Filed 2/19/14; pub. order 3/14/14 (see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



STEPHEN ESKELAND et al.,                                D061370

         Plaintiffs and Appellants,

         v.                                             (Super. Ct. No. 37-2011-00083840-
                                                        CU-WM-CTL)
CITY OF DEL MAR et al.,

         Defendants and Respondents;

JON SCURLOCK, Individually, and as
Trustee etc.,

         Real Party in Interest and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B.

Barton, Judge. Affirmed.



         Law Office of Todd T. Cardiff, Todd T. Cardiff; Niddrie Fish & Addams and

David A. Niddrie for Plaintiffs and Appellants.
       Stutz, Artiano, Shinoff & Holtz, Leslie E. Devaney, William C. Pate, R. Jacob

Gould and Paul V. Carelli IV, for Defendants and Respondents.

       Sandler, Lasry, Laube, Byer & Valdez, Edward I. Silverman; Carlin Law Group

and Kevin R. Carlin for Real Party in Interest and Respondent.

       Stephen and Nahida "Lucy" Eskeland (the Eskelands) appeal from the trial court's

denial of the petition for writ of administrative mandamus they filed against the City of

Del Mar (the City) and real party in interest Jon Scurlock. The Eskelands challenge the

City's decision to grant a variance to Scurlock allowing him to build a house that does not

comply with the 20-foot front yard setback requirement in the City's municipal code. We

conclude that the Eskelands' arguments are without merit, and we accordingly affirm the

judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

       Scurlock owns a steep hillside lot in the City at 2026 Seaview Avenue on which

sits a two-story house that was built several decades ago. Seaview Avenue runs along the

eastern side of the property. The house sits on a level building pad near the southeastern

corner of the property. To the west of the building pad, the elevation of the lot slopes

approximately 50 feet down the hill, at a grade that exceeds 25 percent in some places.

       The lot is in an area zoned R1-10, which allows for single-family residences and

requires that the front of the house be set back 20 feet from the street. (Del Mar Mun.




                                             2
Code, § 30.12.070(C).)1 The existing house does not comply with the front yard setback

requirement because it is situated only nine to 11 feet from the street.2

       Scurlock proposes to tear down the existing house and build a new house on the

footprint of the old house. The new house would consist of a 1,664-square-foot upper

level, a 1,974-square-foot lower level (inclusive of garage), and a 2,152-square-foot

basement. The building plans also include a deck and a swimming pool to the west of the

house. As it would be constructed on the footprint of the old house, the new house would

also be nine to 11 feet from the street and, like the old house, would encroach into the 20-

foot front yard setback.3

       Under the applicable City procedures, Scurlock first filed an application with the

City's Design Review Board for its approval of the project. (See Mun. Code, § 23.08

[setting forth design review requirements].) After Scurlock revised the project to address

certain concerns, the Design Review Board found that the project was consistent with the

goals and policies of the City's municipal code and approved Scurlock's development

application in June 2010. As part of the Design Review Board's approval, it considered


1      All further municipal code references are to the Del Mar Municipal Code.

2      The parties all appear to assume for the purposes of discussion that when the
house was originally built, it complied with the front yard setback existing at the time,
although no document in the record establishes the year the house was built or the
applicable zoning requirements at the time.

3      As we will explain below (see part II.B, post), the parties disagree about whether
certain differences between the footprint of the existing house and the proposed new
house will cause the new house to expand the encroachment into the front yard setback.

                                             3
whether alternative designs were available that could eliminate the need to encroach into

the front yard setback. The Design Review Board concluded that placing the new house

on the existing building pad instead of moving it farther to the west would minimize

adverse impacts to steep slopes, minimize land disturbance from grading the site, and

minimize the bulk and mass of the retaining walls. The Design Review Board

determined that with respect to the design issues on which it was focused, the best

alternative was to locate the new house on the footprint of the old house. Therefore, it

recommended that the Planning Commission approve a variance to the front yard

setback. The Design Review Board's approval was appealed to the City Council, which

upheld the Design Review Board's decision.

       Scurlock then filed an application with the City's Planning Commission for a

variance from the front yard setback requirements, which is the application at issue in this

appeal.

       Each member of the City's Planning Commission personally visited the site, which

was followed by a hearing on September 14, 2010. After considering the documents and

testimony presented at the hearing, the Planning Commission adopted a resolution

conditionally approving the variance from the 20-foot front yard setback. The resolution

contains numerous findings in support of the Planning Commission's decision. Principal

among those findings was that "[t]here are special circumstances relative to the lot's

shape, topography, location, and surroundings, such that strict application of the front

yard setback deprives the property owner of privileges enjoyed by other properties in the

vicinity." The Planning Commission also stated that "[a]lternative development plans

                                             4
were studied and are limited because of the lot's topography, shape, location, public and

private views, vehicular access, and surroundings."

       The Eskelands, along with residents of three other homes in the neighborhood,

appealed the Planning Commission's approval of the variance to the City Council.

Among other things, the appeal argued that "[t]here is no legitimate reason that the

project cannot comply with the setback requirements[,]" and that there are "design

alternatives that do not require the use of a setback variance."

       After each City Council member visited the site, the City Council considered the

appeal on October 18, 2010. The City Council declined to set the appeal for a de novo

public hearing, and thus the decision of the Planning Commission conditionally

approving the variance became the final decision of the City.

       The Eskelands filed a petition for writ of administrative mandamus against the

City and related entities4 to obtain an order requiring the City to set aside its approval of

the variance. The petition named Scurlock, as an individual and as trustee of his family

trust, as the real party in interest.5 The trial court denied the petition, ruling that

substantial evidence supported the City's findings approving a variance to the front yard

setback requirements.

4      Specifically, the Eskelands named as respondents the following related entities:
the City, the City Council, and the City's Planning Commission. Of those respondents,
only the City filed an answer.

5      The petition also identified Lorie A. Scurlock as an individual and trustee of the
family trust as a real party in interest, but the parties subsequently stipulated to her
dismissal.

                                                5
       The Eskelands appeal from the judgment.

                                              II

                                       DISCUSSION

A.     Standard of Review

       The Eskelands filed this action under Code of Civil Procedure section 1094.5,

which authorizes petitions for administrative mandamus to "inquir[e] 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."

(Id., subd. (a).) "When evaluating the validity of an administrative decision, both the trial

court and appellate court perform the same function . . . ." (Committee to Save the

Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1182

(Committee to Save Hollywoodland).) "Thus, the conclusions of the superior court, and

its disposition of the issues in this case, are not conclusive on appeal." (Stolman v. City

of Los Angeles (2003) 114 Cal.App.4th 916, 922 (Stolman).)

       We review the administrative decision to determine whether it was "without, or in

excess of, jurisdiction; whether there was a fair trial; and whether there was any

prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of

discretion is established "if the respondent has not proceeded in the manner required by




                                              6
law, the order or decision is not supported by the findings, or the findings are not

supported by the evidence."6 (Code Civ. Proc., § 1094.5, subd. (b).)

       With respect to the City's findings, a court reviewing the grant of a zoning

variance "must determine whether substantial evidence supports the findings and whether

the findings support the conclusion that all applicable legislative requirements for a

variance have been satisfied." (Topanga, supra, 11 Cal.3d 506 at p. 511, italics omitted.)

" 'In determining whether the findings are supported, "[w]e may not isolate only the

evidence which supports the administrative finding and disregard other relevant evidence

in the record. [Citations.] On the other hand, neither we nor the trial court may disregard

or overturn the . . . finding ' "for the reason that it is considered that a contrary finding

would have been equally or more reasonable." ' " ' " ' " (West Chandler Boulevard

Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1518.) We

"must afford a strong presumption of correctness" to administrative findings. (Fukuda v.

City of Angels (1999) 20 Cal.4th 805, 817.) "Under the substantial evidence test, the

agency's findings are presumed to be supported by the administrative record and the

appellant challenging them has the burden to show they are not." (SP Star Enterprises,

Inc. v. City of Los Angeles (2009) 173 Cal.App.4th 459, 469.)


6      The parties agree that, as fundamental vested rights are not at issue here, this is not
the type of administrative mandamus proceeding in which the court must exercise its
independent judgment on the evidence. (See Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 510 & fn. 1 (Topanga) [a dispute over a
zoning variance does not touch upon any fundamental vested right]; PMI Mortgage Ins.
Co. v. City of Pacific Grove (1981) 128 Cal.App.3d 724, 729 ["Usually, no vested right is
affected by either the denial or granting of a variance . . . ."].)

                                                7
       With respect to questions of law, "we are not bound by any legal interpretation

made by the [City] or the trial court. Instead, we make an independent review of any

questions of law necessary to the resolution of this matter on appeal." (Breslin v. City

and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077.) "The rules applying

to the construction of statutes apply equally to ordinances . . ." and other laws passed by

local governments. (Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 838.)

B.     The City Did Not Violate the Municipal Code Provisions Making It Unlawful to
       Expand a Nonconforming Structure

       We first address a series of related arguments that depend on a single premise.

Specifically, the Eskelands contend that the municipal code prohibits the City from

approving an application to expand a nonconforming structure if the expansion would

increase the degree of the nonconformity. Relying on this premise, the Eskelands

contend, among other things, that (1) the City violated its own laws by approving the

variance; and (2) the City improperly granted a special privilege to Scurlock by allowing

him to expand the degree of nonconformity of a nonconforming structure because that

approval was not legally authorized.7 As we will explain, the premise of the Eskelands'

argument is flawed. As long as the requirements for a variance are met, the municipal




7      This argument is based on the municipal code provision, which we will discuss
more fully in a later discussion, that a variance should be granted only if it "will not
constitute a grant of special privileges inconsistent with the limitations upon other
properties in the vicinity and zone in which such property is situated." (Mun. Code,
§ 30.78.030, subd. (B).)

                                             8
code does not preclude the City from approving a variance that will expand the degree of

nonconformity of a nonconforming structure.

       We begin our analysis by focusing on the pertinent provisions of the municipal

code. Two separate chapters are relevant: chapter 30.76, titled "Nonconformities"; and

chapter 30.78, titled "Variances."

       The chapter on nonconformities identifies the concept of a structural

nonconformity, which is defined as "a physical aspect of a building, structure or

improvement that: [¶] A. Does not conform to the development standards announced in

this Chapter to include, without limitations, height, setbacks, lot area, parking, type of

building, or coverage of lot by structure; [¶] B. Did comply with the development

standards contained in the Zoning Ordinance in effect at the time the building, structure

or improvement was constructed or structurally altered and was lawfully

constructed; and [¶] C. Has not been terminated in accordance with the provisions of

this Chapter." (Mun. Code, § 30.76.030.) It is undisputed that the current house on

Scurlock's property includes a structural nonconformity because it does not comply with

the current front yard setback requirements but apparently did comply with the applicable

requirements at the time it was built.

       As the Eskelands emphasize, the municipal code expressly makes it unlawful for a

person to expand a structural nonconformity. Specifically, "It is unlawful for any person

to enlarge, extend, expand or in any other manner change a . . . structural nonconformity




                                              9
so as to increase its inconsistency with the zoning restrictions of this Chapter."8 (Mun.

Code, § 30.76.050.) The code sets forth the consequences for attempting to expand a

nonconformity: "If a . . . structural nonconformity is enlarged, extended, expanded or in

any other manner changed to increase its inconsistency with the regulations of this

Chapter, then, in additional to any other consequences imposed by this Code, any

entitlement to thereafter maintain the nonconformity is terminated." (Mun. Code,

§ 30.76.090, subd. (D).)

       The municipal code establishes the conditions under which a person may remodel

a building containing a structural nonconformity and still maintain the nonconformity. If

the remodeling costs less than 50 percent of the building's value, the project may be

approved "so long as the nonconformities are not enlarged, extended or expanded."

(Mun. Code, § 30.76.070, subd. (C).) In contrast, if the remodeling costs more than

50 percent of the value of the building, the owner will not be entitled to maintain the

nonconformity and the project will be approved only if it "complies with all of the

regulations of this [municipal code]." (Mun. Code, § 30.76.070, subd. (B).)

       Here, because Scurlock intends to completely rebuild the house, the provision for

remodels that cost more than 50 percent of the value of the building is applicable.

Therefore, even were Scurlock to propose to follow the exact footprint of the current



8       As it is not dispositive to our analysis, we need not, and do not, resolve the parties'
debate about whether, in referring to "the zoning restrictions of this Chapter," Municipal
Code section 30.76.050 intends to refer only to the chapter entitled "Nonconformities" or
to refer to the entire title of the municipal code dealing with zoning.

                                              10
house and not expand the structural nonconformity in the least, he would not be entitled

to maintain the structural nonconformity. Instead, because Scurlock is planning a

complete remodel, he must comply with all provisions of the current municipal code.

       Under the current municipal code, the only way for Scurlock to gain approval of

his plan to build a house that is set back less than 20 feet from the road is to satisfy the

conditions in the municipal code for obtaining a variance. As set forth in Municipal Code

section 30.78.030, the following standards must be met to obtain a variance:

       "A. A variance from the terms of the Zoning Ordinance shall be granted
       only when, because of the special circumstances applicable to the property,
       including size, shape, topography, location or surroundings, the strict
       application of the Zoning Ordinance deprives such property of privileges
       enjoyed by other property in the vicinity and under identical zoning
       classification.

       "B. Any variance granted shall be subject to such conditions as will
       assure that the adjustment thereby authorized will not constitute a grant of
       special privileges inconsistent with the limitations upon other properties in
       the vicinity and zone in which such property is situated.

       "C. A variance will not be granted for a parcel of property which
       authorizes a use or activity which is not otherwise expressly authorized by
       the zoning regulation governing the parcel of property. . . .

       "D. No variance shall be granted if the inability to enjoy the privilege
       enjoyed by other property in the vicinity and under identical zoning
       classification:

              "1. Could be avoided by an alternative development plan;

             "2. Is self-induced as a result of an action taken by the property
       owner or the owner's predecessor;

              "3. Would allow such a degree of variation as to constitute a
       rezoning or other amendment to the zoning code; or



                                              11
              "4. Would authorize or legalize the maintenance of any private or
       public nuisance."9

       Despite the municipal code provisions allowing a person to obtain a variance from

the zoning requirements, the Eskelands contend that those provisions are not available to

Scurlock because he proposes to expand a structural nonconformity. In support of this

argument, the Eskelands rely on Municipal Code section 30.76.050, which as we have

noted, states that "[i]t is unlawful for any person to enlarge, extend, expand or in any

other manner change a . . . structural nonconformity so as to increase its inconsistency

with the zoning restrictions of this Chapter." (Mun. Code, § 30.76.050.)

       Before turning to the legal merits of the Eskelands' argument, we observe that the

parties do not agree on whether Scurlock proposes to expand a structural nonconformity

or merely maintain the existing degree of a structural nonconformity. As the Eskelands

interpret the architectural drawings, the footprint of Scurlock's new house will extend

approximately 15 feet further to the north along Seaview Avenue, and therefore the

length, but not the depth, of the encroachment into the front yard setback will expand.

Scurlock disagrees, contending that the footprint of the new house would not increase the

encroachment into the front yard setback in any direction and that the evidence cited by

the Eskelands does not support their position. The Planning Commission apparently

viewed the facts as Scurlock does, finding that the variance would allow an encroachment


9      Municipal Code section 30.78.030, subdivisions (A) through (C) are based on
nearly identical language in Government Code section 65906. However, no portion of
the Government Code contains language equivalent to Municipal Code section
30.78.030, subdivision (D).

                                             12
into the front yard setback "in the same alignment and the same distance as the setback of

the existing residence" and that "[t]here will be no increase in the degree of non-

conformity." Our review of the architectural drawings in the record does not

conclusively resolve the issue. However, as will become clear from our discussion, it is

unnecessary for us to resolve the factual dispute. Even assuming for the sake of

discussion that Scurlock proposes to expand a structural nonconformity rather than

simply maintain it, the Eskelands have not established that the City acted contrary to the

municipal code in approving the variance.

       The Eskelands' central contention is that when someone seeks to expand a

structural nonconformity, Municipal Code section 30.76.050 takes precedence over the

provision of the municipal code allowing someone to obtain a variance from zoning

requirements. They argue that "[t]here is an absolute prohibition on the expansion of

nonconformities in any manner." In opposition, both the City and Scurlock contend that

the Eskelands misapprehend the law and ignore the difference between the right to

continue a nonconformity and the right to apply for a variance from the applicable zoning

law. "We defer to [the City's] construction of its own [municipal code]" (Craik v. County

of Santa Cruz (2000) 81 Cal.App.4th 880, 891), which " ' "will be accorded great respect

by the courts and will be followed if not clearly erroneous." ' " (Stolman, supra, 114

Cal.App.4th at p. 928.) As we will explain, the City's construction of its municipal code

is reasonable, and the Eskelands' view leads to absurd results.

       We begin with the fundamental observation that the legal right to continue a

structural nonconformity and the legal right to apply for a variance are two completely

                                             13
separate concepts. "[W]hen an owner claims that he has a vested right to an existing

nonconforming use[,] he is not required to apply for a variance or use permit . . . ."

(O'Mara v. Council of City of Newark (1965) 238 Cal.App.2d 836, 841.)10 Consistent

with this distinction, the portions of the municipal code describing an entitlement to

continue a structural nonconformity and the right to obtain a variance are set forth in

separate titles. Although Municipal Code section 30.76.050 states that "[i]t is unlawful

for any person to enlarge, extend, expand or in any other manner change a . . . structural

nonconformity so as to increase its inconsistency with the zoning restrictions . . . ," the

provision says nothing about prohibiting an application for a variance that would increase

a structural nonconformity. As the procedure and standards for obtaining a variance are

completely separate from the provisions describing the right to continue a structural

nonconformity, the most reasonable interpretation of Municipal Code section 30.76.050

is that it does not limit the rights that a person may have under the separate municipal

code title pertaining to variances.


10      As our Supreme Court has observed, zoning ordinances customarily allow
structural nonconformities or nonconforming uses to continue in order to avoid any
intrusion on the rights of property owners. "Zoning ordinances and other land-use
regulations customarily exempt existing uses to avoid questions as to the constitutionality
of their application to those uses. 'The rights of users of property as those rights existed
at the time of the adoption of a zoning ordinance are well recognized and have always
been protected.' [Citation.] [¶] Accordingly, a provision which exempts existing
nonconforming uses 'is ordinarily included in zoning ordinances because of the hardship
and doubtful constitutionality of compelling the immediate discontinuance of
nonconforming uses.' " (Hansen Brothers Enterprises, Inc. v. Board of Supervisors
(1996) 12 Cal.4th 533, 552.) In light of this reason for allowing the continuance of
structural nonconformities, it makes sense that the City's municipal code entitles a person
to continue, but not expand, a structural nonconformity.

                                             14
       Further, the portion of the municipal code dealing with structural nonconformities

makes clear that once a person decides to undertake a complete remodel exceeding

50 percent of the value of the building, the portions of the municipal code entitling a

person to continue an existing structural nonconformity are not applicable. Instead, as

Municipal Code section 30.76.070, subdivision (B) states, a person undertaking a

complete remodel is required to comply with "all of the regulations of this Code," which

includes the ability to obtain a variance when the applicable requirements are met. (Id.,

italics added.) Here, as Scurlock proposes to tear down the existing house, Scurlock's

project is governed by the provisions of the municipal code as a whole, including its

procedures for obtaining a variance.11

       As the City points out, absurd results would occur if the municipal code were

interpreted as the Eskelands suggest. (California Mfrs. Assn. v. Public Utilities Com.

(1979) 24 Cal.3d 836, 844 ["Interpretive constructions which . . . lead to . . . absurdity . . .

are to be avoided"]; People v. Coronado (1995) 12 Cal.4th 145, 151 [statutory


11      In arguing that the prohibition on expanding a structural nonconformity precludes
Scurlock from obtaining a variance that expands the degree of nonconformity, the
Eskelands cite Ideal Boat & Camper Storage v. County of Alameda (2012) 208
Cal.App.4th 301. However, that case is inapposite. Ideal Boat concluded that a property
owner was properly denied permission by the county for a variance from the applicable
zoning ordinance to expand an already nonconforming use of the property. In that case, a
specific voter initiative had been passed stating that " 'no . . . development plan, use
permit, variance or any other discretionary administrative or quasi-administrative action
which is inconsistent with [the restrictive zoning] ordinance may be granted, approved or
taken.' " (Id. at p. 308, italics added.) No such law exists in this case that expressly
precludes the approval of a variance from the City's zoning laws. Here, the City could
have, but did not, include language in its municipal code prohibiting the issuance of a
variance to expand a structural nonconformity.

                                              15
interpretation must "avoid an interpretation that would lead to absurd consequences."].)

Under the Eskelands' interpretation, someone who planned to build a new house on a

vacant lot or on a lot containing a structure that was in compliance with existing setback

requirements would be able to apply for and obtain a variance from the zoning code to

any degree shown to be necessary under the applicable standards. In contrast, someone

like Scurlock, who bought a lot containing a house with an existing structural

nonconformity, would be severely limited in the degree of the variance he could obtain

even if he otherwise met all the prerequisites for obtaining a variance and showed that it

was necessary. That interpretation would, without any reasonable basis, apply different

treatment to similarly situated persons with respect to their right to take advantage of the

variance procedure, even when a showing of necessity was made, and would accordingly

lead to absurd results.

       The Eskelands also argue that Municipal Code section 30.76.130 supports their

position. Municipal Code section 30.76.130 states in relevant part that, except in certain

circumstances not pertinent here, "if a property owner proposes a project that will replace

or develop all or a portion of an existing structure which contains several

nonconformities, the City may allow the owner to continue certain nonconformities if:

[¶] A. The Planning Commission concludes based on specific findings of fact that: [¶]

1. The proposed project will not expand an existing nonconformity; and [¶] 2. There is a

public benefit in obtaining Code compliance to be derived from the elimination of one or

more of the existing nonconformities that is not outweighed by the public detriment of

allowing other, existing nonconformities to continue . . . ."

                                             16
       This provision does not apply for several reasons. First, Scurlock's existing house

contains only a single structural nonconformity. In contrast, Municipal Code section

30.76.130 applies to structures containing several nonconformities, allowing the City to

retain some nonconformities and abate others. Second, Scurlock did not seek relief under

Municipal Code section 30.76.130 to continue a structural nonconformity, and thus it is

irrelevant whether Scurlock can claim its benefits. Finally, like the other municipal code

provisions on which the Eskelands rely, Municipal Code section 30.76.130 provides no

indication of an intention to preclude a person from applying for a variance under a

completely separate portion of the municipal code.

       In sum, we conclude that the provisions of the municipal code dealing with a

person's right to maintain a structural nonconformity have no bearing on whether

Scurlock is entitled to apply for and obtain a variance from the City's zoning

requirements.12



12     Based on their contention that the municipal code prohibits a variance to expand a
structural nonconformity, the Eskelands contend that Scurlock was granted a special
privilege to expand a structural nonconformity, and therefore the City was required to
establish that other property owners had also been granted such a privilege. Specifically,
the Eskelands contend that "[t]he City's failure to demonstrate that any property owner in
the City, let alone in the vicinity, had ever been granted a variance to expand a
nonconformity with zoning, demonstrates that such a grant was a special privilege."
However, this argument is premised on the assumption that the municipal code prohibits
a variance to expand a nonconformity. As we reject that interpretation of the municipal
code, we perceive no reason to require the City to make an affirmative showing that other
property owners gained approval of variances to expand a structural nonconformity. As
we will discuss below, it is sufficient that the City established it granted setback
variances to additional property owners in the neighborhood based on the unique
topography of their lots, so that Scurlock did not receive the special privilege of a setback
variance.
                                             17
C.     The City's Grant of Variance a Is Supported by Substantial Evidence

       We next consider the Eskelands' contention that insufficient evidence supports the

findings that the Planning Commission made in approving the variance. We proceed by

separately focusing on each of the particular standards for obtaining a variance under

Municipal Code section 30.78.030 that the Eskelands contend are not supported by

substantial evidence.

       1.     Special Circumstances Applicable to the Property

       To support a variance, the record must contain substantial evidence that "because

of the special circumstances applicable to the property, including size, shape, topography,

location or surroundings, the strict application of the Zoning Ordinance deprives such

property of privileges enjoyed by other property in the vicinity and under identical zoning

classification." (Mun. Code, § 30.78.030, subd. (A).) The Eskelands contend that the

evidence does not support such a finding.

       In its resolution approving the variance for Scurlock's property, the Planning

Commission made extensive findings with reference to the standards set forth in

Municipal Code section 30.78.030, subdivision (A):

       "There are special circumstances related to the lot's shape, topography,
       location and surroundings, such that strict application of the front yard
       setback deprives the property owner of privileges enjoyed by other
       properties in the vicinity.

       "The topography of the site drops significantly, approximately 50-feet from
       Seaview Avenue to Christy Lane. There is a small building pad toward the
       upper portion of the site on which an existing two-story residence is
       situated. The remainder of the slope below the building pad contains slopes
       in excess of 25%. The property is located such that development would be
       visible from Camino del Mar and other public and private properties to the

                                             18
west. The proposed residence is located on the southeastern portion of the
lot, which preserves a wide scenic view corridor over the remaining
northern portion of the lot for the public along Seaview Avenue and other
private properties to the east. The Planning Commission also determined
that the existing alignment and curvature of Seaview Avenue causes an
unusual alignment (a 'bend in') of the front yard setback thereby further
restricting the development potential of this lot. The front property line and
curvature associated with the right-of-way produces an irregular shape of
the lot (and required setbacks) which also support the approval of a front
yard setback variance.

"As determined with the Design Review Board at their May and June 2010
meetings, and as confirmed by the Planning Commission at their September
2010 meeting, siting structure or extending the proposed home any farther
to the north would result in unreasonable private and public view blockage
to the properties to the east as well as privacy concerns for the northerly
neighbor. The Planning Commission determined that granting the Variance
for the project would achieve the goals and objectives of the Community
Plan in protection of public and private scenic views for residential
development . . . . Siting the structure farther to the west would result in
adverse impacts to steep slopes, loss of open space, additional bulk/mass
due to taller retaining walls and more disturbance of existing landform. If
the home were to be moved more to the west, the grade change would make
the new driveway very steep and dangerous. The Planning Commission
also determined that granting the Variance for the project would achieve the
goals and objectives of the Community Plan in encouraging development to
be sited to preserve steep slopes whenever possible. . . . As a result of the
lot's topography shape, location and surroundings, the Planning
Commission concludes that the most appropriate area to built a new home
is the southeastern portion of the lot generally where the proposed home
would be sited.

"Granting the Variance allows a nine (9) to eleven (11) foot encroachment
within the required 20-foot front[]yard setback in the same alignment and
the same distance as the setback of the existing residence. It allows the
property to be developed with a single-family residence with associated
amenities that would be similar to other developments within the area and
located within the R1-10 Zone, while minimizing adverse view blocking
impacts to neighboring properties, the surrounding public rights-of-way,
and the site. Additionally, evidence was presented to the Planning
Commission that there are many neighboring properties in the R1-10 zone
that either have reduced front yard setbacks, or have been granted a front
yard setback Variance. To treat this property differently would deprive this

                                     19
       property owner of privileges enjoyed by some of the neighbors. As such,
       are there special circumstances applicable to the property, including
       size, shape, topography, location and surroundings, whereby the strict
       application of the Zoning Ordinance will deprive the property of privileges
       enjoyed by other properties in the vicinity under identical zoning
       classification."

       The Eskelands' first argument concerning these findings is that insufficient

evidence establishes that Scurlock's lot is different from the surrounding lots. The

Eskelands argue that the lot is situated in a hilly area where many properties are faced

with the same limitations.

       In assessing this argument we follow the rule that "[a] zoning variance . . . must be

'grounded in conditions peculiar to the particular lot as distinguished from other property'

in the specific plan area. . . . Unnecessary hardship therefore occurs where the natural

condition or topography of the land places the landowner at a disadvantage vis-à-vis

other landowners in the area, such as peculiarities of the size, shape or grade of the

parcel." (Committee to Save Hollywoodland, supra, 161 Cal.App.4th at p. 1183, citations

omitted.) The emphasis is on "disparities between properties, not treatment of the subject

property's characteristics in the abstract." (Topanga, supra, 11 Cal.3d at p. 520.)

       Here, substantial evidence supports a finding that the lot contains unique

characteristics. As the Planning Commission described (1) the topography of the site

drops approximately 50 feet from east to west, (2) the existing building pad is situated at

the upper portion of the site, beyond which the property contains slopes in excess of

25 percent; and (3) Seaview Avenue has a westward curvature in front of the property,

producing an irregularly shaped area fronting the street. The evidence in the record


                                             20
supports a finding that all of these characteristics of Scurlock's property in fact exist, and

furthermore that they are not typical of all of the properties in the City that are subject to

the 20-foot setback requirement. The record contains several maps showing that the

R1-10 zoning area extends over a large part of the City and contains a variety of different

lot configurations. Clearly, only a fraction of the lots are perched on the edge of a steep

hillside. Scurlock's architect confirmed this fact, stating that "[h]aving a site that slopes

50 feet from front to back is far from typical."

       Further, the relatively small area of level building pad on Scurlock's property is

not typical, even of the adjacent properties. A letter in the record from Scurlock's

architect stated that the lot immediately to the south had a flat building pad that extended

a total of 80 to 85 feet from the front property line, while, in contrast, the flat pad on

Scurlock's property extends only a total of 35 feet from the front property line. Further,

the maps show that the shape of the street in front of Scurlock's lot is unlike most other

properties subject to R1-10 zoning because the street curves toward the west and then

back toward the east in front of the lot, creating a "C"-shaped street frontage instead of

following a straight line.

       The Eskelands next contend that even if Scurlock's lot contains certain unique

characteristics, substantial evidence does not support a finding that, because of those

unique characteristics, "the strict application of the Zoning Ordinance deprives such

property of privileges enjoyed by other property in the vicinity and under identical zoning

classification." (Mun. Code, § 30.78.030, subd. (A).)



                                              21
       Although the Planning Commission could have been more clear about the nature

of the privileges that Scurlock is unable to enjoy, a close examination of the Planning

Commission's discussion reveals several relevant privileges. As we understand the

Planning Commission's comments, it concluded that (1) the "development potential of

this lot" was "restrict[ed]" by its unique characteristics; (2) that without a variance the

property could not be developed "with a single-family residence with associated

amenities that would be similar to other developments within the area"; (3) that without a

variance, Scurlock would unreasonably be restricted to building a house that would create

"adverse impacts to steep slopes, loss of open space, additional bulk/mass due to taller

retaining walls and more disturbance of existing landform"; and (4) without a variance,

the driveway would be "very steep and dangerous."

       The Eskelands' principal challenge to the these findings is that Scurlock's proposed

building design "nullifies the very principals used to justify the variance." Specifically,

the Eskelands argue that Scurlock should not have been granted a variance for the

purpose of allowing him to unreasonably avoid building on steep slopes, disturbing the

existing landform and building bulky retaining walls because the project design does not

avoid those problems. As the Eskelands interpret the evidence, the proposed project

already undertakes grading of the existing flat building pad to allow for a basement, and

the swimming pool will be built on some of the 25 percent slope. The Eskelands argue

that "[n]o objectively reasonable person could find that a small building pad constituted

special circumstances when the proposed project excavates the existing building pad. No

objectively reasonable person could find that the slope precludes building absent the

                                              22
variance when the project, as proposed, will be constructed on the 25% slope." They also

argue more generally that "[i]t is neither technically infeasible, nor unduly burdensome to

move the project 10-11 feet westward and further down the slope."13

       We reject the Eskelands' argument because substantial evidence supports the

Planning Commission's finding that if the house were moved further to the west, there

would be increased impact to steep slopes, more loss of open space, additional bulk/mass

due to taller retaining walls and more disturbance of existing landform. The evidence

also supports a finding that building the project would be more difficult and more costly.

       We begin with the obvious fact that if the house were moved to the west, it would

move down the hill and consume more of the steep slope. An architect retained by the

Eskelands, Lynn Johnson, submitted written comments to the Planning Commission and

the City Council, which attached a drawing of how the house would be situated on the lot

if it were moved back to comply with the 20-foot front yard setback. As that drawing

shows, if the house were moved back it would cover more of the steep hillside and would

leave less open space.

       Johnson opined that "the slope of the lot does not preclude building on it and

observing all the required building setbacks," and that "[a] variance for the encroachment

of 10' into the required 20' front yard setback should not be necessary in order to develop

this property in a manner similar to other properties in the area . . . ." However, Scurlock



13    The Eskelands also contend, based on lines appearing on the architectural
drawings, that "95 percent of the slope will be graded and remanufactured."

                                             23
presented evidence to the contrary. Scurlock's architect stated that "[i]t is surely possible

to build on the steep slopes but it is far from the best solution." He stated that "[b]y

sliding it further down the hill we're going to have to build . . . more retaining walls and

more grading so that does make [the expense] prohibitive." Upon specific questioning,

Scurlock's architect confirmed for the Planning Commission that if the house was moved

10 feet to the west, it would be on a very steep part of the slope and more retaining wall

would be needed. The City was entitled to credit this evidence, and it is not our role to

second guess the City's choice to do so.

       The Eskelands also dispute the Planning Commission's finding that the driveway

would be steep and dangerous if the house was moved farther to the west. The Eskelands

point out that their architect opined that "the driveway can be lengthened in order to

minimize the slope" and "can be built in a manner that would not cause it to be

excessively steep." However, in contrast to this opinion, a certified planner who

submitted a letter to the Planning Board in support of the variance stated that "[s]iting the

house further downslope would cause the driveway gradient to exceed the 20%

recommended slope." Based on that statement and evidence that the lot becomes steeper

toward the west, substantial evidence supports the Planning Commission's finding that

moving the house to the west would make the driveway steep and dangerous.14



14      The Eskelands contend that it is evident from the architectural drawings in the
record, from the maps showing the lot's topography, and from basic geometrical
principles that moving the house to the west would not create a steep driveway.
Respondents disagree. From the parties' argument, it is evident that the issue of whether
it is possible to build a safe driveway while moving the house to the west is a factually
                                              24
       In addition to their specific challenges to the sufficiency of the evidence, we also

understand the Eskelands to be advancing the position that because it was physically

possible for Scurlock to build a house that complied with the front yard setback

requirement, Scurlock should have been required to do so, despite the degree of difficulty

or expense involved and despite any other negative consequences of such a design. That

is not the law. For one thing, the increased expense involved in developing a lot that

poses topographical challenges is properly considered when deciding whether a variance

is warranted. (Zakessian v. City of Sausalito (1972) 28 Cal.App.3d 794, 802 ["It is true

that financial hardship alone, at least ordinarily, will not constitute unnecessary hardship.

But where the unique condition of one's property causes the financial hardship the rule is

otherwise."].) "It would be a rare case of topographical uniqueness of land that could not

be alleviated by some amount of financial expenditure[,]" and thus there is no rule

requiring a property owner to incur the expense to address the topographical uniqueness

rather than obtaining a variance. (Ibid.) Further, in determining whether Scurlock should

be granted a variance because of the unique features of his property, the City may

consider — among other things — whether there would be an adverse impact on aesthetic

goals such as preserving open spaces and reducing bulk and mass if Scurlock was

required to comply with the setback requirement. (See Miller v. Board of Supervisors

(1981) 122 Cal.App.3d 539, 545, 548 [approving variance, when local agency found,

among other things, that requiring adherence to zoning requirements "would destroy the


disputed issue on which expert opinion is relevant, and the Planning Commission
properly considered such evidence in reaching its findings.
                                             25
aesthetic, architectural, and historic character and integrity" of the existing structure and

would "destroy the property's scenic beauty"].)

       In sum, we conclude that substantial evidence supports a finding that because of

special characteristics applicable to Scurlock's property, Scurlock would be at a

disadvantage to other property owners in the R1-10 zone if he was required to strictly

comply with the 20-foot front yard setback.

       2.     Scurlock Was Not Granted a Special Privilege

       Next, the Eskelands focus on the requirement that "[a]ny variance granted shall be

subject to such conditions as will assure that the adjustment thereby authorized will not

constitute a grant of special privileges inconsistent with the limitations upon other

properties in the vicinity and zone in which such property is situated." (Mun. Code,

§ 30.78.030, subd. (B).)

       The Planning Commission made the following findings on this issue:

       "Granting the proposed Variance would not constitute a special privilege.
       The lot's steeply sloping topography, shape, location, and surroundings
       significantly limit the lot's buildable area. These conditions are the cause
       for, and justification for the Variance. The proposal is to encroach into a
       portion of the required front yard setback (the same setback of the existing
       single-family home to be removed.) There will be no increase in the degree
       of non-conformity.

       "The existing residence, along with other properties along both the west and
       east side of Seaview Avenue with similar lot topography characteristics and
       located in the R1-10 Zone, currently encroach into the setbacks, or have
       been granted Variances for various setback encroachments. Evidence was
       presented to the Planning Commission of many homes within the
       immediate vicinity in the R1-10 Zone that have Variances (including front
       yard, side yard and rear yard encroachments). There are three (3)
       properties within six-hundred (600) feet that have other yard setback
       Variances. As such, no special privileges are being granted by the approval

                                              26
       of this Variance. The Variance would allow the applicant to rebuild a
       single-family residence, as other property owners in the same vicinity and
       zone have been able to rebuild and/or remodel their properties."

       Addressing this issue, the Eskelands advance an argument premised on their

interpretation of the municipal code, which we have discussed at length above.

Specifically, the Eskelands contend that the municipal code does not permit a property

owner to build a structure that would expand an existing nonconformity, and thus

Scurlock is being granted a special privilege to violate the provisions of the municipal

code that no other property owner has been granted. As we have explained, we reject the

Eskelands' interpretation of the municipal code and thus also reject their argument that

Scurlock has been granted a special privilege.

       3.      The Variance Does Not Constitute a Rezoning

       A variance may not be granted if it "[w]ould allow such a degree of variation as to

constitute a rezoning or other amendment to the zoning code[.]" (Mun. Code,

§ 30.78.030, subd. (D)(3).) Addressing this requirement, the Planning Commission

found, "The proposed Variance would not allow a variation which would constitute a

re-zoning of the property since the proposed residential use is an allowed use in the

R1-10 Zone."

       The Eskelands contend that substantial evidence does not support this finding.

Although their argument is difficult to follow, it appears to be summed up by their

statement that "[t]he 'privilege' to obtain a front yard setback variance for an entirely new

house because others have received some measure of flexibility in the setback, creates the

presumption that an owner is entitled to encroach into the setback." (Italics added.)

                                             27
       We reject the Eskelands' position and conclude that substantial evidence supports

a finding that the City did not de facto rezone the area or amend the zoning code by

approving a variance for Scurlock's property. First, as the Planning Commission

indicated, the fundamental characteristic of R1-10 zoning is that it allows residential uses,

and Scurlock's variance does not alter that basic zoning designation. Second, the

applicable standard focuses on the "degree of variation" to determine if a rezoning has

occurred. (Mun. Code, § 30.78.030, subd. (D)(3).) Here, the encroachment permitted by

Scurlock's variance is relatively insignificant. Scurlock has obtained relief from only a

single zoning rule — the front yard setback requirement — and has obtained permission

to encroach only into a portion of the setback, i.e., approximately 10 feet into the 20-foot

setback. Third, because the evidence shows that only a small fraction of the homes in the

R1-10 zoning area have been granted variances from the front yard setback requirement,

the City did not effectively rezone the area by allowing Scurlock and other similarly

situated property owners to encroach on the setback.

       4.     Substantial Evidence Supports a Finding That an Alternate Development
              Plan Would Not Have Avoided the Problems Created by Complying with
              the Front Yard Setback Rule

       The Eskelands' final challenge to the sufficiency of the evidence relates to the

municipal code provision that a variance should not be granted "if the inability to enjoy

the privilege enjoyed by other property in the vicinity and under identical zoning

classification: 1. Could be avoided by an alternate development plan[.]" (Mun. Code,

§ 30.78.030, subd. (D)(1).) Regarding this requirement, the Planning Commission found:



                                             28
       "Alternative development plans were studied and are limited because of the
       lot's topography, shape, location, public and private views, vehicular
       access, and surroundings. The Design Review Board and Planning
       Commission reviewed the project and found that the proposed residence
       has been appropriately sited to minimize adverse impacts to neighboring
       properties, public-rights-of-way, public and private views, steep slopes and
       open space on the subject lot. Looking at the various alternatives, the siting
       of the home with the front yard Variance was found to be the best
       alternative to achieve development that would preserve public and private
       scenic views, maintain open space, allow safe vehicular access, and
       minimize impacts to the steep slopes.

       "As a result of the lot's topography, shape, location and surroundings, the
       most appropriate building area was identified to be the southeastern portion
       of the lot closer to the street along Seaview Avenue, generally where the
       existing home is located. As was determined by the Design Review Board,
       the Planning Commission also concludes that siting the structure farther to
       the north would result in unreasonable private and public scenic view
       blockage to the east[,] a walling-off of the street and result in privacy
       concerns for the northerly neighbors. Siting the structure farther to the west
       would result in adverse impact to steep slopes with additional bulk/mass of
       retaining walls, disturbance of existing landform and loss of open space,
       create a dangerous driveway, and result in privacy concerns for the
       southerly neighbor. As such, the Planning Commission determined that
       alternate development plans were studied but were found not to be
       appropriate given the constraints referenced above. The alternatives would
       result in more adverse impacts to the subject site, neighboring properties
       and community. The Planning Commission also determined the alternative
       plans to be inconsistent with the goals and policies of the Community Plan,
       specifically, the Environmental Element to preserve steep slopes and the
       Community Development Element to preserve public and private views.
       As such, development privileges enjoyed by others could not be avoided by
       an alternate development plan and the alternatives were determined to be
       more adversely impactful on the subject site and surrounding
       neighborhood."

       The Eskelands argue that "because this is a complete[] replacement of an existing

house, it strains credibility to claim that no other designs could have avoided the use of a

variance." We reject this argument because it misconstrues the standard set forth in

Municipal Code section 30.78.030, subdivision (D)(1). Under the plain language of that

                                             29
provision, the inquiry is whether an alternate design could have avoided the

disadvantages that stem from complying with the setback requirement. The inquiry is

not — as the Eskelands appear to assume — whether Scurlock could have designed a

house that complied with the setback requirement regardless of the disadvantages.

       Applying the proper standard, substantial evidence amply supports the required

finding that Scurlock could not have avoided the disadvantages if the house were

designed differently. As we have discussed, there is substantial evidence that if the house

was moved to the west as the Eskelands propose, Scurlock would be disadvantaged by

the difficulty and expense involved with building on the steep slope; the dangerous and

steep condition of the driveway; the unwanted impact to open spaces; and the unwanted

appearance of bulk and mass. Therefore, the Planning Commission properly found that

an alternate design would not avoid Scurlock's "inability to enjoy the privilege enjoyed

by other property in the vicinity and under identical zoning classification." (Mun. Code,

§ 30.78.030.)

       The Eskelands also repeat an argument we have already rejected, contending that

the Planning Commission's findings are not supported by substantial evidence because

"the project could easily be pushed back" to the west so that the house complied with the

20-foot setback requirement. Along the same lines, the Eskelands claim that the Planning

Commission failed to consider any "truly alternative plans." We reject those contentions.

As we have explained at length above and as shown by the Planning Commission's

detailed findings, although the Planning Commission expressly considered the feasibility

of moving the house to the west or to another part of the property to avoid the need for a

                                            30
variance, the evidence supports a finding that it would be substantially more difficult and

impractical to build a house on a different part of the property.

                                      DISPOSITION

       The judgment is affirmed.



                                                                                 IRION, J.

WE CONCUR:



             BENKE, Acting P. J.



                    HUFFMAN, J.




                                             31
Filed 3/14/14
                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



STEPHEN ESKELAND et al.,                           D061370

        Plaintiffs and Appellants,

        v.                                         (Super. Ct. No. 37-2011-00083840-
                                                   CU-WM-CTL)
CITY OF DEL MAR et al.,
                                                   ORDER CERTIFYING OPINION
        Defendants and Respondents;                FOR PUBLICATION

JON SCURLOCK, Individually, and as
Trustee etc.,

        Real Party in Interest and Respondent.



THE COURT:

        The opinion filed February 19, 2014, is ordered certified for publication.




                                                                       BENKE, Acting P. J.

Copies to: All parties




                                             32
