Judge James C. Chalfant, Case 20STCP03556 2022-08-18 Tentative Ruling

Respondents City of Los Angeles (“City”) and Central Area Planning Commission (“APC”), and Real Party-in-Interest Lorenzo M. Hadar, also known as Menahem L. Hadar (“Hadar”), move to augment the record with a letter dated May 31, 2022 and the accompanying exhibits.

The court has read and considered the moving papers and opposition (no reply was filed) and renders the following tentative decision.

Petitioner Coleman commenced this proceeding on October 28, 2021, alleging a cause of action for writ of mandate. Petitioner filed a First Amended and Supplemental Verified Petition (collectively, “FAP”) on January 3, 2022. The FAP alleges in pertinent part as follows.

Hadar owns the real property at 8732 West St. Ives Drive (the “Property”), located next to Coleman’s property. Hadar is in the middle of a project to construct a single-family home on the Property (the “Project”). The Property has a sewer easement running underneath it.

The Los Angeles Department of Building and Safety (“LADBS”) approved the Project and on February 19, 2016, granted Building Permit No. 15010-10000-03086 for the residence (collectively, with related permits “Permits”). The Project plans did not mention the easement on the Property.

The Permits were issued pursuant to a Slope Band Analysis (“SBA”) map which assumed a flat pad under the then-existing home and calculated the residential floor area (“RFA) on that basis. The SBA map calculated the total slope of the Property at less than 15% instead of the 45-59.99% shown on the topographic survey map. The plot plan attached to the Permits shows a more substantial elevation differential of 23.5% for the building pad.

Hadar knowingly misrepresented the Property’s slope to increase the RFA. He must have known that the Property’s slope was different than he reported because he calculated the maximum height, attached to the Permits plan sheets showing the differential, and calculated grading quantities for the Project that included the plans’ cut and fill quantities. The Permits also did not show the obstructions in either side yard around the residence.

On May 2, 2016, before construction of the residence began, Hadar submitted plans for an accessory building. Although these plans disclosed the easement under the residence, LADBS did not review its prior decision.

On April 28, 2017, LADBS issued Permit No. 15010-10002-03086, which purported to supplement the Permits by adding a five-foot long, 64-foot wide “architectural projection” to the lower portion of the residence.

On October 3, 2018, LADBS issued Building Permit 18020-30000-02804 for a ten-foot high retaining wall in the easterly side yard, but the plot plans attached to the Permits show two parallel retaining walls connecting a perpendicular retaining wall on the same side. LADBS policy dictates that perpendicular walls be considered as separate walls.

On April 2, 2019, Coleman filed administrative appeal from LADBS’s issuance of the Permits for the residence, accessory structure, and retaining walls. Coleman contended that LADBS miscalculated the RFA, failed to keep the area around the residence clear, and exceeded the maximum number of two retaining walls.

On June 14, 2019, LADBS issued a Notice of Intent to Revoke the Permits and ordered that construction work on the Project to stop.

Following the notice, LADBS approved a ship’s ladder as a modification to the storm water filtration system to resolve access issues. LADBS did not explain why strict obedience of the ordinance is impractical or that the modification fulfills the letter and spirit of the ordinance for emergency services access. The ship’s ladder does not provide the necessary ramp or stairs.

On March 16, 2020, Associate Zoning Administrator Jack Chiang (the “ZA”), acting on behalf of the Director of City Planning (“Director”), issued a written determination focusing on the areas beneath the deck and not on the residence’s footprint. By analogizing the retaining walls to a deck, the ZA denied the appeal.

On July 1, 2020, the Central Area Planning Commission (“APC”) sustained the ZA’s decision. Coleman contends that the APC erred in its slope determination, its failure to provide the required clear area around the residence, by permitting structures that encroach into the easterly side yard, and by permitting too many retaining walls.

In response to the APC’s decision, on April 24, 2020, Hadar submitted a revised SBA, revised SBA map, and revised plans that modestly changed the estimated slope band under the deck but still presented the ground under the prior home as flat.

Coleman reminded LADBS that the revised SBA map must be consistent with the architectural and civil engineering plans. Instead of compelling Hadar to correct the SBA map to match the true site conditions, LADBS allowed Hadar to submit revised plans that reflect this incorrect slope. LABDS issued Supplemental Building and Grading Permits (“Supplemental Permits”) in reliance on the revised SBA map, revised SBA, and revised plans.

Coleman filed an appeal with LADBS from the issuance of the Supplemental Permits. After LADBS denied the appeal, Coleman appealed to the City’s Board of Building Commissioners (“Board”), which denied her appeal on December 7, 2021.

Coleman seeks mandamus compelling the City to (1) set aside the APC’s July 1, 2020 decision denying her appeal, (2) set aside the Board’s December 7, 2021 decision denying her appeal, and (3) set aside the Permits and Supplemental Permits. Coleman also seeks an injunction enjoining Hadar from further development pursuant to these permits.

On October 30, 2020, Petitioner Coleman served the Petition on Respondents City and the APC.

On February 10, 2022, the court set an order to show cause re: dismissal (“OSC”) for Coleman’s failure to exhaust administrative remedies. The OSC was heard on February 17, 2022. The court stated that it was prepared to dismiss the lawsuit if it had been filed prematurely, meaning that the administrative process was ongoing and not final. After hearing, the court declined to dismiss because Coleman’s counsel contended that she had completed the administrative process and did not agree that her FAP was premature. The court indicated that Real Party Hadar could file a demurrer or a CCP section 1094 (“section 1094”) motion if he disagreed.

The administrative record includes the transcript of the proceedings, all pleadings, all notices and orders, any proposed decision by a hearing officer, the final decision, all admitted exhibits, all rejected exhibits in the possession of the local agency or its commission, board, officer, or agent, all written evidence and any other papers in the case. CCP §1094.6(c); Govt. Code §11523.

“The general rule is that a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal.App.3d 872, 881. The court can only admit additional evidence where the party seeking its inclusion shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4^th 559, 578; Eureka Citizens for Responsible Govt. v. City of Eureka, (2007) 147 Cal.App.4^th 357, 366.

The Code of Civil Procedure does not expressly provide for a motion to augment or correct the administrative record, but such motions are routinely made. See e.g., Pomona Valley Hospital Medical Center v. Superior Court, (1997) 55 Cal.App.4th 93, 101.

On April 1, 2019, Coleman, through her counsel, filed with LADBS a Request for Modification of Building Ordinance – which is effectively an appeal – for the Hadar Property and the Project. AR 93.

As part of its report on July 2, 2019, LADBS conceded that the slope on the topographical survey map did not match the SBA map. AR 350. LADBS issued an Intent to Revoke due to the discrepancy, stating that the Permits would be revoked if Hadar did not correct this discrepancy. AR 351.

On September 6, 2019, LADBS reversed its decision, stating that it correctly accepted the calculations of allowable RFA and deferred the issue to the Department of City Planning (“City Planning”) and the process laid out in LAMC section 12.21.C.10(B)(1). AR 1175, 1179, 3399.

Coleman appealed, and on March 16, 2020, the ZA found that LADBS was not incorrect to withdraw its July 2, 2019 decision and that it had erred in relying on an inaccurate SBA and SBA map for the area underneath the deck of the existing home (“Prior Home”) on the Property. AR 3377. Pursuant to his decision, the ZA emailed LADBS, informing it to direct Hadar to prepare a new SBA and SBA map showing the actual topography under the deck of the Prior Home and calculate the RFA accordingly. AR 1260.

On April 27, 2020, Hadar submitted a revised SBA and map in compliance with the ZA’s decision. AR 4118-19. On October 15, 2020, LADBS issued the Supplemental Permits for the residence based on the revised SBA, revised SBA map, and revised plans. AR 87-91.

On February 3, 2021, Coleman’s counsel filed a new appeal with LADBS challenging LADBS’s acceptance of the revised SBA, revised SBA map, and revised plans and issuance of the Supplemental Permits. AR 3724. LADBS denied the appeal on February 23, 2021. AR 3802.

On July 12, 2021, Coleman appealed to the Board under LAMC section 98.0403.1(b)(2). AR 3728.

An LADBS staff report prepared for the Board noted that all of Coleman’s claims on appeal were challenges to the accuracy of the revised SBA, revised SBA map, and the supporting revised plans. AR 3961. Yet, the accuracy of these documents was a zoning issue beyond the purview of the Board, and Coleman’s only administrative recourse was to appeal to the Director. AR 3964.

In a November 30, 2021 letter to the Board, Hadar’s counsel noted that he had been advised by Board staff that the Board will not consider any claims concerning the revised SBA and map, and revised plans at the hearing. AR 3933.

At the Board’s December 7, 2021 hearing, Hadar’s counsel reiterated that this was not the right forum for Coleman to challenge the SBA and SBA map, but he was prepared to do so when and where appropriate. AR 4636-37. The Board denied the appeal. AR 4654-55.

In a Report on Appeal dated December 20, 2021, LADBS advised Coleman that its denial of her appeal in February 2021 could properly be appealed to the Director no later than January 5, 2022. AR 4122. On January 4, 2022, Coleman filed a protective appeal with the Director. AR 4212-15.

On May 31, 2022, counsel for Hadar sent a letter to the ZA regarding Coleman’s protective appeal. Rubens Decl., ¶3, Ex. 1. The letter presented Hadar’s evidence on the accuracy of the revised SBA, revised SBA map, and revised plans. Rubens Decl., ¶3, Ex. 1. He included all the revised plan sheets that correct the 2016 plan sheets, including A5.10, C-2, C-3, and C-5. Rubens Decl., ¶3, Ex. 1. The letter also included supporting letters and documents written between 2020 and 2022. Rubens Decl., ¶3, Ex. 1.

In administrative mandamus, extra-record evidence may be considered only if the party seeking inclusion of such evidence shows (1) the evidence could not have been presented to the agency in the first instance in the exercise of reasonable diligence or (2) was improperly excluded. CCP §1094.5(e); Fairfield v. Superior Court of Solano County, (1975) 14 Cal. 3d 768, 771-772. Western States, 9 Cal.4th at 578-579. In addition, extra-record evidence is admissible only if it is relevant. Id. at 570.

Real Party Hadar and Respondent City seek to augment the record with the May 31, 2022 letter of Hadar’s counsel and its attached evidence concerning the accuracy of the revised SBA, revised SBA map, and revised plans. Rubens Decl., ¶3, Ex. 1. They argue that, while Coleman argues that she does not challenge the accuracy of the revised SBA and revised plan sheets, the FAP and her opening brief shows otherwise. Hadar was unable to present this evidence in the Board appeal and seeks to do so now if the court considers the merits of Coleman’s slope band claim. Mot. at 7-8.[1]

Moving parties also note that Coleman’s opening brief also contends that the revised plan sheets are not consistent with the plan sheets because C-2 and C-3 are not included in the revised plans. Coleman never raised this issue in the Board appeal and Hadar was deprived of the opportunity to show that C-2 and C-3 were in fact revised. The court should not consider the merits of Coleman’s arguments without permitting Hadar to augment the record on this issue.

In opposition, Coleman asserts that Hadar chose not to present evidence of the accuracy of the revised SBA map and revised plans in the Board appeal, relying instead on a litigation strategy of claiming Coleman’s failure to exhaust and mootness. He could have presented this evidence to the APC in 2019 and failed to do so. Nor is there evidence that the Board’s staff “instructed” him not to present this evidence. Similarly, LADBS staff submitted the revised plans to the Board and included only revised sheets A5.10, C-5, and C-1. If they existed, Hadar had access to revised sheets C-2 and C-3 and could have introduced them to the Board. Opp. at 3.

Hadar and the City have not shown that the evidence was improperly excluded or could not have been presented to the agency in the first instance in the exercise of reasonable diligence. CCP §1094.5(e). There is no evidence that they were precluded from presenting evidence on the merits before the Board. Nor is there evidence that they could not have supplemented LADBS staff’s presentation to the Board with a revised C-2 and C-3. The motion to augment the record is denied.

[1] Moving parties alternatively assert that the court should not consider the merits of the Coleman’s slope band claim or her argument about plan sheets C-2 and C-3. Mot. at 8. This issue is addressed in the court’s tentative ruling on the FAP.

Petitioner Ina Coleman (“Coleman”) seeks a writ of mandate compelling Respondents City of Los Angeles (“City”) and Central Area Planning Commission (“APC”) to vacate and set aside decisions by both the APC and the Board of Building Commissioners (“Board”), and to annul all building permits pertaining to an ongoing project by Real Party-in-Interest Menahem L. Hadar aka Lorenzo M. Hadar (“Hadar”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

The Los Angeles Department of Building and Safety (“LADBS”) approved the Project and on February 19, 2016, granted Building Permit No. 15010-10000-03086 for the residence (“Permits”).[1] The Project plans did not mention the easement on the Property.

On June 14, 2019, LADBS issued a Notice of Intent to Revoke the Permits and ordered that construction work on the Project to stop.

On October 30, 2020, Petitioner Coleman served the Petition on Respondents City and the APC.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 51415. The pertinent issues under section 1094.5 are (1) whether the respondent has proceed without jurisdiction, (2) whether there was a fair trial, and (3) whether there was a prejudicial abuse of discretion. CCP §1094.5(b). An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. CCP §1094.5(c).

CCP section 1094.5 does not in its face specify which cases are subject to independent review of evidentiary findings. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. Instead, that issue was left to the courts. In cases other than those requiring the court to exercise its independent judgment, the substantial evidence test applies. CCP §1094.5(c). Land use decisions do not typically involve vested rights requiring independent review. See PMI Mortgage Insurance Co. v. City of Pacific Grove, (1981) 128 Cal.App.3d 724, 729. The granting of a permit or variance does not infringe on the fundamental vested rights of adjoining property owners. Bakman v. Dept. of Transportation, (1979) 99 Cal.App.3d 665, 689-90. A landowner does not have either an easement for air and light in the absence of an express covenant (Katcher v. Home Savings & Loan Assn, (1966) 245 Cal.App.2d 425, 429), and there is no vested right in the enforcement of a zoning ordinance. Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, (2001) 86 Cal.App.4th 534, 552.

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (2002) 104 Cal.App.4th 575, 585) or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid value. Mohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n.28. The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decision. California Youth Authority, supra, 104 Cal.App.4th at 585.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner seeking administrative mandamus therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137; Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691 (“[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion).

The agency’s decision at the hearing must be based on the evidence. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 51415. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id.

Under the City’s Baseline Hillside Ordinance (“BHO”), the RFA for a hillside residence cannot exceed the sum of the square footage of each “slope band” multiplied by the corresponding floor area ratio for that slope band. LAMC §12.21.C.10(b).

As part of an application for a permit to LADBS, the applicant must submit a Slope Analysis Map based on a survey of the “natural/existing topography” prepared, stamped and signed by a registered civil engineer or licensed surveyor, to verify the total area (in square feet) of the portions of a property within each Slope Band. LAMC §12.21.C.10(b)(1). The SBA map identifies the portions of the lot (or bands) sloping within certain percentage ranges—i.e., 0% to 14.99%, 15% to 29.99%, and 30% to 44.99%. Id. The lot area within each slope is then assigned a Residential Floor Area Ratio (“RFAR”) depending on the degree of the slope and the underlying zoning, ranging from 0% RFAR for very steep slopes to 65% RFAR in certain Hillside Area for gentle slopes. Id. The allowable RFA is the cumulative sum of the allowable floor area within each of the slope bands. LAMC §12.21.C.10(b)(1). The flatter the SBA shows a property to be, the bigger the home that can be built.

Every required front, side and rear yard shall be open and unobstructed from the ground to the sky except for enumerated exceptions. LAMC §12.21.C.10(a)(11).

No architectural feature permitted in a yard, passageway or other open space shall be located and maintained so as to preclude complete access about and on each side of and in close proximity to main buildings and accessory living quarters at all times. LAMC §12.21.C.20(l). Where a fence or wall is provided or maintained, a gate or other suitable opening at least two and one-half feet in width shall be deemed adequate for access through said fence or wall. Id. At least five feet of clear and open space shall be maintained between any two main buildings, including the projections, on any one lot. Id.

For lots located in the A or R Zones, including RA Zones, on land designated as a Hillside Area on the Bureau of Engineering Basic Grid Map No. A-1 3372, and developed or to be developed with dwelling units, a maximum of one free standing vertical or approximately vertical retaining wall may be built on any lot with a maximum height of 12 feet as measured from the top of the wall to the lower side of the adjacent ground elevation. LAMC §12.21.C.8(a). A maximum of two retaining walls may be built if (1) the minimum horizontal distance between the two walls is three feet, (2) neither wall exceeds ten feet in height from the top of each wall to the lower side of the adjacent ground elevation at each wall, and (3) neither wall exceeds the height allowed by LAMC section 12.22.C.20(f). Id.

Open, unenclosed porches, platforms, or landing places (including access stairways thereto) not covered by a roof or canopy, which do not extend above the level of the first floor of the building, may extend or project into the required front yard, side yard, rear yard, passageway, or other open space, not more than six feet, provided that in no event shall any such porch, platform or landing space be more than six feet above the natural ground level adjacent thereto. LAMC §12.22.C.20(e).

The Director has “the power and duty to investigate and make a decision upon appeals from determinations of [LADBS] where it is alleged there is error or abuse of discretion in any order, interpretation, requirement, determination or action made by [LADBS].” LAMC §12.26.K.1. The appellant must set forth specifically how LADBS erred or abused its discretion. LAMC §12.26.K.2. There is no provision in LAMC section 12.26.K.1 expressly limiting the Director’s appellate review to the specific issues or evidence presented to LADBS.

No person shall erect, construct, alter, repair, demolish, remove or move any building or structure unless said person has obtained a permit therefor from LADBS. LAMC §91.106.1.1 (Pet. RJN Ex. 1). A separate permit shall be obtained for each separate building or structure except that a group of temporary structures erected on one site for a limited period of time may be included on one permit. LAMC §91.106.1.1. (Pet. RJN Ex. 1).

No person shall commence or perform any grading, and no person shall import or export any earth materials to or from any grading site, without first having obtained a permit from LADBS. LAMC §91.106.1.2. (Pet. RJN Ex. 1).

For each permit, the applicant will file an application that shall (1) identify and describe the work to be covered by the permit for which application is made, (2) describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work, (3) indicate the use or occupancy for which the proposed work is intended, (4) be accompanied by plans, diagrams, computations and specifications and other required data, (5) state the valuation of any new building or structure or any addition, remodeling or alteration to an existing building, (6) be signed by the permittee, or an authorized agent, and (7) give such other data and information as may be required by the Superintendent of Building. LAMC §91.106.3.1. (Pet. RJN Ex. 1). The plans and specifications shall be of sufficient clarity to indicate the nature and extent of the proposed work and to show in detail that it will conform to the provisions of the Building Code and of relevant laws, ordinances, rules, regulations and orders. LAMC §91.106.3.3.1. (Pet. RJN Ex. 1). When LADBS determines that the information on the application and plans is in conformance with the Building Code and other relevant codes and ordinances, it shall issue a permit upon receipt of the total fees. LAMC §91.106.4.1. (Pet. RJN Ex. 1).

Any person who willfully or knowingly, with the intent to deceive, makes a false statement or representation, or knowingly fails to disclose a material fact in any documentation required by LADBS shall be guilty of a misdemeanor. LAMC §91.106.4.4.2. (Pet. RJN Ex. 1).

The Board of Building Commissioners (“Board”) shall have the power to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of LADBS pertaining to enforcement of specific ordinances, regulations, or laws in site-specific cases. LAMC §98.0403.1(b)(2). (Pet. RJN Ex. 2). The appeal shall state how LADBS has erred or abused its discretion. LAMC §98.0403.1(b)(2). (Pet. RJN Ex. 2). The Board shall hear and make its determination on the appeal no later than the 30th calendar day after the appeal is heard. LAMC §98.0403.1(b)(2). (Pet. RJN Ex. 2).

Real Party Hadar owns the Property, which is next to Coleman’s property. SAR 100. The Property is a steeply sloping, irregular shaped, approximately 11,139 square foot lot in a designated Hillside Area and subject to the BHO. AR 4225.

In 2016, Hadar submitted plans to LADBS for construction of a residence on the Property, including a topographical map and an SBA. See SAR 57, 70. Hadar’s SBA maps, dated August 13 and September 1, 2015, claimed that the area underneath the approximately 4,900 square foot existing home on the Property (“Prior Home”) was flat at the time of the topographical survey. SAR 57, 70. Some of the submitted plans for the Project showed that the area underneath the residence was sloped. SAR 73, 75.

LADBS and Hadar later explained that the slope was assumed because the foundation of the Prior Home went to the ground, the slope was not visible, and there was no way to measure the slope directly. AR 4126, 4563. As a result, they relied on a licensed architect’s cross-section. AR 4235. The SBA therefore assumed that the slope under the existing home was flat. AR 4126.

Through 2018, LADBS used this assumption as the basis for the Permits (residence, project, retaining walls, and perpendicular wall) in determining the RFA for the Project. AR 209-48.

When the Prior Home was demolished at the beginning of the Project, Coleman observed the demolition from her neighboring home. AR 2834. She noted that the ground underneath the Prior Home was severely sloping, more than 60% by her estimate. AR 2834. She took several photographs to document that the ground was a steep slope as opposed to a stepped hillside. AR 2835, 2840-42, 2844; SAR 336, 338, 340.

On April 1, 2019, following an in-person review of the Project permits, Coleman filed a Request for Modification of Building Ordinance with LADBS for the Property – effectively, an appeal from the issuance of the Permits. AR 93, 96. She claimed that Hadar’s topographical survey places the area surrounding the deck of the Prior Home in the 45-59.99% slope band, making the permissible RFA significantly less than on the Permits. AR 97-98. She noted the court’s Samatas ruling, pursuant to which developer who knows the actual sloping conditions under the existing dwelling must submit a SBA and SBA map reflecting that actual condition. AR 97. She also claimed that LADBS wrongly permitted (1) a side yard encroachment by the construction of retaining walls in the easterly side yard in violation of the clear access requirement of LAMC section 12.22.C.20(l), (2) the retaining walls in the side yard to violate the requirement that side yards shall be unobstructed from the ground to the sky under LAMC section 12.21.C.1 (AR 99-101), and (3) the construction of more retaining walls than allowed by LAMC section 12.21.C.8 (AR 101-02, 864).[3]

On July 2, 2019, LADBS issued a decision for Coleman’s appeal concluding that it did not err in using the 2016 SBA to approve the permits. AR 347, 350. LADBS noted that the Department of City Planning’s (“City Planning”) Director of or his/her designee shall approve the maximum allowable RFA using the SBA map prior to LADBS’s issuance of a building permit, LADBS reviewed the maximum allowable RFA approved by the Director and confirmed that the proposed RFA was less than permissible. AR 350. Therefore, LADBS did not issue the Permits in error. AR 350.

LADBS’s report conceded that further review of the Project plans showed that the slope on the topographical survey map did not match the SBA map. AR 350. The topographical survey map shows a sloping surface under the Prior Home, but the SBA map shows the same area with a 0-14.99% slope. AR 350. Per Samatas, actual slope conditions must be taken into account when preparing the SBA map and the maximum RFA was therefore erroneously overstated. AR 350-51. Consequently, LADBS intended to issue a Notice of Intent to Revoke (“Notice of Intent”) and the Permits would be revoked if Hadar did not correct this discrepancy. AR 351. The report also stated that LADBS would issue a Notice of Intent for the retaining walls based on the clear access requirement but not for the single dwelling or number of retaining walls issues. AR 351-53.

On July 19, 2019, LADBS learned that Hadar had obtained the Fire Department’s concurrence for a modification to the Project that would provide the required access around the Project home. AR 1069. Hadar filed a request to modify the plans to include a ship’s ladder to provide that access. AR 3638. On August 15, 2019, LADBS issued a supplemental permit allowing a ship’s ladder for the retaining wall built over the easement in order to provide access around the new residence. SAR 46.

In its final written decision on September 6, 2019, LADBS partially reversed its July 2 decision by stating that it was correct in accepting City Planning’s calculations of the allowable RFA because LADBS’s job is to confirm that a project’s proposed RFA is equal to or less than the allowable RFA, which it did. AR 1179. LADBS deferred the accuracy of the RFA calculation to the process in LAMC section 12.21.C.10(b)(1) which requires City Planning to review and approve the SBA. AR 1175, 1179. LADBS’s final decision still concluded that a Notice of Intent was required to be issued for the Project’s violation of the clear access requirement in LAMC section 12.22.C.20(l). AR 1180.

On July 29, 2019, Coleman appealed LADBS’s initial July 2, 2019 decision to the Director, claiming that LADBS did not take sufficient action. AR 2517-18. She argued that LADBS improperly claimed that City Planning is responsible for calculating the RFA when it is known that the SBA map does not reflect actual sloping condition. AR 2519-20. In that situation, LADBS could not waive responsibility by saying that its role was only to ensure consistency through the plans. AR 2519-20. LADBS erred by approving plans that it knew were based on an inaccurate SBA map. AR 2520. As a result, the Permits were issued in error insofar they increase the size of the residence beyond the allowable RFA. AR 2520.

As for her retaining wall claims, Coleman elaborated that the walls of the three-dimensional storm water filtration box in the eastern side yard encroaches into the required side yard and should not be treated as fences or walls governed by LAMC section 12.22.C.20(f)(3). AR 2522-23. Additionally, while the permit work description called for one retaining wall, the Project’s retaining walls are considered two walls because they are joined at a 90-degree angle. AR 2523-24.

Following LADBS’s September 6, 2019 decision, Coleman submitted a supplemental appeal on September 18, 2019. AR 2801-02.

On November 12, 2019, the ZA held a hearing on Coleman’s appeal. AR 3393. The same day, Coleman’s counsel sent another letter to the Director reiterating that the Project’s topographical and SBA maps have drastically different slope estimates. AR 2845-48. The letter was based on counsel’s observations after reviewing the plans in the LADBS office (LADBS does not allow any duplication of plans). AR 2845. The topographical map’s contour lines on the lower end of the lot indicate a steep slope. AR 2846. Plan sheet 4.10 shows a constant 45-degree slope from the south end of the lot nearly to the end of the house at the top of the lot on the north end. AR 2847. The line of natural grade under the Prior Home is shown at a constant slope estimated at 45 degrees. AR 2847. Plan sheets C-2 and C-3 show a uniform slope for the entire lot and the only flat area is the northerly approximately ¼ of the Prior Home at the top of the lot. AR 2847. See also SAR 64-66, 72, 73, 75. This is inconsistent with the SBA map which does not reflect the uniform contours at the lower portions of the lot, does not show the severe slopes under the Prior Home, and instead shows the area under the Prior Home as flat. AR 2847.

After the ZA’s November 12, 2019 hearing, Coleman sent a letter to the ZA reiterating that the land is more sloped than the SBA that Hadar submitted. AR 328-29. The letter attached and explained various photos taken mostly before demolition of the Prior Home to demonstrate that the area was sloped. SAR 329-30.

On December 18, 2019, the ZA visited the LADBS office to inspect the Project plans as part of this appeal. AR 1211.

On March 16, 2020, the Director, through the ZA,[4] issued a final determination on Coleman’s appeal. AR 3377.

The ZA denied the appeal for the retaining wall encroachment claims. AR 3377-78. He found that Hadar had cured the access issues posed for the residence by (1) cutting the retainer wall to be flush with the natural grade of the land and (2) adding the ship’s ladder. AR 3400. This provided clear access around the main house at the easterly side yard where Hadar constructed the storm water filtration planter box. AR 3400. Hadar addressed the issues by redesigning the storm water filtration box to remove the top portion of the planter wall to grade level, leaving the height of the box wall at six feet or less within the side yard in compliance with LAMC section 12.22.C.20(f). AR 3402. This made the box into a landing when viewed from the upslope side and a raised platform when viewed from the down slope side. AR 3402. It eliminated the prospect that the box is a fence and permits a suitable opening for access. AR 3402. The addition of a ship’s ladder permits clear access in compliance with LAMC section 12.22.C.20(l) and LADBS’s Zoning Manual and Commentary (“Zoning Manual”) and LADBS Information Bulletin P/ZC 2002-004 (“Information Bulletin”), which permits a 24” planter, landing, or deck and requires a ramp or stairs for structures exceeding that limit. AR 3402-03.

The ZA also concluded that the retaining walls forming the filtration planter box do not violate the side yard setback requirement. AR 3403. He concluded that, once it is built, the planter box will be filled with gravel which one can walk over and it therefore will function as a walkway or landing. AR 3403. LAMC section 12.22.C.20(d) permits platforms or landing spaces to extend or project into the side yard by six feet and the planter box is precisely the structure that the LADBS Zoning Manual permits. AR 3404.

The ZA also concluded that the planter box is not governed by the City’s Retaining Wall Ordinance in Hillside Areas (LAMC §12.21.C.8) because it is attached to the main house and is not a freestanding structure. AR 3404. Although LADBS refers to the planter box walls as retaining walls, it does so only because it has no provision to govern storm water catch. AR 3404. This conclusion is consistent with a prior APC ruling. AR 3406. The planter box at completion is a raised platform filled with gravel and earth and is not a retaining wall. AR 3407. It is also part of the house. AR 3407. Even if it were not attached to the house, however, there would be one retaining wall because retaining walls that maintain the same plateau at the same elevation are considered one retaining wall and the planter box does not create different elevations or terraces. AR 3407.

The ZA granted Coleman’s appeal on the SBA issue, finding that LADBS did not err in retracting its initial decision, but it did err by relying on an inaccurate SBA and map for the area under the deck of the Prior Home. AR 3399.

The ZA noted City Planning’s practice to rely on the accuracy of surveys by licensed surveyors, the court’s ruling in Samatas, and LADBS’s initial decision to issue an Intent to Revoke and subsequent September 6, 2019 decision to defer to City Planning. AR 3399. LADBS was correct to retract its initial decision to revoke because the intent of the SBA and SBA map is not to use the contours shown on a topographical survey but rather the existing and natural condition, including any fill or man-made flat areas under the pre-existing home. AR 3399. The surveyor should show all slopes under the house and deck which are not enclosed when preparing the survey and may reasonably designate as flat the area where exterior walls or deck walls extend to the ground and the ground is unexposed or does not provide “a reasonable walking access”. AR 3399.

The SBA and SBA map should not be based on the condition of the lot after demolition because no prudent developer would start demolition without obtaining the necessary zoning entitlement and building permits. AR 3399. The logical progression of hillside development on improved lots is to preserve the existing structure while preparing architectural plans and processing building permits. AR 3399. The BHO takes into consideration when determining the maximum RFA for the site, including any previously permitted grading work. If the SBA were prepared using only the natural grade without considering existing conditions or previous grading, hillside lots would generally result in smaller homes than the existing homes, which is not the intent of the BHO. AR 3399.

The ZA reviewed the SBA map and topographical survey, as well as Coleman’s site photographs and particularly a 2008 aerial photograph in City Planning’s ZIMAS, and the evidence was clear that the lot area under the rear deck of the Prior Home was designated as relatively flat on the SBA but in fact has a steep slope. AR 3399-400. The 2008 photo clearly shows the rear deck had supporting posts and the under area was exposed for the surveyor to see the slope when preparing the slope band analysis. AR 3400. Therefore, LADBS erred in issuing permits for RFA based on any inaccurate slope band analysis. AR 3400.

Pursuant to this decision, the ZA emailed LADBS and asked it to direct Hadar to prepare a new SBA and map showing the actual topography under the Prior Home and calculate the RFA accordingly. AR 1260.

On April 21, 2020, Hadar’s counsel emailed LADBS that he had submitted a revised SBA and a revised SBA map in compliance with the ZA’s decision. AR 1846. The revised SBA map shows a slope varying between 15-29.99% and 30-44.99% under the rear deck of the Prior Home, but the entire front northern half still at a 0-14.99% slope. AR 4118-19; SAR 44, 198. Hadar applied for the Supplemental Permits to incorporate a revised City Planning-approved SBA map. AR 87-91.

During LADBS’s plan check for the Supplemental Permits, Coleman expressed her concern that the revised SBA and map still portrayed the entire area under the Prior Home as flat despite evidence that it is severely sloping. AR 3732. This was a fiction and the supporting evidence included A5.10, C-2, C-3, and C-5 from the 2016 plans attached to Hadar’s response to Coleman’s APC appeal. SAR 66, 72-73, 75. Coleman understood that LADBS would require Hadar to correct the entire SBA map and require a new SBA. AR 3749.

On August 14, 2020, LADBS emailed Hadar’s counsel that the plan sheets (C-2. C-3. and C-5) show a slope greater than 15% in areas where the SBA map inconsistently reflected slopes of 1-15%. AR 2215. Hadar was informed that the plan sheets and SBA map needed to reflect the same slope information. AR 2215.

In October 2020, Hadar submitted revised plans which incorporated the revised SBA. When compared to the old plan sheets, the revised plan sheets (A5.10, C-1, and C-5) asserted that the land beneath the Prior Home consisted of multiple flat pads with vertical soil steps and was not sloped as shown in the 2016 plans. AR 3768, 4004, 4006, 4113-16. The Prior Home had been demolished and the actual grade below it had been exposed, enabling the revised SBA map to reflect the actual grade which admittedly is “drastically different” than the 2016 SBA and SBA map. AR 4126. The maximum RFA was now 2,789 square feet – less than the 2,942.3 square feet under the 2016 SBA and SBA map. SAR 44, 70. LADBS approved the revised plans.

On October 15, 2020, LADBS issued the Supplemental Permits for the Project residence and grading based on the revised SBA and revised plans. AR 3991-92, 3994-95.

On March 27, 2020, Coleman appealed the ZA’s decision to the APC, asking for clarification whether Hadar must provide an updated SBA and map just for the deck area or for the entire Prior Home. AR 3413, 3419. Coleman also appealed the ZA’s determinations for clear access around the new home, the storm water filtration box as a side yard obstruction, and excess retaining walls. AR 3419-20.

On June 1, 2020, Hadar filed a response arguing that that he revised the SBA map and SBA consistent with the ZA’s determination. SAR 2. The revised SBA map incorporates the ZA’s comments and demonstrates that the Project is relying on an accurate SBA, SBA map, and properly corrected RFA. SAR 2-3. The revised SBA and revised plans were attached to this response. SAR 42-44, 50-89.

On June 12, 2020, Coleman sent a supplemental letter to the APC asserting that LADBS was overestimating the allowable RFA by allowing Hadar to file an SBA map that assumed the area under the Prior Home was flat. SAR 268, 271.[5]

The APC held the appeal hearing on June 23, 2020. The Commissioners’ agenda packet included the revised SBA map showing the slopes under the Prior Home. SAR 152.

The ZA testified that he found the area under the rear deck to be sloped and Hadar had submitted a revised SBA and SBA map for review. AR 4521. He noted that Coleman would be arguing that the revised SBA is still wrong because Hadar knew most of the area under the Prior Home was sloped. AR 4521. The ZA stated that his analysis of the issue can only address whether the original SBA, SBA map, and RFA are right or wrong. AR 4521. He found the area under the deck area to be sloped and asked LADBS to issue a new Supplemental Permit to capture the revised slope band. AR 4522. He stated that a review of the revised SBA and SBA map was not before the APA and should be a separate review. AR 4522. He recommended that the APC deny the appeal on the slope band/RFA issue and sustain his decision on the SBA and SBA map. AR 4522.

On the clear access issue, the ZA explained that there is no zoning code for storm water catch boxes, so LADBS used the Retaining Wall Ordinance. AR 4523. He (the ZA) determined that the storm water catch box will be filled with gravel and constitutes a raised platform supported by building structure or retaining wall. AR 4523-24. There is no prohibition on having it in a side yard. AR 4527.

On the clear access issue, LAMC section 12.22C.20(l) is not aimed at a platform which has a higher and lower elevation on opposite sides. AR 4525. LADBS has interpreted LAMC section 12.22C.20(l) as prohibiting cuts, fills, or raised structures more than 24 inches tall without some ramp or steps. AR 4525. The Fire Department approved a ship’s ladder for the storm water filtration box. AR 4526. While a ladder is not in the LADBS Zoning Manual -- which refers only to a ramp and stairs -- the Manual is not an ordinance and not binding. AR 4526. LADBS issued a modification to permit the ship’s ladder and had authority to do so. AR 4526.

On the issue of the storm water filtration box as an encroachment on the easterly side yard, the box most resembles a raised platform which is not an encroachment. AR 4527. The LADBS Information Bulletin allows a project of a deck, porch, or landing in a side yard where less than six feet tall. AR 4527.

Finally, the ZA noted that Coleman contended that the Project does not comply with the Retaining Wall Ordinance because there more than permissible retaining walls. AR 4528. The LADBS Zoning Manual states that a retaining wall is a freestanding structure not attached to a building. AR 4528. Additionally, a retaining wall that results in one level of terrace is a single retaining wall no matter how many corners, bends, or curves it has. AR 4529. The storm water catch box does not meet the rule of multiple retaining walls where the walls have a 90-degree angle because it only applies where there are different elevations. AR 4529-30. Nor does the Project have too many retaining walls because the storm water catch box walls are not freestanding and are attached to the house. AR 4531.

Hadar’s counsel asserted that he did nothing wrong when he submitted the SBA. AR 4561. When Hadar received the ZA’s decision, he went back and prepared a revised SBA in accordance with the ZA’s direction. AR 4561. LADBS and City Planning just approved the revised SBA the day before the hearing. AR 4561. Coleman’s claim that the original SBA map characterized a red-hatched area as flat is a gross mischaracterization. AR 4562. That area was labeled “0-14.99%,” which is a significant slope. AR 4562.

For the revised SBA, Hadar’s representatives scoured the information available, but they did not have much information because of the Prior Home. AR 4562. They took into account the deck area but could not do more. The Prior Home was not built on stilts; it was built on a foundation that went to the ground. AR 4562-63. Hadar’s counsel also gave a presentation showing that the old house was terraced on multiple flat surfaces that collectively ascend. AR 4574.

After a vote, the APC upheld the ZA’s March 16, 2020 decision. AR 3645, 4589-92. The APC notified Coleman that its decision was final and not reviewable except by administrative mandamus. AR 3646.[6]

On February 3, 2021, Coleman filed a new appeal (Request for Modification) with LADBS for Hadar’s Project. AR 3724. She asked LADBS to determine if it had abused its discretion in (1) issuing the Supplemental Permits and (2) failing to enforce the order to comply following the APC’s decision. AR 3724. LADBS denied the appeal on February 23, 2021. AR 3802.

In March 2021, Coleman’s counsel asked LADBS to suspend processing the appeal until it was modified. See AR 3933-34.

On July 12, 2021, Coleman filed an appeal to the Board under LAMC section 98.0403.1(b)(2) which challenged LADBS’s acceptance of the revised SBA and revised plans and issuance of the Supplemental Permits. AR 3806-23. Coleman contended that LADBS abused its discretion by accepting doctored revised plans in 2020 to replace plans approved in 2016. AR 3807. There was no evidence to support that the revised plans could be so drastically different than the approved 2016 plans. AR 3807.

Coleman emphasized that she was not asking the Board to make a determination regarding the SBA map. AR 3808. She was challenging LADBS’s decision to accept and approve the revised plans without evidence explaining their deviation from the 2016 documents. AR 3810. She noted that the architect’s notes and civil engineering drawings attached to the 2016 plans confirmed the severely sloping conditions under the Prior Home. AR 3809. Instead of requiring Hadar to modify the 2020 SBA map to match the original plans, however, LADBS allowed him to modify the engineering and architectural plans to match the revised SBA map. AR 3810. Coleman attached the plan sheets from 2016 and 2020 for direct comparison. AR 3743, 3745, 3757, 3768.

The appeal noted that an engineer has confirmed that the plans – which show a stepping pattern to elevation changes that leave portions of the terrain flat – cannot be accurate. AR 3754. The construction of vertical walls in a crawl space with no constraints on the soil from retaining walls would cause it all to collapse. AR 3753-54, 3811-12. Coleman concluded that the Board should determine that LADBS erred by accepting the revised plans and issuing the Supplemental Permits. AR 3815.

The Board’s hearing was scheduled for December 7, 2021. AR 4594-601. LADBS staff prepared a staff report (AR 3959-66) that divided Coleman’s claims into six issues and explained that they all are based on the contention that the revised SBA and revised plans are inaccurate: “The appellant contends that the subject appeal only pertains to LADBS' determination to accept improperly altered plans to issue the supplemental permits, but it is clear the real issue at hand is City Planning's approval of the RFA and revised slope analysis map.” AR 3961. Coleman claimed that LADBS allowed Hadar to alter the 2016 plans to support an allegedly erroneous SBA map rather than requiring him to alter the SBA map to be consistent with the 2016 plans. AR 3962.

The staff report explained that the accuracy of the revised SBA and supporting revised plans is a zoning issue; the Director and City Planning have the sole responsibility under LAMC section 12.21C.10(b)(1) to determine the accuracy of SBA maps. AR 3962-63. The accuracy of the revised SBA and revised plans is a zoning issue beyond the purview of the Board, and Coleman’s only administrative recourse was an appeal to the Director. AR 3964.

Hadar’s counsel submitted a November 30, 2021 letter to the Board which agreed with the staff report. AR 3931-33. He noted that the Board’s staff told him that the Board would not consider the merits of most of Coleman’s claims at the December 7, 2021 hearing. AR 3933.

On December 6, 2021, Coleman responded to both the Board and Hadar, arguing that her appeal was properly before the Board and was not required to be made to the Director. AR 3939-41. The question for appeal was not whether the revised SBA map was correct, but whether the LADBS erred or abused its discretion in accepting the drastically altered revised plans. AR 3942. There was nothing in the record to show that a revised topographical survey was submitted to support a stepped underfloor profile. AR 3942. LADBS had abused its discretion by allowing Hadar to change the architectural and civil engineering plans to be changed to match the SBA map instead of a revised topographical survey. AR 3942.

At the December 7 hearing, Coleman again outlined why the unsubstantiated changes between the and original SBA map and plans and the revised SBA map and plans could not be real. AR 4625-27. Her counsel reiterated that her appeal was not about the SBA map, but about LADBS’s abuse of discretion in allowing such a dramatic change in the plans between 2016 and 2020. AR 4618. Coleman did not ask that the SBA map be changed; all she wanted was that the plans be consistent. AR 4643.

LADBS staff and City Attorney Sewell reiterated that the Director has exclusive responsibility for SBA map accuracy, which was effectively what the appeal was about. AR 4606, 4615, 4646. Board Commissioner Gaega-Rosenthal agreed. AR 4645. Sewell asked LADBS staff if it had explained this to Coleman. They had done so, only to receive a response that Coleman was not interested in appealing to the Director. AR 4646-47.

Hadar’s counsel testified that he had evidence that the revised SBA and revised plans accurately reflect the slope under the Prior Home, but he would not present it due to the Board’s earlier statements that it did not have jurisdiction over that question. AR 4636-37. However, he was ready to do so in the proper forum. AR 4637.

The Board unanimously denied the appeal (AR 4654-55), and a notice of the denial was sent to Coleman on December 9, 2021. AR 3958. The notice of denial stated that the Board had determined that LADBS did not err or abuse its discretion in making the determination to issue the Supplemental Permits without having supporting evidence for the revised plans. AR 3958.[7]

In a letter addressed to Hadar dated December 20, 2021, LADBS advised that its initial denial of Coleman’s appeal in February 2021 could properly be appealed to the Director no later than January 5, 2022. AR 4122.

Coleman must have also received a copy. On January 4, 2022, she filed an appeal with the Director under protest, requesting revocation of the Supplemental Permits. AR 4212-15.

Petitioner Coleman seeks a writ of mandate directing the APC and Board to overturn their respective appeal decisions and order the City to revoke the Permits and Supplemental Permits.

Administrative officials may not take actions inconsistent with municipal ordinances. See City and County of San Francisco v. Superior Court, (1959) 53 Cal. 2d 236, 250-51. A land use permit issued by a municipality that is inconsistent with its zoning ordinances is ultra vires and void. See Land Waste Mgmt. v. Bd. of Supervisors, (1990) 222 Cal. App. 3d 950, 958; Penn-Co. v. Bd. of Supervisors, (1984) 158 Cal. App. 3d 1072, 1084 (permits issued by local government must be consistent with zoning ordinances and land use designations); Pettitt v. City of Fresno, (1973) 34 Cal. App. 3d 813, 820 (permit issued in violation of zoning laws is void); Kappadahl v. Alcan Pacific Co., (1963) 222 Cal. App. 2d 626, 643 (same). Pet. Op. Br. at 17.

Under the substantial evidence standard, the court may overturn the APC’s or Board’s decision only if no reasonable person could have reached the same conclusion. No Oil, Inc. v. City of Los Angeles, (1987) 196 Cal.App.3d 223, 243.

Both sides refer to the court’s ruling on Hadar’s section 1094 motion and the court will summarize it, hastening to note that it is not bound by this ruling for trial.

In its tentative decision, the court stated that Hadar asserts that any claim concerning the 2016 SBA is no longer an existing controversy because the revised SBA map and plans superseded the 2016 SBA map and plans. Hadar’s residence has been under construction for a year-and-a-half pursuant to the Supplemental Permits and the 2016 SBA map and plans no longer have any practical relevance. Therefore, Coleman’s claim concerning them is moot. Mot. at 14-15.

The Petition’s slope band claim alleged that the APC abused its discretion in the 2019 appeal when it refused to require Hadar to submit a revised SBA map that accounted for the slope under the Prior Home. The Director had concluded that the 2016 SBA reasonably assumed that the slope under the Prior Home was relatively flat but that the SBA inaccurately depicted the land under the Prior Home’s attached deck. To address this problem, Habar submitted the revised SBA and revised plans to account for the slope under the deck.

Hadar argues that Coleman described his transition from the gradual slopes of the 2016 SBA to the stepped formation of the revised SBA map as “radical.” By continuing to challenge the 2016 SBA and plans, Coleman invites the court to issue an advisory opinion about superseded documents. The court cannot accord Coleman the relief of setting aside the 2019 APC decision -- which governs only the Permits -- and also setting aside the Supplemental Permits. Reply at 8.

Coleman responds that the 2016 SBA remains relevant because the revised SBA only made minor changes and continues to represent the slope under the Prior Home as flat. Hadar continues to construct a home with an RFA that is not allowable by the LAMC, and he was permitted to do so by the APC’s denial of Coleman’s appeal. Opp. at 15-16.

Whether Coleman’s claims concerning the 2016 SBA and plans are moot depends on whether they were superseded by the revised SBA and revised plans. It may be true that the revised SBA and revised plans supersede the 2016 SBA and plans, but Hadar does not cite any evidence or authority in the LAMC to that effect.

The court is left with the fact that the Permits were issued in reliance on the 2016 SBA and plans while the Supplemental Permits were issued in reliance on the 2020 revised SBA and revised plans. Coleman’s mandamus claim seeks review of the APC’s decision upholding the ZA’s decision which granted that portion of Coleman’s claim concerning the deck, but not for the Prior Home. The court cannot conclude that Coleman’s claim is mooted by the revised SBA and revised plans on which the Supplemental Permits are based. The court’s decision might differ if evidence were presented on the purpose and scope of the Supplemental Permits.

During the hearing, Hadar’s counsel explained that the purpose of the Supplemental Permits is to revise the Permits based on the revised plans. Rubens Decl., ¶4, RJN Ex. 2, p. 34. The court pointed out that a developer who has an approved SBA and plans and wants to add a garage and gets a supplemental permit should not have to go back to the City on the initial approval. Ex. 2, p. 8-9. Hadar’s counsel responded that the revised plans in fact revised the 2016 plan sheets. Ex. 2, p. 9. He noted that the revised plans did not add new structures and that Coleman’s counsel demonstrated that he understood this fact by repeatedly referring to the revised plans as “changes” during the administrative appeals. RJN Ex. 2, p. 9.

Hadar’s counsel argued that, even if the court ruled that the SBA was wrong, Hadar’s response would be to issue revised plans and a revised SBA map, and he already has done that. Ex. 2, p. 10. When a developer submits revised plans to change plan sheets, the revised plan sheets become the operative plan sheets. Ex. 2, p. 11. The plan sheets were not supplemented; they were changed to replace the 2016 plan sheets. Ex. 2, p. 11. The SBA yielded a RFA that was too high because the SBA was wrong in assuming the slope beneath the Prior Home was flat. Coleman’s support for that conclusion was four plan sheets, but those four plan sheets have been changed and supersede the original plans. Ex. 2, pp. 11-12. The revised plans go to the heart of Coleman’s slope band claim. Ex. 2, p. 12. It would be different if the Supplemental Permits addressed something besides the slope band issue, but the Supplemental Permits incorporate the revised plans. Ex. 2, p. 13.

The City agreed with Hadar that the Supplemental Permits incorporate the revised SBA approved by City Planning, and Coleman is challenging that revision. Ex. 2, p. 14. She is challenging the RFA permitted by the revised SBA and the Supplemental Permits. Ex. 2, p. 14. The Supplemental Permits are the operative permit that needs to be challenged and Coleman has not exhausted her administrative remedies on that point. Ex. 2, p. 14. The 2016 SBA and the Permits are moot insofar as Coleman challenges the RFA in the Supplemental Permits. RJN Ex. 2.

Coleman’s counsel argued that the issue is a factual one and that the Supplemental Permits were issued to address only the small changes in the SBA map. Ex. 2, p. 15. The Supplemental Permits do not permit construction of the home itself; the original Permits do that. Ex. 2, p. 15. The only change in the Supplemental Permits concerns the deck area which is not at issue and the Permits have not been superseded. Ex. 2, pp. 15-16.

The court concluded that the parties present a factual issue dependent on the nature of the Supplemental Permits and whether they supersede the Permits. Ex. 2, p. 14-15. The Supplemental Permits supersede the Permits with respect to the permissible RFA, but the court would not conclude that Coleman’s challenge to the Permits is moot without her having the opportunity to present facts that the Permits are not superseded. Ex. 2, p. 16-17. While the City and Hadar were the “favorites” on this issue, the court was not ready to preclude Coleman from rebutting that factual question. RJN Ex. 2, p. 34.

With respect to exhaustion, the court noted that revised plans do not have to be consistent with previous versions and by definition are not. RJN Ex. 2, p. 26. The court accepted the assertion that a LADBS plan checker must check for consistency. RJN Ex. 2, p. 26-27. Coleman’s position is that LADBS never even discussed consistency and instead addressed whether there was evidence of inaccuracy. Ex. 2, p. 33. Consistency is an LADBS issue for which Coleman had exhausted her administrative remedies and accuracy is a zoning issue for which Coleman had not exhausted her administrative remedies. Ex. 2, pp. 28-29, 33. Coleman could not raise a zoning claim – meaning that she could not raise an accuracy issue -- for the Supplemental Permits. Ex. 2, p. 36.

“Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509. "The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief." Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541.

A court should not dismiss a case as moot if a substantial issue remains. Terry v. Civil Serv. Comm’n, (1952) 108 Cal. App. 2d 861. A case is not moot where, despite the happening of a subsequent event, there remain material questions for the court’s determination that impact a party’s future and contingent legal rights. Eye Dog Foundation, supra, 67 Cal.3d at 541. In other words, a case is moot only where the disposition of the case is “a matter of indifference to the parties” -- where disposition of the case will neither benefit the plaintiff nor harm the defendant. Turner v. Markham, (1909) 156 Cal. 68, 69.

b. The Permits are Superseded by the Supplemental Permits on the Subject of the RFA

The court first must determine the nature of Coleman’s slope band claim. According to Hadar (Opp. at 18-19), Coleman attempts to merge two slope band claims together, but that is a mischaracterization. The Petition alleged a slope band claim challenging the Permits based on an inconsistency between the SBA and the 2016 plan sheets. Pet., ¶¶ 1, 38-39, 42, 48-49. The FAP restates that claim (FAP, ¶¶ 1, 41-42, 45, 51-52) and adds a second claim challenging the Supplemental Permits because the corrected, flat slope shown on the revised plan sheets is a fiction, making the revised SBA inaccurate. FAP, ¶¶ 83-103. Hadar concludes that Coleman alleges two slope band claims.

Coleman criticizes Hadar for employing a consistent strategy of mischaracterizing her claims. Despite Hadar’s reference to two SBA claims, Coleman argues that she has raised only a single SBA claim that Hadar obtained additional RFA to which he is not entitled by falsely depicting the slope under the Prior Home as flat. Reply at 11.

The court agrees with Coleman that she has a single slope band argument for the area underneath the Prior Home, but that the argument is made with respect to both the Permits and Supplemental Permits.

Hadar notes that, after the APC’s appeal decision, he submitted -- and in October 2020 LADBS approved -- the revised plan sheets which modified the 2016 plan sheets to eliminate the sloped "line of natural grad and to illustrate the series of flat pads that had supported the Prior Home and were observed after the Prior Home's demolition. AR 4083, 4113-16, 4126. At the appeal hearing, Hadar's attorney explained to the APC that the Prior Home was terraced into the hillside so that each floor was located on a flat pad, consistent with the SBA. AR 4574-75. LADBS then issued the Supplemental Permits to incorporate the revised and City Planning-approved SBA map, revise the RFA and RFA bonus option, and revise the plans to reflect the revised SBA map. AR 3991-92; see also AR 2475 (LADBS staff email confirming that the Supplemental Permits were "based on a revised [SBA]”). Opp. at 16-17.

Hadar first argues that Coleman’s slope band claim is moot because the court cannot grant any effectual relief. In Samatas, the court required the developer to prepare revised plans to correct the erroneous SBA, after which the City issued supplemental permits to allow construction to proceed under those revised plans. RJN Exs. 3, 4, 5. Hadar and the City have already done so. In October 2020, LADBS approved the revised plan sheets to correct the slope under the Prior Home, and LADBS issued the Supplemental Permits. For almost two years, construction of Hadar’s residence has proceeded in accordance with the revised plan sheets. There is nothing left for Hadar (or the City) to do with regard to the slope band claim and the court cannot grant Coleman effective relief. Opp. at 18.

The court does not agree. If Coleman prevails on her slope band claim and the court sets aside the APC’s decision, it can give effective relief by voiding the Board’s decision on the 2021 appeal and ordering the City to set aside both the Permits and Supplemental Building Permits on the ground that the latter are effectively tainted by the reason for setting aside the Permits.

Hadar next contends that the revised plan sheets corrected the slope shown under the Prior Home on the 2016 plan sheets. The Supplemental Permits issued based on the revised plan sheets superseded the Permits based on the 2016 plan sheets and allowed construction of the residence to proceed based on the revised plans. From that time forward, the 2016 plan sheets had no further legal relevance. Due to this change in circumstance, any inconsistency between the SBA and the plan sheets no longer presents an actual controversy. Coleman’s slope band claim has lost its essential character and therefore is moot. Opp. at 17.

Coleman argues that her slope band claim – that the APC’s decision and the Permits must be set aside because the 2016 plan sheets contradict the relatively flat slope assumed in the SBA -- is not moot. Hadar’s argument ignores the facts that (1) the revised SBA map made only minor changes to the SBA map in the area of the rear deck, (2) the revised SBA map continues to depict the slope under the Prior Home as flat, and (3) the APC had the revised SBA map and Coleman’s evidence that it was fraudulent when it decided the appeal.[8] Coleman alleges that the APC abused its discretion when it denied her appeal and failed to require Hadar to submit a revised SBA map accounting for the slope under the Prior Home. Hadar has never obtained approval of an SBA map that accounts for the slope under the Prior Home. Pet. Op. Br. at 24; Reply at 11-12.

Hadar responds that Coleman’s assertion that the revised SBA made only minor changes is a red herring. Hadar does not contend that the revised SBA alone renders Coleman’s slope band claim moot. Rather, it is LADBS's approval of the revised plan sheets -- which superseded the plan sheets -- and issuance of the Supplemental Permits -- which authorized construction of the residence in accordance with the revised plan sheets -- that do so. Coleman asks the court to find that the APC erred based on the inconsistency of the SBA with the plan sheets, but those plan sheets have been corrected and no longer show the steeply sloping "line of natural grade" that is the foundation of her slope band claim. AR 4115-16. Opp. at 19.

Under the BHO, the RFA is calculated from an SBA map based on a survey of the Property’s natural/existing topography. LAMC §12.21.C.10(b). The relevant documents for the mootness issue are the 2016 SBA and SBA map, plans, and the Permits, as well as the revised SBA and SBA map, revised plans, and the Supplemental Permits.

The Permits are based on the SBA map and authorized the construction of a 2-story single family dwelling and attached four car garage with overall dimensions of 66’, 1” by 64’. AR 209. In the “structure inventory”, the Prior Home’s RFA was listed as 3270 square feet. AR 210. The SBA map showed the Project’s maximum RFA as 2942 square feet, and the maximum square footage would be 3530 square feet with a 20% bonus floor area bonus. AR 271; SAR 70.

The Supplemental Permits are based on the revised SBA map and were issued to revise the RFA and revise the plans to reflect the City Planning-approved SBA map. AR 3991. The revised SBA map showed the Project’s maximum RFA to be 2789 square feet. SAR 44. With a 20% bonus, the floor area would be 3347 square feet.

It is clear from these documents that the Supplemental Permits concern the maximum RFA for the Project and expressly revise the Permits on this subject. In turn, the maximum RFA authorized by the Supplemental Permits is based upon the revised SBA map. Since the maximum RFA is the very subject matter of Coleman’s slope band claim, the Supplemental Permits supersede the Permits on this issue.

The Supplemental Permits do not supersede the Permits on all issues, but they do for maximum RFA based on an SBA map. As Hadar notes, the court stated at the section 1094 hearing that the Permits are not superseded in toto, but they are “superseded on what the RFA can be." RJN, Ex. 2, pp. 16-17. The court chose not to rule on the issue to give Coleman a chance to "present other evidence" (id., p. 17), and she has failed to identify any other evidence. Opp. at 19-20.

Coleman has a legitimate concern that she argued before the ZA and APC that the SBA and SBA map were inaccurate for the area underneath the Prior Home and that she should not have to do so again simply because Supplemental Permits were issued based on a correction for slope underneath the deck. While legitimate, this concern does not obviate the court’s conclusion that the Project’s maximum permissible RFA is now different than she argued and that her contention about the 2016 maximum RFA is now moot.

Assuming arguendo that Coleman’s slope band claim based on the SBA, SBA map, plans, and Permits is not moot, the parties discuss the court’s ruling in Samatas which the City has implemented.

In Samatas, the undisputed evidence showed that (a) the prior home was cantilevered over a steep slope and supported by caissons, (b) the prior home was therefore built on a steep slope and only a small portion of it was flat, and (c) the definition of “natural/existing topography” as used in LAMC section 12.10.C.10(b)(1) includes both natural and man-made features, including a house.

The ZA concluded that the developer’s slope band analysis, which assumed the area under the prior home was flat, was inaccurate and led to an inflated calculation of the permitted RFA. At the APC hearing, the developer presented evidence from numerous surveyors and civil engineers stating that it is common practice in the industry to assume that any structure on a property is built on flat ground. The experts made clear that they do not assume the entire footprint of a building to be flat. Rather, any area that cannot be measured due to a wall or obstruction that reaches to the ground is assumed to be flat.

The question was how should the area under the prior home that was not visible be represented on the slope band analysis? The court agreed with the City that the phrase “natural/existing topography” requires a surveyor to represent the existing structures on a property when producing an SBA map. When it is impossible for a surveyor to determine what the actual slope is underneath a structure, the surveyor must make some assumptions when producing the map. An assumption that the slope underneath a structure is flat is the common practice of the surveying profession and a reasonable course of action. The floor of a hillside home is flat and the area underneath the floor will be shown as flat on a map.

While a developer’s surveyor may have the option to access the prior house’s building plans to accurately determine whether the land underneath the house is sloped or flat, LAMC section 12.21.C.10(b)(1) requires a survey of the natural and existing topography, and the existing topography would not necessarily be accurately represented by historical building plans. There would be no way for a surveyor to know that the slope underneath the house is the same as it was in the building plans without demolishing the house.

The evidence showed, however, that the developer knew or should have known that the prior house was cantilevered and not on a flat pad. A developer cannot allow its surveyor to make assumptions about a flat pad when it knows better. This is not a failure of the surveyor. But where a developer or its representatives knows that assumption is false, the developer cannot rely on and use a surveyor’s slope band analysis based on the false assumption.

The judgment and writ in Samatas directed the City to set aside the APC's written determination that LADBS had not abused its discretion in issuing the building permits based on an inaccurate SBA and invalidated the building permits. Rubens Decl., ¶¶ 5-6, RJN Ex. 3-4. The City’s Return noted that LADBS had issued supplemental permits following a revised SBA submitted by the developer. Rubens Decl., ¶7, RJN Ex. 5.

Coleman argues that this case is the same as Samatas. She contends that Hadar manipulated the SBA to build a substantially larger home than allowed by the LAMC based on the false premise that the land under the Prior Home was flat when it was steep. The result of Hadar’s deception is that the Project’s RFA substantially exceeds the maximum RFA allowed. Pet. Op. Br. at 17.

Coleman notes that LAMC section 12.10.C.10(b)(1) requires the SBA map to be “based on a survey of the natural/existing topography” and identify the existing pre-graded slope contours for the lot. AR 3383-84. Hadar submitted an SBA map representing the slope under the Prior Home as flat even though his own Project plans showed the slope was steep. The plans included a November 25, 2015 SBA map which claimed that 4,900 square feet of the Property had a slope of 0-14.99% and the remaining 6,222 square feet sloped between 15-99.99%. SAR 70. The only portion of the Property in the 0-14.99% slope band on the SBA map is the portion directly underneath the Prior Home. Id. Pet. Op. Br. at 18.

Thus, the largest chunk of Hadar’s calculated RFA is attributable to the purportedly flat slope under the Prior Home. Id. But the portions of the lot directly adjacent to the Prior Home are reported in 60-99.99% and 45-59.99% slope bands, suggesting that the slope underneath the Prior Home was similar. Id. Based on the falsehood, the SBA map stated that the maximum RFA for the Project was almost 3,000 square feet. Id. If the slope underneath the Prior Home was similar to the adjacent slopes, the maximum RFA would have been hundreds of square feet less. SAR 271. Pet. Op. Br. at 18-19.

Coleman contends that the ZA recognized the court’s Samatas ruling but failed to apply it. AR 3398-400, 4520. The ZA stated that, under Samatas, a developer may properly assume the land under an existing structure is flat if the surveyor cannot see under it. Id. But the ZA ignored the crucial holding of Samatas that a developer may not assume the land under a structure is flat when he or she knows or should know that it is not. Id. Pet. Op. Br. at 19.

Coleman argues that the evidence of Hadar’s knowledge of the actual slope under the Prior Home is irrefutable. He knew the land under the Prior Home was severely sloped when he submitted the SBA map and revised SBA map. Just like in Samatas, Hadar’s plans showed that the land was sloped. The plans included Sheet A5.10, an architectural section drawing with the architect's note “LINE OF NATURAL GRADE,” which showed the severe slope under the Prior Home. SAR 66. Sheet C-5, a section elevation, also showed both the slope under the Prior Home and the substantial cut into the slope necessary to create flat pads for the new home. SAR 75. Sheets C-2, C-3, A4.10, and A.4.11 further depicted the existing slope. SAR 72, 73, 218, 219. The APC further had a 2018 section showing the severely sloping “LINE OF NATURAL GRADE” under the Prior Home. SAR 152. Finally, Coleman submitted a declaration stating that she observed the Property before, during, and after demolition and that pictures showed the Prior Home was situated over a slope of around 60%. SAR 328-57. Coleman contends that Hadar submitted nothing to contradict this evidence showing that the SBA map and revised SBA map are false. Pet. Op. Br. at 19-20.

Hadar responds that Coleman has no direct evidence of his knowledge and merely speculates that (1) the plan sheets show a slope under the Prior Home, (2) those plan sheets must be correct, and (3) the revised plan sheets must be wrong. In fact, the slope shown on the 2016 plan sheets was inaccurate and was corrected in the 2020 revised plan sheets. AR 4113-16, 4574-75. Opp. at 20.

Hadar adds that Coleman’s argument that the land adjacent to the Prior Home is steeply sloped shows nothing to prove that the slope underneath the Prior Home was similar. The excavation for construction of the Prior Home would have resulted in a different grade within its footprint than the land adjacent to it. See SAR 4574-75. Coleman’s declaration states that she observed that the land beneath the rear deck of the Prior Home was steeply sloped. SAR 329. Yet, the foundation and walls of the Prior Home reached to the ground, and she could not possibly have observed the topography beneath it. AR 4502, 4506, 4562-63, 4126, 1974; SAR 2-3. Opp. at 20-21.

The court concludes that the ZA correctly upheld the SBA map’s slope underneath the Prior Home. The ZA found that, in requiring an SBA map and SBA, the City did not intend for a developer to use just the contours of a topographical survey as suggested by Coleman, but also to use the existing and natural condition of the property, including any fill or man-made flat areas under the pre-existing home. AR 3399. The BHO takes into consideration previously permitted grading work for the existing home when determining the maximum RFA. If the SBA were prepared using only the natural grade without considering existing conditions or previous grading, the hillside lots would generally result in smaller homes than the existing homes, which is not the intent of the BHO. AR 3399. Consequently, the surveyor should show all slopes under the house and deck which are not enclosed when preparing the survey but may reasonably designate as flat the area where exterior walls or deck walls extend to the ground and the ground is unexposed. AR 3399.

Coleman has not shown that Hadar or his representatives knew or should have known that the slope under the Prior Home was not flat. It is undisputed that the foundation of the Prior Home reached to the ground, and that no one could see underneath. The contour maps and plan sheets on which Coleman relies do not show the grade underneath the Prior Home; they show the grade of the surrounding land without showing underneath. In other words, these documents do not show whether the Prior Home was built on a foundation with natural grade slope underneath or on flat dirt pads with retaining walls.

The parties’ evidence of the Property’s condition after demolition is irrelevant to whether the SBA and SBA map were correct. As the ZA found, the SBA and map should not be based on the condition of the lot after demolition because no prudent developer would start demolition without obtaining the necessary zoning entitlement and building permits. AR 3399. The logical progression of hillside development on improved lots is for a developer to preserve the existing home while preparing plans and obtaining permits. AR 3399. Thus, the RFA determination must be made with evidence existing at the time of the permit approval.[11]

The ZA reviewed the SBA map and topographical survey, as well as Coleman’s site photographs and a 2008 aerial photograph in City Planning’s ZIMAS, and he found that the SBA wrongly claimed that the lot area under the rear deck of the Prior Home was relatively flat when it in fact has a steep slope. AR 3399-400. Therefore, LADBS erred in issuing permits for RFA based on any inaccurate slope band analysis. AR 3400. Although the ZA made no express finding on the rest of the lot, it is clear from his analysis -- with which the court agrees -- that there was no basis to deviate from the customary presumption that the area where exterior walls or deck walls extend to the ground and the ground is unexposed are flat. In other words, Coleman failed to make the Samatas showing that Hadar knew or had reason to know that the slope under the Prior Home was not flat.

The ZA’s decision concerning the SBA, SBA map, plans, and Permits is supported by substantial evidence.[12]

4. Coleman Has Not Exhausted Her Administrative Remedies for the Supplemental Permits

The Board has jurisdiction over appeals from LADBS actions in site-specific cases not involving zoning issues:

“The [Board] shall have the power to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of [LADBS] pertaining to enforcement of specific ordinances, regulations, or laws in site-specific cases.” LAMC §98.0403.1(b).2. (Pet. RJN Ex. B, p. 3).

In contrast, the Board lacks authority to hear appeals from LADBS actions that involve enforcement of the Zoning Code and other land use ordinances (e.g., general or specific plans):

“[T]he Board shall have no authority to hear and determine appeals from orders, interpretations, requirements, determinations, or actions of the Department pertaining to enforcement of specific ordinances, regulations, or laws contained in Chapter I of the LAMC and in other land use ordinances. Any appeal concerning these requirements shall be made to the Director of Planning in accordance with the provisions set forth in LAMC Section 12.26 K.” LAMC §98.0403.1(b).2 (emphasis added). (Pet. RJN Ex. B, p. 3).

LAMC section 12.26.K provides the only administrative procedure to challenge the accuracy of the revised SBA and the slopes on the revised plans:

“[T]he Director shall have the power and duty to investigate and make a decision upon appeals from determinations of [LADBS] where it is alleged there is error or abuse of discretion in any order, interpretation, requirement, determination or action made by [LADBS] in the enforcement or administration of Chapter I of this Code and other land use ordinances in site-specific cases.” LAMC §12.26.K.1. (AR 3953).

Based on these provisions, there are two distinct paths for appeals from LADBS actions. An appeal arising under the Building Code involving site-specific issues is appealable first to LADBS and then to the Board. The Board’s appeal decisions are final and not subject to further appeal. An appeal arising under the Zoning Code or other land use ordinances is appealable first to LADBS then to the Director.

Hadar notes that the accuracy of an SBA and the plans that support it fall within the purview of the Director and City Planning pursuant to LAMC section 12.21.C.10(b), which is part of the City's Zoning Ordinance in LAMC Chapter I. AR 859. Coleman knew this when she filed her 2019 appeal challenging the SBA to the Director pursuant to LAMC section 12.26.K and subsequently appealed the ZA’s decision to the APC. AR 1178. Rather than appealing to the Director, Coleman filed an appeal with the Board. Her appeal alleged that the plans accurately depicted the pre-existing site conditions (AR 3809-10), that the revised SBA did not (AR 3808), and that Hadar prepared the revised plans to match the false revised SBA rather than correct the SBA map to be consistent with the plans. AR 3811; SAR 431. Opp. at 22-23.

Hadar contends that the Board lacked jurisdiction to consider the accuracy issues raised in Coleman’s appeal. LADBS staff informed Coleman that the Board would not consider her allegations regarding the slope under the Prior Home, but Coleman’s counsel "didn't want to make an appeal to [the Director]." AR 4647. The LADBS staff report stated that (1) LADBS does not review or approve SBA maps or supporting architectural and engineering plans, (2) the question whether the revised SBA and revised plans were accurate was not within the Board's purview and (3) Coleman should have raised this issue in an appeal to the Director in accordance with LAMC section 12.26.K. AR 3962-66. Opp. at 23.

Following the December 7, 2021 Board hearing, at which a Commissioner, the City Attorney, and LADBS staff all stated that the Board lacked jurisdiction to consider Coleman’s appeal, and where no one except Coleman's counsel discussed the merits of her slope band claim, the Board denied her appeal. AR 4654-55. Thereafter, on January 4, 2022, Coleman filed her protective appeal to the Director. AR 4212-19. This appeal remains pending and no City decisionmaker has determined whether the revised SBA and the revised plans accurately depict the natural/existing topography beneath the Prior Home. Opp. at 23.

Hadar argues that Coleman advances a fiction that her slope band claim does not challenge the accuracy of the slope on the revised plan sheets. The central thrust of her argument is that LADBS blindly accepted the revised plans and issued the Supplemental Permits without evidence justifying “the radical changes” between the plan sheets and the revised plans sheets. Coleman contends that (1) there is no evidence justifying the changes between the plans and the revised plans, (2) the revised plans were "fabricated, "reverse engineered" and "concoct[ed]", and (3) "the grading inspector would have flagged the inconsistencies between the Project site conditions and the approved plans. Pet. Op. Br. at 21-22. The evidence Coleman contends is lacking is the accuracy of the revised plan sheet’s depiction of a series of flat pads beneath the Prior Home. Opp. at 24.

Hadar criticizes the timing of Coleman’s reliance on the Building Code for her appeal. She cites several Building Code provisions (LAMC §§ 91.106.1.1, 91.106.1.2, and 91.106.1.3) in support of her position that "LADBS must have evidence justifying the changed depiction of the slope". Pet. RJN Ex. A.[13] Pet. Op. Br at 20-21. Yet, Coleman did not claim that the revised plans violated any Building Code provisions when she initially filed her Board appeal. SAR 428-33; AR 3808-15. She only belatedly made these claims in a December 6, 2021 letter delivered the day before the Board hearing. AR 3939-41. Opp. at 24.

Coleman responds that Hadar’s strategy since the beginning of this case has been to mislead the court into believing that there is something called a “Revised Slope Band Claim” that Coleman pursued before the Board and failed to exhaust before City Planning under LAMC section 12.26.K.[14] As the appellant, Coleman had a right to define the issues for review when she filed the Board appeal. She made clear over and over that she was challenging the City’s approval of the revised plans based on internal inconsistencies in the plan set, not the revised SBA map.

“[The Board] should determine that DBS erred and abused its discretion by accepting the 2020 revised architectural and civil engineering plans and issuing Supplemental Permit 1 and Supplemental Permit 2. Accordingly Supplemental Permit 1 and Supplemental Permit 2 should be revoked forthwith.” AR 3737.

The assertion that Coleman defined the appeal to circumvent the proper procedure of challenging the revised SBA before City Planning is untrue. Coleman appealed from the approval of the revised plans, not the revised SBA, because the plans had been revised, not the SBA map. The latter continued to depict the slope under the Prior Home as flat and Coleman had already addressed that issue with the APC in 2019. Her appeal letter is limited to her claim that LADBS erred in accepting the revised plans given the inconsistencies between them and the plans. AR 3728-37. Reply at 5.

Coleman argues that her appeal to the Board arose under the Building Code, not the Zoning Code and the proper appeal route was to the Board. Her appeal raised no Zoning Code issues. She did not ask LADBS or the Board to address the revised SBA map. Instead, she sought a determination that LADBS “erred and abused its discretion by accepting” the revised plans and sought to have the Supplemental Permits revoked since they were issued based on the revised plans. AR 3737. Because the appeal impacted plans for a single home, the issue was site-specific. It was therefore correctly filed with the Board. Reply at 6-7.

Coleman also obtained a final decision from the Board. AR 3958. The Board did not dismiss the appeal or demand that it be refiled with City Planning. Instead, the Board made an affirmative determination that LADBS “DID NOT ERR OR ABUSE its discretion (1) in its determination to issue” the Supplemental Permits “without having any supporting evidence for the plan revisions and (2) in accepting purposeful grading mathematical errors on the 2020 revised plans.” AR 3958. The Board found that “LADBS properly complied with all regulations and policies.” AR 3958. Reply at 7.

Hadar falsely claims that the court ruled on the section 1094 motion that Coleman failed to exhaust her administrative remedies on the revised plans. The court made no final determination on exhaustion and agreed that Coleman “absolutely” had a right to argue that the revised plans should be set aside on inconsistency grounds. RPI RJN Ex. 2., pp. 28-29, 32-37. Reply at 7-8.

In so ruling, the court drew a distinction whether the revised plans are inconsistent with the plans and whether the revised plans are inaccurate, stating that the latter presents a zoning issue that must be appealed to City Planning. Coleman submits that this distinction is incorrect. She is aware of no provision in the Zoning Code that regulates the accuracy of plans, and nobody has cited one. LAMC section 12.21.C.10(b)(1) requires that the SBA map be approved by City Planning, but the Board appeal was directed at the plans, not the SBA map. Nothing in the Zoning Code directs City Planning to assess the accuracy of plans. In any event, the point is academic because Coleman’s Board appeal was that LADBS erred by accepting the revised plans based exclusively on the Building Code.

The court accepts Coleman’s position that her appeal to the Board raised only site-specific Building Code issues about whether the Project’s revised plans are consistent with the plans under the Building Code and did not address the revised SBA and SBA map.

b. Coleman Has Not Shown That LADBS Has an Obligation to Compare the Plans with the Revised Plans

Whether Coleman’s Board appeal had merit depends on whether the inconsistencies between plans was a proper LADBS subject. Coleman does not show that it was.

Prior to erecting structures or grading land, a developer must obtain a permit from LADBS. LAMC §§ 91.106.1.1, 91.106.1.2. An application for a building or grading permit must describe the work and land to be covered by the permit, indicate the use for the property, and be accompanied by plans, diagrams, computations, specifications, and other data. LAMC §91.106.3.1. Plans and specifications submitted to LADBS “shall be of sufficient clarity to indicate the nature and extent of the proposed work and to show in detail that it will conform to the provisions of [the LAMC] and of relevant laws, ordinances, rules, regulations and orders.” LAMC §91.106.3.3.1. LADBS may issue building and grading permits only when it has determined that, “the information on the application and plans is in conformance with this Code and other relevant codes and ordinances …”. LAMC §91.106.4.1. It is a misdemeanor to make knowingly false statements or to conceal a material a fact from LADBS. LAMC § 91.106.4.4.2.

Based on these ordinances, Coleman contends that LADBS officials must verify that information in an applicant’s plans conforms with the law. An LADBS official would be complicit in a violation of the law if he or she were to permit an applicant to obtain a permit based upon information the official should know is false. Pet. Op. Br. at 20.

Coleman argues that the Board abused its discretion when it determined that LADBS did not err by accepting the revised plans and issuing the Supplemental Permits. Pet. Op. Br. at 20-21. LADBS blindly accepted the revised plans even though the slope depicted was not consistent with the plans. Specifically, LADBS accepted new plan sheet A5.10 (AR 4003), new plan sheet C-5 (AR 4004), and new plan sheet C-1 (AR 4006). These new plan sheets dramatically alter the depiction of the slope previously existing under the Prior Home. Compare SAR 75 (2016 plan Sheet C-5), with AR 4004 (2020 plan sheet C-5).) There is no evidence justifying the radical changes between the plans. Reply at 9.

Coleman concludes that the revised plans fail to satisfy LAMC sections 91.106.3.3.1 and 91.106.4.1. LADBS cannot ignore the additional evidence before it or other plans contradicting the revised sheets. Plans and specifications must be of “sufficient clarity” and “show in detail that [the work] will conform to the” LAMC. LAMC §91.106.3.3.1. LADBS may issue building and grading permits only when it has determined that “the information on the application and plans is in conformance with” the LAMC. LAMC §91.106.4.1. Thus, LADBS must have evidence justifying the changed depiction of the slope, and yet Hadar provided none. Pet. Op. Br. at 21.

At a minimum, there must be consistency across the plan set or else LADBS cannot determine that the proposed work complies with the LAMC. For example, if one plan were to measure a structure’s height as within the LAMC’s height limits and another shows a different height, LADBS will issue plan corrections requiring that the plans be made consistent and show compliance with the code. Inexplicably, LADBS did not do so here. Pet. Op. Br. at 21.

In ruling on the section 1094 motion the court stated about Coleman’s position: "I don't really understand your point because you have to be able to revise plans, they don't have to be consistent with previous plans. I'm not aware of any such requirement...." RJN Ex. 2, p. 26. The court also stated that a plan checker does not determine the accuracy of an SBA and its supporting plans: "But that's not what a plan checker does. All they do is check to see that what's in front of them is consistent...." Ex. 2, p. 27.

As ruled ante, the Supplemental Permits supersede the Permits on the subject matter of permissible RFA. It follows a priori that the revised plans supporting the revised SBA, and hence the revised RFA, for the Supplemental Permits also supersede the plans on this subject. Pursuant to the Supplemental Permits, the revised plan sheets now govern construction, and they are not required to be consistent with superseded plans.

As Hadar points out, Coleman points to no requirement for revised plans to be consistent with superseded earlier plans. In fact, Hadar’s revised plan sheets necessarily must be inconsistent with the plan sheets because they were prepared for the very purpose of revising and correcting the "line of natural grade" in the plan sheets to show multiple flat pads below the Prior Home. See AR 4083, 4113-16, 4126. The accuracy of these revised plan sheets is not at issue in the Board appeal.

Coleman’s argument that "there must be consistency across the plan set" is not supported. None of the Building Code provisions cited by Coleman suggest that revised plans must be consistent with previous plans. LAMC section 91.106.3.3.1 requires only that plans “shall be of sufficient clarity to indicate the nature and extent of the proposed work and to show in detail that it will conform to the provisions of [the LAMC] and of relevant laws, ordinances, rules, regulations and orders.”. There is no dispute that the revised plans do so. LAMC section 91.106.4.1 authorizes LADBS to issue building and grading permits only when it has determined that “the information on the application and plans is in conformance with this Code and other relevant codes and ordinances …”. Coleman fails to show that the revised plans do not conform with the Building Code and fails to cite any other relevant ordinance that could apply to the LADBS decision.

Coleman has not shown that LADBS was obligated to compare the revised plans with the plans to sort out inconsistencies.

c. Coleman Has Not Shown That the Revised Plans Are Incomplete or Otherwise Inconsistent Because of Missing Plan Sheets

Coleman suggests that the revised plan sheets are incomplete, and therefore inconsistent with the plan sheets, because there are no revised versions of plan sheets C-2 and C-3. Pet. Op. Br. at 21. Hadar responds that this is an issue not raised by Coleman in her Board appeal and therefore it has been waived. Opp. at 26. Coleman replies that she argued to the Board that there were inconsistencies throughout the plan set and did not limit her argument to inconsistencies between the plans and revised plans. AR 3732, 4619-20, 4624, 4643. Reply at 10, n. 3.

Coleman’s citations show that she raised the issue of consistency across the plan set in the Board appeal, but she only argued that the plans were inconsistent with the revised plans. She did not suggest any incompleteness in the revised plans. See AR 3732, 4619-20, 4624, 4643. This is insufficient to preserve the incompleteness issue for mandamus. The exact issue must be presented to the agency, and relatively bland general references or isolated comments do not satisfy the exhaustion requirement. North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors, (2013) 216 Cal.App.4^th 614, 623. Coleman did not preserve an issue of missing plan sheets in the revised plans.

If arguendo the issue was properly preserved, Coleman fails to show how the lack of revised C-2 and C-3 plan sheets is significant or an inconsistency. Maybe an engineer or surveyor would draw some significance from the missing revisions, but there is no evidence to support that conclusion. All the court has before it is that the plan sheets are more comprehensive than the revised plan sheets because the former contain plan sheets C-2 and C-3. That does not make the revised plan sheets incomplete or inconsistent with the plans.[15]

Coleman suggests that a 2018 elevation (SAR 152) is “unexplained”. Pet. Op. Br. at 21. Hadar responds that this graphic of unknown origin[16] was prepared on an unknown date prior to August 14, 2019, long before the revised SBA was prepared in August 2020. Whatever its purpose, it cannot provide evidence of inconsistencies within the revised plans prepared over one year later. AR 4115-16. Opp. at 26.

Coleman fails to explain how the 2018 elevation is inconsistent with the revised plans or how it adds to the inconsistency analysis of the other plan sheets. See Reply at 10. When a party asserts a point, but fails to support it with reasoned argument and citation to authority, the point may be treated as waived. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected).

In sum, Coleman has not shown that LADBS has an obligation to address the consistency of the revised plans with the superseded plans and has not shown that the revised plans are incomplete or somehow inconsistent because they are missing C-2 and C-3 plan sheets. The Board’s decision is supported by substantial evidence.

“Every required front, side and rear yard shall be open and unobstructed from the ground to the sky”, with limited exceptions. LAMC §12.21.C.10(a)(11) (AR 3382). “[N]o architectural feature, fire escape, porch, balcony, or other projection permitted in a yard, passageway or other open space, shall be located and maintained so as to preclude complete access about and on each side of and in close proximity to main buildings and accessory living quarters at all times.” LAMC §12.22 C.20(l) (AR 3380). A maximum of one freestanding retaining wall may be built on a hillside lot with a maximum height of 12 feet as measured from the top of the wall to the lower side of the adjacent ground elevation, or a maximum of two walls three or more feet apart with a maximum height of ten feet. LAMC §12.21-C.8(a) (AR 3380-81).

Coleman contends that Hadar’s plans include a storm water filtration structure on the eastern border of the Property consisting of three retaining walls that adjoin a wall of the home. AR 2702 (next to handwritten notation “6’ from natural grade, 10’ overall”). These retaining walls violate the above mentioned LAMC provisions because they exceed the maximum retaining wall limitation, project into the required side yard, and preclude complete access around the home. See AR 2702, 2780.

Coleman argues that LAMC sections 12.21 C.10(a)(11), 12.22 C.20(l), and 12.21-C.8(a) are not technicalities. The Property is located in a Very High Fire Hazard Severity Zone (AR 3774-75) and properties in high fire zones are at greater fire risk and require strict enforcement of side yard requirements. AR 3775. The retaining walls in Hadar’s side yard present a significant safety issue that rightfully concerns Coleman. AR 3776-77. Firefighters and other first responders must be able to have unobstructed access around the Hadar home in a fire emergency. They cannot be expected to traverse a ship’s ladder with water hoses or other heavy equipment just because it is convenient for Hadar. Pet. Op. Br. at 22-23; Reply at 15.

The ZA concluded that the retaining walls forming the storm water filtration box do not violate the side yard setback requirement. AR 3403. Once it is built, the box will be filled with gravel which one can walk over and it therefore will function as a walkway or landing. AR 3403. LAMC section 12.22.C.20(d) permits platforms or landing spaces to extend or project into the side yard by six feet and the planter box is precisely the structure permitted by LADBS’s Zoning Manual and Information Bulletin, which allow a retaining wall filled with dirt in a side yard. AR 3404, 2481.

According to Coleman, the ZA erred in concluding that the water filtration structure is permitted to encroach into the side yard under LAMC section 12.22.C.20. AR 3404. LAMC section 12.21 C.10(a)(11)’s requirement that a side yard “shall be open and unobstructed from the ground to the sky” is not ambiguous. AR 3382. The filtration box consists of three retaining walls that, with the wall of the home, form an enclosed structure extending from the home to the property line fence, entirely obstructing the side yard. The ZA’s conclusion that the filtration structure will function as a platform or landing once it is filled with gravel to catch rainwater is wrong. The structure is neither a platform nor a landing under the plain meaning of those words. LAMC section 12.21 C.10(a)(11)’s exception is clearly meant to apply to structures designed to be walked or sat upon with access to or from the home and the filtration structure is not intended to be a structure upon which a person stands. Under the ZA’s reasoning, anything that can be walked upon is a platform that can protrude into required yards. Pet. Op. Br. at 23; Reply at 13-14.

As Hadar argues, Coleman ignores LADBS’s Zoning Manual and Information Bulletin. Opp. at 30. The ZA stated that the filtration box serves a dual purpose of filtering storm water and providing a platform or landing space that is consistent with LAMC section 12.22.C.20(d). Thus, LADBS interprets a platform or landing place to be more than a structure designed to be walked upon. The court is required to defer to LADBS’s interpretation of the ordinance in these documents. See City of Walnut Creek v. County of Contra Costa, (1980) 101 Cal.App.3d 1012, 1021; Friends of Davis v. City of Davis, (2000) 83 Cal.App.4th 1004, 1015; Anderson First Coalition v. City of Anderson, (2005) 130 Cal.App.4th 1173.

Coleman replies that the Zoning Manual and Information Bulletin cannot supplant the LAMC. To the extent that the publications conflict with the plain language of the code, the court will give them no deference. Tower Lane Properties v. City of Los Angeles, (2014) 224 Cal. App. 4th 262, 275-76. True, but there is no conflict. LAMC section 12.22.C.20(d) permits platforms and landing spaces. Whether this means only structures designed to be walked upon or structures that can be walked upon is an ambiguity that LADBS was entitled to clarify.[17]

The ZA found that Hadar cured the access issues posed for the residence by (1) cutting the retainer wall to be flush with the natural grade of the land and (2) adding the ship’s ladder. AR 3400. This provided clear access around the main house at the easterly side yard where the storm water filtration planter box is located. AR 3400. Hadar redesigned the filtration box to remove the top portion of the wall to grade level, leaving the height of the box wall at six feet or less in compliance with LAMC section 12.22.C.20(f). AR 3402. This made the box into a landing when viewed from the upslope side and a raised platform when viewed from the down slope side. AR 3402. It eliminated the prospect that the box is a fence and permitted a suitable opening for access. AR 3402. The addition of a ship’s ladder permitted clear access in compliance with LAMC section 12.22.C.20(l) and the Zoning Manual which permits a 24” planter, landing, or deck and requires a ramp or stairs for structures exceeding that limit. AR 3402-03.

Coleman argues that the requirement of a ship’s ladder to allow the structure to be climbed does not make it any less of an unlawful encroachment blocking the clear area around the house. Pet. Op. Br. at 23.

Hadar correctly notes that Coleman’s single-sentence argument about the ship’s ladder and access around the home contains no citation to the record, no analysis, and no citation to authority. Opp. at 27. When a party asserts a point and fails to support it with reasoned argument and citation to authority, the point may be treated as waived. Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784, 85; Solomont v. Polk Development Co., (1966) 245 Cal.App.2d 488 (point made which lacks supporting authority or argument may be deemed to be without foundation and rejected).

In reply, Coleman argues that the Zoning Manual cannot supplant the ordinance, and it the Zoning Manual only states that stairs must be provided where a raised structure is taller than 24” anyway. AR 2788. A ship’s ladder is not a stairway. AR 2785. LAMC section 12.22 C.20(e)’s exception is itself limited by LAMC section 12.22 C.20(l), which provides that “no...projection permitted in a yard...shall be located and maintained so as to preclude complete access about and on each side of and in close proximity to main buildings and accessory living quarters at all times.” AR 3380. This structure runs from the side of the new home to the Property line fence, spanning the entire width of the side yard and precluding “clear access about and on each side of” the home. AR 2780; SAR 359, 361. A person cannot go around this structure, only over it, and it is prohibited by LAMC sections 12.21.C.10(a)(11) and 12.22.C.20(l), with or without a ship’s ladder. Reply at 14.

This argument raised for the first time in reply is waived. Regency, supra, 31 Cal.App.4th at 1333. In any event, LADBS and the Fire Department approved the ship’s ladder to provide "continuous fire safety access" around the residence and over the filtration box in compliance with LAMC section 12.21.C.20(l). This approval was consistent with the Zoning Manual which permits the use of stairs to provide access for raised structures that exceed 24 inches in height. AR 3402, 2788. Victor Cuevas, LADBS's Chief of Plan Check, explained at the APC hearing that the ship’s ladder is "a typical way that we address the full access around the building on both single-family and multi-dwelling buildings." AR 4583-84. Coleman has not shown this conclusion to be an error.

The ZA concluded that the filtration box is not within the City’s Retaining Wall Ordinance in Hillside Areas (LAMC §12.21.C.8) because it is attached to the main house and not a freestanding structure. AR 3404. LADBS’s description of a retaining wall on a building permit plan is not the same as a “retaining wall" as defined in LAMC section 12.21.C.8. AR 864. LADBS describes planter boxes as having retaining walls because the LAMC lacks a specific provision to govern the storm water catches and filtration devices required the Bureau of Sanitation. Id. This conclusion is consistent with a prior APC ruling. AR 3406. The planter box at completion is a raised platform filled with gravel and earth and is not a retaining wall. AR 3407. It is also part of the house. AR 3407. Even if it were not attached to the house, there would be only one retaining wall because retaining walls that maintain the same plateau at the same elevation are considered one retaining wall and the planter box does not create different elevations or terraces. AR 3407.

Coleman argues that there is no real dispute that structure is composed of retaining walls. The walls were permitted as retaining walls and are shown on the plans as retaining walls. SAR 127, 132. Pet. Op. Br. at 23.

The ZA rejected Coleman’s implicit argument that the filtration box has retaining walls, explaining that it does not. The Retaining Wall Ordinance (LAMC §12.21.C.8) is aimed at retaining walls that have a sole objective of stabilizing hillside slope. AR 3406. The accurate gauge to count the maximum number of retaining walls should be the number of stand-alone retaining walls. AR 3405-06. The ZA concluded that the filtration box did not include any retaining walls because it is not a "freestanding continuous structure" that "is not attached to a building" under LAMC section 12.21.C.8. AR 3405-07, 3380. Even if the filtration box were a freestanding structure, it would qualify as only one retaining wall because all of the box's walls were at the same elevation. AR 3407-08.[18]

This conclusion and the APC’s affirmance are supported by substantial evidence.

[1] Hadar received multiple Permits, including to construct the residence, build an accessory structure, grade, build a retaining wall, and demolish the pre-existing home (“Prior Home”). See Opp. at 8, n. 1. The court principally is concerned with the residence construction Permit but for convenience will refer to “Permits”.

[2] Petitioner Coleman requests judicial notice of (1) Los Angeles Municipal Code (“LAMC”) section 91.106 (Pet. RJN Ex. 1); and (2) LAMC section 98.0403.1 (Pet. RJN Ex. 2). Both requests are granted. Evid. Code §452(b).

Respondent City and Real Party Hadar request judicial notice of (1) this court’s ruling on their section 1094 motion (Rubens Decl., ¶3, RJN Ex. 1); (2) the reporter’s transcript from the April 7, 2022 hearing on the section 1094 motion (Rubens Decl., ¶4, RJN Ex. 2); (3) the Notice of Entry of Judgment in Samatas v. City of Los Angeles, et al., (“Samatas”) (2017) LASC No. BS164400 (Rubens Decl., ¶5, RJN Ex. 3); (4) the Peremptory Writ of Mandate issued in Samatas (Rubens Decl., ¶6, RJN Ex. 4); (5) the City’s Return in Samatas (Rubens Decl., ¶7, RJN Ex. 5); and (6) a May 31, 2022 letter from Hadar to the City and City Planning about Coleman’s protective appeal to the Director (Rubens Decl., ¶8, RJN Ex. 6). Coleman objects to RJN Ex. 6 as not subject to judicial notice and irrelevant.

The court does not need to notice Requests No. 1-2; it is always free to review filings of the case at hand. Requests No. 3-5 are granted. Evid. Code §452(d). The request for RJN Ex. 6 is denied.

[3] Coleman further claimed that the Project calls for the construction of a new dwelling over the easement benefitting her property (AR 98-99), but that claim is not part of this case. Pet. Op. Br. at 7, n. 2.

[4] For convenience, the court will refer to the decision as the ZA’s decision.

[5] Coleman alleges that she argued during this hearing that Hadar had falsely represented the area as flat. She cites AR 268-82, pages that are not in the Joint Appendix and concern irrelevant matter. Coleman may have been referring to her counsel’s June 12, 2020 letter which does contend that Hadar and his design professionals were aware of the Property’s sloping conditions before the SBA map was prepared. SAR 273-74.

[6] Coleman filed the Petition on October 28, 2020, alleging a cause of action for administrative mandamus to set aside the APC’s decision and issuance of the permits based on her contention that the SBA misrepresented the slope under the Prior Home, thereby resulting in an excessive RFA for the new home. Pet., ¶¶ 36-50. The Petition also stated Coleman’s claims about the storm water filtration box. Pet., ¶¶ 51-79.

[7] On January 6, 2022, Coleman filed the FAP which added allegations that LADBS improperly allowed Hadar to revise the 2016 plans to justify the revised SBA. FAP at ¶¶ 88-101.

[8] Hadar correctly rebuts Coleman’s suggestion that the APC had the revised SBA before it for her appeal. Hadar's attorney provided the APC with a copy of the revised SBA to demonstrate that Hadar had complied with the ZA’s determination and corrected the slope under the rear deck. SAR 2-3, 42-44. Hadar did not submit the revised plan sheets to LADBS until after the APC decision and LADBS did not approve them and the revised SBA, and did not issue the Supplemental Permits, until October 2020. AR 3991-92, 3994-95. For those reasons, the ZA advised the APC at the hearing that the accuracy of the revised SBA was outside the scope of the appeal. AR 4522, 4542-43. Opp. at 19-20.

[9] This subject matter supersession for a permit differs from a supplemental pleading in a civil action which is used to allege relevant facts occurring after the original pleading is filed. CCP §464(a); Foster v. Sexton, (2021) 61 Cal.App.5^th 998, 1032. A supplemental pleading does not supersede the original pleading and cannot be used to allege new causes of action. See Flood v. Simpson, (1975) 45 Cal.App.3d 644, 647.

[10] The court relies on the court-filed copy of its Samatas ruling and has not cited page numbers.

[11] For this reason, Hadar’s evidence of the topography of the Prior Home after demolition to support the accuracy of the revised SBA map is irrelevant. So is Coleman’s evidence disputing Hadar’s post-demolition evidence, including the opinion of her expert, Jerry Miles. AR 3736-37. Id. Pet. Op. Br. at 21-22.

[12] This conclusion would seem to foreclose Coleman’s pending protective appeal based on the revised SBA, SBA map, revised plans, and Supplemental Permits.

[13] Hadar notes that Coleman requests judicial notice of three provisions -- LAMC sections 91.106.1.1, 91.106.1.2, 91.106.3.1 -- that she did not cite in her appeal to the Board and argues that she should be barred for raising them for the first time in this lawsuit. Floystrup v. City of Berkeley Rent Stabilization Bd., 219 Cal. App. 3d 1309, 1328 (1990). Opp. at 24, n. 7. Not so. While exhaustion requires that a party raise the issues to be litigated during the administrative process, it is not necessary to cite the precise statute at issue so long as the agency is apprised of the relevant facts and issues. McPherson v. City of Manhattan Beach, (2000) 78 CallApp.;4^th 1252, 1264; East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School District, (1989) 201 Cal.App.3d 155, 177. Judicial notice of pertinent statutes can therefore be made for trial of an administrative mandamus claim.

[14] Coleman adds that, in furtherance of his position, Hadar failed to respond substantively to the Board appeal. AR 3931-34. He now claims without supporting evidence that the City asked him “not to submit substantive evidence to support the correct slope” in the revised plans. His purposeful decision not to submit substantive evidence is inexcusable. Hadar knew that Coleman was challenging in the Board appeal LADBS’s acceptance of the 2020 Revised Plans given the inconsistencies in the plan set. AR 3728-37. Yet, he made an intentional decision to withhold his evidence of the proper slope under the Prior Home. Reply at 5-6.

[15] Hadar contends that sheets C-2 and C-3 were revised and included in the revised plan sheets and are part of his motion to augment. Opp. at 26. The court separately has denied Hadar’s motion and this evidence cannot be considered.

[16] Coleman correctly replies that the 2018 elevation can hardly be of unknown origin because no one other than Hadar would create plans for the Property. Reply at 10.

[17] Coleman argues that nothing in the Information Bulletin legitimizes a structure that blocks the entire width of a required side yard; it references only walls that run parallel to the home and do not block access. AR 2479-81. Reply at 14. This argument should have been presented in Coleman’s opening brief and is waived. Regency Outdoor Advertising v. Carolina Lances, Inc., (“Regency”) (1995) 31 Cal.App.4th 1323, 1333. Coleman also fails to address the Zoning Manual.

[18] In reply, Coleman seeks to bolster her argument, contending that LADBS guidance is that the phrase “‘not attached to a building’ is intended to exempt retaining walls that are structurally integrated as part of the building foundation, such as a basement wall.” SAR 278-79, 415. In contrast, the retaining walls for the filtration structure are outside the footprint of the house, are not part of the foundation, and are not structurally integrated. SAR 279, 300. Further, the ZA’s conclusion that the filtration structure’s three retaining walls only count as one because they are at the same elevation is wrong. As Coleman explained in her appeal letter, the filtration structure creates three elevations. SAR 281. LADBS guidance shows the structure consists of three retaining walls. SAR 280. Reply at 14-15. This argument has not been considered. Regency, supra, 31 Cal.App.4th at 1333.