The fight over a gigantic addition to a house in Los Angeles's Pacific Palisades area has resulted in an appellate court decision revoking three building permits and the certificate of occupancy for the structure. The order to revoke permits, originally issued by the trial court, came because the city let the property owner build 14 feet closer to the street than permitted by the Municipal Code.

In January 2001, Mehr Beglari received a permit from the Los Angeles Department of Building and Safety authorizing construction of a 6,550-square-foot addition to his 2,000-square-foot house on Greentree Road. Over the next 14 months, the city also issued a permit to move a side wall, and a permit authorizing a higher driveway so that the house's roofline would not exceed height restrictions.

In March 2002, neighbors appealed the permits to the city's Board of Building and Safety Commissioners. The neighbors contended that the addition's height was excessive and that front- and side-yard setbacks were impermissibly small. While the neighbors awaited an appeal hearing that was months away - and because Beglari continued building - the neighbors also filed a lawsuit asking the court to revoke building permits and halt construction.

The case was transferred to Orange County, where the Superior Court refused to issue a preliminary injunction stopping construction because the neighbors had not exhausted administrative remedies and because the addition was almost compete anyway.

In July 2002, the Board of Building and Safety Commissioners considered the appeal and rejected the challenges. The neighbors then appealed to the zoning administrator. Before the zoning administrator could hear the case, the city issued Beglari a certificate of occupancy. But a few months later, the zoning administrator agreed with the neighbors regarding the front-yard setback.

Under the Municipal Code, the front-yard setback was to be determined by measuring the distance from the street to existing houses on the same street, with the goal of maintaining roughly equal setbacks. Beglari measured one house's setback at 17.58 feet. However, that was the distance to a detached garage. The measurement should have been to the house on that particular parcel, which was 30.75 feet from the street. Building officials contended that Beglari's measurement was proper based on an “in-line” concept. (Apparently, part of the detached garage was between the house and the street.)

However, Zoning Administrator Lourdes Green did not buy it. She found that Beglari's addition encroached 14 feet into the front-yard setback.

Beglari then appealed to the Planning Commission, which overturned the zoning administrator.

When the action returned to the courtroom, Orange County Superior Court Judge David Velasquez sided with the neighbors. He found that there was no basis for the “in-line” theory of measuring setbacks and that the administrative record did not support the city's decisions. Velasquez ordered the city to revoke all of Beglari's building permits and the certificate of occupancy.

The city and Beglari appealed, but a three-judge panel of the Second District, Division One, upheld the lower court. Calling the in-line theory “pure nonsense,” the court said Beglari miscalculated the setback and the city accepted the wrong figure.

“Just as the city has no discretion to deny a building permit when an applicant has complied with all applicable ordinances, the city has no discretion to issue a permit in the absence of compliance,” the court ruled.

The court rejected the argument that revoking permits was too harsh and that the court should send the matter back to the city to allow recalculation of the front yard setback.

“[W]e reject the city's conclusory assertion that the revocation of Beglari's permits leads 'to absurd and inequitable results' - because the city does not say why that is so or why the result would be otherwise if the permits remained in place while the city recalculates the proper front-yard setback. As noted, it seems far more fair and equitable to us to place the burden on Beglari to submit proper permit applications, and to prevent him from retaining some unstated and ephemeral benefit from the nonconforming permits issued in response to his substantially erroneous applications,” the court ruled.

The court also urged the city to amend the relevant potions of the Municipal Code.

The Case:
Horwitz v. City of Los Angeles, No. B172053, 04 C.D.O.S. 11002. Filed December 15, 2004.
The Lawyers:
For Horwitz: Geoffrey Thomas, Paul, Hastings, Janofsky & Walker, (213) 683-6149.
For the city: Michael Klekner, deputy city attorney, (213) 485-5420.
For Beglari: Mark E. Baker, (818) 224-2957.