Santa Monica Pines, Ltd. v. Rent Control Board

MOSK, J.

I dissent.

The majority declare they “need not decide” whether the tentative map approval is the equivalent of a building permit, which under Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785 [ 132 Cal.Rptr. 386 , 553 P.2d 546 ], would constitute acquisition of a vested right. They then proceed to deny relief to plaintiffs on the ground that expenditure of $43,709 is not a sufficient sum on which “to predicate a vested right.” Thus their opinion rests not on any sound principle of law but on dollars and cents. How much more plaintiffs should have spent to earn their vested right my colleagues fail to say.

The majority declare the expenditure of $42,000 for the condominium tax and $1,709 for other alteration fees is “inconsequential when considered in *870 light of the building’s purchase price of $2.2 million.” First of all, there is no law or rule of thumb that requires expenditure of some fixed percentage of the purchase price in order to qualify for a vested right. That $43,709 is “inconsequential” is purely the ipse dixit of the majority. But more importantly, it must be borne in mind that this is not a building to be constructed; it is a fully existing and completed 42-unit structure. Under some circumstances no expenditures are necessary in order to convert a rental apartment to a condominium: basically the process is merely a change in type of ownership. Here the sum of $43,709 represents a tangible indication of the good faith reliance of the plaintiffs on the map approval they had received from the city and their intent to proceed with changing from single to multiple ownership of the property.

It is significant that no further permits or approvals were required for an existing structure. Even if they were, as held unanimously by this court in Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644 [ 150 Cal.Rptr. 242 , 586 P.2d 556 ], it is the tentative map that is crucial: its approval, not any subsequent ministerial act such as approving a final map, determines when a developer may expend funds and achieve a vested right.

The majority choose in their calculations to denigrate the outlay of $42,000 to the city for the condominium tax. That the condominium tax was paid after the city rent control ordinance went into effect is of no consequence. The city accepted the payment and no part of it has been refunded. The city has had the use of that sum since it was paid. Conversely, the plaintiffs have expended that money and have been denied its use for the years during which this litigation has been pending. To accept the plaintiffs’ payment of the condominium tax and then deny their right to convert to a condominium is a strange concept of municipal morality. Stranger still is the majority’s approval of this conduct.

In short, this appears to be a classic case of a vested right having accrued in these plaintiffs. I would reverse the judgment.

Richardson, J., * concurred.

Respondents’ petition for a rehearing was denied June 21, 1984. Mosk, J., was of the opinion that the petition should be granted.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.