Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06CC02162, David A. Thompson, Judge.
Preovolos & Associates and Pajman Jassim for Plaintiff and Appellant.
Rutan & Tucker, Philip D. Kohn and Mark J. Austin for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Esmaiel Jassim obtained approval from the City of Laguna Beach (the City) design review board to build a single-family residence on his property. After construction was complete, Jassim’s next-door neighbors, Pat and Craig Rice (the Rices), complained to the City’s community development director that a wall dividing the Jassim property from the Rices’ property was not built as required by the design review board’s approval. Specifically, the Rices complained that the wall was supposed to be six feet high at all points, but was actually as low as three feet high in some places. The community development director concluded Jassim had built the wall as approved. The Rices then appealed to the city council, which sided with them.
Jassim filed a petition for a writ of mandate with the trial court, seeking to overturn the city council’s decision. The trial court entered judgment denying the petition, and Jassim appealed to this court. We affirm.
First, Jassim’s contention that the Rices’ appeal to the city council was untimely is meritless. The Rices were appealing from the community development director’s decision, not from the design review board’s approval of Jassim’s plans several years earlier.
Second, there was substantial evidence supporting the trial court’s judgment. The administrative record contains ample evidence that Jassim and the Rices agreed in 2001 that the wall would be six feet high at all points, and that the design review board’s approval of the plans was based on that agreement.
Third, we reject Jassim’s request that the matter be reversed or remanded to the city council to issue a formal resolution containing its findings. The record explains the city council’s findings, the lack of formal written findings did not prejudice Jassim, and there is no showing that the outcome would have been different if the city council had issued written findings.
Finally, we reject Jassim’s argument that he obtained a vested right to build the wall not in compliance with the approval given by the design review board. Jassim never raised this argument before the city council; we could, therefore, reject it out of hand. If we were to address the argument on its merits, we would still reject it, because Jassim cannot establish his acts were undertaken in good faith reliance on the design review board’s approval of the project, and there is no evidence of substantial expenditures by Jassim relative to the wall between his property and the Rices’ property.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Jassim owns real property located at 667 Mystic Way in the City. The Rices own the adjoining property at 661 Mystic Way. In December 2000, Jassim submitted an application to the City in order to develop his property with a single-family residence. Jassim’s proposed project was reviewed by the City’s design review board. In documents submitted to the design review board and in testimony presented at design review board hearings on Jassim’s project, Mrs. Rice requested that Jassim’s project be modified to raise the height of the wall separating their properties to six feet, rather than the proposed three feet, to protect the Rices’ privacy. Jassim’s architects confirmed that the height of the wall would be raised to six feet to alleviate the Rices’ concerns. At a hearing on the project, immediately after Pat Rice requested that the wall be “a 6 foot solid wall,” the architect stated: “The items that were brought up by Pat Rice are agreeable to us. . . . So we really feel that it’s sort of the classic textbook way of working with your neighbors, doing what you have to do to get a project to work within the neighborhood. I feel like we’ve really have done that here.”
The design review board approved Jassim’s project at its June 28, 2001 hearing. The board noted it was approving the project because Jassim had “done everything that everybody asked you to do.”
On July 7, 2005, the Rices submitted a letter to John Montgomery, the City’s director of community development, complaining that the wall that had recently been built between the Rices’ property and Jassim’s property was not in compliance with the design review board’s approval. Specifically, the Rices complained that the wall was not six feet in height for its entire length, and that in some places the reduced height was compensated for with iron bars, which did not protect the Rices’ privacy. Jassim’s architect expressed his opinion that the wall as built was in “substantial conformance with the approved drawings,” and that, despite his verbal commitments before the design review board, there was no need to fulfill those commitments. “Even thought [sic] Pat Rice supported the additional square footage and the additional window in the corner bedroom in exchange for a higher wall to preserve her privacy, no formal documentation of her request to modify the wall exists. Based on the research we did today, no approved drawings or documents showing the wall modification exists. When Bob Carey and I met at her house approximately a year ago before the Design review and talked about the wall and what could be added to it for her privacy, no drawings were made, and no mention of it was made in the Design Review hearing. It appears that the additional square footage was approved without any condition placed on the approval for a specified height on the property line wall.”
On September 12, 2005, Montgomery concluded the wall as built was in substantial compliance with the approved plans for the project. The Rices filed an appeal from Montgomery’s decision with the City on September 20, 2005. On October 18, 2005, the city council conducted a hearing on the matter, after which it granted the Rices’ appeal and required Jassim to construct a six-foot high solid wall along the entire length of the property line. In a letter to Jassim dated October 20, 2005, the city council wrote, “on the basis of the evidence and testimony presented, the City Council voted unanimously to uphold the appeal and to reverse the staff’s administrative determination, finding that the Design Review approval incorporated a continuous 6-foot-high wall as measured at all points along your side of the property line.”
Jassim filed a petition for writ of administrative mandate challenging the city council’s determination he had not built the wall in compliance with the design review board’s approval in 2001. The trial court denied the petition. Judgment was entered on May 10, 2006, and Jassim timely appealed.
The trial court’s written ruling on the petition reads as follows: “Petitioner Jassim’s petition for writ of mandate is denied. The Rice[s’] appeal to respondent City Council was filed within ten days after the Development Director’s 9-12-05 determination and was thus timely. [Laguna Beach Municipal Code] §§ 25.05.070(b)(1) and (b)(2). Furthermore, the absence of a formal resolution containing written findings is not fatal, because here the record itself adequately discloses the basis for the City Council’s decision and ‘the analytic route . . . traveled from evidence to action.’ Topanga [Assn. for a Scenic Community v. County of Los Angeles] (1974) 11 C3d 506, 515; see also, McMillan [v. American Gen. Fin. Corp.] (1976) 60 CA3d 175[,] 184-185, City of Carmel[-by-the-Sea v. Board of Supervisors] (1977) 71 CA3d 84, 91, and Gov. Code § 65010. The City Council found that in 2001 the parties had agreed and the [design review board] had required, a wall six feet high at all points would be constructed to protect the Rice[s’] privacy interests. (AR 269-283.) [References to AR are to the administrative record.] That finding is supported by substantial evidence in the light of the whole record. (AR 16, 17 [minutes], 24-25 [transcript], 39-41, 47-49, 82-83, 160, 250, 256, 264-265, 267, 271.) It follows there is no abuse of discretion or other basis for relief under [Code of Civil Procedure] § 1094.5.” (Italics added, 10th & 11th brackets in original.) We appreciate these detailed written findings by the trial court.
DISCUSSION
I.
THE RICES’ APPEAL TO THE CITY COUNCIL WAS TIMELY.
Jassim argues the Rices’ appeal was untimely, because it was filed more than four years after the design review board approved the project. The Rices’ appeal, however, was not taken from the design review board’s approval of the project; instead, it was taken from the community development director’s determination that the wall as built was in substantial compliance with the approved project. The Laguna Beach Municipal Code permits an appeal to be taken to the city council from “[a]ll decisions, determinations and requirements of the . . director of community development . . by . . . any other property owner within three hundred feet of the subject property . . . .” (Laguna Beach Mun. Code, § 25.05.070(B)(1).) The Rices’ appeal from the community development director’s determination was timely filed. (Id., § 25.05.070(B)(2).)
II.
SUBSTANTIAL EVIDENCE SUPPORTED THE CITY COUNCIL’S DETERMINATION.
“[O]n appeal from a judgment in an administrative mandate proceeding (Code Civ. Proc., § 1094.5), this court must determine whether the superior court’s findings are supported by substantial evidence and are correct on matters of law. [Citations.]” (Yellen v. Board of Medical Quality Assurance (1985) 174 Cal.App.3d 1040, 1058; see Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.)
“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)
Here, no party requested a statement of decision. To the extent the minute order might be construed as a statement of decision, Jassim did not file any objection bringing to the trial court’s attention any ambiguous findings or omissions contained therein. Under the doctrine of implied findings, we therefore infer the trial court made any and all findings necessary to support the judgment, and review such implied findings under the substantial evidence standard as well. (California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 521.)
In this case, there was substantial evidence supporting the trial court’s findings. When the construction of Jassim’s residence was being discussed before the design review board, Mrs. Rice identified the privacy issue and requested that the wall between the properties be raised to six feet. Jassim’s architect stated, verbally before the design review board and in writing, that Jassim (who was in attendance) was agreeable to the changes requested by the Rices, and that the wall would be raised “to 6 feet to help ensure privacy for both parties.” The design review board stated it approved Jassim’s project because Jassim had “done everything that everybody asked you to do.” When the issue of the height of the wall as built came up in 2005, Jassim’s architect acknowledged in writing that Mrs. Rice had agreed to Jassim’s plans “in exchange for a higher wall to preserve her privacy.”
At the city council meeting at which the Rices’ appeal from the community development director’s decision was considered, Mrs. Rice discussed the statements made at the design review board hearing, and her own conversations and correspondence with Jassim’s architect confirming the six-foot high wall was being incorporated in the plans. One council member stated that although the audiotapes of the design review board hearing were “kind of inconclusive,” it was clear “that a 6-foot wall was kind of decided on and I think that when you think you’re going to have a 6-foot wall, you don’t have a wall that steps down and in some places is maybe 3 feet tall. [¶] . . . [¶] . . . [W]hen someone says a 6 foot wall . . ., you expect a 6 foot wall.” Another council member stated a six-foot wall the entire length of the property line “was the intention of the Design Review, it was the understanding of the Rice family.”
Jassim’s primary argument on this point is that there is not substantial evidence that the wall must be six feet high at all points, as opposed to six feet at some points, and a lesser height at other points. True, nowhere in the administrative record do we find reference to a wall that would be six feet high at “all” points. Nor is there evidence that the wall would be six feet high in some places and lower in other places. Given the evidence of the Rices’ privacy concerns and the content of Jassim’s architect’s agreement on Jassim’s behalf to meet those concerns as quoted ante, we readily conclude there was substantial evidence that the design review board’s approval of Jassim’s plans contained a requirement that the wall between the properties would be six feet high at all points. The architect’s inexplicable response that verbal promises at the design review board hearing were not committed to writing in the form of formal changes to the plans for Jassim’s residence does not support a contrary conclusion.
III.
THE LACK OF WRITTEN FINDINGS DOES NOT INVALIDATE THE CITY COUNCIL’S DECISION.
Jassim argues the city council’s action must be overturned because it did not issue formal written findings. The Laguna Beach Municipal Code provides: “A reversal or modification shall be approved by the city council upon the adoption of a resolution which sets forth in writing the findings relied on to conclude that the appealed decision, determination or requirement was in error.” (Laguna Beach Mun. Code, § 25.05.070(B)(8).) The purpose in requiring written findings is to demonstrate “the analytic route the administrative agency traveled from evidence to action” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515), “‘not . . . to afford means whereby a losing party may set aside a judgment’” (McMillan v. American Gen. Fin. Corp. (1976) 60 Cal.App.3d 175, 185, fn. 12).
Thus, for over 30 years, case law has established a reasonable rule that an agency’s decision should not be overturned for lack of formal written findings if the record adequately discloses the basis for the agency’s decision. “[W]here reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency ‘in truth found those facts which as a matter of law are essential to sustain its . . . [decision].’ [Citations.]” (McMillan v. American Gen. Fin. Corp., supra, 60 Cal.App.3d at p. 184.) We recognize, follow and apply that rule in this case.
Here, although the city council did not adopt a resolution setting forth its written findings, it did express its findings verbally during the public hearing on the record (of which we have a full written transcript) and in a letter written to Jassim following that hearing. The city council clearly and unequivocally explained to all parties it was reversing the community development director’s decision because all affected parties had agreed, and the design review board had required, that the wall between the properties would be six feet high for the length of the property in order to protect the Rices’ privacy interests. The city council expressly concluded in its letter to Jassim: “[O]n the basis of the evidence and testimony presented, the City Council voted unanimously to uphold the appeal and to reverse the staff’s administrative determination, finding that the Design Review approval incorporated a continuous 6-foot-high wall as measured at all points along your side of the property line.” The city council’s verbal and written findings fully satisfy the purpose of a formal resolution including findings.
Additionally, a public agency’s decision may not be overturned on a procedural ground unless the decision would likely have been different had the error not occurred. Our state’s Government Code provides: “No action, inaction, or recommendation by any public agency or its legislative body or any of its administrative agencies or officials on any matter subject to this title shall be held invalid or set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect, or omission (hereafter, error) as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, or any matters of procedure subject to this title, unless the court finds that the error was prejudicial and that the party complaining or appealing suffered substantial injury from that error and that a different result would have been probable if the error had not occurred. There shall be no presumption that error is prejudicial or that injury was done if the error is shown.” (Gov. Code, § 65010, subd. (b).)
Jassim cannot establish – and has not established – any prejudice as a result of the lack of written findings, or that the city council’s decision would have been different had it issued written findings. Jassim nevertheless requests that, at a minimum, the matter be remanded to the city council with directions to prepare written findings. What would be the point? As noted ante, the basis for the city council’s decision is easily apparent from the administrative record.
The City also contends Jassim’s argument regarding the lack of written findings should be rejected because he failed to raise it with the city council before filing his petition for a writ of mandate. Generally, when challenging an administrative decision, a petitioner cannot raise any issue before the court that was not raised during the administrative hearing process. (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447-1448; see McMillan v. American General Finance Corp., supra, 60 Cal.App.3d at p. 185, fn. 13 [“proper method for attacking administrative findings is to petition for a rehearing or for additional or clearer findings”].) As we have discussed, on the merits of this issue, the City has far the better of the argument in any event.
IV.
JASSIM COULD NOT OBTAIN A VESTED RIGHT TO BUILD A WALL NOT IN COMPLIANCE WITH THE DESIGN REVIEW BOARD’S APPROVAL BY BUILDING A WALL NOT IN COMPLIANCE WITH THE DESIGN REVIEW BOARD’S APPROVAL; IN ANY EVENT, HE DID NOT RAISE THIS ISSUE IN THE TRIAL COURT.
Finally, Jassim argues the doctrine of equitable estoppel prevented the city council from requiring changes to the wall under the vested rights doctrine. As Jassim explains it, “[i]n order to have secured a vested right to do or not to do a certain thing, a person must have secured the last government approval necessary to the performance of the desired thing, and, in good faith reliance on that approval, must have performed substantial work or incurred substantial liabilities in furtherance thereof.”
The City argues Jassim cannot rely on the vested rights doctrine because he did not raise it either before the city council or before the trial court. We could reject Jassim’s argument on this ground alone. (McKee v. Orange Unified School Dist. (2003) 110 Cal.App.4th 1310, 1320 [failure to raise issue in trial court]; Park Area Neighbors v. Town of Fairfax, supra, 29 Cal.App.4th at pp. 1447-1448 [failure to raise issue before governmental entity].)
This argument suffers from other serious problems, however. First, Jassim cannot establish he built the wall “in good faith reliance” on the design review board’s approval of the plans, in light of the evidence of the prior agreement by Jassim and his architect to incorporate the Rices’ request for a six-foot high wall into the plans. Second, Jassim has not shown he made substantial expenditures relative to the wall between the properties. Unquestionably, Jassim has spent significant sums building a single-family residence on a slope in the City, but the only portion of the total construction now at issue is the dividing wall. We have no evidence in the record of the cost of that wall, as opposed to the wall that should have been built in the first place; we will not surmise the dollar difference.
DISPOSITION
The judgment is affirmed. Respondent to recover its costs on appeal.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.