Appendix — Soojian v. Donaldson

Appendix A

United States Court of Appeals

For the Ninth Circuit

No. 79-4501

D.C. No. 7-78-93 Civ.

Asadoor Soojian, et al.,

Plaintiffs-Appellants,

vs.

John R. Donaldson, et al.,

Defendants-Appellees.

[Filed Mar. 12, 1982]

MEMORANDUM

Appeal from the United States District Court

for the Eastern District of California

M. D. Crocker, District Judge, Presiding

Argued March 12, 1981; Submitted March 5, 1982

Before: Wallace and Pregerson, Circuit Judges, and

Grant,“ District Judge.

Soojian and his partners (Soojian) appeal from entry of

summary judgment and a dismissal of their complaint. The

complaint alleged due process and equal protection viola-

tions pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 based

upon the revocation of a site plan approval for a proposed

mobile home park by the California Department of Public

Works. The principal issue in this appeal is whether Soo-

*Honorable Robert A. Grant, United States District Judge,

Northern District of Indiana, sitting by designation.

A-2

jian had a vested right under California law to build a

mobile home park based on this site plan approval. The

California superior court also rejected Soojian’s conten-

tions by denying a Writ of Administrative Mandamus.

Subsequent to the district court’s dismissal of Soojian’s

complaint, Soojian filed a notice of appeal in the state case.

Since the district court’s action depended in large part on

the question of whether Soojian had a property right under

California law, a question which was still being litigated in

the California courts, we withdrew this case from submis-

sion pending final resolution of the state law questions in

the California Court of Appeal. That court’s opinion has

now been filed.

The requirements of procedural due process apply only

to the deprivation of interests encompassed by the four-

teenth amendment’s protection of liberty and property.

Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Soojian

essentially asserts that he has a constitutionally protected

property interest in his site plan approval. Property inter-

ests, however, are not created by the Constitution but “stem

from an independent source such as state law. .” Id. at

577; see Bishop v. Wood, 426 U.S. 341, 344 (1976). Thus,

as the district court recognized, Soojian’s due process claim

hinges on whether the approval of a site plan creates a

property interest under California law.

The California Court of Appeal found that Soojian had

no vested property rights under California law. Since we

are bound by a state court’s interpretation of its own laws,

see, e. g., Hortonville Joint School Dist. v. Hortonville Ed.

Assn., 426 U.S. 482, 488 n.2 (1976) ; Kingsley Int. Pictures

Corp. v. Regents, 360 U.S. 684, 688 (1959), we hold that the

A3

distriet court did not err in granting summary judgment

against Soojian on the procedural due process claim. Be-

cause Soojian has failed to establish a recognized property

interest under California law, we need not decide whether

the district court was correct in concluding that Soojian

was afforded adequate notice and an adequate opportunity

to be heard.

Soojian argues that it was error to grant a motion to

dismiss for lack of subject matter jurisdiction. However,

any error involved in the district court’s dismissal for lack

of jurisdiction is harmless, as the appellees made an alter-

native motion for summary judgment which was granted.

Under Rule 56(c), summary judgment is proper where the

moving party is clearly “entitled to a judgment as a matter

of law.” See also Rule 12(b).

Apparently, Soojian also argues that the due process

clause provides substantive protection against revocation

of a site plan approval. Although it is not explicitly argued

that the revocation amounted to a taking of property with-

out due process of law, Soojian cites a turn of the century

Supreme Court decision which, it is contended, recognizes

the vested rights doctrine. Dobbins v. Los Angeles, 195 U.S.

223 (1904). However, substantive due process review pre-

supposes the existence of a property interest that has been

encroached upon by government action. Since the Califor-

nia courts have held that Soojian did not have a vested

property right at the time of the revocation, the oppor-

tunity to seek substantive due process review does not

arise.

A4

Soojian claims there was an unlawful combination of pro-

secutorial and adjudicatory functions and unlawful ex parte

contacts between the County Counselor’s Office and the

Board of Supervisors which denied him an impartial de-

cision-maker to review the revocation decision, and thus

violated due process principles. We agree with the district

court that since Soojian has not alleged that Wash and

Lempel actually participated in the decision-making pro-

cess of the Board, but only advised the decision-makers,

that there was no denial of an unbiased review of the revo-

cation decision. See Hortonville Joint School Dist. v.

Hortonville Ed. Assn., supra. See also Withrow v. Larkin,

421 U.S. 35 (1975).

Soojian’s final due process claim regards an alleged ex

parte communication between Wash and the Board of Su-

pervisors. Soojian bases his allegation on a January 6, 1978

newspaper article. Appellees filed an affidavit to the effect

that the matter described in the newspaper article related

to a statement made by Wash during a proceeding before

the Board in Soojian’s presence. Soojian has failed to offer

any support in opposition to this affidavit, and thus, there

is no evidence to substantiate the charge that an ex parte

communication took place. We conclude that summary judg-

ment was proper on this issue as there exists no material

issue of fact regarding the alleged ex parte communica-

tion.

Finally, as to Soojian’s section 1985(3) and 1986 claims,

both sections provide for civil remedies for persons injured

by conspiracies to deprive them of their right to equal pro-

tection of the laws. There must be some “racial, or perhaps

A-5

otherwise class-based, invidiously discriminatory animus

behind the conspirator’s action.” Griffin v. Breckenridge,

403 U.S. 88, 102 (1971) (footnote omitted). Soojian’s com-

plaint essentially points to a conspiracy aimed at a denial

of due process. There are no allegations in the complaint of

any class-based discrimination on the part of the appellees.

Consequently, summary judgment in favor of the appellees

on this issue was proper.

AFFIRMED.

A-6

Appendix B

United States District Court

for the

Eastern District of California

At Fresno

Civil Action File No. F-78-93-Civ.

Asdoor Soojian, et al

vs.

John R. Donaldson, et al

[Filed July 12, 1979]

JUDGMENT

This action came on for (hearing) before the Court, Hon-

orable A. D. Christensen, United States Magistrate, presid-

ing, and the issues having been duly (heard) and a decision

having been duly rendered, by Hon. M. D. Crocker, U.S.

District Judge on July 11, 1979.

It is Ordered and Adjudged that defendants’ motion for

summary judgment and to dismiss the complaint is granted.

Dated at Fresno, Calif. this 12th day of July, 1979.

By: D. B. Butler

Deputy Clerk of Court

A-7

Appendix ©

In the United States District Court

Eastern District of California

No. F-78-93 Civ.

Asadoor Soojian, et al.,

Plaintiffs,

vs.

John R. Donaldson, et al.,

Defendants.

Filed, July 12, 1979]

ORDER GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT AND TO DISMISS

THE COMPLAINT

On April 12, 1979, the Honorable A. D. Christensen,

U. S. Magistrate, filed a recommendation to grant defend-

ants’ motion for summary judgment and to dismiss the

complaint.

This court has reviewed the pleadings and concurs with

the magistrate’s recommendation.

THEREFORE, IT IS HEREBY ORDERED that de-

fendants’ motion for summary judgment and to dismiss the

complaint is granted for the reasons set forth in the mag-

istrate’s recommendation.

DATED: July 11, 1979.

/s/ M. D. Crocker

United States District Judge

A-8

Appendix D

United States District Court

Eastern District of California

No. F-78-93-CIV

Asadoor Soojian, et al.,

Plaintiff

vs.

John R. Donaldson, et al.,

Defendants.

[Filed April 12, 1979]

MAGISTRATE’S RECOMMENDATION ON

DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT AND TO DISMISS THE COMPLAINT

The defendants’ Motion for Summary Judgment and to

Dismiss the Complaint came on regularly for hearing be-

fore the Honorable A. D. Christensen, United States Mag-

istrate on December 26, 1978. William M. Hardy, Attorney

at Law, appeared on behalf of the plaintiffs. J. Steven Lem-

pel, Chief Deputy County Counsel for the County of

Fresno, appeared on behalf of the defendants. Following

oral argument, the matter was submitted to the Court for

its recommendation.

Plaintiffs bring this action under 42 U.S.C. Sections

1983, 1985(3) and 1986 to redress the wilful, conspiratorial

and unlawful deprivation, under color of state law, of

rights secured to plaintiffs as citizens by the self-executing

Fifth and Fourteenth Amendments to the Constitution of

A-

the United States. But what is the right to be secured and

protected? Plaintiffs complain that their property interest

in the site plan approval is protected by due process of

law. Unfortunately for plaintiffs, however, the issuance of

a site plan does not create a property interest under Cali-

fornia law. Governmental approvals that precede building

permits or other final discretionary rights to construct the

project do not give the developer a right to exemption from

later changes in land-use regulations. Avco Community

Developers Inc. v. South Coast Regional Commission

(1976) 17 Cal.3d 785. The Court, in Avco, stated: “. They

stand for the proposition that neither the existence of a

particular zoning nor work undertaken pursuant to govern-

mental approvals preparatory to construction of buildings

ean form the basis of a vested right to build a structure

which does not comply with the laws applicable at the time

a building permit is issued.” Plaintiffs were granted two

building permits, one authorizing the construction of a

laundry room, and the other authorizing the construction

of a 28-space mobile home park, but each was allowed to

expire long before the re-zoning and revocation of the site

plan apprevals.

Without a controlling property interest which was suffi-

ciently vested to invoke the protections of the Constitution

or laws of the United States, plaintiffs have failed to estab-

lish subject matter jurisdiction. It is, therefore, the recom-

mendation of the Court to the Honorable M. D. Crocker,

United States District Judge, that as to the claims based

on 42 U.S.C. Sections 1983, 1985 and 1986, the Motion to

Dismiss be granted as to all defendants for lack of subject

matter jurisdiction.

A-10

Plaintiffs also allege that due process” was violated by

the defendants’ failure to afford plaintiffs prior notice and

prior hearing, and further, that “due process” was vio-

lated when Mr. Wash, Mr. Lempel, and Mr. Viau aided the

Board of Supervisors and the Board of Review in making

their decision regarding the revocation of the Site Plan

Approval. Goldberg v. Kelley, (1970) 397 U.S. 254, 90

S.Ct. 1011, delineated the process which must be followed

by the government where it intends to alter the interests in

which persons have acquired vested rights. Goldberg, supra,

clearly stands for the proposition that a pre-termination

hearing is only necessary when the interests which are to

be affected relate directly to the recipient’s ability to main-

tain subsistence. Due Process, in almost any other situa-

tion, is satisfied if the interested party is afforded notice

prior to or consistent with affectation of the interest and

if an opportunity to be heard is afforded within a reason-

able time thereafter. Certainly the plaintiffs in this cause

of action have been afforded adequate notice and an ade-

quate opportunity to be heard.

In regards to the plaintiffs’ allegation that “due process”

was violated by the activities of Mr. Wash, Mr. Lempel and

Mr. Viau as those activities related to the decisions by the

Board of Supervisors and the Board of Review, the law is

clear that in the absence of a situation where the prose-

cutor and the decision-maker are one and the same, “dye.

process” is satisfied when the decision-maker remains un-

biased. Only where the decision-maker plays a role in the

prosecution would there be a presumption of bias. In this

cause of action, the plaintiffs were afforded unbiased de-

cision-makers in the form of the Board of Supervisors and

A-11

the Board of Review. Nowhere has it been alleged that

Mr. Wash, Mr. Lempel or Mr. Viau actually participated

in the decision-making, only that they advised the decision-

makers. This level of advice is common-place, and clearly

within the law. See Hortonsville J. S. D. No. 1 vs. Hortons-

ville Ed. (1976) 426 U.S. 482, 98 S.Ct. 2308, 49 L.Ed.2d 1.

See also Ford v. Civil Service — (1958) 161

C.A.2d 692, at 697.

Federal Rules of Civil Procedure, Rule 56 states:

.. if the pleadings, depositions, answers to interrog-

atories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as

to any material fact and that the moving party is en-

titled to a judgment as a matter of law, the judgment

sought shall be rendered forthwith.

Based on the above, it is the Court’s recommendation

that summary judgment enter in favor of alf the defend-

ants on the claims of failure to provide adequate notice

and opportunity to be heard, and the activities of the

County Counsel’s office in relation to the decisions on

review.

Dated: April 12, 1979

/s/ A. D. Curistensen

United States Magistrate

A-12

Appendix E

United States District Court for the

Eastern District of California

No. F-78-93-CIV

Asadoor Soojian, et al.,

Plaintiffs,

v

John R. Donaldson, et al.,

Defendants.

[Filed April 23, 1979]

OBJECTIONS TO MAGISTRATE’S FINDINGS,

CONCLUSIONS, AND RECOMMENDED DECISION OF

APRIL 12, 1979

INTRODUCTION

This is a civil rights case where the county granted per-

mit to construct a mobilehome park, then revoked its per-

mit after plaintiffs were in midstream and had obligations,

labor and materials of the value of $362,300 in the project.

[A-2, 3,].

The magistrate erred by allowing defendants’ alterna-

tive motions for (1) summary judgment [Rule 56 Federal

Rules of Civil Procedure] or (2) to dismiss the complaint

for alleged failure to state a claim [Rule 12(b) (6) F. R. C. P.]

or (3) to dismiss the complaint for alleged lack of juris-

diction over the subject matter. [Rule 12(b)(1) F. R. C. P.].

Plaintiffs object to the magistrate’s recommended deci-

sion for the following reasons.

A-13

I

SUMMARY JUDGMENT IS NOT APPROPRIATE

Rule 56 F. R. C. P.

Defendants’ motion for summary judgment should be

denied, for—

(A.) Defendants did not prove (1) that “there is no

issue as to any material fact” and (2) “that the moving

party is entitled to judgment as a matter of law” [Rule

56(c) F.R.C.P.].

(B.) Defendants, in their pretrial statement of July

12, 1978, represented to this Court that there are material

issues of fact to be tried. These issues are listed under

“(4) Disputed Factual Issues” as follows:

“(a) There was no conspiracy.

(b) All of Defendants’ acts were in good faith and

reasonable.

(e) Plaintiffs acted in bad faith and with unclean

hands.

(d) Plaintiffs never acquired a vested right to con-

struct a mobile home park.

(e) All changes in the Fresno County Zoning Ordi-

nance affected Plaintiffs’ property.

(f) Plaintiffs’ property was subject to the California

Environmental Quality Act (CEQA).

(g) Plaintiffs suffered no damages as a result of De-

fendants’ actions.

(h) All of Defendants’ actions were legal and proper.

(i) Plaintiffs were not entitled to a hearing prior to

revocation of the site plan.

(j) There were no improper ex parte communications.”

(C.) Defendants failed to support their motion for sum-

mary judgment by affidavit. In all “motions supported by

affidavit, the affidavit shall be served with the motion” [Rule

A-14

6(d) FRCP) and “served at least ten days before the time

fixed for the hearing.” [Rule 56(c) FRCP).

Plaintiffs timely filed their affidavit in opposition to

defendants’ motion for summary judgment. See Appendix

A attached.

(D.) Defendants failed to “cite the particular portions

of any pleading, affidavit, deposition, interrogatory, an-

swer, admission or other matter” in the record to support

their motion, as required by Rule 53(6)(d) and Rule 56

(a) FRCP, and as required by Local Rule 116(a). The

unsupported statement of counsel is no substitute for an

affidavit. The plaintiffs’ affidavit in opposition stands un-

denied and uncontroverted.

(E.) Plaintiffs object to the magistrate’s denying them

discovery under Rules 32 and 33 FRCP. At the hearing,

the magistrate ruled that defendants need not answer

plaintiffs’ interrogatories, which plaintiffs had timely

served upon defendants. The magistrate denied plaintiffs

opportunity to take depositions, which had been sched-

uled, and which plaintiffs intended to offer in opposition

to defendants’ motion for summary judgment. Plaintiffs

averred that they had not completed discovery, had sched-

uled depositions and needed until March 1 to complete

their discovery. The magistrate should have refused “appli-

cation for judgment” or should have ordered a contin-

uance to permits “depositions to be taken”, as provided

by Rule 56 (f) FRCP.

(F.) Plaintiffs object to the finding and conclusion “with-

out controlling property interest which was sufficiently

vested to invoke protection of the Constitution . . plain-

A-15

tiffs have failed to establish subject matter jurisdiction.”

{underscoring supplied.] This is a finding that insufficient

work had been done to create a vested right to complete

the authorized construction. There is no evidence in the

record to support this finding. To the contrary, plaintiffs’

undenied affidavit shows the nature of the work done and its

value. Plaintiff Soojian’s affidavit repeated to the Court the

evidence which had been set out in the administrative rec-

ord as follows:

“SUMMARY OF TESTIMONY BY ASADOOR

SOOJIAN CORROBORATED* BY MR. MANSELIAN,

MR. GIBBS, MR. EHMAN AND MR. BENSON

Removing vines, clearing land .................... $ 3,000.00

Value of vines removed at $5.00 per vine .......... 82,000.00

. e e. 500.00

Grading to point of finish grade 3,000.00

Dirt hauled away (40-22 ton loads) ............... 2,400.00

e nde havnt icdetsgese ces 4,500.00

Water pressure tank purchase and hauling ........ 4,700.00

So, . ec canes 2,000.00

Concrete, forms, rebars, labor .................... 6,400.00

Material on hand for laundry room .............. 1,000.00

pe RS. | RI a 22,000.00

On site surveying, staking, leveling engineering,

establishing grade. 22,000.00

Off site engineering 41,000.00

n PEAS Lge «RE oe 25,000.00

New well 14’ to 240 deen 9,300.00

D ²̃˙ ²: «ackuenies 00.04 oh 1,500.00

RR aA BIG ESE ORE SES GS ERE ne 132,000.00

r oe $362,300.00

12, 13,

[12-8-77]. Mr. Benson [1-4-78] pp. 41, 42, 50, 51, 57. Mr. Gibbs

[1-4-78] pp. 3-6, 8-11, 13-37.

A-16

(G.) Plaintiffs object to the conclusion: “However, the

issue of the site plan does not create a property interest un-

der California law.” [Magistrate’s Recommendation p. 2].

The Supreme Court of the United States reversed the

Supreme Court of California in Dobbins v. Los Angeles,

195 U.S. 223 (1904) and held that where an owner under-

took construction of a gas works in a permitted area and

expended some $2,500 in erecting a foundation before a

zoning ordinance was passed prohibiting gas works in that

district, the owner was entitled to protection against un-

constitutional encroachments which would have the effect

of depriving her of her property without due process of

law.

Thus a vested right is a constitutionally protected prop-

erty right. San Diego County v. McClurken, 37 Cal 2d 683,

691, 234 P2d 972; Griffin v. County of Marin, 321 P2d 148

(1958); Morgan v. County of San Diego, 19 Cal App 2d

636, 97 Cal Rptr. 180. The California Court of Appeal, 4th

District, Division 2, stated the rule thus in Aries Develop-

ment Co. v. California Coastal Zone Conservation Commis-

sion, 48 Cal App 3d 534, 543, 122 Cal Rptr 315, 322 (1975):

“In this state, one who in good faith reliance upon a

building permit performs substantial work and incurs

substantial liability in connection therewith acquires

a vested right to complete construction notwithstand-

ing an intervening change in the law that would other-

wise preclude construction. (Citations omitted). The

rule is grounded upon the coustitutional principle that

property may not be taken without due process of law.

(See Transcentury Properties, Inc. v. State of Cali-

fornia, 41 Cal App 3d 835, 844, 116 Cal. Rptr. 487.”

A-17

The court said further: “once a right is vested, its impair-

ment or destruction must comport with constitutional prin-

ciples. 48 Cal App 3rd at 549, 122 Cal Rptr. at 325.

Avco Community Developers, Inc. v. South Coast Re-

gional Commission, 17 Cal 3rd 785, 132 Cal Rptr 386 (1976),

does not resemble at all our case at bench. In Avco, the de-

veloper was required to obtain a permit under the Califor-

nia Coastal Zone Conservation Act of 1972 because it had

not received approval of plans indicating the placement of

buildings to be built upon a large subdivision. The size of

the proposed buildings, the number of apartments of speci-

fied size, how high the buildings would be, or how many

units would be built on the tract were not approved. In

contrast here, Soojian’s approved site plan described

specifically with complete dimensioning the size, height and

placement of the few actual structures (washhouses) and

the size and placement of every trailer space, plumbing and

water system, street and parking area for the project. See

plaintiff’s affidavit, Appendix A p. 10.

The issue whether plaintiffs had “a controlling property

interest which was sufficiently vested” raises a question of

fact which must be decided by trial. Defendants’ pretrial

statement recognized this.

It is noteworthy that in Avco denial of a vested right was

not based on want of a construction permit. The Court

disclaimed “blind insistence on an instrument entitled

‘building permit’” [17 Cal 3rd at 797]. Aue followed

Spindler Realty Corp. v. Monning, (1966) 243 Cal App 2d

255, 53 Cal Rptr 7; and Anderson v. City Council, 229 Cal

App 2d 79, 40 Cal Rptr. 41 (1964), where work done without

A-18

previous authorization for the exact number, size and type

of buildings to be erected on the site was held not to create

a vested right which would protect the developer against a

change in zoning ordinance. Avco agrees that a builder who

has obtained approval of a specific structure which com-

plies with the law in effect at the time the permit is issued

and has performed substantial work would be entitled to a

vested right. [17 Cal 3rd at 801, 132 Cal Rptr. at 396.] In

the present case, plaintiffs not only were granted specif-

ically detailed authorized use of the land but they also

commenced substantial construction of Phase One of the

project pursuant to an additional construction permit

issued by the State of California, and the work was in-

spected and approved.

In a mobilehome park, a large proportion of the con-

struction is in the laying of underground pipes to service

the various trailer spaces and in the laying out of streets

and parking areas. Construction of buildings is a minor

feature of the project. This was recognized in Morgan v.

County of San Diego, 19 Cal App 2d 636, 97 Cal Rptr 108,

where the court observed that the fallacy of the “actual

work on the ground standard” is that it bears no necessary

or direct relationship to whether a developer is working in

good faith to accomplish a project. A developer’s effort is

not to be condemned merely because an on the site inspec-

tion of actual construction may reveal very little. The

statement in Avco about work preparatory to construction

of buildings, quoted at page 2 of the Magistrate’s recom-

mendation relates to the situation in Spindler and in

Anderson, supra. It does not fit the present case.

A-19

The Board of Supervisors concluded that “As of August

15, 1975, there was substantial development of the area

limited to Phase One of the site.” Since Phases one, two and

three are parts of an interdependent whole, the finding of

substantial development of Phase One is a finding that sub-

stantial work had been commenced on the entire project.

[See Affidavit A-12]. A similar situation was discussed in

Sierra Club v. California Coastal Zone Conservation Com-

mission, 58 Cal App 3rd 149, 129 Cal Rptr. 742 (1976).

Some of the developer’s buildings were well along in con-

struction ; others had not been started. Vested rights for the

whole project were held to have been established since the

buildings not started were part of an interdependent whole.

[See Affidavit A-12]. Likewise in Kissinger v. Los Angeles,

161 Cal App 2d 454, 327 P2d 10, (1958) expenditures of

$2,300 on construction had been held sufficient to create a

vested right in developers to complete a previously autho-

rized project in the face of a zoning change which would

prohibit the planned multiple dwellings. Since plaintiffs

here were in midstream and had performed substantial

development pursuant to the site plan approval to con-

struct, plaintiffs have a constitutionally protected vested

right to complete their project [A-12]. This protects plain-

tiffe against the 1976 ordinance change which rezoned the

land AE-20 (exclusive for agriculture), relied on by the

county counsel in their decision of March 1, 1977, revoking

the Site Plan.

(H.) Plaintiffs object to the magistrate’s findings [page

2] “Plaintiffs were granted two building permits, one

authorizing the construction of a laundry room, and the

other authorizing the construction of a 28-space mobile

A-20

home park, but each was allowed to expire long before the

re-zoning and revocation of the site plan approvals.” There

is nothing in the record to support these findings.

The record shows to the contrary that plaintiffs obtained

four, rather than two approvals. On September 1, 1971,

Fresno County issued a “final permit” to construct a 264-

space mobile home park, which recited on its face: “Use

approved under this permit 264-space mobilehome park.”

[A-10]. In September 1972, the County revised the permit

and reissued it, authorizing construction of a 263-space

mobilehome park in three phases.

Robert H. Grove, the official who issued the Site Plan

Approval, explained:

“Q (by Mr. Murray): Now actually when the Site

Plan was issued, isn’t this a permit in itself to go ahead

and construct the park under the conditions of the site

plan?”

A (by Mr. Grove): That’s right, subject to those

other requirements which are stipulated in the ap-

proval.”

Mr. Grove explained that when the Site Plan Approval was

issued, it was the intention that Mr. Soojian should be able

to rely on it. Soojian would be permitted to build one phase

of the park before the others; there was no time limit on

the site plan review. Building permits must be secured from

the State for specific things requiring electric, plumbing or

structural permits, bi ‘here was no requirement for the

approval that those other improvements that don’t require

structural permits could not be done prior to those which

did require such permits. [A-10, 11].

A-21

Thus the site plan approval was a permit in itself to

construct a mobilehome park which satisfied See. 18500 of

the Mobilehome Parks Act of 1967. Plaintiffs did not need

any further authorization than approval of their site plan

# 1507 to start right in in 1971 to do work essential for the

development of the project which did not involve struc-

tural, electrical or plumbing work, for which special per-

mits were called for by the site plan.

Plaintiff did obtain special permits from the State of

California, as called for by the site plan. On November 12,

1973, Kenneth Baker, District Representative of the Divi-

sion of Codes and Standards, inspected and approved

Soojian’s sewer pipe installation for the California Depart-

ment of Housing and Community Development. Another

inspector inspected and approved Soojian’s water pipe in-

stallation early in 1974. [A-11].

Plaintiffs’ site plan # 1507 approving construction of 263

mobilehome spaces was valid when issued in 1971, was valid

when modified and approved in 1972, and since several sub-

sequent ordinance amendments did not automatically

revoke the plan, it continued to be effective until revoked

by County Counsel in March 1977.

A change in the zoning ordinance does not operate to

revoke automatically approval of projects approved under

previous law. Transoceanic Oil Corp. v. City of Sania

Barbara, 85 Cal App 776, 195 Pad 148 (1948). The construe-

tion work on the park was lawfully performed by the

plaintiffs prior to the revocation which defendants ordered

without “Due Process” in March, 1977.

A-22

(I.) Plaintiffs object to the magistrate’s conclusion on

page three: . . a pre-termination hearing is only neces-

sary when the interests which are to be affected relate

directly to the recipient’s ability iv maintain subsistence.

Due Process, in almost any other situation, is satisfied if

the interested party is afforded notice prior to or consistent

with affectation of the interest and if an opportunity to be

heard is afforded within a reasonable time thereafter. Cer-

tainly the plaintiffs in this cause of action have been

afforded adequate notice and an adequate opportunity to be

heard.”

The magistrate misinterprets Goldberg v. Keily, 397 U.S.

254, 90 S Ct. 1011 (1970). Two years after deciding that

case, the Supreme Court of the United States reversed a

similar misinterpretation and explained Goldberg v. Kelly

in Fuentes v. Shevin, 407 U.S. 67, 88 (1972). In Fuentes v.

Shevin, the Florida -d Pennsylvania replevin statutes

were held to be unconstitutional under the Fourteenth

Amendment since they worked a deprivation of property

(even though it might be only a temporary deprivation,

correctable later) without due process of law by denying

the right to a hearing before the deprivation takes effect.

The court pointed out that a prior hearing could be dis-

pensed with only in exceptional cases to protect an ex-

tremely important governmental or general public interest

when there was a special need for prompt action, such as

the need to collect the internal revenue of the United States,

to meet the needs of a national war effort, to protect

against the economic disaster of a bank failure, or to pro-

tect the public from misbranded drugs and contaminated

food. [407 U.S. at 88 to 92]. In Fuentes, the Supreme Court

A-23

pointed out that the Fourteenth Amendment speaks of

“property” generally, and the Court reaffirmed its tradi-

tional insistence that a hearing must be provided before a

citizen is deprived of any significant property interest.

[407 U.S. at 82].

Plaintiff's affidavit avers: “No notice of any hearing was

given prior to the revocation on March 1, 1977. Mr. Car-

michael’s letter of January 18, 1977, says in effect: ‘Be-

cause of the new AE-20 zoning, you can’t have a trailer

park. Signify that you agree.’ Soojian’s reply of February

3, 1977, says in effect: ‘I have done a lot of work. I have

a right to finish.’” [A-5].

“The plaintiffs were not given any hearing on any issue

before any administrative tribunal prior to Mr. Lempel’s

letter of March 1, 1977, which announced [on behalf of

County Counsel Wash] a decision that ‘site plan review

1507 is deemed void.’ That decision [a judgment] effec-

tively deprived plaintiffs of a substantial [constitutionally

protected] right without a prior trial.” [A-5).

Here we have shown that plaintiffs’ vested property

rights are at stake. Plaintiffs seek redress for deprivation

of their constitutionally protected property rights. The

recommended decision says that plaintiffs had no prop-

erty rights. But there is no foundation in fact for the mag-

istrate’s conclusion. Plaintiff’s affidavit avers facts show-

ing that plaintiffs do have a vested property right to

complete the project. This material issue of fact cannot

be resolved by summary judgment. Plaintiffs are entitled

to their day in court.

A-24

(J.) Piaintiffs object to the findings and conclusions on

pages 3 and 4, leading to the recommendation that

summary judgment enter in favor of all of the defendants

on the [issues of] . . . the activities of the County Counsel’s

office in relation to the decisions on review.” “Due Process

is satisfied when the decision-maker remains unbiased.”

Whether the office of County Counsel, Mr. Lempel and

Mr. Wash, were biased or unbiased is an issue of fact to

be tried. Summary judgment is inappropriate when the

central and perhaps only inquiry is the official’s state of

mind. See Wright, Law of Federal Courts, 493 (1976). (It

is not feasible to resolve on motion for summary judg-

ment cases involving state of mind. Subin v. Goldsmith,

224 F2d 753 (CA 2 1955).

In their affidavit, plaintiffs aver: “We agree that J. Ste-

ven Lempel acted for the Department of Public Works in

all matters relating to the 1977 revocation of Site Plan

Approval No. 1507. We agree that Mr. Lempel partici-

pated in the judicial function with the Department of Pub-

lic Works in rendering a decision March 1, 1977, declaring

void Site Plan No. 1507.” [A-4].

“The March 1, 1977, decision is expressed in the follow-

ing language: ‘It is the opinion of the Department of Pub-

lie Works, the Planning Department and the undersigned

[Robert M. Wash, County Counsel, by J. Steven Lempel,

Deputy] that substantial development has not taken place

on such site so as to create a vested right to complete the

project. Site Plan Review No. 1507 therefore is deemed

void.’ This establishes that Robert Wash and J. Steven

Lempel participated in the judicial function of rendering

A-25

the decision of March 1, 1977. This decision on their parts

was outside the scope of any lawful authority vested in

them to make such a decision. A copy of said decision is

attached to and incorporated by reference in plaintiffs’

complaint.” [A-4 and A-B].

“We deny that Mr. Lempel acted in the capacity of a

prosecuting attorney on March 1, 1977, when he engaged

in making the decision revoking Site Plan Approval No.

1507. We agree that the 1977 revocation of the permit oc-

curred prior to hearings before the Board of Review and

the Board of Superv.sors and that Mr. Lempel did act as

a prosecuting attorney on behalf of the Department of

Public Works at those hearings. The action of the office of

county counsel on March 1, 1977, in participating through

Mr. Wash and Mr. Lempel in the decision making process

deprived plaintiffs of a vested property right to continue

to complete the construction of the mobilehome park, which

had been approved under Site Plan Approval No. 1507.

This action deprived plaintiffs of the “Due Process” guar-

anteed to plaintiffs by the Fourteenth Amendment to the

Constitution of the United States.” [A-5].

“The Board of Supervisors and the Board of Review.

did not hear our appeal based upon the 14th amendment

guaranties of freedom and property and due process. The

matter appealed was the March 1, 1977, revocation of site

plan 1507 without “Due Process”. Instead of deciding the

constitutional matter appealed, the Boards proceeded to

cover up the prior unconstitutional action, and such cover

up was beyond the scope of any quasi-judicial function.”

[A-6].

A-26

The magistrate’s recommendation would dismiss the case

without trying the issue whether plaintiffs were denied

“Due Process” when the same persons who d issued the

initial decision teamed together to control the board mem-

bers’ review of that decision. The board members felt

obliged to follow the instructions given them by their ad-

visor, Mr. Wash, as to what evidence they should consider

or disregard. Plaintiffs object also to the instructions he

gave the Board concerning California law. The Supreme

Court has ruled repeatedly that a decision maker should

not participate in the review of his own earlier decision.

See Goldberg v. Kelly, 379 U.S. 254, 271 (1970); Gagnon

v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer,

408 U.S. 471 (1972) ; Withrow v. Larkin, 421 U.S. 35 (1975).

When review of an initial decision is mandated, the deci-

sion makers should not be guided by the same persons who

made the decision under review. Participation in the re-

view by Mr. Wash and his deputy was improper.

The recommendation brushes aside the issue that “Plain-

tiffs were denied “Due Process” when County Counsel

made ex parte communication to the Board of Supervisors

to exact promises to find for the County at the forthcoming

Finding of Fact hearing, as reported by the Fresno Bee

January 6, 1978.” [A-7].

“At the close of the hearing on Wednesday, January 4,

1978, the Chairman scheduled a further meeting to be held

about a month later on February 7th (actually held March

6th) to adopt findings. The Chairman observed : ‘Now, ob-

viously, the decision is not final. Last time it happened, it

got reversed. So, until those findings are adopted, there is

A-27

no final decision.’ Tr 14-78 Ex 4A p. 55. The meeting ad-

journed.” [A-7].

“On January 6, 1978, an article published in the Fresno

Bee, Exhibit 02 at the March 6 hearing, Exhibit B to the

Complaint, reported:

“New findings of facts will be considered Feb. 7,

County Counsel Robert M. Wash, whose deputy,

Steven Lempel, argued the Public Works Department's

case, got a commitment from the board members that

they vill not reverse their decision again.” (Under-

scoring added.)

Mr. Lempel offered no evidence whatsoever in the record

before the Board of Supervisors to deny or disprove the

report in the Fresno Bee.” [A-7].

One of the fundamental premises inherent in the concept

of an adversary hearing is that neither adversary be per-

mitted to engage in an ex parte communication concerning

the merits of the case with those responsible for the deci-

sion. Canon 17, ABA Canons of Judicial Ethics; Adminis-

trative Procedure Act, 5 USC §§ 554(d), 557(d)(1); San-

gamon Valley Television Corp. v. United States, 269 F2d

221 (D.C. Cir. 1959).

In Camero v. United States, 375 F2d 777 (Ct. Cl. 1967),

the court found that the “decisions were made, at least in

part, on the basis of the ex parte communication and

held: “This is enough to require us to invalidate plaintiff's

removal.” At page 781, the court said:

“Tt is difficult to imagine a more serious incursion on

fairness than to permit the representative of one of the

parties to privately communicate his recommendations

A-28

to the decision makers. To allow such activity would be

to render the hearing virtually meaningless. We are of

the opinion that due process forbids it. See Viratelli

v. Seaton, 359 U.S. 535 (1959).”

Summary judgment is not appropriate where the record,

including documents and pleadings, establishes facts which

give rise to contradictory inferences, one of which supports

the party opposing the motion. United States v. Lange,

466 F2d 1021 (CA 9 Calif. 1972). The policy against abuse

of official power requires that a citizen be given opportu-

nity to prove his claim that his constitutional rights have

been infringed.

II

THE COMPLAINT STATES A CLAIM FOR WHICH

RELIEF CAN BE GRANTED

Rule 12(b)(6) F.R.C.P.

In Warth v. Selden, 422 U.S. 490, 501 (1975) the Su-

preme Court of the United States pointed out that “for pur-

poses of ruling on a motion to dismiss . . . both the trial

and reviewing courts must accept as true all material al-

legations of the complaint and must construe the complaint

in favor of the complaining party.” Citing Jenkins v. Me-

Keithen, 395 U.S. 411, 421, 422 (1969).

The Second, Fifth and Tenth Circuits have held that a

case brought to vindicate a citizen’s civil rights should not

be dismissed at the pleadings stage unless it appears to a

certainty that the plaintiff would be entitled to no relief

under any state of facts which could be proved in support

of his claim. Holmes v. New York City Housing Authority,

A-29

398 F2d 262 (CA 2 1968); Varnes v. Merritt, 376 F2d 8

(CA 5 1967) ; Jones v. Hopper, 410 F2d 1323 (CA 10 1969,

cert. denied 397 U.S. 991).

The Fifth Amendment is made applicable to States by

the Fourteenth Amendment to the Constitution of the

United States, which provides in part:

“No state shall make or enforce any law which shall

abridge the privileges end immunities of citizens of

the United States; nor shall any state deprive any per-

son of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

The Fourteenth Amendment’s due process clause has

been interpreted to impose on the states the same obliga-

tion imposed by the Fifth Amendment. West v. Chesapeake

& Potomac Tel. Co., 295 U.S. 662 (1935); Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393 (1922) ; City of Cincinnati

v. Louisville & V. R. R. Co., 223 U.S. 290; Chicago,

B H OR R v. City of Chicago, 166 U.S. 226 (1897). The

word “property” in these provisions is not used in the sence

of the physical thing with respect to which the citizen ex-

ercises rights recognized by law, but “to denote the group

of rights inhering in the citizen’s relation to the physical

thing, as the right to possess, use and dispose of it.” United

States v. General Motors Corp., 323 U.S. 373, 377-378.

Analysis of the complaint will show that the subject mat-

ter of this case is deprivation without due process of law of

a valuable vested property right to use plaintiffs’ property

for a mobilehome park on which plaintiffs had commenced

substantial work in reliance upon authorization issued by

A-30

the County of Fresno. The magistrate’s recommendation to

dismiss assumes that plaintiffs had no such vested right.

The assumption decides the case on the merits summarily

without any proof to support the assumption, which is not

a matter of law but is a disputed issue of fact.

In Count 1 of the complaint, brought directly under the

Fourteenth Amendment to the U.S. Constitution, para-

graph 5 sets forth in subparagraphs (a) through (g) par-

ticulars of defendants’ actions, taken singly and in concert,

to deprive plaintiffs of their property right without “Due

Process of Law”.

In Count 2, paragraphs 13 through 20 allege actions

taken by the defendants under color of state law in further-

ance of a conspiracy to deprive plaintiffs of their constitu-

tionally protected right to continue to construct the project

previously approved in Site Plan Review 1507 and of their

right to “Due Process”.

The Second Circuit stated the elements required to state

a claim under § 1983:

“To maintain a cause of action under § 1983, a plaintiff

must show: (1) that he has been deprived of a right,

privilege, or immunity secured by the Constitution and

laws of the United States; (2) that the defendants sub-

jected plaintiff to this deprivation, or caused him to

be so subjected; and (3) that the defendants acted un-

der color of any statute, ordinance, regulation, custom

or usage of any state.”

Kletschka v. Driver, 411 F2d 436 (2d Cir. 1969). To the

same effect is Jones v. Hopper, 410 F2d 1323 (10th Cir.

1969, cert. den. 397 U.S. 991).

A-31

In § 1983 actions, it is not necessary to plead or prove

that the defendants had a specific intent to deprive the

plaintiff of his rights, nor to plead a conspiracy. “It is suffi-

cient to establish that the deprivation of constitutional

rights or privileges was the natural consequence of the ac-

tions of defendants acting under color or law, irrespective

of whether such consequence was intended. Ury v. Santee,

303 F Supp 119 (D.C. III. 1969); Stringer v. Dilger, 313

F2d 536 (9th Cir. 1963); Selico v. Jackson, 201 F Supp

475 (D.C. Cal. 1962) ; Cohen v. Norris, 300 F.2d 24 (9th Cir.

1962).

The third count of the complaint adds paragraphs 23

and 24 to set out a claim under 42 § 1985(3) which contains

the elements called for in Hoffman v. Halden, 268 F.2d 280

(1959), where the Ninth Circuit said:

“Under § 1985(3) Title 42 USC, the elements of a

cause of action are: (1) that defendants conspired ; (2)

that the purpose of the conspiracy was to deprive

plaintiffs of equal protection of the laws or equal

privileges and immunities under the law; (3) a pur-

poseful intent to discriminate, and (4) that defen-

dants acted under color of State law or authority;

(5) the requirements of §1985 (3) that by acts in

furtherance of the conspiracy, the plaintiff was in-

jured in his person or property or was deprived of

having and exercising a right or privilege of a citi-

zen of the United States.”

Count 4 of the complaint adds paragraphs 26 and 27 to

allege a claim under 42 USC 5 1986, which provides that

every person who, having knowledge that any of the wrongs

conspired to be done and mentioned in § 1985 are about to

A-32

be committed, and having power to prevent or aid in pre-

venting the commission of the same, neglects or refuses

to do so, if such wrongful act be committed, are liable to

the party injured, or his legal representatives, for all dam-

ages caused by such wrongful act, where such person by

reasonable diligence could have prevented the act.

The Supreme Court has expressly held that property

rights are as protectable under the ci: il rights acts as are

personal liberties. Lynch v. Household Finance Corp., 405

U.S. 538, reh. den. 406 U.S. 911 (1972). The recommen-

dation for summary dismissal is erroneous.

III

THE COURT HAS JURISDICTION OVER THE

SUBJECT MATTER.

Rule 12(b)(1) F.R.C.P.

The jurisdictional statutes make clear that the United

States district courts have original jurisdiction over causes

of action for deprivation of civil rights and under the self-

executing “Due Process” clause of the Fourteenth Amend-

ment.

28 USC 5 1331 provides:

“(a) The District Courts shall have original jurisdic-

tion of all civil actions wherein the matter in contro-

versy exceeds the sum or value of $10,000, exclusive

of interest and costs, and arises under the Constitu-

tion, laws or treaties of the United States.”

The triable issue whether plaintiffs have been deprived of

a vested right to complete their project, which is a right

cognizable under the Fourteenth Amendment, should not

be summarily dismissed.

A-33

28 USC § 1343 provides:

“The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person”

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act

done in furtherance of any conspiracy mentioned in

section 1985 of Title 42.

(2) To recover damages from any person who fails

to prevent or to aid in preventing any wrongs men-

tioned in Section 1985 of Title 42 which he had knowl-

edge were about to occur and power to prevent.

(3) To redress the deprivation under color of any

state law, statute, ordinance, regulation, custom or

usage, of any right privilege or immunity secured by

the Constitution ot the United States.

Plaintiffs submit that the Court should reject the magis-

trate’s recommended decision. Defendants’ motions should

be denied, and plaintiffs should be granted trial on the

merits.

Respectfully submitted,

/s/ William M. Hardy

William M. Hardy

Attorney for Plaintiffs

1425 Park Avenue

San Jose, California 95126

Telephone: (408) 275-6507

A-34

Appendix F

Order Denying Heariug

After Judgment by the Court of Appeal

5th District, Division , Civil No. 5066

In the Supreme Court

of the

State of California

In Bank

[Filed Mar. 3, 1982]

Soojian

vs.

County of Fresno, et al.

Appellant’s petition for hearing DENIED.

/s/ BIRD

Chief Justice

A-35

Appendix G

In the Court of Appeal

of the

State of California

in and for the

Fifth Appellate District

5 Civ. No. 5066

(Super. Ct. No. 227791-1)

[Filed Jan. 7, 1982]

Asadoor Soojian,

Plaintiff and Appellant,

County of Fresno, et al.,

Defendants and Reepondents.

By the Court:

The petition for rehearing is denied.

Dated January 7, 1982

/s/ ZENOVICH, Acting P.J.

Not to Be Published

In Official Reports

In the Court of Appeal

of the

State of California

Fifth Appellate District

5 Civ. No. 5066

(Super. Ct. No. 227791-1)

Asadoor Soojian,

Plaintiff and Appellant,

vs.

County of Fresno, et al.,

Defendants and Respondents.

[Filed Dec. 9, 1981]

OPINION

APPEAL from a judgment of the Superior Court of

Fresno County. Leonard Irving Meyers, Judge. Affirmed.

William M. Hardy and William Murray for Plaintiff

and Appellant.

Floyd R. B. Viau, County Counsel, J. Steven Lempel,

Chief Deputy County Counsel, and Jerome M. Behrens,

Deputy County Counsel, for Defendants and Respondents.

A-37

In this case, plaintiff appeals from a judgment of the

superior court denying his petition for administrative

mandamus. The administrative mandamus action stems

from a series of administrative hearings before the Board

of Review and the Board of Supervisors of the County of

Fresno relating to the revocation of a site plan for a pro-

posed mobile home park.

The principal issue in this appeal is whether plaintiff

had a vested right to build a mobile home park based on

a site plan. We conclude he did not.

Site plan No. 1507 was approved and issued to plaintiff

(hereinafter Soojian) by the County of Fresno Planning

Department ‘on September 1, 1971. It called for construc-

tion of a 264-space mobile home park in the County of

Fresno and included the following conditions: that certain

right-of-way be dedicated to the county; that driveway

approaches, parking and circulation areas be surfaced ; that

parking spaces for 290 vehicles be installed; that Soojian

submit the drainage plan; that a 15-foot wide landscape

area be installed along Reed Avenue; that a six-foot high

solid masonry wall or chain link fence with solid green

planting be constructed along the north, south and west

sides of the development. The site plan also required that

building permits be obtained from the State of California

prior to commencement of any construction. At the time

the site plan was issued, the subject property was zoned

A-1, which permitted mobile home parks as a matter of

right. Moreover, there was no time limit stated on the site

plan.

A-38

On April 11, 1972, the Fresno County zoning ordinance

was amended to require a conditional use permit (C.U.P.)

for mobile home parks in the A-1 zone district. Soojian

never applied for a C.U.P., and he was not notified of any

zoning change.

On September 25, 1972, the site plan was reviewed to

incorporate minor changes. Nothing was said to Soojian

regarding the amendment to the zoning ordinance requir-

ing a C.U.P. for a mobile home park.

On December 5, 1972, Public Resources Code section

21169 became effective, which provided that the California

Environmental Quality Act did not apply to projects ap-

proved before December 5, 1972.

On December 18, 1972, Soojian was issued two building

permits by the State of California. One permit authorized

construction of a laundry and the other permit was for a

28-space mobile home park. The building permits, by their

terms, automatically expired on June 18, 1973. In Novem-

ber 1973, the state extended both permits to June 18, 1974.

At this time, the State of California was responsible for

issuing building permits for mobile home parks. (See Mo-

bile Home Parks Act, Health & Saf. Code, 5 18200 et seq.)

On August 15, 1974, the Fresno County zoning ordinance

was amended to provide “Approved site plans shall be-

come void when substantial development has not com-

menced within one year of approval of the site plan.”

On September 30, 1976, the subject property was rezoned

from A-1 to AE-20 (exclusive agricultural—20 acre mini-

mum). Mobile home parks were not permitted in any AE

zone district pursuant to this ordinance.

A-39

On March 1, 1977, Soojian was notified by letter from

county counsel on behalf of itself, the department of public

works and Fresno County Planning Department that site

plan No. 1507 was revoked because Soojian failed to com-

mence substantial development. Further, since the zoning

ordinance no longer permitted a mobile home park on the

site, building permits would not be issued for the proposed

use.

On May 4, 1977, Soojian appealed the revocation by the

department of public works to the board of review, which

affirmed the revocation.

Thereafter, on March 6, 1977, Soojian appealed to the

board of supervisors and, after numerous hearings, the

board affirmed the revocation of the site plan.

SOOJIAN’S EVIDENCE

Soojian was desirous of building a mobile home park. He

was unsure whether he could build such a park, so he took

out an option to purchase the subject property consisting

of grape vines. Thereafter, he went to the Fresno County

Department of Public Works and was told that a park

could be built under the applicable zoning ordinances. He

asked for a permit, was told that he had to make a plot

plan, which he did, and on September 1, 1971, he was told

the plan was approved. He thereafter received a letter of

approval.

Soojian testified that he relied on the site plan and the

fact thet there was no time limit. Likewise, from the time

it was issued to January 1977, he was never advised by the

county that he could not build the project.

A+

Soojian devoted much of his testimony before the board

of supervisors to the expenditures and work done on the

park.

Soojian, a licensed contractor, did on-site construction

and engineering from September 1971 to the end of

January 1972 and some in 1973. (Soojian’s family also

helped in the project.) He described the work as driving

stakes, laying out the land, laying out a road, surveying

and “getting a grade.” He had to stake where each trailer

was going to sit; likewise, the staking was done so that he

would know where the sewer and water lines were to be

placed. Soojian totally staked phase 1 of the project and

partially staked the rest of the project.“ He did the

engineering in reliance on the site plan approval.

Initially, Soojian valued this on-site engineering at

$19,000. However, he revised this figure up to $22,000. He

had no records showing the amount of time he put in, and

he apparently based his figure for the on-site engineering

on what other people were charging.

Soojian also installed header board for the purpose of

laying a road and putting in the asphalt. He expended

$2,000 which included material and labor. One-half of the

headers were installed during the early part of 1973 with

about one-eighth done in 1972 and another one-eighth done

in the latter part of 1973, with small amounts done from

then on. The header boards were not inspected.

*Apparently, the phasing was inserted in the site plan approval

for Soojian’s convenience and had nothing to do with requirements

of the county zoning ordinance. He was free to proceed with one

area before another area.

Al

Soojian also claims $6,400 was expended on “concrete

forms, rebars, labor.” These items apparently related to

the building of a wall and putting in concrete where there

was a curb or a “size change.” Most of the work was per-

formed during 1973. The wall was installed in sections

(fall 1971, 32 feet; 1972, 56 feet; and 1975, 32 feet). Soojian

admitted he “could be off” on the installation and was un-

sure on the time element or dates, yet he claimed that most

of the wall was installed by the end of 1973. He did not

keep time records, as he felt he had no reason to. He also

did not bring to the hearing the receipts of bills for the cost

of the wall. The wall was not inspected during the time of

construction, and Soojian claimed this was unnecessary

anyway.

Soojian next claimed $1,000 for materia!s acquired in 1971

to build a laundry room in accordance with the site plan

specifications. The materials were purchased after the site

plan approval but before the receipt of the building permit

to build the laundry room.

There was also a major expenditure claimed for sewer

and water pipes. The pipe cost about $10,000, and the

machinery for installation cost $2,000 and $10,000 was for

labor. Although Soojian claimed he had receipts for the

purchase of the pipe, he did not bring the receipts with

him. The time spent was hased on his word, as he had no

records showing the same.’ Sojian obtained the sewer and

*Soojian based the $22,000 figure on his experience as a general

contractor. He had also talked to a contractor who gave him the

“price of today.” It may also be noted that the figure was based

on the cost as of approximately October 1977. Soojian did not know

the cost when the pipes were installed. Soojian also stated that the

$22,000 figure was based on the “value” of the work and materials.

A-42

water line permits (from the state) in December 1972

and then he started working. He installed the pipe during

1973 and worked all year long; he installed almost 1900 feet

of water pipe and 1400 feet of eight-inch and 300 to 400

feet of four-inch sewer pipe.

Soojian also installed a water pump for the project in

February to May 1975. He did not have a permit. He stated

the pump and testing cost at $4,500. However, on cross-

examination, he testified that he did not keep any records

of work hours and, although he had bills on “every single

thing” he paid on, he did not bring them to the hearing.

A water pressure tank was bought in July 1975. Soojian

placed an $8,000 value on it which covered the cost of haul-

ing, purchasing, cleaning, etc. The actual purchase price of

the tank was $2,650.

Soojian placed a $9,361 cost for having a well drilled.

It was dug in September or October 1977. Soojian had com-

mitted himself to the well driller on December 31, 1976,

but did not make any inquiry whether he could get out of

the agreement.

Soojian also attempted to introduce other costs relating

to the project but was prevented from doing so.’

supervisors throughout

evidence of the preliminary work, purchase of the property, clear-

A-43

Soojian testified he was in a position to complete phase 1.

He also stated there was a housing shortage in the area

and that he could personally fill half the park with his own

farm employees. He then testified as to the advantages

of the park to the agricultural community (e.g., to keep

steady employees after training them and provide a place

for farm workers and others to live). Also, he has made

a good faith effort to complete the park but had problems

such as a back injury and running out of money.

Soojian also put on witnesses (the manager of a trailer

park and two farmers) who testified as to the need for

housing in the area and the fact that there would be no

detrimental effect of pesticides on the people in the mobile

homes.

Soojian also called a number of witnesses to establish

the amount of work done on the project.

Harold Manselian, a general contractor and owner of

Farm Lumber Supply Company, testified he was familiar

with trailer parks and also noted how 90 percent of the

work was underground. Manselian “surveyed” the project

vines were pulled in 1971 after the site plan was granted. Sooſian's

attorney continued that in 1972 the demolishing of the vineyards

was concluded. The attorney made an offer of proof that he could

prove that the cost of demolishing the vines preparatory to making

the use of the land in accordance with the permit was approxi-

mately $3,000, while the vines themselves were worth “some”

$80,000. Soojian estified that insurance companies had placed a

value of $5 per vine 15 to 20 years prior to the hearing. The deputy

county counsel objected to this method of valuation.

Additionally, there was an offer of proof that Soojian expended

$41,000 on off-site engineering which would include the prepara-

tion and calculations that are necessary to the project.

A-+4

in September 1977 and, according to his breakdown of

work done since 1972, he estimated the cost (excluding

engineering and plans and the value of removing the

vines) to be $94,530. (The figure included the cost for,

inter alia, headers, rough grades and removal of the vine-

yard, asphalt, earth removal, trenching, landscaping and

a water well.)

Manselian noted that he was making current cost esti-

mates and he figured from a contractor’s point of view.

Additionally, he admitted that he could only guess the date

when any of the work was done. Manselian opined that

80 percent of phase 1 had been completed from the date

Soojian purchased the property despite the fact that Soo-

jian still had to build the laundry room and a recreation

room (the former was required by law).

Gary Gibbs, an “underground contractor” who special-

izes in installing sewer, water and storm drains, inspected

the property in November 1977. Gibbs estimated that his

firm would have done the installation of the sewer and

water pipes for $20,106. Gibbs’ estimate was apparently

based on a 30-space mobile home park. When asked if the

$20,106 figure would have been less in 1972, Gibbs stated,

4. . it's hard to come off the top of your head with

something like that. It would be less just like anything

else in 72, but—what amount less I don't know.” When

asked if the figure was within a 5 percent range of the cost

in 1973, Gibbs stated, “Well, that could be as high as 10

percent. I was just making—you expect all these shoot

from the hip answers.”

A-45

Rod Ehman, an engineer and estimator who specializes

in sewer and water storm drains, testified he looked at

the 1972 site plan and that he inspected the property.

Ehman estimated that in 1973, he would have contracted

to install the sewer and water system for $24,000. The

estimate was based on what he saw in the plans and on

the site. Ehman was also working with a plan which had

28 spaces on it.

Finally, Jack Benson, construction estimator, estimated

that the total construction cost to Soojian as of December

1977 was $115,018.11. This estimate was for work done on

phase 1, the 28 units. Benson also stated it was conceivable

that the total figure would be maybe 25 to 30 percent

higher than the same work to be performed in 1973.

COUNTY’S EVIDENCE

Respondent county called a number of witnesses who

testified on the purpose of a site plan, the second site plan

approval, the amount of work done on the park, and the

potential deleterious effect of the park.

Robert Grove, whose signature is found on the Septem-

ber 1, 1971, site plan, noted that approval of a site plan

means that a particular plan meets the particular zoning

requirements (e.g., for parking, landscaping or density) ;

however, a building permit would give the approval to

actually construct structures. He further testified that when

the site plan is issued it is a permit in itself to go ahead

and construct a park under the conditions of the site plan

and “subject to those other requirements which are stipu-

lated in that approval.” Also, it is necessary to alhere to

A-46

the conditions of approval before actual construction, and

one of those conditions was issuance of building permits

from the State of California. However, after examining

site plan No. 1507, Grove indicated that work which would

not require a structural building permit could be done

prior to the work which did require a permit.‘ However,

he reiterated that the conditions were that building permits

had to be issued.

Livingston testified that the site plan is simply an

acknowledgement that what an applicant proposes complies

with county ordinances, but that a person may not begin

construction without the required permits. Another wit-

ness described the site plan “procedure” as a general plan

showing dimensions, location of buildings, and sizes of lots,

while a building permit shows greater detail, such as the

“various structural components,” and entitles a permittee

to construct something according to specific plans. There

was also testimony from the assistant director of public

works that, according to California Administrative Code

section 18035, construction of a mobile home park shall not

be done unless a permittee has a valid permit and the code

section also requires a building permit for the entire mobile

home park and not just construction of buildings.

Bill Carmichael, who previously had responsibility for

site plan reviews, testified it was intended that Soojian

should be able to proceed with construction of the park.

A-47

Likewise, Livingston testified that as of 1971, Soojian had

as a matter of right to proceed with the construction of

the project according to the terms and conditions of the

permit, assuming he met all of the conditions and secured

and complied with the “permits.” Livingston reiterated,

“He [Soojian} had the right to get a permit.”

There was also testimony regarding the second approval

of the project. It may be remembered that on April 11,

1972, the zoning ordinance was amended to require a

C.U.P. fcr a mobile home park. Nonetheless, on September

25, 1972, a site plan revision was approved by the county

and nothing was said about a C.U.P.

The 1972 revised plan involved only minor revisions:

the deletion of a space or spaces and the relocation of

the laundry room and guest parking spaces.

Livingston, the director of planning, testified that the

second plan was not considered a new site plan. When

asked about the second approval subsequent to the 1972

ordinance requiring a C.U.P., Livingston explained, “I

think it’s a matter of policy the Department has always

allowed minor modifications and made no substantive

changes in a Site Plan, the way whether [sic] it was

for conditional Use Permits or anything else because it

was not considered to be a new Site Plan as long as it

fell within the perimeters that were originally—.” Living-

ston also stated that the 1971 site plan was still a valid

site plan when asked whether he gave any consideration

to the April 1972 ordinance prior to the subsequent ap-

proval of the 1972 site plan. Livingston also testified that

it was not the policy of his department to notify citizens

A-48

of changes in zoning. Carmichael indicated that the changes

were so minor in the revieed plan that there was no

consideration of the C.U.P. requirement. He also stated the

approval of a revised plan commences from the date of

the original plan.

The county also put on evidence regarding the amount

of construction done on the site.

Carmichael testified that he was on the property in

early 1977 on two occasions. In phase 1 there was rough

grading, header boards along rough cut roads, a small por-

tion of the required wall and piping in the ground, along

with raw signs of piping sticking out of the ground at

various locations. There was no development at all in

phases 2 and 3 as there were weeds, rubble and piles of

debris. Also, the right-of-way along Reed Avenue had not

been dedicated as required by the site plan, the driveway

approaches had not been constructed; the area had not

been surfaced; there were no parking facilities or land-

scaping; however, a drainage plan had been filed.

Carmichael explained that according to the site plan

approval letter and a county ordinance mentioned therein,

Soojian had to dedicate the right-of-way to the county for

road purposes before a building permit could issue. If a

state permit were required to put in the sewer line, Soojian

had no right to put in the line because he never made the

dedication; according to a county zoning ordinance, the

dedication had to be made prior to the issuance of any

building permit.

Donald Pauls, a Fresno County building inspector, was

at the park on several occasions and testified regarding

A-49

his visit on February 17, 1977. He had inspected several

mobile home parks at various stages of development and,

compared to other such parks, he classified the degree

of development at the Soojian project as “nil.” Pauls

explained that there was not enough there to really repre-

sent what had to be done; “It is the first part of a con-

struction and certainly would not be a substantial amount

of work done.” He saw sewer pipe fixtures (“stubs”) but

the “unit” was not ready for a mobile home to connect

to it. He also saw some rough grading done on phase 1

but he did not see any grading on the entire tract, Pauls

saw some header boards but made no attempt to compute

the footage of sewer pipes. When asked about grapevines

on phase 2 and 3, Pauls stated there was still some vines

there but he was not sure about it “because I didn’t have

this entire map with me at the time. So I didn’t know just

where I was.” Pauls originally thought the entire project

was only phase 1, as the rest of it showed no sign of any

improvement.

The county also put on evidence that the park would

be incomputible with the surrounding agricultural area,

that there are no urban services or commercial facilities

in the area and that there would be pressure to develop

such services.

Ronald Agmagian, the assistant agricultural commis-

sioner in charge of issuing permits for restricted materials

which include pesticides, testified the development could

even further restrict the use of pesticides. “. . . urban

encroachment upon an agricultural area would even more

restrict the use of pesticides probably to the point where

it couldn’t be used in and around such development.”

450

DISCUSSION

In this case, the trial court applied the independent

standard of review. Under such standard, we need only

review the record to determine as a matter of law whether

the trial court’s findings and conclusions lack support in

the record. (Billings v. California Coastal Com. (1980)

103 Cal.App.3d 729, 734.) Upon reviewing the evidence

received by the trial court, including the record of the

administrative proceeding, we conclude, for reasons here-

inafter stated, that the findings are supported by substan-

tial evidence.

We now examine Soojian’s successive contentions in

light of the applicable law and recite the factual evidence

surrounding each of the issues raised.

I

The trial court concluded as a matter of law that

Soojian did not have a vested right to complete the mobile

home park described in site plan review No. 1507. The

gist of the findings of fact in support of this conclusion

was that the degree of Soojian’s development was insub-

stantial, and that much of the work was done without the

proper permits

The crux of Soojian’s argument is that his site plan

constituted a building permit, he performed substantial

work pursuant to the permit and, as a result, he has a

vested right or is exempt from any changes in county

ordinances.

County basically argues that the site plan was not a

building permit and that Soojian has no vested right.

41

Generally, the doctrine of vested rights protects prop-

erty owners from changes in zoning or other land use

regulations which occur before the completion of the

owner's development project. (Tosh v. California Coastal

Com. (1979) 99 Cal. App.3d 388, 392, citing Russian Hill

Improvement Assn. v. Board of Permit Appeals (1967)

66 Cal.2d 34, 49.) It is also recognized that the basis for

the vested rights doctrine is estoppel. (Patterson v. Cen-

tral Coast Regional Com. (1976) 58 Cal.App.3d 833, 844.)

The Patterson court also stated:

“Where an owner of property, in good faith reliance

upon a governmental representation that construction

is fully approved, has suffered substantial detriment

by proceeding with development, the government is

estopped from prohibiting the project by a subsequent

change in law. [Citations.) ‘Where no such permit

has been issued, it is difficult to conceive of any basis

for such estoppel.’ [Citations.] [Unless the owner

possesses all the necessary permits, the mere expendi-

ture of funds or commencement of construction does

not vest any rights in the development.’ [Citation.]

“It may be true that [allthough the cases speak of

vested rights in terms of reliance upon a building

permit . . . a building permit may no longer be a

sine gua non of a vested right. [Under mod-

ern land development practices various governmental

approvals are required before the issuance of a build-

ing permit, each approval pertaining to different

aspects of the project, and . a vested right might

arise before the issuance of a building permit if the

preliminary permits approve a specific project and

contain all final discretionary approvals required for

A-52

completion of the project. (Patterson v. Central

Coast Regional Com., supra, 58 Cal.App.3d at p. 844.)

The leading Supreme Court authority on the subject

of vested rights is Avco Community Developers, Inc. v.

South Coast Regional Com. (1976) 17 Cal.3d 785. In Avco,

a developer applied to the coastal commission for an

exemption from the permit requirements of the Coastal

Act, claiming it had a vested right to complete a devel-

opment (i.e., construct buildings). Aveo had final map

approvals, a rough grading permit and other county

approvals to which Avco had expended considerable sums

for the development of a tract. However, Aveo had not

applied for a building permit and, on the date the 1972

Coastal Act became effective, the county had not approved,

nor did it know the dimensions of the buildings, the num-

ber, the location, ete. (Id., at p. 794.)

The Avco court began by stating the general rule: “It

has long been the rule in this state and in other jurisdic-

tions that if a property owner has performed substantial

work and incurred substantial liabilities in good faith reli-

ance upon a permit issued by the government, he acquires

a vested right to complete construction in accordance with

the terms of the permit.” (Id., at p. 791.) :

In a rather protracted analysis, the court concluded that

* Aveo did not have a common law vested right. (Avco

Community Developers, Inc. v. South Coast Regional

Com., supra, 17 Cal.3d at pp. 797-798.) The court relied

on two older intermediate appellate court cases (Spindler

Realty Corp. v. Menning (1966) 243 Cal.App.2d 255 and

A-53

Anderson v. City Council (1964) 229 Cal.App.2d 79) as

“controlling.” (Avco, supra, at p. 793.)

“(Those cases] stand for the proposition that

neither the existence of a particular zoning nor work

undertaken pursuant to governmental approvals pre-

paratory to construction of buildings can form the

basis of a vested right to build a structure which does

not comply with the laws applicable at the time a

building permit is issued. By zoning the property or

issuing approvals for work preliminary to construc-

tion the government makes no representation to a

landowner that he will be exempt from the zoning

laws in effect at the subsequent tirae he applies for

a building permit or that he may construct particular

structures on the property, and thus the government

cannot be estopped to enforce the laws in effect when

the permit is issued.” (Avco, supra, 17 Cal.3d at

p. 793.)

With this background, we first examine whether a site

plan can be the basis for a vested right. We think not.

Soojian contends his site plan approval was an “entitle-

ment for use” of his land for a detailed project, since

there was no time limit on the site plan and certain

improvements could be legally done prior to structural

improvements which required a state permit. He contends

the site plan approval qualified as a “permit” for purposes

of the Mobile Home Park Act which required a permit

to construct a mobile home park. He further contends the

site plan is distinguishable from Avco, as the site plan

specifically described the buildings on “precisely defined

locations.”

4-54

Until January 1, 1975, when the county assumed respon-

sibility, the State Department of Housing and Community

Development was in charge of issuing building permits

and supervising the construction of mobile home parks in

California pursuant to the Mobile Home Park Act found

in Health and Safety Code section 18200 et seq.

Health and Safety Code section 18500 provides in rele-

vant part: It is unlawful for any person to do any of

the following unless he has a valid permit issued by the

enforcement agency: (a) Construct a mobile home park.”

Health and Safety Code section 18300 provided in perti-

nent part that the Mobile Home Park Act would supersede

any ordinance by the county; however, the county could,

within reasonable exercise of its police powers, prohibit

mobile home parks in certain zones.

Health and Safety Code section 18509 provides that con-

struction permits automatically expire within six months

where construction has not been completed; provided, how-

ever, the enforcement agency may extend the expiration

date.

Notwithstanding Soojian’s contentions to the contrary,

we hold the terms of Health and Safety Code section

18500 preclude the site plan from being a “permit” within

the act. Moreover, the site plan itself required structural

permits from the state before construction, and Health

and Safety Code section 18500 itself made unlawful any

construction before a state permit was obtained.

The testimony of Robert Grove, who signed the site

plan approval, indicated that under the site plan Soojian

could perform certain nonstructural work which did not

A-5

require a state permit. However, notwithstanding what

Grove may have stated, we believe, under the terms of

the site plan and Health and Safety Code section 18500,

Soojian needed a state permit before construction of the

mobile home park. (Patterson v. Central Coast Regional

Com., supra, 58 Cal.App.3d 833, 845.)

Additionally, there was considerable testimony that the

site plan was not a building permit. Rather, the evidence

showed that the site plan was merely an acknowledgement

that the proposed use conformed with the applicable zon-

ing ordinances. There was also testimony that Soojian

would need other permits before construction and the site

plan merely gave Soojian a right to obtain those permits.

Grove himself testified it was necessary for Soojian to

adhere to the conditions of approval before actual con-

struction, and one of those conditions was the issuance of

state permits.

Since the evidence demonstrates that the site plan was

not a building permit or even a permit under the Mobile

Home Park Act, there could be no vested right. (Avco

Community Developers, Inc. v. South Coast Regional

Com., supra, 17 Cal.3d 785; Hill Homeowners Assn. v.

City of Passaic (1978) 156 N.J. 505 [384 A.2d 172, 175].)

Nevertheless, Soojian contends that his site plan was

specific in its description of the project, unlike the devel-

oper’s plan in Arco. Soojian fails to note that there was

testimony that the site plan is more general and not spe-

cific like a building permit. Even if the site plan were

sufficiently specific and detailed, Soojian still needed a

state permit to construct the park. Without such a permit,

4-56

Health and Safety Code section 18500 made any construc-

tion work on the project unlawful. Moreover, by the time

‘the state permits expired, no structures had been built

and more work needed to be done on the plumbing. Any

work which was done after the state permits expired in

June 1974 and which required a specific permit could not

be legal because no permit authorized it. (See Health &

Saf. Code, §§ 18509, 18500.)“

Although Soojian, a licensed contractor who presumably

knew of the need to obtain all necessary permits, did

obtain the state permit authorizing a 28-space mobile home

park, he did not complete the project by June 1974 (the

expiration date of the state permits), and he did not

obtain new or revised permits from the county. Where no

such permits have been issued, we find it difficult to con-

ceive of any basis for estopping the government by grant-

ing a vested right. (Patterson v. Central Coast Regional

Com., supra, 58 Cal.App.3d 833, 844.)*

Furthermore, by the time Soojian received the state per-

mit, the county had already enacted the C.U.P. ordinance.

Soojian contends that his project was not subject to the

conditional use permit requirement or CEQA as the find-

We note that issuance of a permit to construct a mobile home

park is both discretionary and ministerial. (People v. Department

of Housing and Community Dev. (1975) 45 Cal.App.3d 185, 192-

193.) We reject Soojian’s argument that the site plan approval was

the final discretionary act.

*Because we hold that the site plan conferred no basis for a

vested right, we do not discuss any issues relating to Soojian’s re-

liance on the site plan. Any such work was preparatory and could

not form the basis for a vested right.

AM

ings intimated. He contends hie site plan was an “entitle

ment for use” and thereby exempt from CHQA (Pub.

Resources Code, § 21160). Inferentially, he argues that the

conditi ‘nal use permit ordinance would not apply. He also

contends the county waived any environmental assessment

as required by the C'. ordinance because of the second

approval of the site plan after the ordinance went inte

effect. We are not persuaded.

First, the Supreme Court has quite clearly stated that

a governmental body may not waive the requiremenis of

an ordinance enacted for the public benefit, (Strong .

Cownty of Santa Crue (1975) 16 Caldd 720, 727.) Thus,

there could be no waiver of the O.U.P. requirement,

despite the approval of the revised site plan.

Beoond, it ie difieult to see how the CEQA argument

relates to an exemption from the C.U.P. ordinance, As

the county argues, Soojian could very well be exempt from

CEQA without being exempt from the focal ordinance.

It ie alee doubtful that Soojian was exempt from

CoA Although it ie true that under Public Resources

Code section 21169 projects approved prior to Deeember 5,

1972, and the issuance of any “entitlement for nee” issued

before December 5, 1072, would exempt a project from

CEQA, the project here was not approved by the state

until December 18, 1972. Moreover, the site plan would not

qualify ae an entitioment because the state stil had to

perform the discretionary act of issuing the mobile home

perk permit, (Compare Friends of Lake Arrowhead ¢.

Board of Supervisors (1974) 98 Cal.App.dd 497, 509, and

People v, Cownty of Kerw (1974) 39 Cal.Ap.de 490, 840.)

AL

The fact that Soojian was subject to the C. U. F. ordi-

nance, and COA as well, coupled with his failure to obtain

a CU. F., provides farther support to uphold the judgment.

Finally, we find Soojian's reliance on Morgan e County

of San Diego (1971) 19 CalLApp.dd 696 misplaced. In

Morgan, the county, as the enforoement agency under the

Mobile Home Park Act, issued a permit to build a mobile

home park on December 26, 1970, which, unless renewed,

would expire six monthe later, The county also told the

developers that if they were dilatory a time extension on

the permit would not be granted. The developers did some

work They then went to the director of building inapection

to tell him of some financing probleme and were not in the

position to start immediately. The county told the develop.

ere on April 20, 1971 (with two months remaining within

which construction could have proceeded to protect the

permit), not to spend any more money until they heard

from county counsel, On May g, 1971, county wrote to the

developers stating there was no reasonable basis to grant

an extention of the permit because the amount of construc.

tion which had taken place did not justify it and the

construction effort (had) been dilatory, rather than

diligent.’" The court held’ that, as a matter of law, the

county estopped from asserting that the construction effort

was dilatory since the county's actions could well have heen

a substantial reason why no further conatruction occurred.

As another basia for finding that the building inspector

abused hie discretion in failing to renew the permit, the

Aw

court held the county inepector's mere visual site inspection

was unreasonable because, in a complex project, much

work ie done off-site and on drawing boards and in govern.

mental agencies; thus, the permit had to issue.

In the instant case, it is true that the county inepectors

only conducted an on-site viewal inepection. Although we

are aware that Soojian aleo had to do off-site work, we

believe the distinguishing feature between Morgan and the

instant case ie that in Morgan, the off-aite work, along

with some on-site construction (underground plumbing,

putting in a concrete slab for a laundry) was done pur.

suant to the necessary permit but was stopped at the

county's request after the permit had been obtained. Here,

although a portion of the on-site construction was done

pursuant to the building permit, a substantial portion of

the work was done without any building permit, More

over, Soojian was not misled by the county as the devel-

oper was in Morgan in the sense that the county did not

prevent Soojian from completing hie project until the

ultimate revocation,

11

The trial court found that Soojian was afforded a full

and fair hearing before the board of supervisors, The

evidence supports ite conclusion.

Roo lan posite a series of contentions relating to due

process which we shall consider seriatin.

Relying on the procedural due process cases (among

them, Fuentes „ Shevin (1972) 405 U.S. 295), Soojian

contends that there was no notice and hearing prior to the

AM)

department of public works’ revocation of the site plan. He

claims a letter written by William Carmichael dated Jan.

wary 18, 1977, notifying him that the department of public

works planned to revoke the site plan because substantial

work had not been commenced was not valid notice, We

disagree.

Carmichael's letter notified Soojian that the building

permite had expired in “July 1974" and no new permits

had been issued. The letter stated that the soning had been

changed to exclusive agricultural and work had apparently

ceased prior to the expiration of the permits. Because of

the change in soning, expiration of permite and cessation of

work on the project should be removed from the books.

Soojian was advised to contact the public works office,

which he did.

Due proces requires reasonable notice and »pportunity

to be heard before governmental deprivation of a signif.

leant property interest, (Horn u, Cownty of Ventura

(10970) 24 Cala 606, 612.)

Since we have concluded that the site plan conferred no

bande for a vested right, there was no deprivation of a

property interest by the department of public works,

Soojian still had to establish a claim of a vested right.

Prior to thie time, he was not deprived of any property

interest; thus, there was no due process violation.

Soojian then contends he was not told prior to any

administrative hearing the basis for the site plan revooa-

tion, citing Morgan v. United States (1098) 904 U8, 1, He

also contends that he was treated unfairly; county counsel

AN

improperly acted as both prosecutor and judge; county

counsel erroneously inetructed the board that if it wanted

judicial review it had to decide against Soojian; and the

board refused to discuss Soojian's counterfindings, al.

though they discussed county counsel's findings. He asks

us to consider the county's inetructions to the board and

various rulings (but he does not point to any “contention”

of error), He claime the instructions erroneously led the

board to falsely assume hie work had been performed with.

out the necessary permite and most of the work would not

count toward acquisition of a vested right. We are not

persuaded,

In Morgan „ United States, supra, 04 US, 1, 18-19, the

Supreme Court stated, “Those who are brought into con-

teat with the Government in a quasi-judicial proceeding

aimed at the control of their activition are entitled to be

thoroughly advised what the Government proposes ani to

be heard upon ite proposals before it wees ite final

command "

Although there was no specific complaint in the instant

enge, Soojian wae advised in part of the bases of the site

plan revocation, He was told by a county counsel letter

dated March 1, 1977, that substantial development had not

taken place to create a vested right and, since the general

plan no longer permitted mobile home parks, building per-

mite would not be issued for that proposed use.

In an administrative proceeding, it has been held that

notice need not meet all the requirements necessary for a

valid complaint in an action at law, It le required only to

adequately disclose the charges to allow the accused to

AN

prepare a defense and not to be disadvantaged by surprise

at the hearing. (Wisuri v, Newark School Dist, (1006) 27

Cal App d 299, 242.)

Despite the generality of the notice, Soojian claims no

surprise or prejudice, Thus, any defect would not consti

tute reversible error.

As to the objection to county counsel's being both judge

and prosecutor, here a deputy county counsel defended the

department of public works while county counsel advised

the woard of supervisors, Such a procedure is proper,

inaemuch as no member of the county counsel's office

served in a dual capacity as both adviser and advocate,

(Rowen u, Workers’ Comp, Appeals Bd, (1081) 119 Cal,

App.4d 685, 640-641; Ford v, Clwil Service Commission

(1068) 161 Cal.App.24 629, 697.)

Regarding any instructional error, we believe our die.

cussion of the vested rights issue adequately addresses

Hoe contentions.

Boojian then contends that an article in a local news.

paper allegedly written shortly after the January 4, 1977,

hearing revealed improper ex parte communications.

We find no evidence in the record other than the article

regarding the ex parte communications, In light of the

lack of evidence, there was no due process violation, (Cf.

Camera v, United States (1067 Ot, Ol.) 876 F.8d 777, 779

relied on by Soojian [ex parte contacts amply supported

by the evidence |.)

AWA

Soojian contends (although he does not cite to the ree.

ord in support of thie claim) that the county is estopped

to apply the conditional use permit ordinance because he

was advised by the county staff that he did not need a

conditional use permit, He further contends that the see

ond approval constituted a waiver and he relied to his

detriment on the site plan, claiming that the county is

estopped from revoking the site plan, as the county knew

that the project had gotten under way, causing him a

severe economic lows.

County contends that Soojian came into equity in bad

faith and with unclean hands, listing as an example that

after the tentative board of supervisors rejection Soojian

“began massive development.” Relying on Pettitt , City

of Fresno (1973) 4 Cal.App.dd 814, the county claims

estoppel should not lie as there is a strong public interest

in soning and land use control, and further, that even if

the second site plan approval was unreasonable, the public

interest in land use control is of paramount importance.

The existence of an estoppel is generally a question

of fact unless the opposite conclusion is the only one

that can he drawn from the evidence, When the evidence

is not in conflict and is susceptible of only one reasonable

inference, the existence of an estoppel is a question of

law. (Driscoll +, City of Low Angeles (1007) OT Cale

207, 906.)

Generally speaking “ ‘four elements must he present in

order to apply the doctrine of equitable estoppel: (1) the

party to be estopped must he apprised of the facta; (2) he

Aid

must intend that his conduct shall be acted upon, or must

so act that the party asserting the estoppel had a right

to believe it was so intended; (3) the other party must be

ignorant of the true state of the facts; and (4) he must

rely upon the conduct to his injury.) (City of Long Beach

v. Mansell (1970) 3 Cal.3d 462, 489.)

It is equally well settled that a doctrine will not be

applied against the government if to do so would effectively

nullify “‘a strong rule of policy, adopted for the benefit

of the public.“ (City of Long Beach v. Mansell, supra,

3 Cal.3d at p. 493; see also, Pettitt v. City of Fresno,

supra, 34 Cal.App.3d 813, 822-823 [zoning]; People v.

County of Kern, supra, 39 Cal.App.3d 830, 838 (“Only in

rare and unusual circumstances will the doctrine of estop-

pel be invoked against a public agency to prevent enforce-

ment of a zoning ordinance. ].)

Estoppel will not apply against a government official to

deny the validity of a permit or other representations re-

specting the use of property issued or made in violation

of the express provisions of a zoning ordinance. (Pettitt

v. City of Fresno, supra, 34 Cal.App.3d 813, 819.)

Finally, the principles of equitable estoppel cannot be

applied to deprive the public of protection of a statute

because of a mistake in action or lack of action on the part

of public officials. (Jacques, Inc. v. State Bd. of Equaliza-

tion (1957) 155 Cal.App.2d 448, 462.)

Here, there are equities on both sides. Soojian clearly

relied on the site plan approval to build his mobile home

park. However, as a licensed contractor, Soojian should

A-H5

have known that he needed structural and plumbing per-

mits after the state permits expired. Moreover, his initial

reliance on the site plan was not justified because he had

not yet received state approval for the project. Finally,

the strong interest in land use control outweighs Soojian’s

equities. Although this is a harsh result, the strong public

interest in land use control cannot be ignored.

IV

Soojian then contends that, despite his work, the county

took no action until 1977 to stop the development and that

fairness dictates that laches be applied. He relies on dicta

in Friends of Lake Arrowhead v. Board of Supervisors,

supra, 38 Cal.App.3d 497, 515, fn. 14: [JI It is possible

that approval of the site development plan constituted a

significant point of approval of the project. If so, an attack

upon such approval might have been barred by laches.”

He also contends that CEQA could not apply because

Public Resources Code section 21167 provides for a 180-

day statute of limitations to attack a public agency's ap-

proval of a project which may have a significant effect on

the environment.

He relies on People v. Departmert of Housing and Com-

munity Dev., supra, 45 Cal.App.3d 185, 195-196.

At the outset, it appears Soojian did suffer prejudice by

the delay. However, unlike the developer in People v. De-

partment of Housing and Community Dev., supra, 45 Cal.

App.3d 185, 197-198, Soojian did not have all the necessary

permits to complete construction. Moreover, the project did

Afi

not conform to the local zoning; there was opposition to the

development and there were no official assurances that fur-

ther permits were unnecessary.

Although we recognize the hardship, we conclude that

laches cannot be applied. Our conclusion is based upon

considerations of public policy, conflicting evidence on the

amount of development and Soojian’s failure to obtain all

the necessary permits and some evidence of bad faith.

*

Soojian finally contends that the trial court erred in

failing to adopt certain findings which had been stipulated

to. He contends that the trial court failed to adopt his

requested findings which were supported by the evidence.

We disagree.

The subject findings of which Soojian claims there was

a stipulation involve four requested findings. Only re-

quested findings Nos. 3 and 4 are relevant, and those find-

ings provided that when site plan No. 1507 was approved

the property was zoned A-1 and permitted, as a matter of

right, the construction of a mobile home park as proposed

by Soojian. No. 4 provided that “It is apparent from the

testimony of Soojian and his family that they have made

good faith attempts to work on this project.”

Upon review of the transcript at the board of super-

visors hearing on the adoption of the findings of fact and

conclusions of law, we find that there was no stipulation.

Although Mr. Lempel, the deputy county counsel repre-

senting the department of public works, apparently stated

that the findings were agreed to, it is clear that he did not

AGT

mean to stipulate that Soojian acted in good faith. Review-

ing the record, we find Lempel argued that Soojian was

guilty of bad faith.

The judgment is affirmed.

/s/ ZENOVICH

Acting PJ.

WE CONCUR:

/s/ ANDREEN

/s/ WOOLPERT (W.R.)

J.“

* Assigned by the Chairperson of the Judicial Council.

—

A-H8

Appendix I

In the Superior Court of the State of California

In and for the County of Fresno

No. 227791-1

Asadoor Soojian, Petitioner,

vs.

County of Fresno, et al., Respondents.

Filed June 19, 1979

JUDGMENT

Upon the Findings of Fact and Conclusions of Law made

by the Court on June 18, 1979, Judgment is hereby entered

in favor of respondents the County of Fresno; the Board

of Supervisors of the County of Fresno, Members: John R.

Donaldson, John Ventura, Bruce Bronzan, Sharon Levy;

the Board of Review of the County of Fresno, Members:

Leo Wilson, Manuel Lopez, J. Harold Carter, Ed Darden,

Sr., Wayne Dominick, Glee Ewell, Sally Fosse, Donald

Schafer; the Office of County Counsel of Fresno County,

Robert M. Wash, County Counsel, J. Steven Lempel, Chief

Deputy County Counsel; the Department of Public Works

of the County of Fresno, and the Planning Department

of the County of Fresno and against petitioner Asadoor

Soojian as follows:

1. The Petition for Administrative Mandamus be and it

hereby is denied.

2. The Alternative Writ of Administrative Mandamus

be and it hereby is discharged.

3. Resp ndents are awarded their costs.

Dated: June 18, 1979.

LEONARD IL MEYERS

Judge of the Superior Court

Aid

Appendix J

Floyd R. B. Viau, County Counsel

J. Steven Lempel, Chief Deputy-068200

County of Fresno

4499 East Kings Canyon Road

Fresno, California 93702

Telephone: (209) 453-3800

Attorneys for Respondents

In the Superior Court

of the

State of California

In and for the County of Fresno

No. 227791-1

Asadoor Soojian,

Petitioner,

vs.

County of Fresno, et al.,

Respondents.

[Filed June 19, 1979]

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

This matter came before the Court upon petitioner’s

Application for Writ of Administrative Mandamus pur-

suant to Code of Civil Procedure section 1094.5 and respon-

dents’ answer thereto. Petitioner was represented by

William M. Hardy and the County of Fresno was repre-

sented by Floyd R. B. Viau, County Counsel, by J. Steven

A-70

Lempel, Chief Deputy. The case was tried before the Court

on June 27, 1978, upon the transcripts and the record of

administrative proceedings before the Board of Super-

visors of the County of Fresno on November 7, 1977,

December 8, 1977 and January 4, 1978. Upon the Court’s

independent review of all the evidence presented at the

hearings, the Court adopts the following

FINDINGS OF FACT

Finding No. 1: The County of Fresno is a political

subdivision, organized, existing, and subsisting under and

by virtue of the laws of the State of California.

Finding No. 2: The administrative orders here under

review are final administrative orders or determinations

made by administrative officials, divisions, departments,

agents and employees of the County of Fresno.

Finding No. 3: On August 4, 1971, Asadoor Soojian

applied to the Planning Department of the County of

Fresno for a site plan review of a 264 space mobilehome

park to be constructed in three phases on a 33-acre parcel

on the southwest corner of East Central and South Reed

Avenues in the unincorporated area of the County of

Fresno. On September 1, 1971, Site Plan No. 1507 was

approved with conditions by the Director of the Fresno

County Planning Department. Among the conditions, was

the requirement that the property owner dedicate to the

County of Fresno a 20-foot right of way along Reed Ave-

nue and a turning radius at the corner of Reed and Central

Avenues prior to issuance of any building permits. The

Site Plan Approval also stated that building permits were

AT)

necessary prior to petitioner performing any construc.

tion work on the site, At the time of such approval, the

property was soned AI, and the mobilehome perk use

was permitted there as a matter of right.

Finding No, 4: After the Site Plan Approval was

obtained, preliminary work on design, including on site

measurements and some staking of sewer lines and road

areas, was done by petitioner and members of hie family.

Finding No, 5; At the time of issuance of Site Plan No.

1507 and wntil December 31, 1974, the Department of Hous-

ing and Community Development of the State of California

was the agency responsible for issuing building permite

and supervising the construction of mobilehome parks

throughout the State of California. As of January 1, 1975,

such reaponsibility was transferred to local governmental

agencies

Finding No. 6; On April 11, 1972, the Fresno County

Zoning Ordinance was amended to require that mobilehome

park developments be subject to the Conditional Use

Permit process (Fresno County Zoning Ordinance Code,

Section 843), Petitioner has never applied for or been

iasued a conditional use permit for a mobilehome park on

the subject property.

Finding No, 7: On September 25, 1972, Site Plan No,

1507 was revised by petitioner to eliminate one mobile.

home pad from the Site Plan, Such revision was approved

by the Freano County Planning Department. This revision

was extremely minor and insignifioant with regard to Site

Plan No. 1507, For that reason, the Planning Department

did not restudy the project and did not affirmatively advise

AT?

petitioner of the requirement to apply for a conditional

use permit. Thie procedure was entirely proper and reason.

able in light of the insignificant nature of the revision.

Finding No, 8: On December 5, 1972, Public Resources

Code, Section 21169, became effective in the State of Cali-

fornia, This law required that private projecta subject to

discretionary approval by a governmental agency, aleo be

subject to the California Environmental Quality Act of

1970, Public Resources Code, Section 21000, et seq.

Finding No. 9: The conditional use permit process is a

procedure for the issuance of a discretionary land-use

permit by the Board of Supervisors of the County of

Fresno. The conditional use permit process includes an

environmental assessment. In the event signifioant environ.

mental impacts are identified during the environmental

Assessment, an environmental impact report (ik) is also

required. An environmental assesament was never prepared

for the subject property.

Finding No. 10 On December 18, 1972, the State of

California issued two building permite for the construction

of a 28-epace mobilehome park and a 16 x 30 wash building

on Phase I of the subject site. Such building permite ex-

pired on June 18, 1973, without completion of the conatruc-

tion, In November, 1973, the State extended both permits

until June 18, 1974,

Finding No, 11: During the period that such building

permit was in effect, petitioner installed approximately

1430 feet of sewer pipe and 1400 feet of water pipe in the

area designated as Phase I on Site Plan No, 1507. Such

Phase I area is shown in Site Plan No, 1507 in yellow, It

ATS

is a ves gore portion of the Ad sere site and contains 28

mobilehome spaces. Thies work was performed by Mr.

Soojian and members of his family. The actual cost of

installing such pipe was not provided by petitioner, and

indeed, he testified that he had no bille, records or any

documentation whatsoever which would indicate the cost of

such work. Petitioner relied on the testimony of himeelf

and other contractors in the Fresno area to show the cost

of installing such pipe in 1977. There wae other testimony

relating to the cost of such pipe in 1973. That witness, how-

ever, was unfamiliar with the cost of labor or the cost of

using equipment in 1973. The Board of Supervisors found

such testimony unreliable and not indicative of the actual

coat to petitioner in 1972-73. The sewer and water pipes

were approved, as installed, by an inspector of the State

Department of Housing and Community Development on

November 12, 1073, (sewer) and early 1074 (water),

Minding No, 12: During the years 1972, 1073, 1074 and

1975, petitioner installed approximately 1070 feet of red.

wood header boards on the subject property. One-half of

such work was performed in 1073 and the remainder dis-

tributed evenly between 1972, 1974 and 1976. No portion of

och work was inapected or approved by a building inapec-

tor. The evidence was not convineing that the value of the

work was $2,000.

Finding No. 13; During the period hetween September

30, 1971, and January 30, 1972, petitioner claims that he

performed on-site construction staking and surveying. He

elaime that it took a total of four months for two people

working fifty hours a week to perform euch work, at a tote.

AT

value of $22,000, The Board of Supervisors did not credit

thie testimony and considered that such construction stak-

ing and surveying should not reasonably have required

more than two or three days, if done by a licensed surveyor.

Inepections by representatives of the County of Fresno in

December, 1976, February, 1077, and May, 1977, revealed

no evidence of any construction stakes anywhere on the

33-acre site.

Finding No. 14: Disconnected sections of masonry wall

were installed parallel to Reed Avenue during the years

1971, 1972 and 1975. A total of approximately 128 feet were

installed during this period, of which 32 feet were installed

in 1975. The Board of Supervisors did not accept the

claim that the cost of installing euch 128 feet of wall was

$6,400 in light of the failure to present any bills, records

or other documentation supporting such cost.

Finding No. 15; On April 4, 1975, petitioner purchased

a water pump in the sum of $2,300, which was installed in

the existing agricultural well located adjacent to Central

Avenue.

Finding No, 16; Petitioner did not intend to abandon

the project.

Finding No, 17 No other work was performed on the

subject property until July 1, 1977, two days after this

Board of Supervisors tentatively denied petitioner's first

appeal, At such time, petitioner installed additional ma-

sonry wall along Reed Avenue, a new water well, concrete

and asphalt paving and curbs, landscaping, grading and

other miscellaneous construction. All such work was done

ATS

without building permite, and the County Building In-

apector issued a stop work order to halt the project.

Finding No, 18; On August 15, 1974, the Freano County

Zoning Ordinance was amended to include the following:

“Approved site plane shall become void when sub-

stantial development has not commenced within one

year of approval of the site plan.”

(Fresno County Zoning Ordinance Code, Section 874

47)

Accordingly, Site Plan No. 1507 lapsed on August 15, 1975,

unless substantial development had commenced prior to

that date, Prior to August 15, 1974, there was no expira-

tion period for Site Plans.

Finding No. 10 On September 30, 1976, the subject

property was resoned from A-1 to AB-20 (Exclusive Agri-

cultural—20-acre Minimum). Mobilehome parks are not

permitted in any AK Zone District.

Finding No, 20; As a result of such resoning, William

Carmichael of the Department of Public Works of the

County of Fresno contacted petitioner in January 1977,

to inquire his intentions with regard to Site Plan No, 1507.

After investigation and discussions with Mr. Soojian and

members of the County Counsel's Office, petitioner was

advined by letter dated March 1, 1077, that Site Plan No,

1507 was revoked by reason of petitioner's failure to

commence substantial development within one year of

August 15, 1974,

Finding No, 21: Pursuant to such notice, petitioner

appealed the decision of the Department of Public Works

1

to the Board of Review of the County of Fresno, On

May 4, 1977, the Board of Review sustained the Depart

ment of Publie Works’ decision by a vote of 60, The

members of the Board of Review were: Leo Wilson,

Manuel Lopes, J, Harold Carter, Bd Darden, Sr., Wayne

Dominick, G) + Ewell, Sally Fosse, Donald Schafer and

Magr. P. V. Flood (absent). Petitioner then appealed to

the Board of Supervisors.

Finding No, 22: On March 6, 1978, the Board of Super.

visors affirmed the decision of the Board of Review dated

May 4, 1977, and adopted ite Resolution No, 76.463, Mak-

ing Findings of Fact and Revoking Site Plan Approval

1607, A copy of such resolution is attached hereto and

marked Nahibit “A”

Finding No, 23; All of the work that was done on the

site, except for the work on the water well, was limi-

ted to the area shown in yellow on the site plan map

(Phase I), Such area comprises 28 of the proposed 264

apaces in the trailer park, Accordingly, work was done

on only 11% of the site, No work except some on site

engineering has been completed or even begun on the

remaining 80% of the site.

Finding No, 24; During the entire time between Sep-

tember 1, 1971, and March 1, 1077, petitioner constructed

only about 128 feet of disconnected masonry wall, whereas,

the site plan requires 4774 feet of solid masonry wall or

chain link fence with solid vegetation sereen; no paving

whatsoever was installed anywhere on the site; there was

no construction whatsoever of the 200 parking spaces

required in Site Plan No, 1507; the 20-foot right of way

ATT

and corner radius along Reed Avenue were not dedicated

to the County as required by the Site Plan; there was

no landscaping installed anywhere on the site as required

in the Site Plan; there was no construction of the 268

trailer pace shown in the Site Plan; the three laundry

rooms shown in the Site Plan had not been built or begun

the recreation area shown in the Site Plan had not been

built or begun; the existing water well on the site is inade-

quate for the proposed use and no new well was con

structed; no work has commenced on a sewer treatment

facility to serve the proposed trailer park; and no utility

services were brought onto the site.

Finding No. 26; Less than 10% of the work to be done

in Phase I had been commenced as of February 1077,

Accordingly, less than one percent of the project had been

commenced as of that date; less than one percent had com.

menced as of June 14, 1074; and virtually nothing had

been done as of Devwember 18, 1972.

Finding No, 26: No building, grading or other con-

struction permit of any kind was ever issued to petitioner

by the County of Fresno,

Finding No, 27; During the times relevant to this mat.

ter, petitioner, a licensed general contractor, was aware

of the requirement to obtain a building permit prior to

the commencement of any construction work,

Finding No, 26; All work performed on the site between

September 1, 1971, and December 16, 1972, wae done with

out any building or construction permit, All work per.

formed on the site after June 18, 1974, was done without

any building or construction permit,

A-78

Finding No. 29: The purpose of the Conditional Use

Permit process, the California Environmental Quality Act,

the zoning and planning laws and ordinances of the

County of Fresno, and the building permit process are to

protect the public from the harmful effects of unrestricted

land use.

Finding No. 30: Petitioner’s 33-acre mobilehome park

site is located on prime agricultural land; it is. far

removed from all urban centers and urban services; it

adjoins valuable vineyards and orchards; and the owners

of such adjoining and neighboring lands will be detri-

mentally affected in the event a mobilehome park is estab-

lished on the subject site.

Finding No. 31: The public interest in protecting prime

agricultural land from urben encroachment is of para-

mount importance, and far outweighs any loss or incon-

venience that may be suffered by petitioner as a result of

the loss of his investment.

Pursuant to the foregoing Findings, the Court adopts

the following

CONCLUSIONS OF LAW

1. Petitioner did not establish a vested right to com-

plete the development described in Site Plan Review No.

1507.

2. Petitioner was afforded a full and fair hearing

before the Board of Supervisors.

3. The Board of Supervisors did not proceed without

or in excess of its jurisdiction.

A-79

4. The Board of Supervisors proceeded in the manner

required by law.

5. The decision of the Board of Supervisors is sup-

ported by the findings.

6. The findings of the Board of Supervisors are sup-

ported by the evidence in the record.

7. Judgment should be entered in favor of respondents

the County of Fresno; the Board of Supervisors of the

County of Fresno, Members: John R. Donaldson, John

Ventura, Bruce Bronzan, Sharon Levy; the Board of Re-

view of the County of Fresno, Members: Leo Wilson,

Manuel Lopez, J. Harold Carter, Ed Darden, Sr., Wayne

Dominick, Glee Ewell, Sally Fosse, Donald Schafer; the

Office of County Counsel of Fresno County, Robert M.

Wash, County Counsel, J. Steven Lempel, Chief Deputy

County Counsel; the Department of Public Works of the

County of Fresno, and the Planning Department of the

County of Fresno and against petitioner Asadoor Soojian

as follows:

a. The Petition for Writ of Administrative Mandamus

he and it hereby is denied.

b. The Alternative Writ of Administrative Mandamus

be and it hereby is discharged.

ce. Respondents are awarded their costs.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: June 14, 1979.

LEONARD I. MEYERS

Judge of the Superior Court

A-80

Appendix K

Before the Board of Supervisors

of the County of Fresno

State of California

In the Matter of

Site Plan Review No. 1507-

Asadoor Soojian

RESOLUTION MAKING FINDINGS OF

FACT AND REVOKING SITE PLAN

APPROVAL 1507

This matter came before the Board of Supervisors of the

County of Fresno pursuant to an appeal by Asadoor

Soojian from a decision of the Board of Review of the

County of Fresno on May 4, 1977, revoking Site Plan No.

1507. The appeal was originally heard by four members of

this Board on June 28, 1977. At the conclusion of that

hearing, the Board voted three to one to revoke Site Plan

1507 and directed the County Counsel to prepare Findings

of Fact. Prior to the adoption of such Findings, one Board

member changed her mind with regard to the appeal, thus,

necessitating a new hearing before the full five-member

Board. Such rehearing was heard before the full Board on

November 7, 1977, December 8, 1977, and January 4, 1978,

as a de novo proceeding. Upon the evidence presented at

such rehearing, the Board herein makes the following

Findings of Fact:

Finding No. 1: On August 4, 1971, Asadoor Soojian

applied to the Planning Department of the County of

Fresno for a site plan review of a 264 space mobilehome

park to be constructed in three phases on a 33-acre parcel

* 81

on the southwest corner of East Central and South Reed

Avenues in the unincorporated area of the County of

Fresno. On September 1, 1971, Site Plan No. 1507 was

approved with conditions by the Director of the Fresno

County Planning Department. Among the conditions, was

the requirement that the property owner dedicate to the

County of Fresno a 20-foot right of way along Reed

Avenue and a turning radius at the corner of Reed and

Central Avenues prior to issuance of any building permits.

The Site Plan Approval also stated that building permits

were necessary prior to Applicant performing any con-

struction work on the site. At the time of such approval,

the property was zoned A-1, and the mobilehome park use

was permitted there as a matter of right.

Finding No. 2: At the time of issuance of Site Plan No.

1507 and until December 31, 1974, the Department of Hous-

ing and Community Development of the State of California

was the agency responsible for issuing building permits

and supervising the construction of mobilehome parks

throughout the State of California. As of January 1, 1975,

such responsibility was transferred to local governmental

agencies.

Finding No. 3: On April 11, 1972, the Fresno County

Zoning Ordinance was amended to require that mobilehome®

park developments be subject to the Conditional Use Per-

mit process (Fresno County Zoning Ordinance Code,

Section 843). The Applicant has never applied for or been

issued a conditional use permit for a mobilehome park on

the subject property.

42

Finding No. 4: On September 25, 1972, Site Plan No.

1507 was revised by the Applicant to eliminate one mobile-

home pad from the Site Plan. Such revision was approved

by the Fresno County Planning Department. This revision

was extremely minor and insignificant with regard to Site

Plan No. 1507. For that reason, the Planning Department

did not restudy the project and did not affirmatively

advise Applicant of the requirement to apply for a con-

ditional use permit. This procedure was entirely proper

and reasonable in light of the insignificant nature of the

1

Finding No. 5: On December 5, 1972, Publie Resources

Code, Section 21169, became effective in the State of Cali -

fornia. This law required that private projects subject to

discretionary approval by a governmental agency, also be

subject to the California Environmental Quality Act of

1970, Public Resources Code, Section 21000, et seq.

Finding No. 6: The conditional use permit process is

a procedure for the issuance of a discretionary land-use

permit by the Board of Supervisors of the County of

Fresno. The conditional use permit process includes an

environmental assessment. In the event significant environ-

mental impacts are identified during the environmental

assessment, an environmental impact report (EIR) is also

required. An environmental assessment was never pre-

pared for the subject property.

Finding No. 7: On December 18, 1972, the State of

California issued a building permit for the construction

of a 28-space mobilehome park and a 16 * 30 wash build-

A-83

ing on Phase I of the subject site. Such building permit

expired on June 18, 1973, but was extended until June 18,

1974.

Finding No. 8: During the period that such building

permit was in effect, Applicant installed approximately

1430 feet of sewer pipe and 1400 feet of water pipe in the

area designated as Phase I on Site Plan No. 1507. Such

Phase I area is shown in Site Plan No. 1507 in yellow.

It is a five-acre portion of the 33-acre site and contains

28 mobilehome spaces. This work was performed by Mr.

Soojian and members of his family. The actual cost of

installing such pipe was not provided by the Applicant,

and indeed, he testified that he had no bills, records or

any documentation whatsoever which would indicate the

cost of such work. Applicant relied on the testimony of

himself and other contractors in the Fresno area to show

the cost of installing such pipe in 1977. There was other

testimony relating to the cost of such pipe in 1973. That

witness, however, was unfamiliar with the cost of labor

or the cost of using equipment in 1973. The Board finds

such testimony unreliable and not indicative of the actual

cost to Applicant in 1972-73. The sewer and water pipes

were approved by an inspector of the State Department

of Housing and Community Development.

Finding No. 9: During the years 1972, 1973, 1974 and

1975, Applicant installed approximately 1670 feet of red-

wood header boards on the subject property. One-half of

such work was performed in 1973 and the remainder dis-

tributed evenly between 1972, 1974 and 1976. No portion

of such work was inspected or approved by a building in-

A-S4

spector. Applicant attributes a $2,000.00 value to such work

as of December 1977, and again he was unable to submit

any bills, records or documentation indicating the actual

costs.

Finding No. 10: During the period between September

30, 1971, and January 30, 1972, Applicant claims that he

performed on-site construction staking and surveying. He

claims that it took a total of four months for two people

working fifty hours a week to perform such work, at a total

value of $22,000.00. The Board does not credit this testi-

mony and considers that such construction staking and

surveying should not reasonably have required more than

two or three days, if done by a licensed surveyor. Inspec-

tions by representatives of the County of Fresno in Decem-

ber, 1976, February, 1977, and May, 1977, revealed no evi-

dence of any construction stakes anywhere on the 33-acre

site.

Finding No. 11: Disconnected sections of masonry wall

were installed parallel to Reed Avenue during the years

1971, 1972 and 1975. A total of approximately 128 feet

were installed during this period, of which 32 feet were

installed in 1975. The Board does not accept the claim

that the cost of installing such 128 feet of wall was

$6,400.00 in light of the failure to present any bills, records

or other documentation supporting such cost.

Finding No. 12: On April 4, 1975, Applicant purchased

a water pump in the sum of $2,300.00, which was installed

in the existing agricultural well located adjacent to Central

Avenue. The Fresno County Health Department had pre-

viously determined that such well was unfit for use by

humans.

*

Finding No, 13: No other work was performed on the

subject property until July 1, 1977, two days after this

Board denied Applicant's firet appeal, At such time, Appli-

cant installed additional masonry wall along Reed Avenue,

a new water well, concrete and asphalt paving and curbs,

landscaping, grading and other miscellaneous construction,

All such work was done without building permits, and the

County Building Inspector issued a stop work order to halt

the project.

Finding No. 14: On August 15, 1974, the Fresno County

Zoning Ordinance was amended to include the following:

“Approved site plans shall become void when sub-

atantial development has not commenced within one

year of approval of the site plan.” (Fresno County

Zoning Ordinance Code, Section 874-A.-7)

Accordingly, Site Plan No, 1507 lapsed on August 15, 1975,

unless substantial development had commenced prior to

that date.

Finding No, 15; On September 90, 1976, the subject

property was resoned from A-l to AE (Exclusive

Agricultural-20-Acre Mimimum), Mobilehome parks are

not permitted in any AB Zone District.

Finding No, 16: As a result of such resoning, William

Carmichael of the Department of Public Works of the

County of Fresno contacted Applicant in January, 1077, to

inquire his intentions with regard to Site Plan No 1507,

After investigation and discussions with Mr. Soojian and

members of the County Counsel's Office, Applicant was

advised by letter dated Mareh 1, 1977, that Site Plan No,

ASH

1507 was revoked by reason of Applicant's failure to

commence substantial development within one vear of

August 15, 1974.

Finding No, 17; Pursuant to such notice, Applicant

appealed the decision of the Department of Public Works

to the Board of Review of the County of Fresno, The

Board of Review sustained the Department of Public

Works decision by a vote of 8-0, Applicant then appealed

to the Board of Supervisors.

Finding No. 18; All of the work that was done on the

site, except for the work on the water well, was limited to

the area shown in yellow on the site plan map (Phase I),

Such area comprises 28 of the proposed 264 spaces in the

trailer park, Accordingly, work was done on only 11% of

the site. No work has been completed or even begun on the

remaining 89% of the site,

Finding No. 19; During the entire time between Sep-

tember 1, 1971, and March 1, 1977, Applicant constructed

only about 128 feet of disconnected masonry wall, whereas,

the site plan requires 4774 feet of solid masonry wall; no

paving whatsoever was installed anywhere on the site;

there was no construction whatsoever of the 290 parking

spaces required in Site Plan No, 1507; the 20-foot right

of way and corner radius along Reed Avenue were not

dedicated to the County as required by the Site Plan; there

was no landscaping installed anywhere on the site as re-

quired in the Site Plan; there was no construction of the

263 trailer pads shown in the Site Plan; the three laundry

rooms shown in the Site Plan had not been built or begun;

the reereation area shown in the Site Plan had not been

AAT

built or begun; the existing water well on the site ie in-

adequate for the proposed use and no new well was con-

structed; no work has commenced on a sewer treatment

facility necessary to serve the proposed trailer park; and

no utility services were brought onto the site,

Finding No, 20; The Board adopts the characterization

of the County Building Inspector who visited the site in

February, 1977. As of that date, the extent of development

was “nil”, In quantifiable terme, the Board finds that sub-

stantially leas than 10% of the work to be done in Phase I

had been commenced as of that date. Accordingly, less than

1% of the project had been commenced as of that date;

significantly leas than 1% had commenced as of June 18,

1974; and virtually nothing had been done as of December

18, 1972. In relation to what is proposed for the site, as

well as in absolute terme, very little progress had been

made as of June 28, 1977,

Finding No, 21; No building, grading or other con-

struction permit of any kind was ever issued to the Appli-

cant by the County of Fresno.

Finding No, 22; During all times relevant to this

matter, Applicant, a licensed general contractor, was aware

of the requirement to obtain a building permit prior to the

commencement of any construction work.

Finding No, 23; All work performed on the site be-

tween September 1, 1971, and December 18, 1972, was done

without any building or construction permit. All work per-

formed on the site after June 18, 1974, was done without

any building or construction permit.

AMM

Finding No. 24; The purpose of the conditional use

permit process, the California Environmental Quality Act,

the zoning and planning laws and ordinances of the County

of Fresno, and the building permit process is to protect

the public from the harmful effects of unrestricted land

use,

Finding No, 20 Applicant's 33-acre mobilehome park

site is located on prime agricultural land; it is far removed

from all urban centers and urban services; it adjoins

valuable vineyards and orchards; and the owners of such

adjoining and neighboring lande will be irreparably in-

jured in the event a mobilehome park is established on the

subject site.

Finding No, 26; The public interest in protecting prime

agricultural land from urban encroachment is of para-

mount importance, and far outweighs any loss or ineon.

venience that may be suffered by Applicant as a result of

the loss of his investment.

Pursuant to the foregoing Findings, the Board adopts

the following Conclusions;

1. Fresno County Zoning Ordinance Code, Section 43

relating to the requirement for a conditional use permit for

mobilehome parks in the A-1 Zone District, applied to the

subject property as of April 11, 1972.

2. Since Applicant never applied for the required con-

ditional use permit, all work subsequent to April 11, 1972,

was illegal and unlawful.

Aa

J. The building permit issued by the State of Califor-

nia on December 18, 1972, was void and invalid for the

following reasons :

(a) Applicant had failed to obtain a conditional use per-

mit for the establishment of a mobilehome park on the

subject property ;

(b) Applicant had not dedicated the right of way along

Reed Avenue as required in Bite Plan No, 1507 as a pre-

condition to issuance of any building permit; and

(e) Applicant failed to obtain an environmental assess.

ment as required by Public Resources Code, Seetion 21169,

4. There was no substantial development of the site as

of April 11, 1972.

5. Nen if it is determined that the requirement for a

conditional use permit did not apply to the property, there

was no substantial development of the site as of December

18, 1972.

6. In the event that the building permit is determined

to be valid, there was no substantial development of the

site as of June 18, 1974,

7. As of August 15, 1975, there was substantial devel.

opment of the area limited to Phase I of the site, but there

wan no substantial development with regard to the entire

project at anytime,

g. Site Plan No, 1607 is hereby revoked for failure to

have lawfully commenced substantial development of the

project as of August 15, 1975,

AM

THE FOREGOING RESOLUTION was passed and

adopted by the following vote of the Board of Supervisors

of the County of Fresno this 6th day of March 1978, to-wit:

AYES: Supervisors Ventura, Levy, Donaldson

NOES: Supervisor Johnson

ABSENT: Supervisor Bronzan

JOHN BR, DONALDSON

Chairman, Board of Supervisors

ATTEST ;

M. G. WIN OTT, Clerk of the

Board of Supervisors

By GWENDOLYN JOHNSON

Deputy

Am

Appendix L

County Counsel of Fresno County

Robert M. Wash

County Counsel

[ Letterhead |

Mareh 1, 1977

Mr. Asadoor Soojian

89 Bouth Academy Avenue

Sanger, California 93657

Re; SITE PLAN REVIEW No, 1607

Dear Mr. Soojian:

It has come to the attention of this office that your

project for the development of a mobilehome park on the

southwest corner of Bast Central and South Reed Avenues

in Reedley has not progressed materially since the above

site plan was approved in 1971, The site was recently in-

apected by the Building and Safety Division of the Publie

Works Department, Pursuant to such inspection, it was

determined that approximately 15% of the site prepara.

tion work had been completed as of February 17, 1977,

It ie the opinion of the Department of Public Works,

the Planning Department and the undersigned that sub-

stantial development has not taken place on such site 80

as to create a vested right to complete the project, Bite

Plan Review No, 1507, therefore, is deemed void, Fresno

County Zoning Ordinance, Seetion 874 A (4), And since

the General Plan and the Zoning Ordinance no longer per-

mit the establishment of mobilehome trailer parks on your

4-2

site, building permits will not be issued for that proposed

use on that site.

You may appeal this decision to the Board of Review of

Fresno County by submitting a letter in writing, within

15 days of the mailing date of this letter, to the Director

of Public Works of the County of Fresno.

Very truly yours,

Robert M. Wash, County Counsel

By J. Steven Lempel

Deputy

JSL:djr

Walter Clark, Assistant Director, Department of

Public Works

John Weaver, Chief Building Inspector, Building

and Safety Division

William Carmichael, Land Development Division/

Public Works

Tom Harper, Principal Staff Analyst, Planning De-

partment

Planning Department [Letterhead }

Mr. Asadoor Soojian

4982 Riverbend Road N.

Sanger, Ca. 93657

Dear Mr. Soojian:

Re: Site Plan Review No. 1507

This approval is issued on information provided and

attested to by the owner of the property, or an authorized

representative, as indicated by the signature on the appli-

cation for this permit.

Date of application August 4, 1971. This approval

is issued for the following property: Site address West

side of Reed Avenue between Central and Goodfellow,

Zone A-l. Use approved under this permit 264-space

mobilehome park.

Legal description of site: E% of NW, and E 10 of

WY, of NW of Sec. 34-14/23

CONDITIONS OF APPROVAL:

Approval of this application is based upon the property

owner and/or developer making improvements as required

by Section 874 of the Fresno County Zoning Ordinance,

and developed in accordance with the site development plan

as stamped “approved” by the Planning Department.

All required on-site and off-site improvements shall be

completed prior to the issuance of a Certificate of Occu-

pancy. Required site improvements may be bonded in

accordance with the provisions of Section 874-C-2.

* 14

1. DEDICATIONS

a. The easterly 20 feet of the property shall be granted

as right of way to the County of Fresno for road purposes.

In addition, a 15 foot radius at the property line at the

intersection of Central and Reed shall be granted as right

of way.

b. In accordance with Section 874-C-2 of the Fresno

County Zoning Ordinance, the required right of way shall

be granted before a building permit can be issued. A “Lot

Book Guarantee” or “Preliminary Title Report” is re-

quired before the above right of way dedication can be

processed. To avoid delay in the issuance of necessary

permits, it is suggested that you contact the Land Devel-

opment Division of the Public Works Department imme-

diately. The developer is advised that where deeds of trust

or any other type of monetary liens exist on the property,

the cost of obtaining a partial reconveyance or any other

document required to clear title to the property shall be

borne by the owner or developer.

2. ON AND OFF-SITE IMPROVEMENTS

a. The necessary permits for off-site improvements

shall be obtained from the Fresno County Department of

Public Works, Division of Highways and Bridges, and

shall be installed in accordance with Fresno County Im-

provement Standards.

b. Asphalt concrete driveway approaches shall be con-

structed along Reed and Central Avenues.

e. That portion of the road right of way between the

existing street paving and the new property line shall be

A-%

surfaced in accordance with Public Works Standards. If

necessary, portions of the existing roadway shall be graced

to provide a satisfactory pavement slope.

d. The parking, access, and circulation areas shall he

surfaced, striped and channelized as noted on the approved

plan.

e. A minimum of 290 off-street parking spaces shall be

provided.

f. In all developments where the development is in an

area where there is no Local Drainage Plan the developer

will be responsible for the following before the issuance of

any permit (building, encroachment or road improvement)

can be made:

(1) Preparation of a drainage and grading plan to show

how the runoff from his property, generated by a 20%—24

hour storm, will be retained on his property, unless he can

present to the department a drainage report indicating the

storm water runoff from his property will not create a

problem to roadways or other properties.

The preparation of drainage studies and plans is the

practice of Civil Engineering as defined by Section 6371

of the California Business and Professions Code and ac-

cordingly they must be prepared by a Registered Civil

Engineer.

(2) The Civil Engineer shall inspect the construction of

the drainage and grading plan to determine conformance

Note: Site contains existing swale that accepts natural drainage

from County roads and adjacent property. The drainage plan shall

include provisions for this drainage.

A

with his plans and shall certify to the department of such

conformance before occupancy can be granted for the

development.

g. A landscaped area 15 feet wide shall be provided

along the Reed Avenue frontage and shall be maintained.

h. A solid masonry wall 6 feet in height, or a 6 foot

chain link fence with solid screen planting shall be con-

structed along the northerly and westerly property line and

along the development line on the south. (see site plan) In

addition, a 3’-6’ high solid masonry wall or chain link

fence with solid screen planting shall be constructed along

the setback line a minimum of 15’ from the new Reed

Avenue property line.

3. MISCELLANEOUS

a. Permits for structural, electrical and plumbing work

shall be obtained from the State of California, Division of

Building and Housing Standards, prior to anv construction.

b. Buildings and structures shall not exceed 35 feet in

height, except roof structures approved by the Planning

Commission.

e. All outdoor lighting shall be hooded and so arranged

and controlled as not to shine toward highway traffic or the

surrounding living environment.

d. All sign proposals shall be submitted to the Planning

Department for verification of compliance with the Zoning

Ordinance.

A’

Notes:

a. This development shall be in accordance with the require-

ments of the Mid-Valley Fire Protection District (see attached

copy of letter from M.V.F.P.D.).

b. This development shall be in accordance with the require-

e. This approval is final unless you wish to appeal the matter to

the Fresno County Planning Commission. In this event, you may

file a written appeal setting forth your reasons for such to

the Commission. Such appeal shall be filed with the Director of

Planning within fifteen (15) days after the mailing of this decision.

Please contact us if you have any questions.

Yours very truly,

/8/ ROBERT H. GROVE

Assistant Planner

RHG :ak

AN

Appendix N

State of California

Department of Housing and Community Development

Division of Codes and Standards

Permit to Construet

(Note: Permit and plans are to be available

at job site at all times.)

Date: 12/18/72

Expires: 6/18/73 No. 1627

SHLO EPLO EMuT/H

MP Ace/8 U CR 14868

Project Name: Soojian’s Park, Co. 60, I.D. No. 164

Location: Reed Avenue between Goodfellow & Central

Owner: Asadoor Soojian

Address: 4982 Riverbend Road, Sanger

Applicant: Owner

Description of Work:

Building: Construct 16 x 30 wash building

FEES:

Permit 54.30

Plan Check 24.65

Earthquake 50

Total 79.45

Valuation: $6,000.00

All construction, mechanical and electrical work shall be

in accordance with applicable provisions of the Health and

Safety Code and related rules and regulations of the State

of California, and with application on file with this office.

Permittee

Approved: Larry Miller

Ay

State of California

Department of Housing and Community Development

Division of Codes and Standards

Permit to Construct

(Note: Permit and plans are to be available

at job site at all times.)

Date: 12/18/72

Expires: 6/18/73 No. 1628

SHLO EPLO EMP/HD

MP Ace/S 0 CR 14868

Project Name: Soojian's Park, Co. 60, I. D. No. 164

Location: Reed Avenue between Goodfellow & Central

Owner: Asadoor Soojian

Address: 4982 Riverbend Road, Sanger

Applicant: Owner

Description of Work:

Building: Construct 28 space mobilehome park

FEES:

Permit 345.00

Plan Check 170.00

Earthquake

Total 515.00

All construction, mechanical and electrical work shall be

in accordance with applicable provisions of the Health and

Safety Code and related rules and regulations of the State

of California, and with application on file with this office.

Permittee

Approved: Larry Miller

A-100

EXHIBIT XIV

Department of Housing and Community Development

(Letterhead ]

November 29, 1973

Mr. Asadoor Soojian

4982 Riverbend Road

Sanger, California

Dear Mr. Soojian: LD. No. 60-164MP

As recommended by Mr. Fred Norton of this office, we

are extending your construction permits No. 1627 (con-

struct wash building) and No. 1628 (construct 28 lot

mobilehome park) for an additional six months.

The new expiration date of your Permit to Construct is

June 18, 1974.

Sincerely,

/s/ BOB F. CONLEY

Codes & Standards Inspector IT

A-101

Appendix 0

Section 18500(a) of the California Health and Safety

Code provides in relevant part :

It is unlawful for any person to do any of the following

unless he has a valid permit issued by the enforcement

agency :

(a) Construct a mobile home park.

Section 18501 of the California Health and Safety Code

provides:

Applications for a permit to construct or reconstruct

shall be accompanied by:

(a) A description of the grounds.

(b) Plans and specifications of the proposed con-

struction.

(e) A description of the water supply, ground drain-

age and method of sewage disposal.

(d) Appropriate fees.

(e) Evidence of the compliance with all valid local

planning, health, utility and fire requirements.

Section 18509 of the California Health and Safety Code

provides as follows:

All permits as required in this chapter for construe-

tion or reconstruction shall automatically expire with-

in six months from the date of issuance thereof in

those cases where the construction or reconstruction

has not been completed within said period; provided.

however, that the enforcement agency may extend ex-

piration date of said permit for a reasonable time.

A-102

Section 21065(c) of the California Public Resources Code

provides in relevant part:

“Project” means the following:

.. le) Activities involving the issuance to a person

of a... permit... or other entitlement for use by one

or more public agencies. (Effective December 5, 1972)

Section 21167(a) of the California Public Resources

Code provides:

Any action or proceeding to attack, review, set aside,

void, or annul the following acts or decisions of a pub-

lie agency on the grounds of noncompliance with this

division shall be commenced as follows:

(a) An action or proceeding alleging that a public

agency is carrying out or has approved a project which

may have a significant effect on the environment with-

out having determined whether the project may have

a significant effect on the environment shall he com-

menced within 180 days of the public agency’s decision

to carry out or approve the project, or, if a project is

undertaken without a formal decision by the public

agency, within 180 days after commencement of the

project. (Effective December 5, 1972)

Section 21169 of the California Public Resources Code

provides in relevant part:

Any project defined in subdivision (c) of Section

21065 undertaken, carried out or approved on or be-

fore the effective date of this section and the issuance

by any public agency of any. . . permit .. or other

entitlement for use executed or issued on or before the

effective date of this section notwithstanding a failure

to comply with this division, if otherwise legal and

valid, is hereby confirmed, validated and declared

legally effective. (Effective December 5, 1972)