”
PROCEDURAL BACKGROUND
On October 21, 2004, appellant applied to respondent for an administrative plan review determination as to whether the existing five-unit apartment building on his property qualified for legal nonconforming, or “grandfathered,” status under the city’s Municipal Code.
On May 18, 2005, after a review of the information provided by appellant, respondent determined that the units were not eligible for grandfathered status because the number of parking spaces provided did not meet the minimum requirements of the code in effect at the time of construction. Respondent informed appellant that “the Planning Manager has determined that the two unpermitted units were constructed in 1974. However, based on the information submitted, the Planning Manager has concluded that the construction of the two unpermitted units would not have been permitted under the zoning code in place at that time. Specifically, pursuant to Section 743 of the Los Angeles County Zoning Code in effect in 1974, the two units would have been required to provide three (3) covered parking spaces. The subject property, as currently configured, cannot accommodate additional covered parking spaces on site and none were provided in conjunction with the two unpermitted units.”
Appellant timely requested review of respondent’s decision by the city’s Environmental and Community Development Director. The decision was affirmed on May 31, 2005, and became final.
On August 16, 2005, appellant filed his petition for writ of mandate and complaint for injunctive relief against respondent. On June 8, 2006, respondent filed its answer to the petition. The parties then submitted evidence and arguments in support of and against the petition, and a hearing was held on September 25, 2006. Following the hearing, the trial court took the matter under submission.
On September 28, 2006, the trial court issued its ruling on the submitted matter. The court noted that, when hearing a petition for writ of mandate under Code of Civil Procedure section 1085, the trial court’s review is limited to an inquiry as to whether the action was arbitrary, capricious or entirely lacking in evidentiary support, and the petitioner has the burden of proof to show that the decision is unreasonable or invalid as a matter of law. The court further noted that “Petitioner’s contention that this is a vested rights case is not well taken, but even if the independent scope of review applied, this Court would reach the same result.”
The trial court denied appellant’s petition, finding that respondent’s “decision that [appellant’s] 5 unit apartment building is not a legal non-conforming structure, that is, that it was not lawfully erected or entitled to be erected as of March 26, 1993 (M.M.C. 17.60.020(A)) is not arbitrary or capricious or entirely lacking in evidentiary support, but [is] supported by substantial evidence.” The court further held that “[Appellant] has also not shown that he is entitled to injunctive relief enjoining [Respondent] from attempting to enforce the City’s ordinances.” On October 16, 2006, judgment was entered and notice of entry of judgment was mailed by the clerk.
On December 5, 2006, appellant filed his notice of appeal.
DISCUSSION
I. Standard of Review
A writ of mandate “may be issued by any court . . . to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ. Proc., § 1085.) To be entitled to a writ of mandate, appellant has the burden to show that respondent has a clear, present and ministerial duty to recognize all five units as legal nonconforming and that appellant has a clear, present and beneficial right to performance of that duty entitling him to a writ of mandate. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540.)
Whether respondent had a clear, present and ministerial duty to recognize appellant’s building as legal nonconforming depends on the resolution of an issue that is largely factual: whether the structure at issue was originally approved and built as a five-unit apartment building. Appellant also presents a legal question as to whether, if not originally built as a five-unit apartment building, the structure was “entitled to be erected” prior to 1993 under the Malibu Municipal Code.
The applicable standard of review in a mandamus proceeding depends on the right at issue. When a fundamental vested right is involved, the trial court must exercise its independent judgment to determine whether the agency’s findings are supported by the weight of the evidence. (Flippin v. Los Angeles City Board of Civil Service Commissioners (2007) 148 Cal.App.4th 272, 279 (Flippin).) When no fundamental vested right is involved, the trial court merely asks whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53 (Kreeft).) Under both circumstances, an appellate court must sustain the trial court’s factual findings if substantial evidence supports them. (Flippin, supra, at p. 279; Kreeft, supra, at p. 53.) However, we exercise our independent judgment on legal issues, such as the interpretation of the relevant city ordinances. (Kreeft, at p. 53.)
The trial court determined that this matter is not a vested rights case. Therefore, it analyzed whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support. In reviewing the trial court’s decision, we exercise our independent judgment on legal issues (Kreeft, supra, 68 Cal.App.4th at p. 53), and sustain the trial court’s factual findings if supported by substantial evidence, resolving all conflicts in favor of the prevailing party, and giving that party the benefit of every reasonable inference in support of the judgment. (Flippin, supra, 148 Cal.App.4th at p. 279.)
The appellate court’s role in reviewing a case that involves a vested right is somewhat different from the appellate court’s role in reviewing a case that does not involve a vested right. As set forth in Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 842, if the trial court was authorized to exercise its independent judgment on the evidence, “the appellate court need only review the record to determine whether the trial court’s findings are supported by substantial evidence.” If the trial court was limited to the substantial evidence test, “the appellate court itself reviews the administrative record to determine whether the agency’s decision was supported by substantial evidence. [Citation.]” (Ibid.) Because, as set forth in detail below, we shall find that the trial court did not err in determining that “Petitioner’s contention that this is a vested rights case is not well taken,” the latter standard of review is applicable. We shall therefore review the administrative record, as well as the additional evidence presented to the trial court, under the substantial evidence test.
II. Substantial Evidence Supports the Determination that the Building Was Not Lawfully Erected as a Five-unit Apartment
Section 17.60.020(A) establishes the criteria for legal nonconforming structures. It states that any structure which was “lawfully erected” or “entitled to be erected” as of March 26, 1993, “shall be treated in all respects as though in full compliance with this title.” Appellant’s primary argument is that the evidence shows that the building was originally permitted as a five-unit apartment building, thus it was originally “lawfully erected” as a five-unit building.
The trial court determined that the evidence did not support appellant’s position. On the contrary, the trial court found that the evidence supported respondent’s contention that the building was originally permitted as a three-unit building and was subsequently illegally converted to a five-unit building. We first analyze this factual question.
Both parties acknowledge that the documents showing the original permits for the property in question have been lost. At the time of the building’s construction in 1966, the applicable Los Angeles County zoning regulations mandated a minimum of 1.5 covered parking spaces for each dwelling unit in a building. Thus, a minimum of five covered parking spaces were required for a three-unit building. The property in question has five covered parking spaces.
The applicable zoning ordinance in effect in 1966, as well as 1974, was Los Angeles County Zoning Code section 743 (section 743). That section provided, “Every duplex, apartment house, and other structure designed for or intended to be used as a dwelling . . . shall have on the same lot or parcel of land one or more garage, carports or other structures suitable for providing automobile shelter for not less than one and one-half passenger automobiles per dwelling unit . . . .”
A. Appellant’s Evidence
Appellant presented his evidence in the form of declarations. Hans J. Giraud stated that he was a Los Angeles County Engineer employed as the Regional County Engineer for the Malibu area from 1974 through 1978 and that he oversaw the issuance of building permits for that area during that time period. On August 12, 2005, Giraud wrote a letter to the Planning Division Manager for the city on appellant’s behalf stating his opinion that appellant’s building was legal. The letter, attached to Giraud’s declaration in support of appellant’s petition, explains Giraud’s opinion that: (1) the fact that the 1974 County Assessor record showed the building to contain five units was likely a result of the County Assessor “picking up” the additional two units by virtue of the Assessor’s receipt of a building permit from the County Engineer; (2) former section 743.7 of the Los Angeles County Zoning Code (section 743.7), entitled “Impossibility of Access,” would have permitted the issuance of a building permit for the two additional units; and (3) under the standards enforced by the Department of Regional Planning in 1974, the vehicular access to parking on the property would have been determined to be “not possible” or “‘so difficult that to require such access [would be] unreasonable in the opinion of the Director, or the County Engineer.’” Thus, Giraud concluded, it was his opinion that the two additional units were properly permitted.
The letter was erroneously dated August 12, 2002.
Appellant also submitted the declaration of Steve Taylor, who attested to his experience with architectural millwork. He inspected the subject apartment building and made certain findings concerning the cabinetry. Based on his inspection, he stated that the cabinetry in all five units was built and installed in 1966 within a few months of each other. Taylor testified that the “case construction is the same in every unit” and, in conclusion, stated that he was “thoroughly convinced” that the cabinet work in all units was done at the same time or within a few months.
Appellant further submitted the declaration of Alan Robert Block, appellant’s attorney. Block testified that the zoning at the time of the building’s construction in 1966 was “R-3,” and apartment buildings were permitted in such zones. Thus, the subject property complied with the zoning ordinance in effect at the time of its construction in 1966. Block also testified that section 743.7 allowed the 1.5 parking space requirement to be relaxed or disregarded if topography or other conditions made its imposition unreasonable, and attached a copy of this ordinance to his declaration.
Section 743.7 reads:
B. Respondent’s Evidence
In opposition, respondent presented two declarations. The first was the declaration of April Logan, who was employed as a Property Assessment Specialist for the Los Angeles County Assessor’s Office and had been the Custodian of Records for the County Assessor’s Office for 14 years. Attached to her declaration was a “Residential Income Building Record” showing data from the years 1967 and 1972. Based on her review of this document, Logan concluded that appellant’s property had only three units when it was built in 1966. As Logan stated, the “‘Unit Breakdown’ section of the document clearly indicates the number of units in the building as ‘3.’” Respondent also presented the declaration of Gail Sumpter, Permit Services Manager for the City of Malibu. Attached to Sumpter’s declaration was a 1972 property data record which was prepared in connection with a permit dated September 14, 1972 for the alteration of some apartments and a first floor deck. The data record lists the property as containing three units and 4520 square feet of main improvements.
C. Appellant’s Reply
In reply, appellant submitted the declaration of Alan S. Boivin. Boivin’s declaration was submitted to address respondent’s contention that appellant had implicitly agreed, by his actions, with respondent’s contention that the apartment building had two illegal units. Specifically, the declaration addressed an application, submitted to respondent in 2000, which indicated that removal of the kitchen facilities in the lower unit would “return area to existing condition as originally approved.” Boivin testified that he “did not consider it to be a part of my architectural services to debate the legality of the five apartment units with staff members of the City’s building department” and it was “not [his] intention to undermine [appellant’s] efforts to work out a solution to his problem with the City by adopting the City’s position.”
D. Respondent’s Evidence Supports the Trial Court’s Decision
Respondent presented substantial evidence that the property was originally constructed as a three-unit apartment building. Such evidence was the “Residential Income Building Record” showing the building as consisting of three units totaling 4520 square feet in 1967 and 1972, and the “Property Data Record” from 1972 listing the building as containing three dwelling units totaling 4520 square feet. In addition, respondent points to the undisputed fact that there have never been more than five covered parking spaces on the property – the number required for three dwelling units – which provides further evidence that the building was initially permitted as a three-unit building.
Respondent informed the trial court that the Residential Income Building Record with data for the year 1974 is the first record listing the property as containing five units and 6046 square feet. Respondent argues that the “computations” section of this document “clearly evidences” that the “rec room” and storage areas of the structure were converted to dwelling units sometime around 1973 or 1974. Legal conversion of these areas to dwelling units would have required a building permit and discretionary relief from the mandatory minimum covered parking standards in effect at the time, which, under section 743, would have required three additional covered parking spaces. Respondent argues that appellant has provided no evidence that either of those things was ever in fact obtained.
We must sustain the trial court’s factual findings if supported by substantial evidence. (Flippin, supra, 148 Cal.App.4th at p. 279.) To be substantial, evidence must be “reasonable in nature, credible, and of solid value.” (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 409.) While appellant has presented some evidence that the five units were constructed simultaneously, we resolve all conflicts in evidence in favor of the prevailing party, and give that party the benefit of every reasonable inference in support of the judgment. (Ibid.) Substantial evidence presented by respondent supports the trial court’s factual finding that the building was originally constructed as a three-unit building, and that the two additional units were not legally added.
Because appellant did not hold a right to use his property as a five-unit apartment building at the time of the adoption of the zoning ordinance, he did not have a vested right to maintain it as such following the adoption of the ordinance. (See McCarthy v. California Tahoe Regional Planning Agency (1982) 129 Cal.App.3d 222, 229-230 [the term “vested” is used to denote “‘a right “already possessed” [citation] or “legitimately acquired”’ [Citation]”].)
III. The Five-unit Apartment Building Was Not “Entitled to be Erected” Prior to 1993
Appellant argues that, regardless of whether the building was originally constructed as a three-unit building, the relevant city ordinance still requires the city to allow the building “grandfathered” status because the building was “entitled to be erected” prior to March 26, 1993. Appellant cites section 17.60.020(A), which provides:
“Any structure which was lawfully erected or was entitled to be erected as of March 26, 1993 by virtue of Section 17.02.040(C), and which does not conform to the design and development standards or lot development criteria of this title, or any subsequent amendments thereto, may be continuously maintained and shall be treated in all respects as though in full compliance with this title.” (Italics added.)
Appellant argues that the building was entitled to be erected as of March 26, 1993 because, in 1966, the County Engineer would have issued a permit for a five-unit building under section 743.7. Section 743.7, as set forth above, made an exception to the 1.5 covered parking space requirement found in section 743 where compliance with section 743 is “not possible . . . due to topographical or other conditions, or is so difficult that to require such access is unreasonable.” Appellant points to the testimony of Hans Giraud in support of his position that “the building would have been approved as a 5-unit building in 1966.” Giraud, who was employed as the Regional County Engineer from 1974 through 1978, testified that, while a determination under section 743.7 would have been required in order for the building to be originally erected as a five-unit building, “there was no formal application and review procedure for this type of determination in 1966.” Further, Giraud testified that “this property would have appropriately received a parking exemption.”
Appellant also suggests that the building permit issued in 1972, referenced in the property data record attached to Gail Sumpter’s declaration in support of respondent’s opposition, may have been a permit to create the two additional units. Appellant points out that the county’s tax records were updated the following year to reflect the conversion and the two additional units.
Based on this evidence, appellant argues that the weight of the evidence presented suggests that the two additional units “were either actually permitted, or if not formally approved, would have been approved. The 5-unit building was, therefore, ‘entitled to be erected’ under the City of Malibu’s Municipal Code.”
Respondent counters that the phrase “entitled to be erected as of March 26, 1993 by virtue of Section 17.02.040(C)” has a specific meaning which does not apply to appellant’s building. We agree. The phrase “entitled to be erected” does not stand alone. Appellant’s building could only benefit from this language if the building were “entitled to be erected . . . by virtue of Section 17.02.040(C)” (italics added). Section 17.020.040(C) provides, in pertinent part:
“C. Grandfather Provisions.
“1. Applications accepted by the city for projects exempt from the development moratorium Ordinance No. 58U, as amended, shall be processed and approved or denied subject to the ordinances that were in effect at the time that the application was accepted as complete by the city.”
Ordinance No. 58U extended a development moratorium enacted by Ordinance No. 4 to March 25, 1993. (Malibu Ord. No. 4, secs. 1-4; Malibu Ord. No. 58U, sec. 1.) Thus, the language in Malibu Municipal Code section 17.60.020(A) allowing structures “entitled to be erected as of March 26, 1993” applied only to projects exempt from the development moratorium for which applications had been accepted by the city. (Malibu Ord. No. 4, sec. 4; Malibu Ord. No. 58U, sec. 5.) This meaning is clear on the face of the applicable ordinances. Appellant points to no evidence that he had applied to the city for any project relating to the property in question at the time that section 17.60.020 was enacted in 1993, or that any such project was exempt from the development moratorium in effect at the time. We therefore find that appellant’s apartment building was not “entitled to be erected” pursuant to section 17.60.020(A).
IV. Appellant’s Due Process Rights Were Not Violated
Appellant argues that respondent has violated his due process rights. First, he notes that respondent denied his application for a determination that his building was a nonconforming structure without a hearing. In addition, he claims that his subsequent request for review of that decision was also made without affording him an opportunity to be heard. Appellant cites a number of cases in support of his position. However, as set forth below, we find that none of the cases cited supports appellant’s position that, under the circumstances of this case, a deprivation of appellant’s due process rights has occurred.
Appellant first quotes from Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622-623, for the proposition that “an adjudicative governmental action that implicates a significant or substantial property deprivation generally requires the procedural due process standards of reasonable notice and opportunity to be heard. [Citation.]” Calvert involved procedural due process claims on the part of adjacent landowners who objected to the county’s determination that a mining company had vested rights to mine on more than 3430 acres of land adjacent to the Yuba River. In determining that the adjacent landowners had been deprived of property rights without notice and an opportunity to be heard, the Court of Appeal focused on two issues: first, whether the decision as to the mining company’s vested rights was ministerial or adjudicative; and second, whether the determination involved significant or substantial deprivations of property on the part of the surrounding landowners.
The Court of Appeal first determined that the decision was adjudicative because, unlike the situation before us, the decision involved “personal decisions” which evoked a “strong admixture of discretion.” (Calvert v. County of Yuba, supra, 145 Cal.App.4th at p. 624.) Such decisions involved whether there were “‘substantial changes . . . in the operation,’” and whether the company “‘in good faith . . . diligently commenced . . . operations and incurred substantial liabilities for work and materials necessary therefor.’” (Ibid.) No such discretionary decisions were involved with respondent’s determination that appellant’s property could not properly be considered a nonconforming structure.
The Court of Appeal further determined that the property rights of the adjacent landowners were substantially affected by the decision because their property was exposed to “dust, noise, and air, water and toxic pollution,” as well as damaging “at-risk species of Chinook salmon and steelhead trout and [making] area roadways more dangerous.” (Calvert v. County of Yuba, supra, 145 Cal.App.4th at p. 627.) On the contrary, as we have discussed, appellant cannot complain that the city’s action in denying his application substantially deprived him of any property right.
Hayssen v. Board of Zoning Adjustments (1985) 171 Cal.App.3d 400, also involved the due process rights of adjacent landowners. The decision at issue was a permit for construction and operation of a sawmill. The Court of Appeal concluded that the posting and publication notice was adequate to satisfy the due process claims of the surrounding landowners, despite a technical deficiency in the notice. (Id. at pp. 407-408.)
All of the remaining cases cited by appellant are distinguishable on the same grounds: they all involve a city’s action in affirmatively taking a previously held substantial property interest. (See Mohilef v. Janovici (1996) 51 Cal.App.4th 267 [involving a city’s public nuisance abatement proceeding against the owners of an ostrich and emu farm, requiring the property owners to get rid of birds in which they held a commercial property interest, and which they were permitted to have on their land under the applicable zoning laws]; Bauer v. City of San Diego (1999) 75 Cal.App.4th 1281 [plaintiff held a “grandfathered” right to use her property as a liquor store, but city suspended the liquor license and considered the suspension a substantial change in the mode or operation of the business such that it amounted to a break in the business’ continued operation, and terminated her grandfathered rights without affording her a hearing on the issue]; English v. City of Long Beach (1950) 35 Cal.2d 155 [involving the city’s action in dismissing the petitioner from his position as a patrolman in the police department]; Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265 [involving an individual’s right to a fair hearing prior to a demotion under established city procedure].) In contrast to the cases cited by appellant, appellant was the instigator of this action, seeking a determination that his property might properly be considered a nonconforming structure. The city’s denial of this application cannot be considered a taking of property rights, since appellant held no right to maintain the building as a five-unit apartment at the time that he filed the application.
In sum, appellant has failed to cite any law supporting his contention that the city’s denial, without a hearing, of his application requesting that his building be granted status as a legal nonconforming structure, denied him due process of law.
V. Appellant’s Estoppel Argument Fails
As explained above, the original records regarding the property at issue were initially in the custody of the County of Los Angeles but were supposedly transferred to the city upon its formation in 1991. Those documents, which would go far in resolving the factual disputes underlying this case, have been lost. Appellant argues that respondent had a duty to maintain records regarding building permits relating to the subject property, and that its failure to do so estops it from asserting that appellant’s nonconforming use was illegal. In support of this argument, appellant cites Health and Safety Code section 19850, which provides that the building department of every city and county shall maintain an official copy of the plans of every building “during the life of the building, for which the department issued a building permit.”
Respondent’s response to this argument is that, while the Health and Safety Code does require the building department of every city to maintain copies of building plans, it does not provide that, in the event that such records are misplaced, destroyed, or stolen, the city may not enforce its laws. Nor has appellant provided any case law suggesting that the remedy for a loss of building records is the inability of the city to enforce the law as to the building in question. In addition, respondent points out, appellant has provided no evidence that the records in question were ever transferred to the city from the County of Los Angeles, thus even if such a severe penalty could be imposed on the city, there is no evidence that the city is at fault for the loss of records.
Appellant cites one case, Scott v. Meese (1985) 174 Cal.App.3d 249, in support of his position that the city should be estopped from finding appellant’s nonconforming use to be illegal. Scott held that procedural due process rules relating to the destruction of evidence by the prosecution in a criminal case also applied in administrative proceedings. (Id. at p. 251.) The basic principle at issue in Scott provides that where material evidence has been destroyed, sanctions may be imposed in order to guarantee a criminal defendant’s right to due process. The Court of Appeal held that neither the dismissal of the proceeding, or exclusion of the arresting officer’s testimony, were appropriate sanctions for the inadvertent destruction of evidence in that case. (Id. at p. 258.) Therefore, it does not stand for the proposition that the city may not deny appellant’s application in the matter before us, despite the loss of the original building permit. In fact, the Scott court cautioned: “A person may not simply point to some missing or unavailable evidence . . . and thereby escape the consequences of his conduct.” (Ibid.)
In sum, appellant has failed to provide authority for his position that respondent should be estopped from denying his application for legal nonconforming use due to the loss of relevant records. Thus, we decline to find such action appropriate.
VI. Laches
In its opposition brief, respondent raised the question of whether appellant’s action should be barred by the doctrine of laches. Respondent states that it has been more than 14 years since appellant was first informed of the city’s position that the two additional units on his building were illegal. Since that time, respondent argues, appellant has acquiesced in the city’s position, having taken numerous steps to attempt to gain compliance. Because there was no good reason that appellant did not file his application for legal nonconformity in 1992, respondent argues, he should be barred from pursuing that action now.
In his reply brief, appellant turns this argument on the city, contending that since at least 1973 or 1974, the city has been receiving the increased tax revenues resulting from the reassessment of the property from a three-unit to a five-unit building. Because the city did nothing to assert that the building was permitted only for a three-unit building until at least 18 years after its initial assessment as a five-unit building, the doctrine of laches should be applied against the city. In addition, appellant argues that respondent’s laches argument must fail because respondent has not cited any prejudice resulting from appellant’s delay in filing his application for legal nonconforming status.
We reject both parties’ laches arguments. The doctrine of laches requires unreasonable delay plus either acquiescence in the act about which the plaintiff complains or prejudice to the defendant resulting from the delay. (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359; Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1126.) Because respondent raised the defense of laches before the trial court, we affirm the trial court’s implicit holding that respondent has not met the elements of this defense. We find that, even if appellant’s delay was unreasonable, respondent has not shown either acquiescence or prejudice. We further find that appellant has waived the issue of laches because he fails to provide a citation to the record showing that he raised this issue in the trial court. (Canal-Randolph Anaheim, Inc. v. J. E. Wilkoski (1980) 103 Cal.App.3d 282, 289 [laches may not be raised for the first time on appeal].)
DISPOSITION
The judgment is affirmed. Respondent is awarded costs of appeal.
We concur: DOI TODD, P. J., ASHMANN-GERST, J.
“Where vehicular access to any garage, carport, or automobile storage space on the same lot or parcel of land as the residential structure to which it would be accessory is not possible from any highway or private street due to topographical or other conditions, or is so difficult that to require such access is unreasonable in the opinion of the Director or County Engineer, such garage, carport, or automobile storage space is not required if:
“(a) Alternate parking facilities approved by either the Director or County Engineer are provided, or
“(b) The Director or County Engineer finds that alternate parking facilities are not feasible.”