Property owners have more rights and power than they realize to stop McMansion; to object to a neighbor’s construction plans; and to otherwise challenge Department of Building & Safety decisions. Many homeowners in Los Angeles and elsewhere object to “McMansion,” which is the term used to describe new or remodeled large homes that are over-sized for the lot or incongruous for the neighborhood. If a homeowner is concerned about a neighbor’s construction project, they may have certain legal rights and claims, which they need to timely raise.
The basic rule is that property owner can’t sue a neighbor for violating the local building or zoning code, including building height, size and set-back restrictions. (Different rules may apply if the property is subject to CC&Rs.) However, a neighboring property owner may be able to sue its local government to seek to have the building permit or certificate of occupancy revoked if the construction violated the local building code and/or zoning code provisions. A court can order the governmental agency or department to revoke a building permit and a certificate of occupancy if the construction violates the local building or zoning code requirements or limitations.
Sometimes local governmental agencies or departments do not correctly or reasonably interpret and enforce local building or zoning code requirements or limitations. The legal remedy is to file a “writ” lawsuit in superior court, to seek a court order that agency or department to comply with the law.
One example: 909 Greentree Road
In one case, the City of Angeles paid the complaining neighbors $425,000 to settle their claims that the Los Angeles Department of Building & Safety (LADBS) had issued an improper building permit. That case involved a home owned by Mehr and Vickey Beglari in Pacific Palisades (909 Greentree Road, in the Rustic Canyon area of Pacific Palisades). In 2000, Beglari submitted permit applications to the City to obtain approval for an addition to their home, to expanded it from 2,000 to 6,500 square feet. Beglari’s permit applications, miscalculated the prevailing front yard setback, which the City accepted as the basis for issuing the building permits. As a result, Beglari obtained approval to build an expanded structure 14 feet closer to the street than permitted under the municipal code
After construction started, some neighbors objected, challenging the permits first through informal contacts with the City. (The objecting neighbors includes some Superior Court Judges.) The neighbors then officially complained to the LADBS, which rejected their claims. In 2002, the neighbors then filed an appeal to the Board of Building and Safety Commissioners, which is essentially the LADBS’ internal appeal system. Although that Board ruled in favor of the neighbors, that decision was then to appealed to the City’s Office of Zoning Administration, which ruled that the addition encroached about 14 feet into the area of the required front-yard setback. That decision was appealed to the City’s Zoning Administrator’s decision, which rejected the Zoning Administrator’s decision on the setback issue.
The complaining neighbors ultimately filed a lawsuit against the City. Both the superior court and the court of appeal ruled in favor of the complaining neighbors. The court issued a writ that commanded the City to revoke all of the building permits and the certificate of occupancy (COO). The court of appeal stated: “we do not see any basis in law, fact, or fairness to allow the City or Beglari to keep the improperly issued permits in place so that they become the foundation for the decisions that will thereafter have to be made. By parity of reasoning, we reject the City’s conclusory assertion that the revocation of Beglari’s permits leads “to absurd and inequitable results”—because the City does not say why that is so or why the result would be otherwise if the permits remained in place while the City recalculates the proper front-yard setback. As noted, it seems far more fair and equitable to us to place the burden on Beglari to submit proper permit applications, and to prevent him from retaining some unstated and ephemeral benefit from the nonconforming permits issued in response to his substantially erroneous applications.” (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1356.)
Following the appeal, the superior court issued an order finding that the City and the Department of Building and Safety were in contempt of court for failing to comply with the writ and ordered them to appear for appear at an arraignment and trial setting. Thus, according to the City Attorney, the City’s potential damages exposure ranged from $120,000 to $720,000. Additionally, as of 2007, the City had spent over $150,000 in attorney’s fees in defending the LADBS’ Manager. Apparently, because of potential criminal contempt proceeding for failing to revoke the permit and COO, the City Attorney recommended that the City settle at least part of the complaining homeowner claims, by paying their attorney fees, which then were $425,000. The City Council approved that settlement.
It appears that to date Beglari has not complied with the court/LADBS orders, even though their certificate of occupancy (COO) was revoked. In May 2013, the court of appeal denied Beglari’s appeal for their case against the City. As of preparing this article the public records do not reflect a current effort to seek compliance. None of the attorneys involved would respond to our interview requests.
The lessons from the Horwitz case is to immediately research a proposed construction project to determine its compliance with the local building and zoning code; and to not passively accept the building department’s opinion that the project is within the law’s building size and set-back requirements.
(Sources: Horwitz v. City of Los Angeles, 124 Cal.App.4th 1344 (2004); Horwitz v. City of Los Angeles, Not Reported in Cal.Rptr.3d (2009); Beglari v. City of Los Angeles (Cal. Ct. App., May 8, 2013, B238950) 2013 WL 1898286; and documents produced by the L.A. City Attorney in response to California Public Records Act request.)