Opinion
HUFFMAN, Acting P. J. The issue presented in this appeal of the superior court’s order denying a petition for writ of mandate brought by appellants Robert and Eva Consaul and Thomas Ahrens is whether certain dwelling unit allocations made by the City of San Diego (the city) to Ahrens’s development project, under the terms of an interim development ordinance (IDO), created a vested right in Ahrens to proceed with the development of the project, even though no building permits were applied for or obtained as contemplated by the IDO procedure. We conclude the trial court correctly denied Ahrens’s petition for writ of mandate which would have required the city to set aside its rezoning decision which placed the subject property in single-family residential zoning, some time after a preliminary dwelling unit allocation of 26 units had been made under the IDO. The record demonstrates the city’s action was neither arbitrary, capricious, nor totally lacking in evidentiary support. (Code Civ. Proc.,1 § 1085.) Neither does the record show any prejudicial abuse of discretion by the city in taking the zoning action that it did. (§ 1094.5, subd. (b).) We affirm.
Factual and Procedural Background
According to the petition for writ of mandate, petitioners and appellants Robert and Eva Consaul are the owners of the subject property, a 1.06-acre [1786]parcel of undeveloped land in a highly urbanized area of the city. Petitioner and appellant Thomas Ahrens (whose last name we sometimes use to represent all the owners of the subject property) owns an equitable interest in the property by virtue of a written agreement of sale with the Consauls.
This undeveloped 1.06-acre parcel is part of a larger 1.5-acre property owned by the Consauls. The undeveloped area is a remnant canyon with some degree of slope on a majority of the property, and is located downhill from the remainder of the Consauls’ land. The uphill area of the Consauls’ land (not the subject of this action) is now developed with a single-family residence and two apartments (in one of which Thomas Ahrens resides).
According to Ahrens’s declaration submitted in support of the petition for writ of mandate, there are a number of single-family homes in the area at the bottom of the canyon where the subject property is located. Also nearby, within 500 feet of the property, is a 250-unit apartment building, and other multifamily units are located to the north, south, and going uphill toward the east. According to Ahrens, at the top of that bank, the “traditional single family neighborhood of Point Loma begins,” but that neighborhood lies far above the subject property.
The declarations submitted by the city in opposition to the petition give a different view of the property’s surroundings. City planner William Levin, the supervisor of city planner Chris Jacobs who was directly involved with the project, states that the area surrounding the property on three sides is “clearly low density, single-family residential in character. The fourth side (north) has a multi-family character but was topographically separated from the subject property at a much higher elevation.”2 Jacobs’s declaration states he field-checked the site three times, once with his supervisor. He found that the property is abutted on three sides by single-family zoned areas, and that the multifamily zoned areas nearby “are physically removed from much of the site.” In summary, he said the lower portion of the land is surrounded by single-family units.
In 1986, Ahrens retained engineers and surveyors to process a subdivision map, splitting the property into two parcels, the one at the top of the hill with the existing structures on it, and the subject property, parcel 2. At that time, the existing zoning on the property was R-1000 (multifamily), which, combined with the physical constraints on the development of the site relating to slopes, hillsides, and grading for ingress and egress, resulted in a maximum [1787]of 44 units that would fit on the property. For purposes of processing the map, the city required that access be planned from Curtis Street at the top of the hill, at an estimated cost of $134,000 for construction. The subdivision map was recorded in February 1987, after Ahrens spent $7,200 and many hours preparing it and meeting with city staff. Ahrens then began plans for developing 44 units on the property by hiring an architect, a project planner and a civil engineer.
We now undertake to summarize the complex land use planning regulations applicable to this property since the time the subdivision map was approved. First, the record shows the trial court was supplied with the text of municipal ordinances setting forth the city’s general power to create a general plan and to zone property. (San Diego Mun. Code (S.D.M.C.), § 101.0201 et seq.) Pursuant to that general plan, community plans are required to be prepared.
On July 14, 1987, the city adopted a comprehensive community plan for the peninsula area where the property is located. This plan was prepared with the assistance and input of local residents, acting as a planning group which made recommendations to city staff for changes in both land uses and zoning in this area. The subject property is designated on the plan (which supersedes the Coastal Plan of 1981) as multifamily. Although no changes were suggested for Ahrens’s parcel at that time, Ann Jackson, the chairperson of the community planning group, and city planner Levin later characterized that omission as a mistake in the plan.
On July 21, 1987, a week after the local community plan was adopted by city, the city council adopted an IDO placing a limitation of 8,000 on the number of dwelling units allowed to be authorized citywide, supplemental to the provisions of local plans and zoning. The effective period of the IDO was to be 18 months. Each area of the city was allocated a “fair share” of these 8,000 annual dwelling unit allocations; the subject area (the Peninsula Community) was allocated 96 units per year. Applicants for these allocations were required to submit specific information required by the IDO administrator (defined as the planning director, city manager, and city engineer or their designees), and ¿locations were made on a quarterly basis.
Shortly after the IDO was adopted, the city council enacted another growth management ordinance, an interim single family protection ordinance (INSFPO) in August 1988, the purpose of which was to prevent accelerated multifamily residential development in single-family neighborhoods where multifamily zoning was in effect. The parties agree this ordinance by its terms was not directly applicable to the subject property, which [1788]is vacant land. However, a companion land use planning procedure does play a part in this story: the classification of single-family neighborhoods project through which the city council directed the planning department, beginning in January of 1989, to work with community planning groups city wide to identify and map areas appropriate for classification as protected single-family neighborhoods.3 At the same time, the community plan zoning designation map was being reviewed and amended, in consultation with community planning boards.
Pursuant to the procedure set forth in the IDO, Ahrens submitted by May 1987 an application for dwelling unit allocations that included detailed site and grading plans, elevations and locations of all improvements. Meetings with city staff resulted in the development proposal being reduced from 44 to 26 units. Ahrens presented the proposal to the community planning group, which initially took no action.
By the city’s letter of November 4, 1988, Ahrens received a dwelling unit allocation for 18 units of the 26 requested. An additional allocation was made by letter of March 2, 1989, for the additional eight units. The first letter stated that Ahrens could proceed within one year of the date of the letter (Nov. 4,1988) “to file for a building permit application and plan check with the Building Inspection Department.” The second letter contained no such deadline language, but did state that Ahrens could proceed “immediately” to apply for the building permit and plan check, and that the IDO was scheduled to expire May 21, 1989.4
The declarations submitted to the trial court contain conflicting accounts about the matter of building permit applications. Ahrens states he was told by “the Planning Department” after he received his initial allocation that he could not apply for any building permits until the entire 26-unit IDO allocation was received for the project. He also states that when he inquired about applying for building permits in July 1989, when he received notice the property might be rezoned to single-family status, he was told there was not enough time for those permits to be approved before the planning commission or city council hearings on the proposed rezone were held.
[1789]In contrast, city planner Farrar states there was no planning department policy forbidding development projects from being approved for building permits in phases of the size of an approved partial allocation of dwelling units. City planner Chris Jacobs states that he does not recall discussing with Ahrens the matter of whether there was still time in July 1989 for Ahrens to submit building plans to avoid the impact of the proposed rezoning, and it is unlikely he would have told Ahrens he could not submit the plans. He further states: “I do recall receiving telephone calls in spring or early summer 1989 from at least one property owner and from other concerned citizens about the Curtis Street property [city’s designation for Ahrens’s property] as to whether the Planning Department retained any discretionary approval authority over the proposed 26-unit condominium project on the R-1000 zoned property. This answer to this question was no.”
After the city planning department began working with community planning groups on the single-family neighborhood classification project, the chairperson of the peninsula planning group wrote a letter to city staff dated April 27, 1989, under the subject heading: “Protected Single-Family Neighborhood Maps.” She stated the group had voted to suggest that Ahrens’s property (along with three others) be investigated for single-family residential zoning, due to concerns about traffic and other noise levels, the slope of the land and congestion in the area. In response, the city planning department investigated the site and recommended it be included on the neighborhood classification map and rezoned to single-family residential status.
In July 1989, the city planning commission conducted a noticed public hearing on an agenda item listed as: “Classification of Single-Family Neighborhoods and Related Rezonings and Plan Amendments in Peninsula.” Ahrens appeared personally and through counsel to oppose the rezoning. The planning commission voted six to zero to recommend adoption of the maps identifying the protected single-family neighborhoods, and enactment of the related rezonings and amendments to the community plan, including the subject property as single-family.
Thereafter, the city council noticed a public hearing for August 8, 1989, on an agenda item titled the same as that of the planning commission, which included the subject property rezone. The matter was continued until September 11 to allow Ahrens to present his project to the community planning group in August. Although the planning group had previously voted on the matter, it heard the presentation in compliance with the city council’s request. However, it made no change in its vote recommending single-family classification for the property.
At the city council’s continued hearing on the classification of single-family neighborhoods, Ron Roberts, the city council representative for the [1790]area, spoke in favor of the rezoning of the subject property, stating he had viewed the property and had concluded:
“[T]his piece of property is exactly what we were concerned about in the older areas of the community, where prior community plans really had not taken into account topography, the neighborhoods, the sort of detailed physical setting. This is very much a piece of a single-family neighborhood.”
Councilman Roberts further noted that access to the property would be through a single-family area surrounding the proposed development. He referred to the steep slopes on the property and the high retaining wall that would be required to build an access road, and commented, “[I]t just seems to me this is exactly, exactly, the type of property that we aimed these various programs at.”
After presentations by those in favor of and in opposition to the proposed rezoning, the city council on September 11, 1989, voted unanimously to (1) adopt a resolution approving the protected single-family neighborhood maps and releasing those areas not mapped for classification; and (2) adopt a resolution approving related amendments to the community plan as well as rezoning of Ahrens’s property to single-family status.
On December 26, 1989, Ahrens filed a petition for writ of mandate (ordinary mandamus, § 1085) in the superior court. Several theories were pled to support the contention the rezoning was invalid: (a) it was done in violation of previously vested rights, which the city was estopped to deny; (b) it violated the city’s promise under the IDO allocation to allow the applicant one year to develop the twenty-six proposed units, and the city was estopped from denying such a right; (c) the rezoning constituted an arbitrary and capricious act of downzoning of a single parcel, without adequate weighing of conflicting interests; and (d) it constituted a taking of property without just compensation resulting in no economically viable use of the property. The relief sought was invalidation of the rezoning ordinance and mandated rezoning to multifamily use for a prescribed period.
The city’s response to the petition included its answer and a demurrer on the procedural ground that it was not timely filed. Ahrens replied. City filed supplemental documents with the court, including a request for judicial notice of the city charter, municipal code, ordinances and resolutions, and other general planning material. At the hearing on the matter, the superior court explained its approach had been to examine the basis for the city’s action to decide if it was reasonably related to the public welfare. After hearing argument, the court agreed to take judicial notice of particular [1791]municipal code sections concerning land development (grading) regulations. (S.D.M.C., § 62.0401 et seq.) After taking the matter under submission, the trial court issued a minute order dated March 7, 1990, denying the petition for writ of mandate and overruling the demurrer.
Ahrens timely appealed.5
Discussion
I
Standard of Review
Ahrens’s petition for writ of mandate sought relief in ordinary mandamus under section 1085 which would have declared that the city’s actions were invalid as applied to the subject property and would have ordered the city to rezone the property to multifamily status to permit Ahrens to pursue the development project. Ahrens’s characterization of this action as sounding in ordinary mandamus was correct under Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 514-521 [169 Cal.Rptr. 904, 620 P.2d 565], where the Supreme Court held: “California precedent has settled the principle that zoning ordinances, whatever the size of parcel affected, are legislative acts.” (Id. at p. 514.) “[R]ezoning of property, even a single parcel, is generally considered to be a quasi-legislative act [citations], subject to review under ordinary mandamus. The standard for review of a quasi-legislative act is whether the action was arbitrary or capricious or totally lacking in evidentiary support, or whether the agency has failed to follow the procedure and give the notices required by law. [Citation.]” (City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 238-239 [227 Cal.Rptr. 899].)
[1792]At the hearing on the petition for writ of mandate, the trial court examined the file to determine what factors the city council relied on in making its rezoning decision, in deciding whether the action taken by the city was “reasonably related to the public welfare.” This procedure was consistent with the duty of the trial court in an ordinary mandamus action. Our review of the trial court’s ruling is conducted according to the usual principles: In reviewing determinations of fact, all factual matters are viewed most favorably to the prevailing party, with all conflicts resolved in favor of the judgment appealed from; we determine only whether any substantial evidence supports the conclusion reached by the trier of fact. (Committee for Responsible Planning v. City of Indian Wells (1989) 209 Cal.App.3d 1005, 1010-1011 [257 Cal.Rptr. 635].) Regarding the trial court’s use of a particular legal standard, in the absence of a contrary indication in the record, we assume a correct standard was used in ruling on the petition. (Id. at p.1011. “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193], original italics.)6 )
Complicating our application of these basic rules, however, is the peculiar nature of the rezoning decision made here. Arguably, at least, it was made as “a determination of specific rights in regard to a particular factual situation rather than the formulation of broad policy applicable to future situations. [Citation.]” (City of Carmel-by-the-Sea v. Board of Supervisors, supra, 183 Cal.App.3d at p. 239.) Such quasi-judicial administrative decisions are reviewed at the trial level by proceedings in administrative mandamus under section 1094.5. (Ibid.) In an abundance of caution, therefore, we find it necessary to construe this petition for writ of mandate as raising issues sounding both in ordinary mandamus and administrative mandamus. Under section 1094.5, subdivision (b), “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or [1793]decision is not supported by the findings, or the findings are not supported by the evidence.” (§ 1094.5, subd. (b).)7
Our review of the trial court’s ruling denying the petition for writ of mandate is conducted in two stages: we first consider whether the City’s actions, according to the standards of ordinary mandamus, were arbitrary, capricious, totally lacking in evidentiary support, or conducted without the proper notice and procedure. (City of Carmel-by-the-Sea v. Board of Supervisors, supra, 183 Cal.App.3d at pp. 238-239.) Regarding the administrative mandamus issues we deem to be raised by the pleading, “our duties are identical to those of the trial court in that we are required to conduct our own independent review of the entire administrative record. [Citations.]” (Id. at p. 239.) This latter review is conducted under the substantial evidence test. (Ibid.; § 1094.5, subd. (b).)
II
Vested Rights Doctrine
A
Development of the Doctrine
The leading case in the development of the vested rights doctrine as applied to land use law is Avco Community Developers, Inc. v. South Coast Regional Com. (Avco) (1976) 17 Cal.3d 785, 791-799 [132 Cal.Rptr. 386, 553 P.2d 546].
[1794]“It has long been the rule in this state and in other jurisdictions that if a property owner has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit. [Citations.] Once a landowner has secured a vested right the government may not, by virtue of a change in the zoning laws, prohibit construction authorized by the permit upon which he relied.” (Avco, supra, 17 Cal.3d at p. 791.)
The Supreme Court in Avco established several rules for the application of the vested rights doctrine: First, “neither the existence of a particular zoning nor work undertaken pursuant to governmental approvals preparatory to construction of buildings can form the basis of a vested right to build a structure which does not comply with the laws applicable at the time a building permit is issued. By zoning the property or issuing approvals for work preliminary to construction the government makes no representation to a landowner that he will be exempt from the zoning laws in effect at the subsequent time he applies for a building permit or that he may construct particular structures on the property, and thus the government cannot be estopped to enforce the laws in effect when the permit is issued.” (Avco, supra, 17 Cal.3d at p. 793.)
Second, the Supreme Court in Avco reiterated that a landowner has no vested right in existing or anticipated zoning. (Avco, supra, 17 Cal.3d at p. 796.) Preliminary approvals received from the government for development, such as zoning of land for a particular purpose, are not sufficient to allow a developer a vested right to build on the land in accordance with former law. Allowing such preliminary approvals to determine the permissible use of land could seriously impair “the government’s right to control land use policy.” (Id. at p. 797.) Moreover, “it is settled that the government may not contract away its right to exercise the police power in the future. [Citations.]” (Id. at p. 800.)
In Avco, the Supreme Court was presented with the question of whether another type of land use permit, such as a conditional use permit, might create in a developer vested rights similar to those created by a building permit. Arguably, if such a form of governmental approval afforded “substantially the same specificity and definition to a project as a building permit,” it might place the government on adequate notice as to what approvals it had supposedly granted. (Avco, supra, 17 Cal.3d at p. 794.) The Supreme Court did not decide that question, however, since the record in that case showed that none of the permits obtained related to an identifiable building.
Here, Ahrens argues that the IDO dwelling unit allocations which he received in the two letters from the city were based on specific information he provided the planning department about the proposed project, and [1795]that the allocations represent a type of governmental approval which was sufficient to create in him a vested right to proceed with the development project. He relies on Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651-653 [150 Cal.Rptr. 242, 586 P.2d 556], a Subdivision Map Act case, for the proposition that if all discretionary approvals are obtained for a project and only ministerial approvals remain, the right to develop the project is subject to vesting. His arguments, however, are unsupported by the language of the IDO, the letters granting the dwelling unit allocations, or the applicable authority. We shall explain.
B
Structure of the IDO
First, we note that by its own terms the IDO is an interim measure enacted for an 18-month period to allow for land-use planning controls upon residential development to be enacted pending the completion of a general reevaluation and adoption of a general plan update. These interim regulations enacted by the ordinance provide that no residential building permits shall be granted unless the application for building permits has been processed in accordance with the IDO procedures for dwelling unit allocations.
Section 6 of the IDO, “Procedure for Development Approval During Interim Period,” provides that the city shall develop an interim development allotment application form to contain such information on the form as deemed appropriate by the administrator of the ordinance. That administrator was directed to take into account certain enumerated factors in formulating standards and criteria for the review of applications under the IDO. The administrator was further directed to conduct a quarterly “dwelling unit allocation” for each community plan area, taking into account any development approvals granted prior to the effective date of the IDO, such as vesting tentative maps, development agreements, “or other entitlement which may create a legally vested right to development of the . . . project under California law.” The procedure set out in section 6J of the IDO provides for an applicant who received a dwelling unit allocation to have one year to submit to the building inspection department a building permit application form “to exercise the entitlement to the units represented by the allocation.” If building permits issued pursuant to the IDO procedure were allowed to expire or if entitlement to use of such permits were waived, the ordinance provided that a replacement allocation could be made in the applicable community plan area.
In section 9A of the IDO, language is set forth providing that the ordinance shall not affect in any manner any provisions of the municipal code [1796]relating to the permissible use of property, density of development, design and improvement standards. Section 9A of the IDO further provides that the city’s zoning, subdivision, building, or other regulations remain in effect and operative without limitation with respect to all residential development. It is next provided in section 11 of the IDO that all quarterly allocations and other grants under the IDO were to receive a “full zoning plan check by the Building Inspection Department.” Section 11 of the IDO further provides:
“No [IDO] variance request, appeal or released project is to be brought forth for public hearing for potential allocation unless full zoning code compliance is present and any required discretionary permits approved and recorded.”
Turning to the letters sent to Ahrens by the city setting forth his IDO dwelling unit allocations, the first of those letters, dated November 4, 1988, provides that an allocation of 18 units was made, and Ahrens was allowed to proceed as the applicant within 1 year of the date of the letter “to file for a building permit application and plan check with the Building Inspection Department of [the city].” In the next letter, dated March 2, 1989, Ahrens was notified of an allocation of eight additional units, and was told that he could proceed as the applicant “immediately to file for a building permit application and plan check with the Building Inspection Department of the City of San Diego.” The letter further stated that the IDO was scheduled to expire May 21, 1989.
Under Ahrens’s interpretation of the IDO, he was irrevocably granted one year from the date of the November 4, 1988, letter to file for and receive a building permit and plan check; alternatively, he claims that a new year begin to run with the sending of the March 2, 1989, letter, even though that letter did not refer to any additional one-year period. In the interim, however, before Ahrens’s building permit application and request for a plan check were ever made, the city had completed rezoning of the property in September 1989.
C
Application of the Doctrine
It is evident that the IDO dwelling unit allocation process created a separate layer of regulation between the subdivision map stage of the proceeding and the ultimate grant of a building permit application. To analyze the rights created by this type of regulation, we apply the established rule that “the rights which may ‘vest’ through reliance on a government [1797]permit are no greater than those specifically granted by the permit itself. [Citations.]” (Santa Monica Pines, Ltd. v. Rent Control Board (1984) 35 Cal.3d 858, 866 [201 Cal.Rptr. 593, 679 P.2d 27].)
In this case, we conclude that even though a dwelling unit allocation was made, no vested right to proceed with the development project was created thereby. The language of the IDO and the letters notifying Ahrens of the dwelling unit allocation only created in Ahrens the right to apply for a building permit and a plan check. This procedure in the IDO is consistent with the language in Avco, supra, 17 Cal.3d at page 795: “[T]he general rule [is] that a builder must comply with the laws which are in effect at the time a building permit is issued, including the laws which were enacted after application for the permit. [Citations.]” Such laws may include zoning laws, and as the Supreme Court in Avco stated, “It is beyond question that a landowner has no vested right in existing or anticipated zoning. [Citations.]” (Id. at p. 796.) Predevelopment expenditures alone do not create such a right. (Raley v. California Tahoe Regional Planning Agency (1977) 68 Cal.App.3d 965, 985-986 [137 Cal.Rptr. 699].) A government’s right to control land-use policy cannot be impaired by the “freezing” of zoning law applicable to a particular development as of the time particular preliminary decisions are made concerning the project. (Avco, supra, 17 Cal.3d at p. 797.)
Moreover, we do not find the use in the IDO of the term “entitlement” in several specific contexts to be determinative of the vested rights issue. For example, section 6D, subdivision (2) of the IDO, setting forth the procedure for development approval during the interim period, states that in reviewing applications for dwelling unit allocations, the administrator shall take into account certain factors, including the existence of “[development approvals granted prior to the effective date of this ordinance pursuant to a vesting tentative map, development agreement, or other entitlement which may create a legally vested right to development of the whole or part of the project under California law.” (Italics added.) By this language, the city evidently sought to recognize and exempt from the operation of the IDO certain previously established vested rights, such as a vesting tentative map (Gov. Code, § 66498.1 et seq.), or a development agreement (Gov. Code, § 65864 et seq.), not to create a special exemption for rights actually established by the IDO itself. Instead, priority is established pursuant to the IDO for already existing vested rights.
Similarly, section 6J of the IDO states that an applicant who received a dwelling unit allocation had one year to apply for a building permit “to exercise the entitlement to the units represented by the allocation.” This [1798]reference to the “entitlement to the units represented by the allocation” falls short of a recognition of a vested right, since further procedures are expressly required by the IDO in the form of an application for building permit and plan check. Absent this compliance with the terms of the IDO, a dwelling unit allocation does not create an entitlement in the nature of a vested right. Section 6J of the IDO further recognizes that such an entitlement to apply for building permits may be waived, which shows that the right represented by the dwelling unit allocation is lesser in nature than a vested right to build pursuant to permits actually received. (Santa Monica Pines, Ltd. v. Rent Control Board, supra, 35 Cal.3d at p. 867.)
We are also unpersuaded by the reference in section 11 of the IDO8 to “discretionary permits” that the dwelling unit allocation represents the final step in a discretionary approval process, culminating in the establishment of a vested right to proceed with the development project. Here, as in Avco, supra, 17 Cal.3d at pages 794-795, even though some preliminary approvals were granted to a developer, the applicable municipal code does not authorize construction without a building permit, a distinct requirement of the development approval process. (Id. at p. 795, fn. 5.)9 This principle was applied in Blue Chip Properties v. Permanent Rent Control Bd. (1985) 170 Cal.App.3d 648, 661 [216 Cal.Rptr. 492], where the Court of Appeal relied on Avco, supra, 17 Cal.3d at page 795 for the proposition that “[t]entative tract map approval does not guarantee that a building permit, if required, will be issued, as the building permit has an independent reason for existence. [Citations.]” (Blue Chip Properties v. Permanent Rent Control Bd., supra, at p. 661, original italics.) Here, too, the dwelling unit allocation procedure created by the IDO evidently has a different reason for existence than does the actual application for a building permit, also required by the terms of the IDO.
Ahrens’s argument that he had obtained all necessary discretionary approvals for his project (Youngblood v. Board of Supervisors, supra, 22 Cal.3d [179964]4; City of West Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1192 [278 Cal.Rptr. 375, 805 P.2d 329]) is therefore not well taken. In Youngblood, supra, at pages 655-656, subdivision map procedure required the governing body to make what amounted to a final approval of a project at the tentative map stage. In West Hollywood, supra, at page 1192, concerning condominium conversions, final map approval and issuance of a public report completed all state requirements, and the city was not allowed to impose its own newly enacted requirements after such final approvals had been obtained. This authority deals with entirely different regulatory schemes, with which those developers had completely complied.
Here, in contrast, the IDO expressly provides that further action, i.e., application for a building permit, is required even after the dwelling unit allocation is made. The scope of the right created by the IDO is to make further application. It makes no difference that building permit approval is normally considered a ministerial process where appropriate land use regulation compliance is present (Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21, 31 [227 Cal.Rptr. 226]), since the IDO by its terms required such an application to be timely made in order to exercise and perfect the entitlement to the dwelling unit allocation, under the current zoning of the property.
Moreover, even though city planner Jacobs’s supplemental declaration stated his belief as of the summer of 1989 that the planning department retained no further discretionary approval authority over the project, the fact remains that Ahrens did not completely comply with the IDO procedures by applying for and obtaining building permits. Evidently, the trial court was not persuaded that no such compliance was required in accordance with Ahrens’s claim he was told by “the planning department” he could not make such application unless all 26 units were preapproved; we are required to defer to this factual determination. (Committee for Responsible Planning v. City of Indian Wells, supra, 209 Cal.App.3d at pp. 1010-1011; City and County of San Francisco v. Grant Co. (1986) 181 Cal.App.3d 1085, 1091 [227 Cal.Rptr. 154].)
Even if the city’s letters to Ahrens concerning the IDO allocations created a good faith subjective belief on his part that he had a vested right to proceed with the particular development plans, such a belief is not enough to create a vested right which is otherwise unsupported by the land use regulations and facts of the particular situation. (Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 853 [244 Cal.Rptr. 682, 750 P.2d 324].)
Moreover, “ ‘[a]n equitable estoppel requiring the government to exempt a land use from a subsequently imposed regulation must include (1) [1800]a promise such as that implied by a building permit that the proposed use will not be prohibited by a class of restrictions that includes the regulation in question and (2) reasonable reliance on the promise by the promisee to the promisee’s detriment. [Ibid.]’ [Citation.]” (Russ Bldg. Partnership v. City and and County of San Francisco, supra, 44 Cal.3d at p. 854, italics added.) Here, we do not find the “promise” made by the IDO allocation rose to the level of one “such as that implied by a building permit” (ibid.) to create a vested right to proceed with a development without further compliance with other land use planning restrictions. As in Russ Bldg. Partnership, the government’s “promise” was limited by the requirement in the IDO that a building permit application and request for plan check be made. The city was not estopped from conducting the rezoning procedures concerning this property even after the IDO allocation was made, in light of Ahrens’s failure to fully comply with the IDO procedure in order to vest before the rezoning was completed.10
As suggested above, we disagree with Ahrens’s argument that the nature of the IDO application he submitted, specifically identifying the type of project in contemplation, including its elevations and site plans, was adequate to create a vested right because it placed the city on some degree of notice of the type of structure sought to be developed. (See Avco, supra, 17 Cal.3d at p. 794.) Instead, we find the type of specificity required in the IDO application represents an effort by the city to create a rational and fair means of distributing a limited resource, i.e., the dwelling unit allocations under the IDO. Because the IDO imposed a cap of 8,000 units per year for all the various neighborhoods of the city, and included a designation of the number of units per neighborhood that were to be allocated, the city also properly included in the IDO an attempt to create a rational and fair mechanism for [1801]allocating the various permits to appropriate recipients. Objective criteria set up by the IDO administrator, such as the provision of site plans, elevations, and other details about the proposed structure, were necessary so that a fair allocation could be made. Such specificity, however, did not serve to create a vested right in a recipient of a dwelling unit allocation to proceed with a particular project, without compliance with the other requirements of the IDO and the city municipal code, such as the acquisition of a building permit and plan check.
The city’s efforts to make the IDO a fair and objective procedure may not result in the imposition of vested rights upon compliance with such an interim procedure.
As Ahrens correctly notes, land use planning law has evolved greatly since Avco was decided in 1976. However, the vested rights doctrine enunciated by Avco has stood the test of time, and may properly be applied even to modem land use planning devices such as a dwelling unit allocation procedure like the IDO.
m
Abuse of Discretion Claim
Having concluded that the IDO dwelling unit allocation did not create a vested right in Ahrens to proceed with his development, it remains for us to address his related claim that the rezoning of the property to single-family residential use was invalid under the theory that it was an arbitrary and capricious spot-zoning procedure. (Viso v. State of California (1979) 92 Cal.App.3d 15, 22 [154 Cal.Rptr. 580].) Zoning may be judicially invalidated if it is arbitrary and unreasonable, if it bears no reasonable relationship to the regional welfare, or if it deprives the landowner of substantially all use of the land. (Arnel Development Co. v. City of Costa Mesa, supra, 28 Cal.3d at p. 521.)
“One permissible basis for an attack upon the validity of a zoning ordinance is that the zoning ordinance is ‘spot zoning.’ [Citation.] Spot zoning occurs where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an ‘island’ in the middle of a larger area devoted to other uses. [Citation.] Usually spot zoning involves a small parcel of land, the larger the property the more difficult it is to sustain an allegation of spot zoning. [Citations.] Likewise, where the ‘spot’ is not an island but is connected on some sides to [1802]a like zone the allegation of spot zoning is more difficult to establish since lines must be drawn at some point. [Citation.] Even where a small island is created in the midst of less restrictive zoning, the zoning may be upheld where rational reason in the public benefit exists for such a classification. [Citations.]” (Viso v. State of California, supra, 92 Cal.App.3d at p. 22.)
In making his claim that his property was “spot zoned,” Ahrens contends that the city failed to adequately weigh the competing interests of himself as landowner and the neighboring landowners. (Raley v. California Tahoe Regional Planning Agency, supra, 68 Cal.App.3d at pp. 975-976.) The trial court disagreed, denying Ahrens’s petition for writ of mandate to compel the city council to vacate the rezoning decision and permit Ahrens the opportunity to pursue his development plan. In so doing, the trial court made factual findings concerning the extent to which the city council weighed the competing interests, and whether its conduct constituted an abuse of discretion. (City of Carmel-by-the-Sea v. Board of Supervisors, supra, 183 Cal.App.3d at pp. 238-239.) The record contains declarations on personal knowledge by Ahrens and by city planners Jacobs and Levin concerning the topographical and usage characteristics of the land and the surrounding area. As succinctly noted by the court in Viso v. State of California, supra, 92 Cal.App.3d at page 22, lines in zoning must be drawn at some point. The trial court evaluated the evidence and we will not disturb its evaluation on these factual issues concerning the existence of a valid basis for the city’s action.11
Disposition
The order is affirmed.
Froehlich, J., concurred.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
In supplemental briefing, the city points out that Levin must have misread the maps where he characterized the fourth, multifamily side of the property as being to the north; it is actually to the northeast.
Originally, the neighborhood classification project was to be contained in a growth management element of the general plan, submitted to the electorate in November 1988. The voters turned down that element, but the city council continued to pursue the single-family neighborhood protection project through planning department action and city council resolutions, rezonings, and public hearings on the neighborhood classification project.
Although the EDO is no longer in force, the issues presented by this appeal concerning the development allotment method of growth control (see Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 176 [196 Cal.Rptr. 670]) are of continuing public interest and warrant the publication of this opinion. (Cal. Rules of Court, rule 976(b)(3).)
following publication of the original opinion in this case, filed June 13, 1991, this court granted the city’s petition for rehearing to consider its arguments that the opinion (1) mistakenly concluded the city inappropriately used the INSFPO to rezone the property; (2) incorrectly described the property and its surroundings; (3) improperly concluded no more discretionary permits remained to be obtained for the project; (4) applied an incorrect standard of review; and (5) did not clearly set out directions on remand.
After granting rehearing, this court requested and considered supplemental briefing from the parties, and reviewed correspondence in the nature of amicus curiae briefing from the following: the Cities of West Hollywood and Malibu, the League of California Cities, the City of Lompoc, the City of Roseville, the City of Walnut Creek, the City of Anaheim, the City of Alameda, the City of Napa, the City of Pleasant Hill, the City and County of San Francisco, the City of Pacifica, the City of Tustin and the City of Livermore. We have also reviewed for the second time this 773-page record, and are satisfied despite the somewhat different version of facts presented in the dissenting opinion that our factual statement accurately reflects the record and clarifications made thereof in the rehearing materials and the supplemental briefing.
The order denying the petition for writ of mandate and overruling the city’s demurrer was a final determination of the entire action. As such we construe the order to be an appealable final judgment. (§ 1064; Cody v. Justice Court (1965) 238 Cal.App.2d 275, 277, fn. 1 [47 Cal.Rptr. 716]; see Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445 [213 Cal.Rptr. 314].)
Section 1094.5, subdivision (c) prescribes two different standards of review for the trial court to apply as appropriate in administrative mandamus: substantial evidence or independent judgment. “The independent judgment test is reserved for those situations where the administrative decision substantially affects a fundamental, vested right acquired by the petitioner [citations]. The question of what constitutes a fundamental, vested right must be answered on a case-by-case basis and considers not only the economic aspects involved but also ‘the effect ... in human terms and the importance of it to the individual in the life situation.’ [Citation.] Even so, it is necessary to allege a deprivation of the right to property or to a livelihood [citation].” (Mountain Defense League v. Board of Supervisors (1977) 65 Cal.App.3d 723, 728 [135 Cal.Rptr. 588].) In San Marcos Mobilehome Park Owners’ Assn. v. City of San Marcos (1987) 192 Cal.App.3d 1492, 1499-1502 [238 Cal.Rptr. 290], this court noted that when particular rights are analyzed to determine whether they possess a fundamental nature, “the court manifests slighter sensitivity to the preservation of purely economic privileges.” (Id. at p. 1499.) In this case, Ahrens’s claim of a vested right to develop the property in accordance with the dwelling unit allocations made under the IDO falls short of an alleged entitlement to a right that is important to his life situation, the deprivation of which constitutes impairment to his right to pursue a livelihood or property essential thereto. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144 [93 Cal.Rptr. 234, 481 P.2d 242].) Substantial evidence review in the administrative mandamus context is therefore appropriate. (§ 1094.5, subd. (c).)
Section 11 of the IDO, entitled Code Compliance, states: “All [IDO] variance applications, quarterly allocations, appeals of the Administrator decision and released projects are to receive a full zoning plan check by the Building Inspection Department. No [IDO] variance request, appeal or released project is to be brought forth for public hearing for potential allocation unless full zoning code compliance is present and any required discretionary permits approved and recorded.”
A similar “development allotment application” procedure (Pacifica Corp. v. City of Camarillo, supra, 149 Cal.App.3d 168, 176) was characterized as a land-use decision affecting the community at large as well as the individual applicant, made by the application of specific standards to existing facts. (Id. at p. 176.) In that case, the Court of Appeal noted that since developers were required to obtain a development allotment before a building permit could be issued, under that growth control law, a developer who had no development allocation had not yet acquired any vested rights in the planned development of its property. (Id. at p. 178.) The opinion does not suggest that a developer who did receive development allotments was entitled to a vested right either.
At the hearing before the trial court, the city made a general request for judicial notice of the city charter, the municipal code, all city ordinances and resolutions, and planning commission resolutions, as well as decisional law and public records provided with the points and authorities on file. At the hearing, the trial court agreed to take judicial notice of particular city ordinances, San Diego Municipal Code section 62.0401 et seq., the land development permit provisions concerning grading approvals. At oral argument before the trial court, and on rehearing application before this court (supported by a request for judicial notice), the city has argued that the land development ordinance and CEQA requirements (Cal. Environmental Quality Act, Pub. Resources Code, § 21000 et seq.) create additional discretionary approvals which were required before Ahrens could exercise his right to the IDO dwelling unit allocations made. Although we, like the trial court, have taken judicial notice of the land development ordinance (denying the balance of the city’s request; Evid. Code, § 459, subd. (a)), we need not base our decision on this argument. The structure of the IDO itself and the language of the letters sent to Ahrens by the city clearly provide that compliance with the IDO process was not the only compliance with city planning procedures (such as the building permit process) that was required under the city’s code. (IDO, § 9A, providing that the IDO is supplementary to existing planning procedures; also see City of West Hollywood v. Beverly Towers, Inc., supra, 52 Cal.3d at p. 1192.)
Because the petition for writ of mandate pleads no separate cause of action for inverse condemnation, and does not adequately present the issue to the trial court of whether any viable economic use of the property was denied by the rezoning decision here (see Agins v. City of Tiburon (1979) 24 Cal.3d 266 [157 Cal.Rptr. 372, 598 P.2d 25], affd. (1980) 447 U.S. 255 [65 L.Ed.2d 106, 100 S.Ct. 2138]; Nollan v. Cal. Coastal Commission (1987) 483 U.S. 825 [97 L.Ed.2d 677, 107 S.Ct. 3141]), we do not find it necessary to address the arguments presented on appeal concerning the “taking” issues. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 81 [265 Cal.Rptr. 737].)