Smith v. City of Riverside CA4/2 (2015) · DecisionDepot
Smith v. City of Riverside CA4/2
California Court of Appeal Jul 8, 2015 No. E060886Unpublished
Filed 7/8/15 Smith v. City of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOHNNIE SMITH,
Plaintiff and Appellant, E060886
v. (Super.Ct.No. RIC1202101)
CITY OF RIVERSIDE, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge.
Affirmed.
Bill S. Vaughan for Plaintiff and Appellant.
Cristina L. Talley, City Attorney, Rahman Gerren, Deputy City Attorney for
Defendant and Respondent.
Plaintiff and appellant Johnnie Smith appeals from the denial of his writ of
administrative mandamus brought pursuant to Code of Civil Procedure section 1094.5.
In 1970, Smith purchased property located at 6969 Arbor Drive in Riverside (Property).
In 2009, defendant and respondent City of Riverside (City) received an anonymous tip
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that a garage on the Property had been converted to a dwelling (Garage) and might not be
permitted. An inspector came to the Property and observed the Garage. After a review
Here, the evidence established that the conversion of the Garage was completed
without the proper permits. The 1963 permit on its face allows for an expansion of the
garage by 18 feet. The 1963 permit provides that the building was used as a “private
garage.” The 1963 permit did not authorize removal of the garage door. The 1963
permit cannot be construed to convert the Garage to a dwelling. There is no evidence in
the administrative record that the Garage had its own address or was ever considered to
be a dwelling by the City.
Smith contends that the trial court erroneously focused on what was not in the
administrative record or on the 1963 permit. However, Smith was directed to object to
the administrative record or augment the record if he believed it was incomplete. Smith
3 Riverside Municipal Code <http://www.riversideca.gov/municode/pdf/16/title- 16.pdf> (as of July 6, 2015).
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chose not to challenge the administrative record and cannot now complain about the state
of the evidence.
Smith additionally claims that the City approved of the conversion of the Garage
when it inspected and approved the connection of the Garage to the public sewage system
in 1978. However, the evidence does not support such a conclusion. The permit to
connect lists only the address of 6969 Arbor. The attached drawing does not establish
that the inspector observed the converted Garage and ignored it. We cannot simply
speculate as to what occurred in 1978. It is equally plausible that the conversion of the
Garage had not been completed at that time but was actually converted after the sewage
system was approved. Smith is the only party who claimed the conversion occurred prior
to his purchase of the Property; this is not evidence that can be considered. Smith may in
fact have obtained the sewer line in anticipation of converting the Garage. There is no
evidence in the record to support the City approved of the Garage conversion.
Smith makes two other arguments. He contends there was no requirement in
Riverside County for a garage between the years of 1963 to 1978. However, this ignores
the fact that there was no permit obtained to convert the Garage to a dwelling.
Finally, Smith argues he had a vested property right in reliance on the permits. He
insists he would not have purchased the Property if he knew the Garage was not
permitted. “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
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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 Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785,
791.)
Again, this argument presumes that the 1963 and 1978 permits could be relied
upon to allow conversion of the Garage to a dwelling. No person could reasonably rely
upon the permits to find that the converted Garage was approved by the City. Further,
nothing in the administrative record establishes when the Garage conversion occurred.
Smith cannot rely on his own affidavit to show that when he purchased the Property, the
Garage had been converted. Smith cannot establish, based on the evidence in the
administrative record, that he had a vested right in the Garage conversion.
Based on the foregoing, substantial evidence supported that Smith violated
Riverside Municipal Code section 16.04.510. As such, the evidence supported the
administrative order issued on September 3, 2010, finding the violation and the May 5,
2011, order imposing fees and fines based on Smith’s failure to remedy the violation.
C. LACHES
Smith contends that the trial court erred by failing to apply laches. He insists that
the City was aware of the converted Garage since 1963 and did nothing for 50 years to
enforce the code violation. In addition, for the first time, Smith argues that he was
entitled to variance relief.
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“‘Laches is an equitable defense. It consists of a failure on the part of a plaintiff to
assert his rights in a timely fashion accompanied by a period of delay with consequent
results prejudicial to the defendant.’ [Citation.] ‘Delay is not a bar unless it works to the
disadvantage or prejudice of other parties.’” (Cedars-Sinai Medical Center v. Shewry
(2006) 137 Cal.App.4th 964, 985.)
Initially, Smith’s argument presumes that the Garage was already converted in
1963. However, as previously stated, the 1963 permit only authorized an addition to the
existing garage. Nothing in the record provides when the conversion actually took place.
Only Smith’s self-serving affidavit that the Garage was converted when he purchased the
Property in 1970 provides a possible date of the conversion. It is impossible, based on
the administrative record, to which Smith did not object, to determine how long the
Garage had been in violation of the code, and therefore, there is insufficient evidence that
the City delayed in asserting their right to enforce the code violation. As noted by the
City, it did not have notice until the citizen complaint.
Further, Smith has not shown prejudice. Smith essentially had an unpermitted
garage that he used as a dwelling for some period of time.
Finally, although not addressed by the City, Smith’s additional argument that he
was entitled to a variance is not well taken. A variance to a zoning ordinance can be
granted if it would create “unnecessary hardship.” (Walnut Acres Neighborhood
Association v. City of Los Angeles (2015) 235 Cal.App.4th 1303, 1305.) Smith never
raised this issue in the administrative hearing or before the trial court. He cannot raise
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this claim for the first time in this appeal. (See Bardis v. Oates (2004) 119 Cal.App.4th
1, 13, fn. 6.)
D. FOURTH AMENDMENT
Smith contends that the trial court erred by rejecting his argument that all of the
entries onto the Property violated this Fourth Amendment rights. As such, his writ of
mandate should have been granted because the violation, and the fees and fines, were all
based on this illegal entry.4
“The Fourth Amendment provides that, ‘The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized.’ The basic purpose of this Amendment, as recognized in countless
decisions of this Court, is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials.” (Camara v. Municipal Court of City and
County of San Francisco (1967) 387 U.S. 523, 528.) In Camara, a case involving the
entry onto private property to determine if it complied with the building code, the United
States Supreme Court held, “Thus, as a practical matter and in light of the Fourth
Amendment’s requirement that a warrant specify the property to be searched, it seems
likely that warrants should normally be sought only after entry is refused unless there has
4 We note that the City’s response to the argument is woefully inadequate. The City makes a new claim of waiver without citation to any authority. The City conclusively argues that the Property was vacant and had to be boarded up.
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been a citizen complaint or there is other satisfactory reason for securing immediate
entry.” (Id. at pp. 539-540.)
This case provides some support for Smith’s argument that a warrant was required
to enter his Property for inspections. However, we need not decide whether a warrant
was required because the City did not argue below, and has not argued on appeal, that the
Fourth Amendment did not apply to the entry onto the Property. The City argued below
that the initial inspection, which supported the administrative hearing order on September
3, 2010, involved the inspector standing in the driveway and outside the Property. The
Garage, and as a result, the violation, was in plain view. The trial court agreed that there
was no evidence of entry to support the original administrative hearing order. We agree.
Smith relies on the photographs in the administrative record to support his claim
that the violation was discovered by entry onto the Property. In the record, only a few of
the photographs were taken prior to the September 3, 2010, hearing on the violation. In
photographs dated May 5, 2010, there are pictures of the Garage that are clearly taken
from outside of a fence. The remaining photographs before November 2010 were of the
notice posted on the dwelling. According to the background report, Officer Plum
inspected the Property on April 28, 2010, posted a notice on May 5, 2010, and inspected
the Property on June 7, 2010.
The evidence supports that the violations on the Property were observed without
entry onto the Property. As such, the decision by the administrative hearing officer on
September 3, 2010, did not involve inadmissible evidence in violation of the Fourth
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Amendment. The code violation was not a result of evidence obtained in violation of
Smith’s Fourth Amendment rights.
Smith contends that the inspector had to open the fence in the backyard in order to
view the Garage.5 However, the photographs that include a chain link fence can clearly
be interpreted to show that the inspector was not on the Property.
Finally, Smith contends that even if the original administrative order was not
based on an illegal entry, all subsequent entries onto the Property that supported the fines
and fees imposed on May 5, 2011, was invalid. However, once the violation was first
observed and found to be valid, entry onto the Property was not required to confirm the
violation continued. In fact, there was no dispute that Smith refused to return the Garage
back to its original state. As such, since the violation was found to be true at the
September 3, 2010, hearing, and there is no doubt that the violation continued, the
administrative hearing officer did not have to rely on the subsequent searches in imposing
the fees and fines.
5 Smith states, “for a better view of these premises go to Google Earth on the internet.” This evidence was clearly not part of the administrative record.
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DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
HOLLENHORST Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the plaintiff's petition for a writ of mandate, holding that substantial evidence supported the administrative finding that the plaintiff's garage conversion violated the municipal code and that the plaintiff failed to establish laches or a Fourth Amendment violation.
Issues
Whether substantial evidence supports the administrative finding that the garage conversion violated Riverside Municipal Code section 16.04.510.
Whether the City's inspection of the property violated the Fourth Amendment.
Whether the doctrine of laches bars the City from enforcing the code violation.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Substantial evidence supports the finding by the administrative hearing officer that the conversion of the Garage was not permitted and was in violation of Riverside Municipal Code section 16.04.510.”
“Further, Smith has not shown laches, and there was no Fourth Amendment violation.”
“The trial court did not find a Fourth Amendment violation.”