Manuel v. Cresleigh Homes
Filed 12/4/07 Manuel v. Cresleigh Homes CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----
BERT MANUEL et al., Plaintiffs and Respondents, v. CRESLEIGH HOMES CORPORATION, Defendant and Appellant. | C055382 (Super. Ct. No. CVCS070341) |
In this action for injunctive relief and damages, plaintiffs seek to stop defendant Cresleigh Homes Corporation from building two-story houses on lots that abut the backyards of plaintiffs one-story houses. Plaintiffs assert that the construction of two-story houses on those lots violates a specific plan that governs development in the area (the Buttes Vista Neighborhood Plan or the plan). Plaintiffs also assert that the construction constitutes a private nuisance and an actionable invasion of privacy. The trial court granted plaintiffs application for a preliminary injunction to halt construction pending trial, and the case is now before us on appeal from that order.
In determining whether the trial court abused its discretion in issuing a preliminary injunction, we must consider the likelihood that plaintiffs will succeed on the merits. On consideration of that issue, we conclude that: (1) Cresleighs construction of two-story houses on the lots at issue here would not violate the Buttes Vista Neighborhood Plan; (2) because Cresleighs construction is authorized by permit, is consistent with the plan, and has not been shown (or even alleged) to violate any other law, that construction cannot be deemed a nuisance; and (3) the lawful construction of a two-story house does not constitute an actionable invasion of privacy simply because the house overlooks the backyard of one or more adjacent one-story houses. In light of these conclusions, we conclude that plaintiffs have demonstrated no possibility of success on the merits, and therefore the trial court abused its discretion in issuing a preliminary injunction. Accordingly, we will reverse the order granting that injunction.
FACTUAL AND PROCEDURAL BACKGROUND
The Buttes Vista Neighborhood (sometimes the neighborhood) consists of 240 acres on the northwest side of Yuba City that were annexed into the city in 1994. The Butte Vista West #3 subdivision and the Tres Picos West subdivision are located adjacent to each other in the northwest portion of the neighborhood.
Plaintiffs are the owners of seven one-story houses that lie on the eastern perimeter of the Butte Vista West #3 subdivision, immediately adjacent to the western perimeter of Tres Picos West subdivision, which Cresleigh owns. The backyards of plaintiffs properties abut lots 39 through 46 of Tres Picos West subdivision.
The Butte Vista West #3 subdivision was created by a subdivision map approved in August 2001. The Tres Picos West subdivision was created by a subdivision map approved in January 2003.
In November 2006 and January 2007, Cresleigh obtained building permits from the city to build houses on lots 42 through 46 of the Tres Picos West subdivision. Construction of two-story houses was approved for two of those lots -- 43 and 45. The plans for those houses call for second-floor windows on the backs of the houses that would overlook the backyards of several of plaintiffs houses.
In February 2007, plaintiffs filed a complaint for injunctive relief and damages against Cresleigh seeking to prevent the construction of any two-story houses on lots 39 through 46 of the Tres Picos West subdivision. They asserted causes of action for private enforcement of the Butte Vista Neighborhood Plan, private nuisance, and invasion of privacy.[1]
The trial court issued a temporary restraining order, then in March 2007 granted plaintiffs application for a preliminary injunction. That injunction precludes Cresleigh from continuing construction on any two-story house on lots 39 through 46 of the Tres Picos West subdivision, except that construction may be completed on lot 43 provided that any second-story window allowing a view of the backyards of plaintiffs properties be glazed with opaque-type windows or other type windows which would prevent viewing of those yards.
Cresleigh filed a timely notice of appeal from the order granting the preliminary injunction.
DISCUSSION
I
Standard Of Review
Ordinarily an appeal from the granting of a preliminary injunction involves a very limited review of the trial courts exercise of discretion concerning two factors: (1) the likelihood that plaintiffs will ultimately prevail and (2) the interim harm plaintiffs will sustain if the preliminary injunction is denied compared to the interim harm defendant will suffer if the injunction is granted pending a final determination of the merits. (Hunter v. City of Whittier (1989) 209 Cal.App.3d 588, 595.) However, where the grant or denial of a preliminary injunction is dependent upon construction of a statute, and the matter is purely a question of law, the standard of review is not whether discretion was appropriately exercised, but whether the statute was correctly construed. (Garamendi v. Executive Life Ins. Co. (1993) 17 Cal.App.4th 504, 512.) By the same reasoning, where the grant of a preliminary injunction depends on the interpretation of a specific plan (like the Buttes Vista Neighborhood Plan), the standard of review is whether the plan was correctly interpreted. Moreover, an injunction should not issue where there is no possibility of success even though its issuance might prevent irreparable harm . . . . Where there is indeed no likelihood that the plaintiff will prevail, an injunction favoring the plaintiff serves no valid purpose and can only cause needless harm. (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 838.)
II
Buttes Vista Neighborhood Plan
We first address the likelihood that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would violate the Buttes Vista Neighborhood Plan.
The Buttes Vista Neighborhood Plan, which was approved by the city council in 1999, is a master plan for the development of the neighborhood. The plan provides a complete framework for the development of all land uses described in the plan area.
Chapter 2 of the plan identifies various opportunities and constraints relating to elements of the neighborhood. One such element is identified as Existing Residential Neighborhood on Southern Edge and a Portion of the Western Edge. According to the plan, the opportunity relating to this element is that the existing residential areas to the south will have little impact on the new neighborhood. Therefore, no mitigation measures will be necessary to protect the new housing area. The plan further identifies the constraint relating to this element as follows: Privacy issues will be a major concern of the existing residences. Therefore, two story units will not be allowed along the southern edge and a portion of the western edge of the plan area that abut existing residences.
Chapter 3 of the plan identifies four goals for development of the neighborhood. Each goal subsumes one or more objectives, and each objective is supported by one or more policies. Goal 2 and several of the objectives and policies supporting this goal are relevant to the inquiry before us.
Goal 2 is Create A Residential Environment That Provides Diversity And Enhances The Quality Of Life For Its Inhabitants. Under that goal, objective 2B is Create a strong transition between the neighborhood and the surrounding area by incorporating similar paving materials, site furnis[]hings, and plant materials in the transition areas. Supporting objective 2B is policy 2B1, which provides, Do not allow two story development to abut the perimeter of pre-existing development.
Another objective under goal 2 is objective 2D, which is, Promote development of neighborhood streetscapes that are diverse, interesting, secure and aesthetically pleasing. One of the policies supporting objective 2D is policy 2D2, which provides that [a] mix of one and two story units should be encouraged.
A third objective under goal 2 is objective 2E, which is, Promote architectural design that demonstrates a compatibility and variety of styles, quality of detailing and execution of the buildings, and positive relationships between building and site design features. One of the policies supporting objective 2E is policy 2E8, which provides that [t]he placement of second story windows, decks and balconies should protect the privacy of adjacent side and rear properties.
In their complaint, plaintiffs alleged that policy 2B1 -- Do not allow two story development to abut the perimeter of pre-existing development -- was specifically designed to protect them from the construction of two-story houses on lots 39 through 46 of Cresleighs Tres Picos West subdivision. In support of their application for a preliminary injunction, they argued essentially that their houses qualified as pre-existing development that was to be protected from adjacent two-story development under policy 2B1 of the plan.
We agree with Cresleigh that a plain reading of the plan does not support plaintiffs assertions. Read in context, it is readily apparent that policy 2B1 specifically supports objective 2B of the plan, which is to [c]reate a strong transition between the neighborhoodandthe surrounding area. (Italics added.) Thus, policy 2B1 is logically read as addressing only construction along the perimeter of the neighborhood -- where the neighborhood meets the surrounding area -- and not construction along the perimeter of the various subdivisions that were eventually to be included within the neighborhood.
This reading of the plan is supported by that part of the Opportunities and Constraints portion of the plan that addresses the Existing Residential Neighborhood on [the] Southern Edge and a Portion of the Western Edge of the neighborhood. As we have noted, the concern addressed in that portion of the plan was [p]rivacy issues relating to the existing residences, i.e., residences existing outside the neighborhood along its southern and western edge at the time of the neighborhoods creation. This portion of the plan specifically ties the prohibition on construction of two-story houses to the southern edge and a portion of the western edge of the plan area that abut existing residences.
The other portions of the plan that we have mentioned also support an interpretation of the plan limiting the prohibition on two-story houses to the perimeter of the neighborhood where it abuts residential areas that preexisted the neighborhood. First, policy 2D2 specifically encourages [a] mix of one and two story units. This policy would be undermined if the prohibition on two-story houses were extended to the interior of the neighborhood, as plaintiffs interpretation of the plan would require. Second, policy 2E8 implicitly acknowledges that two-story houses may be constructed in places where the privacy of the yards of adjacent properties may be impacted and provides only that [t]he placement of second story windows, decks and balconies on such houses should protect the privacy of [those] adjacent . . . properties. (Italics added.) The use of the word should undercuts plaintiffs argument that such protection is mandatory.
Taken as a whole, the Buttes Vista Neighborhood Plan cannot reasonably be interpreted as limiting two-story construction along the perimeter of subdivisions within the neighborhood. Instead, it is readily apparent that the limitation on two-story construction was intended to apply only to the southern and western edges of the neighborhood where it abuts residences that preexisted the creation of the neighborhood. Accordingly, plaintiffs properties do not constitute pre-existing development within the meaning of policy 2B1 of the plan, and therefore there is no possibility that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would violate the plan.
III
Private Nuisance
We next address the likelihood that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would constitute a private nuisance.
Anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance. (Civ. Code, 3479.) However, Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. (Civ. Code, 3482.) Under Civil Code section 3482, any activity conducted pursuant to a permit authorized by a local ordinance cannot be deemed a nuisance. (See Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 370.)
Here, Cresleigh seeks to build two-story houses pursuant to building permits issued by the city. Plaintiffs have not shown or even alleged that the issuance of those permits violated any provision of law other than the Buttes Vista Neighborhood Plan, and we have concluded that the plan will not be violated by Cresleighs construction. Accordingly, there is no possibility that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would constitute a private nuisance.
IV
Invasion Of Privacy
Finally, we address the likelihood that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would constitute an actionable invasion of privacy.
[A]rticle I, section 1 of the California Constitution protects Californians against invasions of privacy by nongovernmental as well as governmental parties. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 227.) There are three elements of a cause of action for violation of the state constitutional right of privacy: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy on the part of the plaintiff; and (3) a serious invasion of the plaintiffs privacy interest by the defendant. (In re Carmen M. (2006) 141 Cal.App.4th 478, 492, fn 13.)
In support of their application for a preliminary injunction, plaintiffs asserted that [t]he law has long recognized that one has a reasonable expectation of privacy in a backyard which is enclosed by a six-foot high fence for purposes of personal and familial privacy. They cited no authority, however, for the proposition that one can claim a reasonable expectation of privacy under the California Constitution against observations made from an adjacent two-story house that is properly permitted and constructed in accordance with the law. Moreover, one of the cases plaintiffs did cite -- California v. Ciraolo (1986) 476 U.S. 207 [90 L.Ed.2d 210] -- makes clear that (in the context of Fourth Amendment jurisprudence) one does not have a reasonable expectation of privacy in activities conducted in a fenced yard where observation of those activities is made from a public vantage point where [the observer] has a right to be and which renders the activities clearly visible. (Id. at p. 213 [90 L.Ed.2d at p. 216].) By similar reasoning, where (as here) a two-story house is properly permitted and constructed in accordance with the law, the owner of an adjacent one-story home cannot claim a reasonable expectation of privacy in his or her backyard as against observations made from the adjacent two-story house. Or, stated another way, to the extent the owner of the one-story house can be deemed to have a reasonable expectation of privacy in his or her backyard, the observation of that yard from a lawfully constructed adjacent two-story house cannot be deemed to constitute a serious invasion of privacy giving rise to a right of action under the California Constitution.
For the foregoing reasons, we conclude there is no possibility that plaintiffs will prevail on their claim that Cresleighs construction of two-story houses on lots 39 through 46 of the Tres Picos West subdivision would constitute an actionable invasion of privacy.
Because plaintiffs failed to show any possibility that they will prevail on the merits of their action against Cresleigh, the trial court abused its discretion in issuing a preliminary injunction against Cresleighs continued construction. Consequently, that order must be reversed.
DISPOSITION
The order granting plaintiffs application for a preliminary injunction is reversed and the case is remanded to the trial court with instructions to enter a new and different order denying that application. Cresleigh shall recover its costs on appeal. (Cal. Rules of Court, rule 8.276(a).)
ROBIE , J.
We concur:
DAVIS, Acting P.J.
BUTZ , J.
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[1] The complaint also included a petition for writ of mandate against the city, but plaintiffs later voluntarily dismissed that petition without prejudice, and that aspect of the case has no bearing on the issues we decide here.
