The Del Mar City Council had enough evidence to deny a permit for a two-story home addition based on aesthetic grounds only, the Sixth District Court of Appeal has ruled. In so doing, the court reversed San Diego County Superior Court Judge Lisa Guy-Schall's decision to grant the homeowner a writ of mandate requiring the city to issue the permit. In overturning the trial judge, the appellate court found that Del Mar had not violated the landowner's civil rights under federal law. Significantly, on one issue the court relied entirely on the opinions of neighbors and city commissioners as "substantial evidence." The case involved a proposal by Breneric Associates and Stephen Scola to build a two-story addition to an existing single-family residence. Beginning in 1993, Breneric sought a permit from the city to build the addition. Under Del Mar rules, a design review permit is required prior to construction. The city's Design Review Board denied the permit, stating in particular that the use of glass panels on the roof deck was incompatible with the existing architecture of the building. The DRB also claimed that the siting of the addition would create a crowded condition incompatible with the surrounding neighborhood. Breneric appealed to the City Council, which remanded the case back to the DRB. The DRB again denied the permit, and Breneric again appealed to the City Council, which this time denied the permit as well. Breneric sued, claiming that the city violated the landowner's civil rights under 42 U.S.C. 1983, the federal Civil Rights Act. The lawsuit also sought a writ of administrative mandate to compel Del Mar to issue the design review permit. Judge Guy-Schall sustained Del Mar's demurrer to the Section 1983 action, effectively giving the city victory on that point. The judge also concluded there was insufficient evidence in the administrative record to support the denial of the permit under the city's ordinance and granted Breneric the writ of administrative mandate ordering the city to issue the permit. Del Mar cross-appealed, arguing that substantial evidence did indeed exist and the writ should be overturned. On appeal, the court affirmed Guy-Schall's first ruling and overturned her second, giving the city total victory in the case. Among other things, the court concluded that the heightened scrutiny required under the so-called Nollan/Dolan line of cases does not apply in this case. Breneric had not made this point but the Pacific Legal Foundation did so in an amicus curiae brief. The Nollan/Dolan line of cases requires a heightened level of judicial scrutiny in exaction cases. (For more discussion, see the report of the California Supreme Court's ruling in Santa Monica Beach Ltd. v. Superior Court, CP&DR Legal Digest, February 1999.) The appellate court concluded that Nollan/Dolan does not apply because the case did not involve an exaction of land or money from the landowner. On the substantial evidence question, the court addressed both the glass-panel question and the siting issue. On the siting issue, the court noted that the proposed addition left no sideyard setback on one side. "The testimony of neighborhoods and the opinions of the DRB members constitute substantial evidence." On the question of the glass panel, the court noted that Del Mar had found that the design did not coordinate with "color, materials, architectural form and detailing of the existing structure." One architect called the existing house "a unique example of a Victorian cottage" and concluded that a glass panel was inconsistent. On the Section 1983 complaint, the court found that Breneric had not made its case. Among other things, the court found that Breneric's lawsuit did not allege that Del Mar had deprived Breneric of a protected property interest; the DRB permit was a discretionary permit. The court also found no evidence that Del Mar had acted arbitrarily because the city had a sound policy basis for its decision. In addition, the court found that the facts of the case did not support the contention that the city denied Breneric equal protection or that its taking claim was ripe. The Case: Breneric Associates v. City of Del Mar, No. D024838, 99 Daily Journal D.A.R. 469, 99 C.D.O.S. 389 (issued December 15, 1998, published January 15, 1999). The Lawyers: For Breneric: Joseph S. Carmellino, (619) 622-8377. For City of Del Mar: Mark A. Potter, (619) 455-9737.