By KEITH TURNER
All over Los Angeles, from the Hollywood Hills to Pacific Palisades to Baldwin Hills to Cheviot Hills to Venice to Palms, “spec” developers are demolishing older homes and replacing them with McMansions.
The term McMansion is used to describe a newly constructed and oversized house and developers believe that they need to build the largest possible home to maximize their investment and profit..
Many homeowners believe that a McMansion will destroy a neighborhood’s aesthetic of single-story Spanish, Mid-Century, or similar architectural style and sized homes.
But living next-door to a McMansion often means the loss of privacy, views and/or sunlight. It can be very distressing to learn that a McMansions being built next-door or nearby.
What can a neighboring property owner or group of neighbors do to oppose a McMansion?
The Greentree Road case in Rustic Canyon and developer Mohamed Hadid’s 30,000 square foot house in Bel Air are infamous examples of neighbors fighting over-sized construction. In the both cases, a group of neighbors ultimately filed lawsuits to stop the construction.
Challenging a neighbor’s construction can be a daunting task. Land use laws are often not easily researched and analyzed. Developers often have legal budgets to defend their project and the City often generally favors the developer, or least seems to, and does not move fast enough for many property owners or to stop construction. Waiting until the McMansion is mostly constructed is sometimes too late to stop it.
The following provides some of the basic steps to oppose a McMansion development. However, as we say in the law, “each case is unique” and may have specific facts or reasons to warrant a different approach. Again, this article is not intended to provide legal advice.
The first step is generally to determine what legal limits apply to the development and use of the property at issue. In general, the right to develop and use property has legal limits, which are provided by two separate sets of laws.
The first set of laws are generally referred as “zoning,” which generally limits the size, height setbacks, use and other objective features of a homes and other structures.
The City of Los Angeles has many layers of regulation related to the permissible height and size of buildings, which depend on the location of a project, the type of project, whether it is hillside property, etc. For property in the City of Los Angeles, zoning information is available on the City of Los Angeles Planning Department’s GIS-based ZIMAS (zoning information and map access system) database.
For property in the City of Los Angeles, building limits are provided by property’s zoning classification, and as supplemented by the Baseline Missionization Ordinance, the Baseline Hillside Ordinance or various R1 Variation Zones. Additional governmental use limitations may exist if the property is subject to the Coastal Commission approval or if California Environmental Quality Act (CEQA) applies.
The second set of potentially applicable law are recorded deed restriction. Deed restrictions, such as CC&Rs and HOA rules, are generally not enforced or even recognized by the City’s Building Department (LADBS), but such limits can be enforced by a Judge in superior court.
Much of Los Angeles was developed starting in the 1920s and before, by way of recorded tract maps, which sometimes provide various building size and use restrictions. In one recent case the Turner Law Firm handled involved a group of homeowners in the mid-city area, and a title search found a deed restriction from the 1940s that provided that no structure could be built that exceeded two stories in height.
For instance, the local zoning may allow for multi-story and multi-family construction and use, but the recorded deed restriction may limit construction and use to single-story and/or single-family. The deed restriction may supersede the zoning.
Once legal limits are researched, the next step is carefully reviewing the developer’s “true” plans. What we mean here is to be careful on what the developer represents he/it is building.
There are many examples where a developer represented to the neighbors that he was building “A” in terms of size and height, when in fact he intended and in fact did built something much larger.
The Los Angeles Department of Building and Safety (LADBS) provides property search features, which provides some information on building permits.
If the developer is not willing to provide a copy of the plans to review and reasonable assurances that he you can rely on him, it may be possible to review, but not copy, the plans at the LADBS.
One option is to retain an attorney that is experienced in this area of the law. The attorney can determine exactly what legal limits apply to the development. The attorney should then be able to provide a menu of options to challenge the proposed development.
Assuming that the development is going to be too big, too tall, or violates some other land use limitation, the next step is determining the best strategy to enforce the building limits.
The main options include the following:
- Try to Negotiate an Agreement with the Developer.
Assuming an agreement can be reached, it is generally recommended that an attorney is involved in preparing the agreement, so that it is has legal teeth if breached or violated.
- Contact the LADBS Personnel Listed on the Building Permit and Pursue “Administrative Remedies.”
Los Angeles Municipal Code §18.104.22.168. states: “Building Permits. No person shall erect, construct, alter, repair, demolish, remove or move any building or structure, … unless said person has obtained a permit therefor from the department.”
The City is obligated to enforce the law, but mistakes can happen.
A nearby property owner or other concerned member of the community can seek to compel the City to enforce the law. There are various procedures provided in the Los Angeles Municipal Code to seek administrative review of LADBS enforcement actions, or refusal to enforce. If those procedures do not work, the City can be sued to compel it to enforce its laws.
Such lawsuits are called “writ” proceedings, which are recognized by law for a judge to revoke a building permit or certificate of occupancy issued by a local building department.
Note: there are various tight deadlines that apply here. If you are concerned, you should obtain legal counsel as soon as possible to calendar the deadlines.
- Sue the Developer Directly.
Many land use attorneys prefer to sue the City for a “writ” order to compel it to enforce its building or zoning code laws, but some attorneys prefer depending on the case to file a direct action against the developer.
The Infamous Rustic Canyon Case
The Horwitz v. City of Angeles case is perhaps the most famous recent example of using the writ procedure to oppose a nearby development.
In 1995, the Beglaris moved into the house at 909 Greentree Road, and in 1998 they started to pull permits for a substantial remodel of their home.
A group of neighbors became concerned because the home exceeded a height of 36 feet from grade, the front yard depth was not properly measured; and a yard variance granted in 1955 precluded the remodel design. When the LADBS concluded that the Beglaris’ permits were properly issued, the neighbors appealed to the Department of City Planning, which sided with the LADBS.
The neighbors persevered. In 2002, they filed suit in Los Angeles Superior Court to challenge the ruling by the Department of City Planning, and to have the Court set-aside (revoke) the building permits and order all construction work stopped.
The neighbors dropped two of their complaints, targeting only on the front-yard setback issue.
In October 2003, the trial court ruled in favor of the neighbors, and ordered the City to revoke all of the building permits for the structure, including the certificate of occupancy. That decision was affirmed by the Court of Appeal in 2004, because the newly remodeled house encroached onto the front-yard setback by 14 feet, in violation of Los Angeles Municipal Code section 12.07.01.C.1. Horwitz v. City of Angeles (2004) 124 Cal.App.4th 1344.
After the Court of Appeal decision, the City revoked all building permits and the certificate of occupancy for 909 Greentree, leaving the Belgaris with an un-permitted home. However, the Belgaris did not sit idly by; instead, they hatched a plan to get their permits back.
They purchased another property, down the street, at 921 Greentree Road and then obtained a permit for and constructed a small canopy on the front of 921 Greentree. The new canopy changed the front-yard setback calculation for the entire block, including for their house at 909 Greentree.
Based on this altered front-yard setback calculation, in 2006, the City reinstated the building permits and certificate of occupancy for 909 Greentree.
The neighbors responded by filing another lawsuit for reissuing the permits in violation of the court’s prior order. The superior court issued an order finding that the City were in contempt for violation of that order and ordered them to appear for appear at an arraignment.
However, the case never got to trial. Instead, in February 2007, the City Council approved a $425,000 settlement for the five neighbor-plaintiffs. The Belgaris’ attorney asked the City not to settle, accusing the neighbors of “intimidating and bullying the City” into paying “what amounts to blood money.” Nonetheless, the City Attorney recommended that the City settle the dispute by paying the plaintiffs’ attorney fees, which at the time totaled $425,000.
The litigation between the City and Belgaris continued, with at least two more trips to the Court of Appeal in 2009 and 2013.
Finally, in 2016, the Belgaris lost the home to foreclosure. In 2018, the new owner sought a demolition permit, and in July 2019, the structure was finally demolished.
Would the same result have been reached faster if the plaintiffs had directly sued the Belgaris based on Gov’t Code §36900? That statute is discussed below.
The Mohamed Hadid case
Another example of neighbors suing is the Mohamed Hadid case – the home he constructed at 901 Strada Vecchia Road in Bel Air, which has been called in the press: “Starship Enterprise” and “monster mansion.” It has been called the most illegal structure ever constructed. This case has been heavily reported in the press.
The home was originally supposed to be 14,000 square feet, 36 ft high with two stories and a basement. However, what was ultimately constructed was over 30,000 square feet, with three stories. The neighbors became concerned that the construction greatly exceeded the scope of the permits and what was being built was not safe.
In June 2018, a group of neighbors filed a lawsuit in superior court that alleged that sought injunctive relief and damages against Hadid and also “writ” relief against the City of Los Angeles.
The lawsuit followed orders by LADBS, dating to at least 2011, and a criminal action. In July 2017, the developer was sentenced to a 180-day jail sentence if he did not reduce the size of the house and bring it into compliance with city building codes – or demolish it
By 2018, the neighbors decided to take legal action rather than relying on the City. Apparently by pressing their case in civil court, the neighbors finally got some tangible relief in December 2019. Los Angeles County Superior Court Judge Craig Karlan called structure a “danger to the public” and ordered it torn down, but that order was put on hold when the property filed for bankruptcy.
However, bankruptcy court dismissed and as of December 20, 2019, Judge Karlan had said that his ruling remains in full effect.
As of December 31, 2019, that case is set for trial starting on March 17, 2020.
Both the Beglari and Hadid cases sought “writ” relief against the City.
In contrast, the plaintiffs in Kraus v. Grilli filed what this author calls a “direct action” against their neighbor to enforce the local zoning code’s height limits for fences and hedges.
Section 17.48.100 (D)(3) of the Morro Bay Municipal Code provided: “Fences, walls, and hedges not exceeding six feet, six inches in height may occupy any side or rear yard area.” (Most cities in California have similar provision, such as Los Angeles Municipal Code §12 22.C.20.(f) The plaintiffs alleged that the defendant neighbor’ row of Myoporum laetum shrubs blocked plaintiffs’ view because the plants had grown to a height of approximately 23 feet.
The term “direct action” is based Government Code section 36900, which statute provides: “The violation of a city ordinance may be … redressed by civil action.” [Emphasis added] San Luis Obispo attorney Saro Rizzo gets the credit for using that statute to directly sue the neighbor for violating the Municipal Code hedge/fence height law, rather than the “writ” procedure, which essentially is seeking to have a Judge order the local government to enforce its law.
The trial court in Kraus awarded plaintiff a permanent mandatory injunction, requiring the defendant, and “any other successive owner” of defendant’s property to either remove the hedge in its entirety or remove “at least 5 feet of the mature canopy per year … to a maximum height not to exceed six feet, six inches.”
The California Court of Appeal affirmed in an unpublished decision the judgment. The court found the language “redressed by civil action” to mean that a private individual could sue for a violation of a city ordinance: “[Gov’t Code section 36900] expressly permits violations of city ordinances to be ‘redressed by civil action.’ … [Defendant] refer[s] us to no state law that allows a city to abrogate the right of redress created in the Government Code. We decline to read into the Municipal Code an intent to create an impermissible conflict with state law by abrogating the right to a civil action created by the Government Code.”
It is unfortunate that the Court of Appeal did not publish its decision in Kraus, which means that it cannot be cited as precedent. However, its logic seems strong and the Turner Law Firm has been using Government Code section 36900 in a number of trial court level cases to enforce various building or zoning code limits.
The above examples should be inspiring to homeowners to enforce building limits in order to save their neighborhoods. The Turner Law Firm has represented many homeowners and also select developers in both sides of development disputes. (Contact Turner at https://www.kjtlaw.com or call (310) 454-6190.)