Opinion
Rehearings Denied Oct. 27, 1967. Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., and Jack L. Wells, Deputy City Atty., for defendants and appellants, City of Los Angeles, and others.
Mitchell, Silberberg & Knupp, Hilbert P. Zarky, and Harry C. Sigman, Los Angeles, for intervenors and appellants.
Kaplan, Livingston, Goodwin, Berkowitz & Selvin and Herman F. Selvin, Los Angeles, for plaintiffs and respondents.
HUFSTEDLER, Associate Justice.
Mr. and Mrs. Herman L. Weiner ('Weiners') obtained a judgment declaring that their proposed front yard and setback of a depth of twenty feet six inches on lot 20, block 1, of tract No. 9200 in the City of Los Angeles, comply with the applicable provisions of the Los Angeles Municipal Code, that their retaining wall likewise complies with the code, that the order, dates June 23, 1964, directing them to revise their plans and building permit to comply with the 'prevailing setback' line on Lindbrook Drive and directing reduction of the height of their retaining wall, is invalid, and that the intervenors had no standing to contest the issues of the validity of the permits. From this judgment the City of Los Angeles and its codefendant, J. C. Monning, as Superintendent of the Department of Building and Safety of the City of Los Angeles (both codefendants hereinafter sometimes referred to as 'City'), and the intervenors, Mr. and Mrs. Stanley L. Lappen ('Lappens'), appeal.
Summary of the Procedure and the Facts
The Weiners purchased a vacant residential lot, numbered 20, in the Lindbrook block on June 5, 1963. On October 24, 1963, they applied to the Department of Building and Safety of the city for permits to grade the lot, to build a retaining wall, and to build a residence in accordance with plans and specifications submitted with their application. The plans showed that the building would be set back on the lot twenty feet six inches from the line separating the lot from Lindbrook Drive. The city checked and approved the plans and issued the permits to the Weiners. Pursuant On June 23, 1964, after the grading was finished, but before residential construction was started, Monning, in his capacity as superintendent of building and safety, issued an order directing the Weiners to provide revised approved plans and building permit showing the proposed residential building setback in line 'with the prevailing setback' on Lindbrook Drive, and further directing the Weiners to reduce the height of their front yard retaining wall. The residential construction was thereby halted, and no work has since been done on the Weiners' lot.
The Weiners brought a suit for declaratory relief to establish their right to build their home as previously planned and to invalidate the order of June 23, 1964. The Weiners stated a variety of theories upon which they were entitled to a favorable declaration, including the contention that their proposed construction complied with the applicable sections of the Los Angeles Municipal Code: sections 12.08 C. 1. setback regulations), 12.03 (definitions) and 12.22 C. 20(g) (retaining walls). The city answered, admitting the controversy and urging that the proposed structures did not comply with the applicable code provisions.
The Lappens, who owned lot 19, next door to the Weiners's lot 20, filed a complaint in intervention seeking declaratory relief against the Weiners and urging, among other things, that under their interpretation of the applicable Code provisions the Weiners must reduce the height of their retaining wall and must set back their residential construction a distance of at least thirty-three feet six inches from the front line of Lindbrook Drive.
Issue was joined on the respective pleadings and the cause was thereafter fully tried.
All of the facts which are essential to the disposition of the cause on appeal are admitted by the stipulation signed by the parties.
The Lindbrook block, which is the subject of the controversy, consists of five lots, each of which has frontage upon Lindbrook Drive. The lots, following the configuration of Lindbrook Drive, which runs approximately south to north, commence with lot 18 at the intersection of Holmby Avenue with Lindbrook Drive and proceed consecutively as lots numbered 19 (the Lappens' lot), 20 (the Weiners' lot), 21, 22 and 23. All of the lots other than lot 20 are improved with residential construction erected prior to 1938.
The pivot of the controversy is the construction of section 12.08 C. 1. of the Los Angeles Municipal Code, effective October 8, 1950, providing in part: '1. Front Yard. There shall be a front yard of not less than 20% of the depth of the lot, but such front yard need not exceed 20 feet; provided, however, that where lots comprising 40% or more of the frontage are developed with buildings having front yards with a variation of not more than ten feet in depth, the average of such front yards shall establish the required front yard depth for the entire frontage, but said depth need not exceed 40 feet. In determining the required front yard, buildings located on key lots , entirely on the rear half of lots, or It is agreed that the proposed setback on the Weiners's lot is not less than twenty percent of the depth of the lot. The problem is whether the proviso as properly construed applies to require a setback in excess of the twenty-foot minimum prescribed in the first sentence of subsection 1 above quoted. The parties agree that 221.80 feet equal forty percent of the Lindbrook frontage.
The Weiners contend that lot 18 is a 'key lot,' as defined by section 12.03 of the Municipal Code and therefore excluded from the aggregate frontage lots referenced in the proviso. 'Key lot' is defined as '[t]he first interior lot to the rear of a reversed corner lot and not separated therefrom by an alley.' 'Reversed corner lot' is defined by the same section of the ordinance as '[a] corner lot the side street line of which is substantially a continuation of the front lot line of the first lot to its rear.' We assume for the purpose of this discussion, without deciding, that lot 18 is neither a reversed corner lot nor a key lot.
Section 11.02 of the Los Angeles Municipal Code provides that any permit which purports to authorize a violation of any city ordinance is void.
The following table shows the lot combinations, the total frontage of each combination, the respective setbacks of each lot, the average setback, and the setback variations:
Lots Total Frontage Respective Setbacks Variation Average Setback ---------- -------------- ------------------- --------- --------------- 18, 19, 21 314.49' 35.5, 34.5, 30.5 5' 33.5' 18, 19, 22 314.49' 35.5, 34.5, 46 11.5' 33.67' 18, 19, 23 314.49' 35.5, 34.5, 46.5 12' 33.83' 18, 21, 22 304.49' 35.5, 30.5, 46 15.5' 37.33' 18, 21, 23 304.49' 35.5, 30.5, 46.5 16' 37.5 18, 22, 23 304.49' 35.5, 46, 46.5 11' 42.67' 19, 21, 22 250' 34.5, 30.5, 46 15.5' 37' 19, 21, 23 250' 34.5, 30.5, 46.5 16' 37.17' 19, 22, 23 250' 34.5, 46, 46.5 12' 42.33' 21, 22, 23 240' 30.5, 46, 46.5 16' 41' 18, 19 234.49' 35.5, 34.5 1' 35' 18, 21 224.49' 35.5, 30.5 5' 33' 18, 22 224.49' 35.5, 46 10.5' 40.75' 18, 23 224.49' 35.5, 46.5 11' 41'The city contends that the proviso means that if any combination of developed lots, the total frontage of which equals forty percent or more of the aggregate frontage of the block, has a setback variation of not more than ten feet, the setback for new development of lots in the Lindbrook block is an average of the setbacks of any such combination selected by the city, which combination aggregates forty percent or more of the total Lindbrook frontage.
Applying the city's construction of the ordinance, there are three different combinations which could be selected as establishing the prevailing setbacks: lots 18, 19 and 21, with an average setback of 33.5 feet; lots 18 and 19, with an average setback of 35 feet; and lots 18 and 21, with an average setback of 33 feet. The selection of any of the three combinations is left to the city's unfettered discretion. At the oral argument the deputy city attorney assured us that the city would select from the three combinations only that combination yielding the lowest average . But there is nothing in the record to suggest that the city actually followed that practice in the Weiners' case or that there is any settled administrative interpretation of the ordinance supporting that practice. (Cannon v. Industrial Accident Commission (1959) 53 Cal.2d 17, 22, 346 P.2d 1.)
The intervenors adopt the ctiy's rendition of the ordinance with variations. They argue that the ordinance should be read as excluding from the lots comprising forty percent of the combined frontage those lots the setback variation of which exceeds ten feet and that to find the prevailing setback the city should take the average setback of all of the lots thus remaining.
The intervenor's construction does not eliminate the arbitrary character of the Lot No Setback ------ ---------- 1 40' 2 38' 3 36' 4 34' 5 32' 6 30' 7 28' 8 26' 9 24' 10 Unimproved
It is evident that any combination of six adjoining improved lots would have a variation of not more than ten feet. The following table illustrates only some of the possible averages of front yards which result depending on what combination one picks:
We mention combinations of six lots in order to be consistent with intervenors' theory that all developed lots 'with buildings having front yards with a variation of not more than ten feet in depth' constitute the basis for the establishment of the setback. There are altogether four such combinations in out hypothetical block.
The provision of the zoning ordinance, section 12.08-C(1), provides in pertinent part as follows: 'There shall be a front yard of not less than 20% of the depth of the lot, but such front yard need not exceed 20 feet; provided, however, that where lots comprising 40% or more of the frontage are developed with buildings having front yards with a variation of not more than ten feet in depth, the average of such front yards shall establish the required front yard depth for the entire frontage, but said depth need not exceed 40 feet. In determining the required front yard, buildings located on key lots * * * shall not be counted.'
It could not have been the intent of the framers of the ordinance to leave it to the arbitrary decision of the city to determine the required setback for the prospective improver on lot 10 by selecting a particular combination of six lots 'with a variation of not more than ten feet in depth,' or to permit the selection to be controlled by the entirely fortuitous circumstances which might exist in one block. This court must construe an ambiguous ordinance in such-a manner as to comport with the evident intent of the legislative body which passed it. As thus construed, we must then apply it to the Lindbrook block.
The obvious purpose of the proviso was to produce some uniformity in setback in blocks in which residential construction had followed a reasonably uniform setback line. We have concluded that the purpose of the proviso is properly fulfulled by the following construction: If every combination of developed lots the total frontage of which equals forty percent or more of the aggregate frontage of the block has a setback variation of not more than ten feet, the setback for new development of lots in that block shall be the average setback of all developed lots in the block. Or, to put the same concept slightly differently: If any combination of developed lots the total frontage of which equals forty percent or more of the frontage of the block has a setback variation of more than ten feet, the setback required for new development in the block shall be computed without regard to the average setback of any combination or all of the developed lots in the same block. It is obvious from a further inspection of the same table of the Lindbrook block that of the fourteen lot combinations aggregating forty percent of the total frontage, only three combinations have a variation of ten feet or less. Since eleven of the lot combinations have setback variations of more than ten feet, the setback for lot 20 must be computed without regard to the average setback of any combination or all of the developed lots in the Lindbrook block
The trial court correctly decided that the Weiners' proposed residential construction complied with section 12.08 C. 1. of the Los Angeles Municipal Code as properly construed. It also follows that the trial court correctly held invalid the order of June 23, 1964. Under the proper construction of the ordinance as applied to the facts of this case, there was no 'prevailing setback' on Lindbrook Drive.
In view of our construction of the applicable ordinance, it is unnecessary for us to decide whether or not lot 18 is a 'reversed corner lot' or a 'key lot.' The opposing characterizations of lot 18 are directed to the issue of the propriety of the inclusion of the frontage of lot 18 in the computation of the total frontage on Lindbrook Drive. Under our construction of the proviso it is immaterial whether the frontage of lot 18 is included or excluded from the total Lindbrook frontage: The proviso does not apply to control the setback on lot 20 even if the frontage of lot 18 is properly included in the total Lindbrook frontage.
Neither the city nor the Lappens have complained about the court's findings and conclusion that the retaining wall complies with the applicable ordinances. Any claim of error in respect of the retaining wall has been waived. (Long v. Cal.-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883, 270 P.2d 43.)
It is also unnecessary for us to decide whether the Lappens have standing to contest the issuance or the validity of the permits issued to the Weiners. The proposed construction by the Weiners fully complies with the applicable provisions of the Municipal Code. This result is in no way affected by the standing or lack of standing of the Lappens to challenge the validity of the permits.
The judgment is affirmed.
KAUS, P.J., concurs.
STEPHENS, Associate Justice.
I dissent.
Plaintiff Weiner obtained a judgment on his complaint for declaratory relief, and defendant City of Los Angeles and intervenor Lappen appeal therefrom.
The facts are that the Weiners purchased the only vacant lot in the Lindbrook block on June 5, 1963. They sought a building permit, exhibiting plans showing a 20.5 foot setback of the planned residence structure from the curb of Lindbrook Drive. The plans were approved, with the following being stamped on each page thereof: 'The Stamping of this plan and specifications SHALL NOT be held to permit or to be an approval of the violation of any provision of any City Ordinance of State Law.' Though the Weiner plans showed their proposed setback, they did not disclose the fact that all of the other developed lots in the block had setbacks in excess of 30 feet. 1 Following the stamping of the plans, the Weiners proceeded with the grading. At a time when the grading was completed and before the start of residential construction, the city issued an order directing the Weiners to revise their plans to show the residential setback in line 'with the prevailing setback' on Lindbrook Drive. All work ceased, and the Weiners sought declaratory relief. The next door neighbors (owners and residents of lot 19) intervened, seeking the same relief as the city seeks to achieve through its answer to the action filed by the Weiners. The trial court sustained the Weiners' contention, and this appeal followed.
I cannot agree with the result reached by the majority. The majority state that the zoning ordinance 2 is so ambiguous it is not capable of administration. This hardly seems reasonable when it has been administered since 1950.
This ordinance, like any other ordinance, should be read in a reasonable manner, resulting in enforceability rather than in strained construction so as to destroy its very purpose. To reasonably read the ordinance, then, we must recognize the purpose sought to be accomplished.
The respondents' brief eloquently expresses the duty of the courts as they analyze the ordinance under consideration here, where it states on page 26: 'It surely cannot be assumed that in adopting the ordinance the City intended to be unfair to any of its people; and unless the words of the ordinance inescapably compel a construction that results in unfairness, such a construction must be avoided. [City of Los Angeles v. Pac. Tel. & Tel. Co., 166 Cal.App.2d 253, 256-257, [330 P.2d 888]; De Celle v. Alameda, 186 Cal.App.2d 574, 582, [9 Cal.Rptr. 549.] It is easily avoided in the instant case by giving to the ordinance the meaning that is consistent with its words and its evident purpose.'
In every well planned city it has been found desirable, in its residential areas, to obtain a reasonable uniformity of front yards in blocks. The Weiner residence (lot 20) is apparently planned near the $80,000 value, and the 30 foot plus front yards of all the other residences comprising the total block indicate that they too are of quality residential type.
I do not say that residential areas of a city cannot be of the type recognized as beautiful residential developments with 20 foot setbacks, or lesser ones in some instances. It just happens that Los Angeles and its environs, with large areas of land, developed residential areas with considerable setbacks providing large front yards, while San Francisco chose a different charm, mush like many of the eastern cities. Suffice it to say that whether the planning is that of rambling spaciousness or efficient use of limited space, neither plan should be spoiled by inserting non-conformances within their blocks through overly technical construction of a zoning ordinance. In an effort to protect and extend the beauty of such residential areas, both new and old, this zoning ordinance was drafted and administered.
This case presents a prime example of the sense of such a planning ordinance. Concededly, I believe the Lindbrook block of Westwood Hills is one of the residential
As I have mentioned, Lindbrook Drive is in a graceful 'S' curve as extends from Holmby Avenue south to Beverly Glen Boulevard. Lot 18 is 103.45 deep on its Hlomby Avenue side. This lot line is the top of the S curve referred to. Lot 23 is 244.18 feet deep on its southernly most lot line and 190.01 feet deep on its northerly lot line. Lot 24 faces south, fronting on Beverly Glen, and does not enter into the problem before us except remotely, as will later be explained.
Reference to the result desired by the Weiners and apparently concurred in by the majority has been stated as one permitting a 'jutting' non-conforming structure to destroy the block design.
The existent residences are built upon their respective lots in such manner as to present an uninterrupted, park-like sweep of front yards throughout the block. Lots 23 and 22 have placed construction the greatest distance from the curb, and lots 18 and 19 likewise set back their structures a greater distance than that on lot 21, which is at the belly of the S curve. I believe that the majority visualize the esthetic preference to maintaining this beauty but feel they cannot do so under the meaning of the ordinance. There is reasonable construction of the ordinance, however, which results in achieving the purpose thereof. The formula is clearly set out in the 'providing' portion of the ordinance. It reads: '* * * provided, however, that where lots comprising 40% or more of the frontage are developed with buildings having front yards with a variation of not more than ten feet in depth, the average of such front yards shall establish the required front yard depth for the entire frontage * * *'
The impressive number of 'combinations' of lots and their frontages as set froth by the majority does not aid us in the ordinance construction. The problem is not to ascertain if 40% or more of developed lots have setbacks of buildings within 10 feet of each other, but that all developed lots have front yards that are within that variant. The problem is as simple as an old-fashioned two-step: (1) Is there 40% or more of the block developed? (2) If so, are all of the front yards within a 10 foot variance?
If one lot is of greater variance in front yard than 10 feet from any other, there is such lack of frontage conformation as to make the ordinance inapplicable. Likewise, if 40% or more of the block is developed and the front yards are all within the 10 foot variance, then the ordinance does apply and the average front yard of those developed lots to be 'counted' is that which the undeveloped lot(s) must follow.
Perhaps this two-step is the theme of the majority, but they neglect to read the rest of the section. The section continues with an imposition of a maximum enforceable front yard line: '* * * but said depth need not exceed 40 feet.' Therefore, when 40% or more of the block is developed and one or more front yards exceed(s) 40 feet, such front yard line shall be deemed the maximum which can be required i. e., 40 feet. That this is the proper construction is clear when we know that by the very terms of the ordinance, construction on any lot may not be restricted within its area up to the maximum front yard line. It does not penalize, as does the majority result, There has been a confusion engendered by respondent and adopted by the majority that 'setback' is synonymous with 'front yard.' This is just not the case! It is true that where a structure is built upon the lot, there cannot be a yard in front of it greater in distance from the street than the structure itself. It is not true that all of that area unencumbered by fences, trees or shrubs to the building 'setback' is 'front yard' regardless of the structure setback from the street. The ordinance states the minimum enforceable (20 feet) and the maximum enforceable (40 feet) front yard. That the 'required' front in the ordinance.
A 'Stipulation of Facts' was filed in the case and paragraph 3 thereof refers to certain footages as 'setbacks' for the lots specified. By the stipulation and all other evidence and some of the argument in this case, the 'setback' footage refers solely to measurements to existent structures on the land and is not in any way derogatory to the 40 foot maximum 'front yard' which may result from application of the ordinance. The invited confusion referred to commences in respondents' 'Argument I,' where they state: 'It is not denied by any of the appellants that the setback proviso is inapplicable if, within the meaning of the ordinance, there is a variation in front-yard or setback depths of more than ten feet in the Lindbrook Block.' [italics added.] They then argue that the stipulated facts of setbacks show a greater variation than 10 feet. Nowhere in the applicable ordinance is there a reference to anything but 'front yard' and nowhere in the 'Stipulation of Facts' is there reference to anything but setback. The synonymity is not reasonably borne out.
What, then, do we have as the front yards in the case before us, conceding that 40% and more of the block is developed? The setback of the structures and the resultant front yard of lot 18 is 35.5 feet; that of lot 19 is 34.5 feet; that of lot 20 (vacant); that of lot 21 is 30.5 feet; the front yard (but not the setback of the structures) of lot 22 is 40 feet (the maximum enforceable); and that of lot 23 is 40 feet (the maximum enforceable). We then see that there are no front yards not within the 10 foot variance, and hence the average of all of them establishes the front yard of the lot (20) desired to be developed.
The existent structures on lots 22 and 23 are 6 feet and 6.5 feet back from the front yard line to which they may extend their structures unrestrictedly. It is also recognized that neither lot 22 nor 23 is improved 'entirely on the rear half of [its] lot.'
It appears simple but to add the front yards and divide by five, but it is not quite that easy. The effect of lot 24 is perceived, for that lot fronts on Beverly Glen. Since lot 24 does face on Beverly Glen, it is a 'reverse corner lot' and lot 23 is a 'key lot' and its front yard may not
By some construction not clear to me, the Weiners argue that if a lot is developed but happens to be a 'key lot' it is not to be counted in the 40% or more of developed property. The fact is that if a lot be a 'key lot,' its front yard measurement is not included in arriving at the average of front yards, but it certainly must be considered as a developed lot. The reason for this is that front yards of key lot developments may already be adversely affected by the structures on the reverse corner lot to which it is the 'key.'
We then have 40% or more developed lots, including 4 lots with front yards to be averaged, the average thereof being 35 feet; this being the established front yard, the setback of structures for lot 20 must not be farther forward than that line.
The Weiners raise another question which I deem unnecessary to here determine, but upon retrial (if upon further hearing the result here reached is adopted), the court would be confronted with it, so it is here commented upon as one ultimately to be answered. The Weiners strongly urge that lot 18 is a 'reverse corner lot' and that lot 19 is then a 'key lot.' This ultimate determination would not affect the '40% or more' development computation, it would merely eliminate the front yard as footage to be averaged to obtain lot 20's setback necessary to provide the required front yard. This would appear to be of such little effect on the setback required for lot 20 under the above analysis that it probably would not be pressed, i. e., obviously, reverse corner lots are not includable and the front yards of 'key lots' are not 'counted' so the front yards to de averaged are 30.5 feet (lot 21) and 40 feet (lot 22), giving a setback of 35.25 feet as against the 35 feet computed including both lots 18 and 19.
The judgment of the trial court should be reversed and the ordinance applied as is above set forth.
Hearing granted; MOSK, J., not participating.
Lots Respective Setbacks Average Setback ---------------- ---------------------- --------------- 1, 2, 3, 4, 5, 6 40, 38, 36, 34, 32, 30 35' 2, 3, 4, 5, 6, 7 38, 36, 34, 32, 30, 28 33'Section 91.0210(a) provides in part that: 'The plans and specifications shall be of sufficient clarity to indicate the nature and extent of the proposed work and to show in detail that it will conform to the provisions of this Code and of relevant laws, ordinances, rules, regulations and orders.'
Section 91.0202(b) provides that: 'Neither the issuance of a permit nor the approval by the Department of any document shall constitute an approval of any violation of any provision of this Code or of any other law or ordinance, and a permit or other document purporting to give authority to violate any law shall not be valid with respect thereto.'
Section 91.0211(c) provides as follows: 'The stamping or approval of any plans or specifications shall not be held to permit, or to be an approval of the violation of any provision of this Code.'
Even the finding of fact (number 8) recognizes that while one (setback) may limit the other (front yard), the two are distinct concepts within the code. Finding 8 states in part: 'the retaining wall and residential building proposed to be built and erected on said Lot 20, which said plans depicted and showed that such proposed residential building would be situated on said Lot 20 in such a way that the front of said building would be set back twenty feet six inches from the line separating said lot from the street upon which it fronts, so that the front yard of said lot would have a depth of twenty feet six inches.'
Likewise, the ordinance (§ 12.03) itself has made the definitive distinction:
'LOT--A parcel of land occupied or to be occupied by a use, building or unit group of buildings, and accessory buildings and uses, together with such yards, open spaces, lot width and lot area, as are required by this Article, and fronting for a distance of at least twenty feet upon a street as defined herein or upon a private street as defined in Article 8 of this Chapter.'
'YARD, FRONT--A yard extending across the full width of the lot, the depth of which is the minimum horizontal distance distance between the front lot line and a line parallel thereto on the lot.'