Carlstrom v. City of San Diego

MUSSELL, J. This is an action for declaratory relief. On or about June 4, 1954, plaintiff purchased certain housing units from the United States government, which units had been previously used during the war years as emergency housing. The exterior walls of these units were 8 feet high and 2-inch by 3-inch wooden studs were used in their construction. Plaintiff desired to relocate these units in the city of San Diego and on or about August 15, 1954, applied for permits from the city so to do. His application was denied on the ground that the units would not meet the requirements of the uniform building code of the city providing that the exterior stud walls for buildings of two (2) stories or less, in the city, shall consist of not less than 2-inch by 4-inch studs. On or about October 11, 1954, plaintiff appealed to the board of appeals appointed by the city manager under the provisions of section 91.02(a) of the San Diego Municipal Code, requesting authorization to use 2-inch by 3-inch studs in those housing units for which application for relocation was made. After hearing, the board, on October 11, 1954, orally granted the request of plaintiff subject to the city attorney’s opinion as to the legality of such action by the board. At the request of plaintiff the city attorney’s opinion, in writing, was submitted by means of a letter to the acting director of building inspection. The letter stated, in part, as follows:

“It is, therefore, the conclusion of the undersigned that the Board of Appeals had no authority to authorize the use of 2" x 3" studs in place of the minimum 2" x 4" studs as required by the Uniform Building Code. By authorizing the use of 2" x 3" studs, the Board of Appeals has attempted to amend the Building Code, which it has no authority to do. The Board of Appeals in this situation has only the authority to recommend a legislative change which it believes is required. You are, therefore, advised that you have no authority to issue any building permit authorizing such use.”

On October 14, 1954, the building inspector of the city, [816]acting upon the basis of the city attorney’s opinion, refused to issue a building permit to plaintiff, who then filed this action to have it declared that the board of appeals had the power to determine the suitability of the alternate type of construction which he sought to have approved and to have it declared that the opinion of the city attorney was without foundation in fact or in law. The trial court rendered judgment in favor of the defendants and against the plaintiff. He appeals therefrom, contending that the action of the board of appeals in approving his request for permit was proper and such action was not an unlawful delegation of power or an attempt to legislate by said board.