The City of Los Angeles was correct to revoke a building permit even though the permit holder had spent more than $200,000 on real estate and construction as a result of the city's advice and permit, the Second District Court of Appeal has ruled.

By getting a permit and spending money on improvements, the landowner had met the usual criteria to establish a vested right. But the court ruled against him because he acted in bad faith by failing to disclose the true nature of his business. That business, an autopsy service, is not a permitted use in the zoning district where the landowner purchased a building.

In 1999, Autopsy/Post Services, Inc. (APS), purchased a commercial building on Foothill Boulevard, where APS founder and President Vidal Herrera planned to operate his commercial autopsy and tissue procurement enterprise. Herrera later said that he met with a Department of Building and Safety supervisor to discuss his plans and received “the OK” before purchasing the building. A contractor then received various building permits to convert the structure into a medical laboratory, a use allowed by right in the C2-1VL commercial zone.

None of the permit applications, however, contained APS's name or indicated the true nature of the business. Not until Herrera applied for a sign permit with the name of the business (1-800-AUTOPSY) did the city become aware of what was really going on. In April 2000, Building and Safety issued a stop work order, said it intended to revoke the permit and directed Herrera to the Planning Department.

Herrera applied for an exception to the Foothill Boulevard Corridor Specific Plan, which limits the commercial uses on Herrera's property. In January 2001, the North Valley Area Planning Commission determined that the proposed autopsy facility was equivalent to a morgue or mortuary - businesses that are restricted to industrial zones - and denied Herrera's application. Herrera appealed to the City Council, but lost there as well. In the meantime, Building and Safety revoked the building permit. He appealed to the Board of Building and Safety Commissioners, which upheld the revocation because “the autopsy use in the establishment was never made explicitly or implicitly clear.”

While the Board of Building and Safety Commissions was considering the appeal, APS sued, contending that it had a vested right to complete the project. Los Angeles County Superior Court Judge David Yaffe ruled that APS had no vested right because it did not act in good faith, having “artfully concealed” its intention to perform autopsies. On appeal, a unanimous three-judge panel of the Second District, Division Eight, upheld Judge Yaffe.

“The plans approved by Building and Safety made no reference to an autopsy facility,” Justice Paul Boland wrote for the court. “The building permit application did not reveal APS's name as owner or tenant, instead naming Herrera as the owner. The application for testing of the autopsy table - the only permit-related document that used the word “autopsy” - was filed in the name of 'Otreum Le Labatory' and product approvals were issued without reference to the location where the product would be installed.”

Herrera also argued that his project complied with the specific plan because it does not expressly prohibit autopsy use and because his business is not like a morgue or mortuary.

“Again, we disagree,” Boland wrote. “It is the mere presence, rather than the storage, of deceased bodies on the premises that informed the city's conclusion that the proposed use rendered it akin to morgues and mortuaries. Contrary to APS's assertion, the city did not abuse its discretion in reaching that conclusion, and the trial court properly upheld the city's determination.”

The Case:
Autopsy/Post Services, Inc. v. City of Los Angeles, No. B179349, 2005 DJDAR 5674. Filed May 17, 2005.
The Lawyers:
For APS: Fred Gaines, Gaines & Stacey, (818) 593-6355.
For the city: Michael Klekner, deputy city attorney, (213) 485-5420.