HomeMy WebLinkAboutAV 91-12; Hill Residence; Administrative Variance (AV) (12)JULY 7, 1993
TO : ASSISTANT PLANNING DIRECTOR
FROM : City Attorney
HILL RESIDENCE
This memorandum is in response to your request for the relevance of
the decision in Broadwav, Laquna, Valleio Assoc. v. Board of Permit
Appeals (1967) 66 Cal.2d 767, 59 Cal.Rptr. 146. In that case, the
developer sought a variance to allow him to construct more floor . space than the density regulations allowed in order to compensate for money paid for an expensive foundation required by the subsoil
conditions. The city of San Francisco granted the variance and the
variance was challenged by adjacent property owners. The city
found that it was an Itexceptional circumstance1' that there were
unstable subsoil conditions on the property which required the developer to install a more expensive foundation and, therefore, he should be allowed to compensate by adding more floor space than the
zoning ordinance allowed. The court found that this was not an
exceptional circumstance because it merely affected the profit to the developer. The court distinguished the case from instances in which it would be physically impossible to adhere to a zoning regulation because of the subsoil condition.r
The court also found that it was not an tlunnecessary hardship" for the developer to comply with the zoning regulation which required him to install a more expensive foundation because the only
hardship was the increased cost. The court also held that the
variance he sought was not "necessary for the preservation of a
substantial right possessed by other property in the same
district", i. e. to construct a profitable and multi-
unit structure. 'I The evidence only showed that it would be less profitable.
This is an example of a city trying to grant a variance where the facts do not fit the required findings for a variance. The evidence did not support the findings and the court did not accept
the city's written findings which contained twisted logic. The
project . 4 court saw through an obvious attempt to push through a popular
The only finding relevant to the variance application.forJthe Hill residence is the court's statement that in some cases subsoil
conditions can constitute an exceptional circumstance if the soil
conditions make it impossible or extremely difficult to adhere to
a zoning regulation.
If you have any questions or comments on this c
know.
EN J. HIRATA
Deputy City Attorney
RRB:KJH:afd
c: Planner Van Lynch