Posts Tagged ‘Variance’


On March 14, 2014, in Eskland v. City of Del Mar (Mar. 14, 2014) ___ Cal.App.4th ___, Case No. D061370, the Fourth District Court of Appeal upheld the City of Del Mar’s decision to grant a variance from the zoning code for a house that violated the local setback requirement. The court, affirming the judgment below, found that the City had not abused its discretion in allowing the encroachment, as the variance was permitted under the local municipal code.

Jon Scurlock owned a house on a steep seaside lot in the City of Del Mar. The house lay only eleven feet from the road, and thus did not comply with the 20-foot front yard setback requirement. The court assumed for the sake of argument that when the house was originally built, it complied with the setback requirement in existence at that time.

Scurlock proposed to tear the house down and build a new house in its place. After the design review board approved the plans, Scurlock applied to the city planning commission for a variance from the setback requirement, since the new house would be built in the footprint of the old house and would therefore encroach to the same degree. The planning commission approved the variance, citing special circumstances of the lot warranting approval.

The Eskelands, neighbors of Scurlock, filed a writ of administrative mandamus seeking to set aside the City’s approval of the variance. The trial court denied the petition, ruling that substantial evidence supported the city’s approval. The Eskelands appealed.

The parties disputed whether the new house would expand or maintain the existing degree of structural nonconformity, but the court found it unnecessary to resolve the issue because the municipal code permitted property owners to expand the degree of nonconformity pursuant to a variance. The court found that the record contained the requisite substantial evidence of “special circumstances” to support the variance. The topography of Sclurlock’s lot was more significantly sloped than neighboring properties, making relocation of the house to another part of the property expensive, impractical, and potentially dangerous. Furthermore, the street curved in a C-shape in front of the property, creating a smaller setback space. The planning commission had concluded that locating a single-family residence elsewhere on the property would cause adverse impacts to the steep slopes.

The court rejected the Eskelands’ contention that Scurlock was impermissibly continuing a structural nonconformity in violation of the municipal code. The court pointed out that a variance and the continuance of a nonconformity are completely separate legal concepts. The concepts’ locations in separate code sections lent credence to the court’s interpretation that the prohibition on structural nonconformities was not intended to trump the provision for variances.

The standard of review in administrative mandamus affords a strong presumption of correctness to the agency. Under this presumption, the court found that the City had properly considered the evidence in reaching its findings, and upheld Scurlock’s variance.