By Keith Turner and Justin Escano

Various local land use laws (building and zoning codes and ordinances) often provide a number of view related rights, such as limiting the size of homes, fences and even trees and landscaping.  For instance, section 17.48.100 (D)(3) of the Morro Bay Municipal Code provides: “Fences, walls, and hedges not exceeding six feet, six inches in height may occupy any side or rear yard area.”

The traditional view has been that such rights can generally only be enforced by the local government.   As stated in a 1958 case:  In order to state a cause of action based upon a violation of [a local ordinance], plaintiff must show that he has suffered some exceptional damage other than that suffered by the public generally.” Taliaferro v. Salyer (1958) 162 Cal.App.2d 685, 691.   By imposing an exceptional damage” requirement, many frustrated property owners have been denied the right to enforce local land use laws. For instance in Taliaferro, the court held that the alleged violation of a local land use law could not be enforced by the plaintiff in that case.

The problem with the “special injury” requirement is that it is amorphous – most plaintiffs in a neighbor versus neighbor dispute are concerned with a violation of a local land use ordinance and suffer a special injury that is different than the general public. Furthermore, decrease in property value has been held to be an insufficient indicator of special injury. “[T]he fact that plaintiff’s complaint alleges the value of his property is damaged by the proximity of the unlawful structures does not entitle him to damages nor to have the structures declared a nuisance.” Taliaferro, supra, 162 Cal.Ap.2d at 691.

Until recently, the caselaw has ignored Government Code section 36900, subdivision (a), provides: “The violation of a city ordinance may be prosecuted by city authorities in the name of the people of the State of California, or redressed by civil action.” [Emphasis added]

For instance attorney San Luis Obispo attorney Saro Rizzo used Government Code section 36900 to enforce to enforce a local land use law that provides view rights by prohibiting fences, walls, and hedges six feet in side yards or rear yard areas, Kraus v. Grilli (Cal. Ct. App., Feb. 3, 2015, 2D CIV. B256183) 2015 WL 468634, as modified on denial of reh’g (Feb. 24, 2015).  In Kraus, the plaintiff sued his neighbor over a row of the Myoporum laetum shrubs, located on defendant’s property, which blocked plaintiffs’ view. The plants had grown to a height of approximately 23 feet and a length of approximately 50 feet. However, plaintiffs alleged that plants’ height violated section 17.48.100, subdivision (D)(3) of the Morro Bay Municipal Code, which provides: “Fences, walls, and hedges not exceeding six feet, six inches in height may occupy any side or rear yard area.”

Following trial, plaintiff prevailed under the theory of private nuisance. The trial court awarded plaintiff a permanent mandatory injunction, requiring the defendant, and “any other successive owner” of defendant’s property to either remove the hedge in its entirety or remove “at least 5 feet of the mature canopy per year … to a maximum height not to exceed six feet, six inches.”

The California Court of Appeal affirmed the judgment and held that under Gov’t Code 36900, the plaintiff had standing to sue for a violation of the Morro Bay Municipal Code.  The court found the language “redressed by civil action” to mean that a private individual could sue for a violation of a city ordinance:   “[Government Code section 36900] expressly permits violations of city ordinances to be ‘redressed by civil action.’ … [Defendant] refer[s] us to no state law that allows a city to abrogate the right of redress created in the Government Code. We decline to read into the Municipal Code an intent to create an impermissible conflict with state law by abrogating the right to a civil action created by the Government Code.” (Citing Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 607)

The Kraus court borrowed its interpretation of Government Code 36900 from a published California Court of Appeals case, Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599. In Riley, private citizens brought an action to enforce a Beverly Hills ordinance that required any parking facility seeking to charge a fee for parking to display readily visible signs listing the rates and maximum fees.  The superior court granted the City of Beverly Hills’ motion for judgment on the pleadings, which argued the absence of a private right of action under the Beverly Hills Municipal Code.

However, the Court of Appeal reversed that decision based on Government Code section 36900(a). As cited above, the Riley court simply held, absent contrary state law, plaintiffs had a private right of action to sue over violations of the Beverly Hills Municipal Code.  Thus, Kraus was an extension of Riley, holding that the statute applied to allow enforcement of a local land use ordinance which the local government officials refused to enforce.

 Gov’t Code Section 36900, and its interpretations in Riley and Kraus, could provide homeowners with a solution to a neighbor’s vexatious violations of local municipal codes.

Traditionally, the only way a homeowner could sue a neighbor to enjoin a code violation was by proving private nuisance. “In order to state a cause of action based upon a violation of [a local ordinance], plaintiff must show that he has suffered some exceptional damage other than that suffered by the public generally.” Taliaferro, supra.  The court in that case held that violation of a local land use law could not be enforced by the plaintiff because it had suffered a special injury other than the injury suffered by the general public.

In contrast, in Pacifica Homeowners’ Assn. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, the court held that neighboring property owners could enforce height restrictions in a conditional use permit, which stated “such use of the particular case will not be detrimental to health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements (existing or future) in the vicinity….” Id. at 1150. The plaintiff in Pacifica met the requirements for standing by sufficiently alleging: (1) It is a member of the community for whose particular welfare the ordinance was enacted; and (2) It suffered a special injury different from or greater than that suffered by the general public.  Id.at 1153

The problem with the “special injury” requirement is that it is amorphous – most plaintiffs in a neighbor versus neighbor dispute are concerned with a violation of a local land use ordinance and suffer a special injury that is different than the general public. Furthermore, decrease in property value has been held to be an insufficient indicator of special injury. “[T]he fact that plaintiff’s complaint alleges the value of his property is damaged by the proximity of the unlawful structures does not entitle him to damages nor to have the structures declared a nuisance.” Taliaferro, supra, 162 Cal.Ap.2d at 691.

Gov’t Code section 36900 erases the need to prove any private nuisance requirements, including special injury. In doing so, it may provide homeowners with a simple, straightforward remedy for municipal code violations. Such a remedy is necessary the local city government lacks the political will or resources to address code violations.

For example, the city of Los Angeles Department of Building and Safety has been unable to enforce conditions of approval for construction permits across the city. Councilman Mike Bonin has introduced two motions before the Los Angeles City Council, aimed at making LADBS enforcement more effective. However, the problem remains: LADBS and City of Los Angeles simply lack the resources to enforce code violations. Other California cities are similarly unfit for the task. In Kraus, the city of Morro Bay did not even have a code enforcement officer.

The trio of Gov’t Code section 36900, Riley, and Kraus may provide a much needed shift away from the traditional private nuisance standard. Private individuals could address code violations in a simple, straightforward manner, while at the same time reducing the burden on overstretched and understaffed cities.