In a dispute between tenacious neighbors in Del Mar, the Fourth Appellate District upheld a variance for plans to tear down and rebuild a house at its existing distance from the street although it did not meet a local 20-foot front yard setback requirement. The court said property owner Jon Scurlock's right to seek a variance for his "complete remodel" was independent of the old building's existing nonconformity, and it found substantial evidence for local officials' decision that granting the variance would be fairest to the property owner while serving local planning goals.

The old housefront, hence the proposed new one as well, stands "nine to 11 feet from the street" on a lot sloping steeply downward. The local Design Review Board found that replacing the house at the same distance from the street as before would best minimize "adverse impacts to steep slopes," land disturbance and the sizes of retaining walls. After an investigation including personal visits by all members, the Planning Commission agreed, adding that "strict application of the front yard setback deprives the property owner of privileges enjoyed by other properties in the vicinity." Neighbors' objections and legal action failed to win over the City Council -- again, after personal site visits by all members. The county Superior Court rejected the neighbors' writ petition. Likewise the appellate court. All sided with Scurlock.

Deferring to the city's interpretation of its own code, the appellate court rejected arguments based on municipal statutes that governed property owners' rights to maintain but not increase nonconformities in existing structures. The court said the right to maintain a nonconformity and the right to apply for a variance are "two completely separate concepts" and it would be absurd and unfair to let a preexisting nonconformity on a property limit the owner's ability to apply for a variance. It said since Scurlock meant to do a "complete remodel" he had no rights to continue any nonconformities -- only the independent right to apply for a variance, which he did.

The court found substantial evidence for the Planning Commission's approval of the variance, quoting with approval its extensive findings and rationales on the uniqueness of the building site and the fairness of the variance as a way to let Scurlock develop his property in parity with rights of other nearby property owners. Although it would be possible for the property owner to rebuild lower on the slope in compliance with the setback rule, the court said that in light of the greater costs in money, environmental disruption, ugliness and awkwardness, it did not follow that he should be made to do so.

On a municipal code section that called for considering alternate designs, the court said "the inquiry is whether an alternate design could have avoided the disadvantages that stem from complying with the setback requirement. The inquiry is not... whether Scurlock could have designed a house that complied with the setback requirement regardless of the disadvantages."

Decided in February but ordered published as of March 14, the case is Eskeland v City of Del Mar, at http://www.courts.ca.gov/opinions/documents/D061370.PDF.