Fourth District Court of Appeal Finds Project Approval Improper in Seaside Subdivision; Cites Inconsistency with Local Law, Health and Safety Violations

February 8th, 2018

By: Chris Butcher



In Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, the Fourth District Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After 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 deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.

Key Point:

To succeed in recourse for City Council disapproval of a project previously approved at Planning Commission, it is essential that the project is aligned with local building requirements and is not detrimental to public health, safety, or welfare.