On May 23,2017, the Court of Appeal for the Fourth Appellate District granted a request to publish Kutzke v. City of San Diego, __ Cal. App. 5th __ (2017) (Case No. D070288), another opinion that shows the deference courts give to local land use findings for development projects.

The case involved an application for a vesting tentative map and related permits to subdivide two adjacent lots into four lots, retain an existing home on one lot, and build new homes on the other three lots. A provision in the San Diego Municipal Code allows certain types of projects, including sustainable building projects, to deviate from applicable development regulations if certain findings are made. The project would be a sustainable building project because it would use photovoltaic panels to generate 50 percent of the homes’ electricity needs. The project would deviate from applicable development regulations regarding minimum setbacks and street frontage and maximum height for side yard retaining walls.

Although the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviations, the Planning Commission approved the project and certified a mitigated negative declaration for it.

A resident appealed the Planning Commission’s decision to the City Council on several grounds, including that the project would conflict with the Peninsula Community Plan, the project’s design would be incompatible with the neighborhood, the project would allow development on a geologically unstable hillside and cliff, and the project would not provide adequate access for fire trucks and ambulances. The City Council agreed with the appeal and found, among other things, that the project would be inconsistent with the Peninsula Community Plan and that the requested deviations were inappropriate for the project’s location and would not result in a more desirable project. The Council thus reversed the Planning Commission’s decision.

The owners sued in superior court seeking a writ of administrative mandamus under Code of Civil Procedure section 1094.5. The trial court reversed the City’s decision, finding that there was insufficient evidence to support the findings.

The Court of Appeal explained that its role is identical to that of the trial court, which was required to determine whether substantial evidence supported the City’s findings and whether the findings supported the decision. In making those determinations the court must consider to the whole administrative record and all relevant evidence but cannot substitute its own findings and inferences for that of the City. The court can reverse the City’s decision only if a reasonable person could not have reached the same conclusion the City reached based on the evidence before it.

Considering the project’s consistency with the Peninsula Community Plan, the Court of Appeal noted that the opinions and objections of neighbors can provide substantial evidence and, thus, the City’s findings need not to be supported by expert evidence. The Court held that the record contains many such opinions and objections, focusing on the positioning of the proposed residences and their reduced setbacks in comparison to the surrounding community. Those opinions and objections support the City’s findings that the project is inconsistent with the Peninsula Community Plan and its goals of conserving the character of existing single-family neighborhoods and encouraging the compatibility of infill housing design with existing residential development.

The Court held that the record contains expert evidence that supports the City’s findings that the project would be detrimental to public health, safety, and welfare. In particular, the record showed that there were flaws and omissions in the project’s geotechnical report that cast doubt on the report’s conclusion the project can be safely built on a steep sandstone hillside. The record also contains expert evidence showing the configuration of the residences and the steepness of the shared private driveway would present significant challenges for fire and emergency services personnel.

Finally, the Court rejected the owners’ argument that the evidence in the record against the project is less persuasive than the evidence in favor of it. Because the City’s role is to weigh conflicting evidence, and the City disagreed with the owners, the Court upheld the City’s decision.

The Court ended its opinion with the following helpful quote:

“It is not the role of the courts to micro-manage these development decisions. Our function is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies, whether the city officials made appropriate findings on this issue, and whether those findings are supported by substantial evidence.”


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.