Jackson v. City of San Mateo

AGEE, J. pro tem.

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Plaintiffs appeal from a judgment denying their application to set aside and have declared void a variance granted by a city council as to certain land zoned as residential. The sole issue is whether the city council acted upon substantial evidence in granting the variance.

The real property involved is a 7-acre parcel located on the west side of El Camino Real (State Highway Route 101) at the intersection thereof with Fifth Avenue, in the city of San Mateo. The portion immediately adjacent to the

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highway, consisting of one acre, is zoned for multiple family residential units and the remaining portion is zoned for single family residential units.

The owner of the property, respondent Economy Builders, Inc., filed with the City Planning Commission of the City of San Mateo and with the City Council of the City of San Mateo an application for a variance to permit the construction of an office building thereon. The planning commission recommended a denial. The application was then heard before the city council. There were two hearings held, at the second of which the variance was granted. The lower court upheld the city council and this appeal followed.

The zoning ordinance of the city of San Mateo provides as follows: “Variances may be granted, . . . provided that the Council, after a full investigation and public hearing, as herein specified shall have found all of the following to be true:

“a. That there are exceptional or extraordinary circumstances or conditions applicable to the property involved, or the intended use thereof which do not apply generally to the property or class of uses in the district, so that a denial of the application would result in undue property loss;

“b. That such variance would be necessary for the preservation and enjoyment of a property right of the owner of the property involved;

“c. That the granting of such variance would not be materially detrimental to the public health, safety, or welfare, or injurious to the property or improvements of other property owners, or the quiet enjoyment of such property or improvement.”