Opinion
H036191
11-04-2011
SUPPORT SYSTEMS HOMES, INC., Plaintiff and Appellant, v. CITY OF CAMPBELL, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV154405)
This is an appeal from the trial court's denial of Support Systems Homes, Inc.'s (SSH) petition for writ of administrative mandamus, which sought to overturn a decision of the City of Campbell (the City) Planning Commission that denied SSH's request for a reasonable accommodation under the Campbell Municipal Code so that SSH could increase the size of its sober living home in Campbell from six to 10 treatment beds.
In this appeal, we consider whether SSH's request for a reasonable accommodation involved a fundamental vested right, which in turn required the trial court to exercise its independent judgment and to determine whether the weight of the evidence supported the administrative decision. We conclude that the administrative decision did not involve a fundamental vested right and that the trial court therefore did not err when it applied the substantial evidence standard of review. We will therefore affirm the trial court's judgment.
FACTS AND PROCEDURAL HISTORY
This is the second court action SSH, a California licensed comprehensive alcohol and substance abuse treatment operator in the San Francisco Bay Area, has filed against the City. SSH operates a sober living home in a 1798 square-foot, two-story house located on a 6,098 square-foot lot on a cul-de-sac in a residential neighborhood in Campbell that is zoned for single-family dwellings.
The first action, Support Systems Homes v. City of Campbell, Santa Clara County Superior Court Case No. 1-07-CV-097585 (Support Systems Homes I), involved a writ of mandamus taken from a City of Campbell Planning Commission (the Planning Commission) decision that determined that SSH's facility in Campbell was a "Residential Service Facility, Large" (seven or more residents), which was not a permitted use in the zoning district where the sober living home was located, and that SSH had to reduce the number of beds it had from 13 to eight since it was located in a neighborhood that was zoned for single-family homes. In Support Systems Homes I, SSH had argued that it was a "single housekeeping unit" as defined by the Campbell Municipal Code and that, as such, it was not required to comply with the City's procedure for requesting a reasonable accommodation to continue operating with 13 beds. It also argued that the City's insistence that it obtain a reasonable accommodation violated its clients' civil rights. In September 2008, the trial court affirmed the decision of the Planning Commission and denied SSH's writ petition. The court found that the case did not involve a fundamental vested right, that the substantial evidence standard of review therefore applied, that the City had engaged in a lawful exercise of its police power, and that the City had not unlawfully discriminated against SSH. SSH did not appeal that order.
Thereafter, SSH continued running a sober living home with six beds for clients in treatment and two beds for staff at the same location, for a total of eight beds. In January 2009, SSH applied to the Planning Commission to obtain a reasonable accommodation to expand the number of beds to 10 treatment beds and two staff beds under the "Reasonable Accommodations" provisions of Chapter 21.50 of the Campbell Municipal Code. Originally, the accommodation was granted by the Community Development Director, subject to various conditions. But that decision was appealed by a citizen from the neighborhood and the Planning Commission set the matter for a public hearing.
Section 21.50.050 of the Campbell Municipal Code states the grounds for granting a reasonable accommodation. It provides: "In making a determination regarding . . . the reasonableness of a requested accommodation, the following factors shall be considered: [¶] A. Special needs. Special need created by the disability; [¶] B. The Potential benefit. Potential benefit that can be accomplished by the requested accommodation; [¶] C. Potential impacts. Potential impact on surrounding uses; [¶] D. Physical attributes. Physical attributes of the property and structures; [¶] E. Alternative accommodations. Alternative accommodations which may provide an equivalent level of benefit; [¶] F. A single housekeeping unit. In the case of a determination involving a single-family dwelling, whether the household would be considered a single housekeeping unit if it were not using special services that are required because of the disabilities of the residents; [¶] G. Imposition of financial or administrative burden. Whether the requested accommodation would impose an undue financial or administrative burden on the city."
At the public hearing, several citizens testified against SSH's request for a reasonable accommodation and informed the Planning Commission of their concerns. The citizens were concerned about the amount of cigarette smoke that was allowed in the side and back yards, which polluted the air of the neighbors who lived on adjacent properties. One neighbor feared he would lose his renter because of this and thereby lose his retirement income. Others complained about the transient nature of the people who lived in the facility, coupled with the high recidivism of the population; increased traffic; people loitering in and walking around the cul-de-sac where the sober living home was located; residents using cell phones in their neighbors' yards; inappropriate behavior in cars; broken bottles; trash and noise. Some of the neighbors testified that these problems were not as pronounced after the sober living home reduced its occupancy to six persons and stated that they could tolerate the facility operating at that level.
The Planning Commission voted unanimously to grant the appeal, reversed the Community Development Director's decision, and denied SSH's application for the accommodation. The Planning Commission concluded:
"1. The evidence does not demonstrate that the requested accommodation is necessary to afford persons with addictions to drugs and alcohol with an equal opportunity to housing of their choice in a single-family neighborhood;
"2. The proposed accommodation would fundamentally alter the single-family character of the neighborhood contrary to the existing zoning and general plan land use designation;
"3. The development project as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low-and moderate-income households.
"4. There would be a high potential for increased costs to the City should this facility be increased from the small to the large facility."
SSH filed a petition for writ of administrative mandamus in the superior court challenging the Planning Commission's decision. Applying the substantial evidence standard of review, the trial court denied the writ. SSH appeals.
DISCUSSION
SSH contends the trial court applied the wrong standard when reviewing the Planning Commission's decision and that the court should have exercised its independent judgment on the evidence because SSH's clients have a fundamental vested right to be free from discrimination in housing. SSH contends this case involves the fundamental vested right of disabled persons to be granted reasonable accommodations by public entities, including the rights not to be excluded from the services of the public entity and not to be subjected to discrimination by the public entity. SSH asserts that there was no issue whether its right to a reasonable accommodation was fundamental, that the dispute revolved around whether its right had vested, and that the court erred in concluding that its right had not vested. SSH attempts to persuade this court that by virtue of seeking a reasonable accommodation exception to a neighborhood zoning restriction, it has a fundamental vested right as a matter of law.
The City argues that SSH is collaterally estopped from raising this issue because the trial court already determined that this case does not involve a fundamental vested right in Support Systems I and that this court should not consider the fundamental vested right issue at all. We will consider the fundamental right question nonetheless because it is tied to the issue of reasonable accommodation, which was not raised in Support Systems I. (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 387-389.)
The League of California Cities (the League) has filed an amicus curiae brief urging this court to affirm the trial court's decision. The League argues that SSH's request for a reasonable accommodation is not a fundamental vested right of the same constitutional pedigree as due process and equal protection rights, since the right to reasonable accommodation was created by statute. The League asserts that local governments are not required to provide a reasonable accommodation unless the affected citizens establish that it is necessary under the circumstances to afford disabled persons with equal opportunities to use and enjoy housing.
I. General Principles Regarding Standard of Review in Administrative Mandamus
A. Trial Court's Review of an Administrative Agency's Determination
Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final decision or order by an administrative agency. (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 313 (Wences).) It provides in relevant part: "(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. . . . [¶] (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. [¶] (c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record." (§ 1094.5)
All further statutory references are to the Code of Civil Procedure.
Subdivision (c) of section 1094.5 provides that when the petitioner claims the administrative agency's findings are not supported by the evidence, as SSH does here, the trial court's review of an adjudicatory administrative decision is subject to two possible standards of review, depending upon the nature of the right involved. (Wences, supra, 177 Cal.App.4th at p. 313, citing § 1094.5, subd. (c).)
"If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence." (Wences, supra, 177 Cal.App.4th at p. 313, citing Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32 & Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby).)"The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings." (Ibid.)The trial court exercises its independent judgment "upon the weight of the evidence produced or which could not, in the exercise of reasonable diligence, have been produced before the administrative agency and any evidence which might have been improperly excluded by the administrative agency." (Bixby, supra, 4 Cal.3d at p. 143, fn. 10.)
In all other cases (those which do "not involve, or substantially affect a fundamental vested right"), the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision was supported by substantial evidence. (Bixby, supra, 4 Cal.3d at p. 144; Ryan v. California Interscholastic Federation-San Diego (2001) 94 Cal.App.4th 1048, 1077.)
B. Appellate Court's Review of the Trial Court's Decision
"Regardless of the nature of the right involved or the standard of judicial review applied in the trial court, an appellate court reviewing the superior court's administrative mandamus decision always applies a substantial evidence standard." (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 (JKH)citing Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 (Fukuda)& Bixby, supra, 4 Cal.3d at pp. 143-144.) The appellate court reviews either the trial court judgment or the administrative decision, depending on whether a fundamental vested right is involved and whether the trial court exercised its independent judgment or applied the substantial evidence test. (Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, 1590.) "If a fundamental vested right was involved and the trial court therefore exercised independent judgment, it is the trial court's judgment that is the subject of appellate review" and the appellate court reviews the record to determine whether substantial evidence supports the judgment. (JKH, supra, 142 Cal.App.4th at p. 1058, italics added.) "On the other hand, if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court's function is identical to that of the trial court. It reviews the administrative record to determine whether the agency's findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them." (Ibid., fn. omitted, italics added.) There are some exceptions to this analysis, none of which apply here. (Id. at p. 1058, fn. 11.) However, if the trial court applied the wrong standard of review (e.g., erroneously applied the substantial evidence test to a case involving a fundamental vested right as is alleged here), the appellate court cannot reach the merits and must remand to the trial court for consideration under the proper standard of review. (Wences, supra, 177 Cal.App.4th at p. 318.)
"If the administrative findings are supported by substantial evidence, the next question is one of law—whether those findings support the agency's legal conclusions or its ultimate determination. [Citation.] If the administrative record reveals the theory upon which the agency has arrived at its ultimate decision, the decision should be upheld so long as the agency found those facts that as a matter of law are essential to sustain the decision." (JKH, supra, 142 Cal.App.4th at pp. 1058-1059, citing Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 & Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885.)
II. The Trial Court Reviewed This Case Under the Correct Standard of Review
A. The Trial Court's Ruling
At the beginning of the hearing, the court stated, "I think that the abuse of discretion standard applies. And unless I am persuaded that it doesn't, then I'm going to deny the writ. However, in fairness to all of the parties, I believe that if the independent judgment test was the test, I would rule differently." At the conclusion of the hearing, the court advised the parties of its ruling and said, "[I]n reviewing the decision, I cannot find an abuse of discretion as that term is used. [¶] So the request for a writ is denied." In its written order, the court observed that neither party had requested a statement of decision, held that the Planning Commission "did not abuse its discretion in denying [SSH's] application for a reasonable accommodation," and denied the writ. In making his final ruling, the trial court judge never fully explained his rationale. He did not make an express finding on the question whether this case involves a fundamental vested right or state which standard of review he used to evaluate the evidence. However, his opening remarks at the hearing imply that since he denied the writ, he found no fundamental vested right and used the substantial evidence test, not the independent judgment standard, which would have required a de novo review of the record before finding an abuse of discretion. The heart of SSH's argument is that the trial judge should have found that there was a vested fundamental right and should have applied the independent judgment standard of review before he determined whether there was an abuse of discretion. We proceed to that question and conclude that there is no vested fundamental right at stake in this case.
B. Determining Whether a Case Involves a Fundamental Vested Right
As this court stated in JHK, "[t]he determination whether a right is fundamental and vested for purposes of ascertaining the appropriate standard of judicial review in an adjudicative administrative mandamus action is made on a case-by-case basis. [Citation.] A right is deemed fundamental 'on either or both of two bases: (1) the character and quality of its economic aspect; [or] (2) the character and quality of its human aspect.' [Citation.] 'The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power.' [Citation.] 'In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.' [Citation.] In other words, we look to the nature of the right involved as opposed to the amount of harm or economic injury sustained." (JKH, supra, 142 Cal.App.4th at p. 1059.)
"Courts have interpreted fundamental vested rights to include individual rights guaranteed under the due process and equal protection clauses of the state and federal Constitutions. [Citation.] A fundamental right may also be vested by statute. (Kerrigan v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 51 [(Kerrigan)] [statutory right to be free from age discrimination in seeking employment is vested].) Fundamental vested rights also include matters which ' "although not involving vested property rights in the traditional sense, nevertheless had [a significant] impact on the individual . . . ." ' " (JKH, supra, 142 Cal.App.4th at p. 1060.) The requirements that the right be both fundamental and vested are interrelated. Consequently, courts will examine the extent to which a right is vested, i.e., legitimately acquired or already possessed by the individual, in determining whether it is fundamental. (Ibid., citing Bixby, supra, 4 Cal.3d at pp. 144, 146.)
Other examples of fundamental vested rights include rights that are personal to the party and that have already been conferred and relied upon, such as the revocation or suspension of a professional license. (See, e.g., Griffiths v. Superior Court (Med. Bd. Of Cal)(2002) 96 Cal.App.4th 757; Clare v. State Bd. Of Accountancy (1992) 10 Cal.App.4th 294, 300; Board of Dental Examiners v. Superior Court (1976) 55 Cal.App.3d 811.) Driver's licenses and food processing licenses have also been found to fall under this category. (See, e.g., Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 320 (Mann); San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889.) Courts have also held that regulatory takings, real estate licenses, government employment, welfare benefits, medical benefits, retirement funds, and privileges at public hospitals all involve fundamental rights. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 16; Amvest Mortgage Corp. v. Antt (1997) 58 Cal.App.4th 1239, 1241; Wences, supra, 177 Cal.App.4th 305, 313; Frink v. Prod (1982) 31 Cal.3d 166, 181; Harlow v. Carleson (1976) 16 Cal.3d 731; Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1299; O'Connor v. State Teachers' Retirement System (1996) 43 Cal.App.4th 1610; Nasim v. Los Robles Regional Medical Center (2008) 165 Cal.App.4th 1538, 1542.)
Even though the fundamental vested right determination is made on a case-by-case basis, as a general rule, when a case involves or affects purely economic interests, courts are far less likely to find that the interest at issue is a fundamental vested right. (JKH, supra, 142 Cal.App.4th at pp. 1060-1061, citing Kawasaki Motors Corp. v. Superior Court (2000) 85 Cal.App.4th 200, 204 ["protest of termination of automotive dealer franchise reviewed under substantial evidence test"]; 301 Ocean Ave. Corp. v. Santa Monica Rent Control Bd. (1991) 228 Cal.App.3d 1548, 1556 ["decision of rent control board reviewed under substantial evidence test"]; British Motor Car Distributors, Ltd. v. New Motor Vehicle Bd. (1987) 194 Cal.App.3d 81, 90; San Marcos Mobilehome Park Owners' Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1500 ["proposed rent increases reviewed under substantial evidence test"]; Standard Oil Co. v. Feldstein (1980) 105 Cal.App.3d 590, 604-605 [no fundamental right to operate four rather than three refinery units even though return on investment may be lower].) "Administrative decisions which result in restricting a property owner's return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights." (E. W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325, 326-327 [restrictions on the hours of operation of an "adult" bookstore had purely economic effect such that substantial evidence was proper standard of review applied by the trial court].)
SSH does not assert a personal fundamental vested right or an economic deprivation that rises to the level of that described by case law that would require an independent judgment standard of review.
C. Fundamental Vested Rights in Land Use Cases
As with other interests, "[t]he determination of whether [the grant or denial of a land use permit] substantially affects a fundamental vested right is made on a case-by-case basis." (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 111 (Cadiz), citing Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1526.) The courts have rarely applied the higher independent judgment standard of review to land use decisions. (Cadiz, supra, at p. 111.) In land use cases, the independent judgment test usually applies to "classic vested rights, such as the right to continued operation of one's business." (Ibid., citing Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1529.) But a party cannot claim a fundamental vested right in the continued operation of a business that has been operating illegally, even if the party has made a substantial investment in the business. (Jaramillo v. State Board of Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 891; JKH, supra, 142 Cal.App.4th at p. 1061 [right to operate existing delivery business without procuring workers' compensation insurance for drivers is not a fundamental vested right].) That SSH initially operated its Campbell sober living home with 13 beds does not create a fundamental vested right to resume doing so, since its operation at that level violated the City's zoning laws.
"A 'fundamental vested right' has been defined in terms of a contrast between a right possessed and one that is merely sought. [Citation.] ' "The term 'vested' denotes a right that is either 'already possessed' [citation] or 'legitimately acquired' [citation]." ' " (Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th 312, 320.) Without a vested right the independent judgment test does not apply. (Cadiz, supra, 83 Cal.App.4th at p. 112; see Breakzone Billiards v. City of Torrence (2000) 81 Cal.App.4th 1205.) Moreover, it is established that landowners have no vested right in any particular use of their property unless the restrictions on use constitute an uncompensated taking. (Davis v. California Coastal Zone Conservation Com. (1972) 17 Cal.3d 785.) A land use regulation "constitutes a taking that requires compensation if its application denies an owner economically viable use of his or her land." (McAllister v. California Coastal Commission (2008) 169 Cal. App. 4th 912, 937-938 (McAllister), citing Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617-618 (Palazzolo)and other cases.) In Palazzolo, the United States Supreme Court summarized the guidelines to be followed by " 'courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, [the court observed,] with certain qualifications . . . that a regulation which "denies all economically beneficial or productive use of land" will require compensation under the Takings Clause. [Citations.] Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. [Citation.] These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." ' " (McAllister, at p. 938.)
SSH does not show that there is a business-related fundamental vested right at stake. At the administrative hearing, it did not submit sufficient financial records to establish any financial loss. Robert Norton, the founder of SSH, testified at the administrative hearing that he did not need the extra beds to cover the costs of operating the sober living home. There is no showing in the record that the denial of the reasonable accommodation would rise to the level of extinction or abridgment of continuing his business. In fact, there was evidence to the contrary. Norton testified that he does not expect to profit and sustains the sober living homes through other means, including "detox," residential, and outpatient treatment facilities and a $568,000 contract with the county.
D. There is No Fundamental Right to a Reasonable Accommodation
SSH argues that its clients are statutorily considered disabled and have constitutional and statutory rights to be free from housing discrimination and that those rights are vested. SSH seems to assert that its wish to add more sober living beds carries with it an automatic vested fundamental right to a reasonable accommodation from the City because of the law's recognition that one with a substance abuse disorder may be found to have a physical or mental disability. SSH also claims that it "stands in the shoes of the clients" and therefore the right belongs to SSH and is vested. However, this is a huge leap that has no basis in law.
In actions brought under the Fair Housing Act and other federal statutes, the federal courts have uniformly held that the party seeking a reasonable accommodation has the burden of proving the need for the accommodation at the trial or administrative level. (See Bryant Woods Inn, Inc. v. Howard County (4th Cir. 1997) 124 F.3d 597, 604; Elderhaven. Inc. v. City of Lubbock (5th Cir. 1996) 98 F.3d 175, 178.) Like the fundamental vested right issue, the reasonable accommodation inquiry is fact specific requiring a case-by-case analysis. (Wisconsin Community Services, Inc. v. City of Milwaukee (7th Cir. 2006) 465 F.3d. 737, 749.) "[T]he requested accommodation must be 'necessary,' meaning that without the accommodation, the plaintiff will be denied the opportunity to obtain the housing of [his or] her choice." (Ibid.; see also Giebler v. M & B Assocs. (9th Cir. 2003) 343 F.3d 1143, 1155.)
In this case, the record does not contain any evidence proving the need for more sober living beds in a house with the same zoning restrictions as SSH's sober living home in Campbell. There is plenty of information about the benefits of SSH's proposed expansion. However, there is no evidence from which to determine if there is actually a shortage of sober living beds in residential neighborhoods in Campbell, which in turn makes it difficult for disabled persons to find housing. For example, in U.S. v. City of Taylor, Mich. (E.D.Mich. 1995) 872 F.Supp. 423, 426-427, reversed in part on another ground in Smith & Lee Associates v. City of Taylor, Mich. (6th Cir. 1996) 102 F.3d 781, the court relied on expert testimony that there was a shortage of homes for the elderly disabled. Similarly, in Oconomowoc Residential Program v. City of Milwaukee (7th Cir. 2002) 300 F.3d 775 evidence was produced that showed limited services and funding to persons with traumatic brain injuries. There is no comparable evidence here.
Moreover, as the Planning Commission found, SSH could open another house and have six more beds with two staff in the same neighborhood if it desired. Simply put, SSH has not shown that its request to expand its Campbell facility relates to the necessary accommodation of disabled residents in seeking equality of housing opportunities.
In addition, there was no evidence of discrimination against this population of disabled citizens. Although it is true that the citizens that spoke at the public hearing did not want a facility larger than six beds for addicts, neither the citizens nor the Planning Commission ever relayed a message that they sought the elimination of such sober living homes and they in fact urged SSH management to use a second home "of six (6) residents or less" in their city.
In the proceedings below, SSH relied on MX Group, Inc. v. City of Covington, et.al. (2002) 293 F.3d 326 to persuade the court that stereotyping and a fear of a certain population in the neighborhood may be tantamount to discrimination. In MX Group, the City of Covington tried to ban methadone clinics altogether. This case is distinguishable from MX Group because it does not involve a wholesale ban on sober living houses in the entire city. SSH does not renew this argument on appeal.
Furthermore, a party seeking the accommodation cannot be said to already possess the right to a particular accommodation, but must first prove the need for the accommodation, which SSH has failed to do. As note before, the " ' "term 'vested' denotes a right that is either 'already possessed' [citation] or 'legitimately acquired' [citation]." ' " (Mann, supra, 76 Cal.App.4th at p. 320.) It is contrasted with a right that is " 'merely sought.' " (Kerrigan, supra, 91 Cal.App.3d 43, 51.) Therefore, the assumption that there is a fundamental vested right by virtue of a request for expansion of beds based on a reasonable accommodation does not result in the fundamental vested right itself. The independent judgment standard of review is not triggered by seeking something on behalf of others.
III. The Planning Commission's Findings Are Supported by Substantial Evidence
SSH does not argue on appeal that there is no substantial evidence to support the Planning Commission's decision under the substantial evidence standard of review, focusing instead on its standard of review argument. However, to complete our analysis, we have made such an inquiry. Reviewing the entire record, we conclude that there is substantial evidence to support the Planning Commission's findings.
The Planning Commission concluded that the evidence "[does] not demonstrate that the requested accommodation is necessary to afford persons with addictions to drugs or alcohol with an equal opportunity to housing of their choice in a single-family neighborhood" and that the proposed accommodation would "fundamentally alter the single-family character of the neighborhood contrary to the existing zoning and general plan of the land use designation." These conclusions were drawn from the wholesale absence of any evidence in the record to show that the accommodation was necessary. Moreover, the impact testimony regarding heavy traffic, parking congestion, littering, second-hand smoke, and noise supported the agency's conclusion that the accommodation could cause a fundamental alteration of the neighborhood and would significantly impact the neighborhood.
DISPOSITION
The judgment is affirmed.
LUCERO, J. WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J. MIHARA, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
--------