In urban areas of California, with many lot lined properties, disputes often abound in regard to property line fences and retaining walls. One issue that has arisen is whether the local community development or building department or planning commission which approved permits for a boundary fence or wall may subject the local government to suit where a neighbor complains that the department or commission improperly issued or approved permits for such a fence or wall.
This question was addressed and answered, at least in part, in the matter of Shahbazian v. City of Rancho Palos Verdes (2017) WL 5623402 ("Shahbazian case"). In the Shahbazian case, disputes arose between neighbors, the Shahbazians and the Hessers, in regard to the Hessers' decision to partially construct a new fence and allegedly shave a retaining wall without the approval of the Shahbazians or a permit from the City of Rancho Palos Verdes ("City"). The Shahbazians alleged the alterations to the existing fence by the Hessers and the construction of the new wall created drainage problems, interfering with their ocean view, and reduced the value of the Shahbazian property.
The Shahbazians complained to the City Community Development Department, whose Code Enforcement Division initiated an investigation. Following that investigation, the Code Enforcement Division concluded that portions of the fence the Hessers had already built complied with the Municipal Code, and issued what it called "an over-the-counter, after-the-fact" permit for the "already built" portion of the fence. The Planning and Zoning Division also concluded the portion of the fence not yet built by the Hessers would comply with the Municipal Code if modified in certain respects, and it issued a conditional permit for that portion of the fence. The Shahbazians appealed that decision to the Planning Commission. However, the Planning Commission approved the permit. The Shahbazians then appealed that decision to the City Council. The City Council remanded the matter to the Planning Commission with instructions to consider whether the fence as a whole complied with the Municipal Code. The Shahbazians also appealed the "over-the-counter and after-the-fact" permit for the portion of the fence already built. Following another Notice of Public Hearing, the Planning Commission approved the permit with modifications, effectively approving the entire fence. The Shahbazians then appealed that decision to the City Council, which affirmed the decision of the Planning Commission.
The Morrison Law Journal
November 2017
Volume XII, Edition 11
A Set Back For Community Development And Building Departments And Planning
Commissions: Court of Appeal Rules That Issuance Of Permits For A Fence Separating
Two Neighboring Properties By The City Of Rancho Palos Verdes Did Not Constitute
Protected Speech Or Petitioning Activity In The Context Of An Anti-Slapp Motion
By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.
1
The Shahbazians' complaints about the Hessers' fence apparently prompted the Hessers to complain to the City about a deck the Shahbazians had built without a permit. The City investigated the deck and concluded it did not comply with Municipal Code, but nevertheless, conditionally approved a permit pending modifications to the deck. The City then contended the Shabazians did not make the required modifications and did not issue a final permit for the deck.
The Shahbazians then sued the City (of Rancho Palos Verdes) and the Hessers claiming that the permits for the fence were wrongfully issued. The City filed a Demurrer and a Special Motion to Strike (Anti-SLAPP) under Code of Civil Procedure § 425.16.1 The City argued that the Shahbazians' claims arose from speech made in connection with an issue under consideration or review by the City and speech made in a place open to the public or a public forum in connection with an issue of public interest, and that its actions constituted speech made in furtherance of the exercise of the rights to petition and free speech. The Trial Court denied the Special Motion to Strike, ruling that the City failed to show that the Shahbazians' claims arose from protected speech or activity. The City then timely appealed the Order denying its Special Motion to Strike.
On appeal, the Court of Appeal affirmed the ruling of the Trial Court, holding that the Shahbazians' complaint did not arise from protected activity. In that regard, the Court of Appeal ruled that, while the Shahbazians' lawsuit arose from the City's decisions to grant and deny building permits, the issuance of the permits did not constitute protected activity.
The decision in the Shahbazian case is somewhat surprising. However, the Shahbazian case should be viewed in light of the fact that it involved an Anti-SLAPP motion, and the claims of the neighbors in this lawsuit may still be found to have no legal basis.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.
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1 A strategic lawsuit against public participation or SLAPP suit is one which "seeks to chill or punish a party's exercise of constitutional rights." Code of Civil Procedure § 425.16 provides a procedural remedy to dispose of such lawsuits.