Judge James C. Chalfant, Case Number: 22STCP01678, Date: 2023-09-19 Tentative Ruling

Petitioner Center International Investments, Inc. (“Center”) seeks a writ of mandate compelling Respondent City of Monterey Park (“City”) to issue a grading permit (“Permit”) for the hilltop property at 1688 West Garvey Avenue (“Property”) pursuant to a project to build 16 single-family residences on the Property (“Project”).

The court has read and considered the opening brief, opposition, and reply,[1] and renders the following tentative decision.

Center commenced this action on May 3, 2022. The operative pleading is the First Amended Petition (“FAP”), filed on August 31, 2022, alleging (1) administrative and traditional mandamus based on the Housing Accountability Act (“HAA”), (2) traditional mandamus based on a temporary and permanent taking under the Fifth Amendment to the U.S. Constitution, (3) inverse condemnation, (4) violation of substantive due process under the Fourteenth Amendment of the U.S. Constitution, (5) violation of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution, (6) violation of mandatory duties under Government Code (“Govt. Code”) section 815.6, (7) traditional mandamus, and (8) administrative and traditional mandamus for violation of the Housing Crisis Act (“HCA”).

In 1978 and 1979, Good Views Land Development Company (“Good Views”) received approval to develop 31 residential units on the Property. In 1983, the Property’s slope failed, which blocked and damaged Garvey Avenue. The City took emergency action to construct soil stabilizations and drainage infrastructure.

In 1986, the City and Good Views entered into an agreement to construct permanent structures for the stabilization of the Property’s hillside. Although City consultants advised various measures to stabilize the hillside from 1987 to 1989, Good Views did not implement any of them. As a result, it failed to adequately remediate the issues with the hillside.

In 1991, the City issued a notice of violation to Good View that the hillside is a public nuisance requiring abatement. Between 1991 and 1997, Good Views abandoned the Property. In 1997, the City Council declared the Property a public nuisance and began to abate the Property itself. The City took abatement actions in 2000 and 2002.

In 2013, Center became the new Property owner, and the City commenced enforcements actions against it. In 2015, predictions of El Niño storms led the City to believe that significant slope failure could occur on the Property. On December 31, 2015, the City filed suit for abatement against Center, The People of the State of California, ex rel., Mark D. Hensley, City Attorney for the City of Monterey Park v. Center Int’l Investments, Inc., (“Abatement Case”) (2015), Case No. BC605788.

On April 25, 2017, the parties entered into a Settlement Agreement for the Abatement Case which addressed a long-term solution to the Property’s instability. Under the Settlement Agreement, Center would implement a City-approved interim erosion control and slope stabilization plan until permanent remediation was possible. Permanent remediation would consisted of a series of retaining walls and other geotechnical solutions. The permanent remediation could be either be integrated into the development of a residential community (“Plan A”) or implemented before any such development on the Property (“Plan B”). Performance under Plan B was due to be performed by 2022 even if the City Council did not approve Plan A. If Center failed to comply, the City could complete Plan B at Center’s expense.

On April 28, 2017, the City confirmed receipt of Center’s application for two tentative tract maps to subdivide the Property into 19 single-family residences and 14 condominium units. After much delay from the City in reviewing the application, on September 13, 2017, Center met with City and AECOM, the City’s third-party consultant responsible for review of the application. The City recommended that Center hire its own third-party consultant to finish the review.

On March 1, 2018, Center met with City representatives to discuss the entitlements necessary for development of the Project. The next day, the City replaced AECOM with a new third-party consultant, Converse Consultants.

On March 26, 2018, the City advised Center to change the number of proposed units to “TBD” because there were too many open issues with geotechnical to determine a definitive number of residential units. On May 3, 2018, the City reported that the specific plan for the Project was not advancing because the site plan, geotechnical issues, and number of units were still up in the air.

On July 10, 2018, the City reported that it had again switched third-party consultants to Geosyntech. It also explained that recent issues with the General Plan’s Land Use Element (“LUE”) would affect the City Council’s authority to approve plans or variances for the Project.

On February 14, 2019, Center provided the City with milestones for the proposed entitlements and development. The City Attorney responded that the City was done discussing timelines. The next day, the City Attorney informed Center it would send a notice of default and demand for voluntary abatement. The City Attorney then recanted and directed City staff to work with Center to revise the Settlement Agreement’s timeline. The parties executed an amendment to that effect on March 22, 2019.

Center retained KCM as the Project manager. On July 29, 2019, the City informed KCM that any development needed 25 dwelling units to comply with a pending LUE update. This drastic change to the site plan would make it impossible to comply with the amended milestones. The City chose not to put the LUE proposition on the 2019 ballot because it was cost prohibitive. This left Center’s Project in limbo. Although the City later introduced a new proposed LUE (“Measure II”), the electorate rejected it in March 2020.

On June 17, 2020, the City Council approved a proposition for a new LUE (“Measure JJ”). The electorate voted in favor of Measure JJ in November 2020, which changed the Property’s zoning.

On January 13, 2020, Center submitted applications for the revised Project which included the Environmental Impact Report (“EIR”), a 688 West Garvey Specific Plan (“Specific Plan”), a zone change, Vesting Tentative Map (“VTM”), and a Development Agreement (collectively, “Entitlements”). The revised Project included Plan A but also a “Plan B2.” Plan B2 provided for slope stabilization like Plan B but in a way that allowed for residential development like Plan A.

On February 5, 2020, the City told KCM that Plan B2 had to go through the same hearing process as any other development. After KCM received comments, it revised and resubmitted Plan B2 on May 8, 2020.

On May 13, 2020, KCM explained to the City that Center was prepared to proceed with slope remediation but had been advised that the Project still needed City Council approval. In light of the Settlement Agreement’s milestones, KCM asked if Center could commence Plan B2’s slope remediation while waiting for City Council approval of the residential development components. The City never responded.

On May 29, 2020, Center submitted the Initial Study and a draft Notice of Preparation (“NOP”). After the City’s comments, Center resubmitted them on July 2, 2020. On July 9, 2020, Center submitted a Draft EIR (“DEIR”). On July 10, 2020, the City explained it would not accept a DEIR until the NOP was published, but it did not explain why that had not happened.

On July 16, 2020, the City notified KCM that it was publishing the NOP. This breached the Settlement Agreement, which required that the City publish the NOP by May 29, 2020. The City did not explain how to address its breach and its effect on later milestones.

On July 22, 2020, per the California Environmental Quality Act (“CEQA”), the City circulated the NOP with the Initial Study for review and comment.

During a conference call on August 7, 2020, the City explained that, while it had no additional comments on Plan B2, it could not be approved until the City Council approved the residential component. This breached the Settlement Agreement which permitted this exact scenario.

On August 18, 2020, Center proposed a revised timeline for Project processing that included the desired November 2020 City Council hearing date for consideration of the whole Project. The City Attorney said that the proposed schedule “seems OK”.

Between August 24 and September 2, 2020, Center received City and public comments on the DEIR. After additional rounds of comments and revisions, Center provided a revised DEIR on November 16, 2020. On November 20, 2020, the City raised a new issue of traffic safety concerns based upon line-of-sight issues on the driveway to the Project. After detailed discussions between experts, Center submitted an updated DEIR on January 12, 2021.

The cycle of updated DEIRs and new comments continued until March 9, 2021, when the City submitted the latest DEIR to the State Clearinghouse. The Settlement Agreement had required that the City do so by July 10, 2020. On March 11, 2021, Center released the DEIR for public review.

On June 16, 2021, the City Council conducted a public hearing to certify the EIR and approve the Project-related Entitlements. The City Council approved the Entitlements, finding that the Project conforms to the City’s General Plan and zoning. It also passed a Public Contracts Code Waiver that authorized the City Manager to contract with a third party to stabilize the hillside without having to bid the public project in case it had to pursue Plan B.

The Development Agreement became effective on July 17, 2021, with a 20 year duration. The Development Agreement granted Center the right to develop the Project in accordance with the Entitlements. To expedite development, City agreed to reasonably cooperate with Center to establish time frames for processing and reviewing such ministerial permits and approvals and discretionary actions. It would also comply with any timeframes set in the Entitlements. This included a duty to promptly commence and diligently proceed to complete required steps once Center meets the prerequisites.

On June 18, 2021, Center submitted the Permit application. Approval of a grading permit application is ministerial, but the City said that it would engage in a stringent plan check process. For the next few months, the City requested changes or additional documents from Center.

On October 5, 2021, City staff confirmed that the City had everything it needed to issue the Permit. On December 17, 2021, the City Attorney informed Center that he believed the City would not issue the Permit. Because Center never received a final action from the City, it had nothing from which to appeal under Building Code section 113.

On July 21, 2021, petitioner Save Our Slopes challenged the Entitlements and Public Contracts Code Waiver via petition for writ of mandate against Center and City in Save Our Slopes v. City of Monterey Park et seq., Los Angeles Superior Court, (“SOS”) Case No. 21STCP02365. Center acknowledged that SOS would delay development of the Project but continued to apply for the necessary approvals for the slope remediation.

On October 13, 2021, the City informed Center that it was engaging in its own settlement negotiations for SOS and did not want Center to interfere.

On October 13, 2021, the City issued a Notice of Default (“NOD”) for the Settlement Agreement. The NOD informed Center that, pursuant to the Settlement Agreement, the City was taking over the Property and completing Plan B.

On October 19, 2021, Center formally contested the NOD. The same day, City staff replaced the locks on the Property.

On November 17, 2021, the City obtained an abatement warrant (“Abatement Warrant”) without notice to Center to begin a narrow scope of slope abatement actions, including temporary winterization.

On January 15, 2022, KCM informed Center that their contract had expired and that KCM was entering a new contract with the City.

On February 17, 2022, the City filed a motion to enforce the Settlement Agreement and obtain permanent control over the Property so that it could perform abatement measures beyond what the Abatement Warrant allowed.

On March 2, 2022, the California State Water Resources Control Board (“Water Board”) issued a Receipt of Your Notice of Intent to the City’s commitment to comply with the terms of the General Permit to Discharge Storm Water Associated with Construction Activity required by the federal Clean Water Act and Porter-Cologne Water Quality Control Act. The City necessarily must have filed the Stormwater Pollution Prevention Plan (“SWPPP”) while it was reviewing Center’s Permit application that included Center’s SWPPP.

The Abatement Warrant expired, and the City withdrew its motion to enforce the Settlement Agreement. The City now is in control of the Property without any court authorization or permission from Center. The City’s slope remediation actions have not abated the issue because there are gaps and deterioration in the sheeting covering the slope. The City is also pursuing a slope remediation option that will make further Property development impossible.

The City is delaying the SOS case so that it can complete slope stabilization with the Public Contracts Code Waiver and without engaging in the public bidding process. After stabilization, the City plans to settle the SOS case by voiding the Entitlements.

On April 4, 2022, Center served the City with a Notice of Default under the Development Agreement for failing to issue the Permit and failing to cooperate in defending the SOS case.

On May 16, 2022, the City responded to the Notice of Default, alleging that Center had no active Permit application. This contradicted its assurance on October 5, 2021 that the application was complete. The City alleged that the Permit application expired either on December 20, 2021 or March 18, 2022. Meanwhile, the City’s failure to take final action on the Permit application left Center with nothing to appeal.

The City told Center that it needed to file a government claim under Civil Code section 911.2. Center filed this claim on June 8, 2022. The City did not respond by the July 25, 2022 deadline.

Center seeks (1) a writ of mandate compelling the City to issue the Permit (2) judgment that the City’s unlawful failure to issue the Permit, the NOD, and ongoing Property changes are a taking of Center’s property (3) judgment that the City’s unlawful failure to issue the Permit and ongoing physical changes to the Property, which will render Center unable to develop the Property in accordance with the Entitlements, is an inverse condemnation; (4) a preliminary and permanent injunction compelling the City to issue the Permit; (5) compensatory damages for constitutional due process violations; (6) a judgment declaring that the City’s approval of the updated LUE and failure to issue the Permit violated the HCA, and ordering the City to rescind the LUE; (7) general, special, and incidental damages; and (9) attorney’s fees and costs.

On September 15, 2022, the court stayed all non-mandamus causes of action in the FAP, leaving only the first, six, seventh, and eighth causes of action at issue.

On July 14, 2023, the City filed an Answer to the claims not stayed. On July 27, 2023, the City amended its Answer.

The parties analyze the issues under both traditional and administrative mandamus. Pet. Op. Br. at 11-12; Opp. at 11-12.

A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. Traditional mandamus permits judicial review of ministerial duties as well as quasi-legislative and legislative acts. County of Del Norte v. City of Crescent City, (1999) 71 Cal.App.4th 965, 972.

A traditional writ of mandate is the method of compelling the performance of a legal, ministerial duty required by statute. See Rodriguez v. Solis, (1991) 1 Cal.App.4th 495, 501-02. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance.” Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

In the absence of a ministerial duty, traditional mandamus relief is unavailable unless the petitioner can demonstrate an abuse of that discretion. An agency decision is an abuse of discretion only if it is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.” Kahn v. Los Angeles City Employees’ Retirement System, (2010) 187 Cal.App.4th 98, 106. In applying this deferential test, a court “must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute.” Western States Petroleum Assn v. Superior Court, (1995) 9 Cal.4th 559, 577. Mandamus will not lie to compel the exercise of a public agency’s discretion in a particular manner. American Federation of State, County and Municipal Employees v. Metropolitan Water District of Southern California, (2005) 126 Cal.App.4th 247, 261. It is available to compel an agency to exercise discretion where it has not done so (Los Angeles County Employees Assn. v. County of Los Angeles, (1973) 33 Cal.App.3d 1, 8), and to correct an abuse of discretion actually exercised. Manjares v. Newton, (1966) 64 Cal.2d 365, 370-71. In making this determination, the court may not substitute its judgment for that of the agency, whose decision must be upheld if reasonable minds may disagree as to its wisdom. Id. at 371. A writ will lie where the agency’s discretion can be exercised only in one way. Hurtado v. Superior Court, (1974) 11 Cal.3d 574, 579.

A legal issue is “subject to de novo review. Citizens for E. Shore Parks v. State Lands Com., (2011) 202 Cal.App.4th 549, 573.

“It is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself” rather than “post hoc rationalizations.” See, Motor Vehicle Manufacturers. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). California courts apply this rule in mandamus actions where the agency is subject to a written findings requirement such as in Govt. Code sections 66589.5(j)(1) and 6300(b)(1)(B)(i). SP Star Enterprises, Inc. v. City of Los Angeles, (2009) 173 Cal. App. 4th 459, 477, n. 4.

Agency decisions under the HAA are reviewed as administrative mandamus. §65589.5(m); Honchariw v. County of Stanislaus, (“Honchariw”) (2011) 200 Cal.App.4th 1066, 1072. CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Association 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 proceeded 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 (Evid. 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 decision-maker 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 CCP 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.

The Legislature adopted the HAA in 1982 to “significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.” Government Code[3] §65589.5(a)(2)(K). It reflects the Legislature’s findings that “the availability of housing is of vital statewide importance,” and that providing the necessary housing supply “requires the cooperative participation of government and the private sector in an effort to expand housing opportunities and accommodate the housing needs of Californians of all economic levels.” §65580(a)-(b).

The Legislature significantly amended the HAA, effective January 1, 2018, to strengthen its provisions, expand its applicability, and increase local governments’ liability for violations. The HAA found that California is in the midst of a housing crisis that is “partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing,” §65589.5(a)(1)(B). Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects. §65589.5(a)(1)(D). The state’s homeownership rate was at its lowest level since the 1940s and ranked 49 out of the 50 states. §65589.5(a)(2)(E). The lack of supply and rising costs are compounding inequality and limiting advancement opportunities for many Californians. §65589.5(a)(2)(F).

The HAA states that it should be “interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” §65589.5(a)(2)(L).

Nothing in the HAA relieves the local agency from complying with, inter alia, the California Environmental Quality Act (“CEQA”). §65589.5(e). Nothing in the HAA aside from section 65589.5(o) shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need. §65589.5(f)(1). A housing development project “shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.” §65589.5(f)(4).

The HAA limits the application of project conditions that lower the residential density of the project or have a substantial adverse impact on the viability or affordability of providing units in housing affordable to lower- and moderate-income households and emergency shelters. Pet. RJN Ex. E, p. 10. These limits apply to conditions that directly or indirectly limit the overall number of units. Id. They also apply to any condition that would have a substantial adverse effect on the viability or affordability of the proposed housing. Id.

“When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project's application is determined to be complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:

(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.” (emphasis added).

A local agency disapproves a housing development project when it votes on a housing development project application, including any required land use approvals or entitlements necessary for the issuance of a building permit, and disapproves it. §65589.5(h)(6)(A).

The HAA defines a “specific, adverse impact” as a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” §65589.5(j)(1)(A). The Legislature’s intent is that conditions that would have a specific, adverse impact upon the public health and safety should arise infrequently. §65589.5(a)(3).

If a permitting agency considers a proposed housing development project to be inconsistent with “an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision,” it must provide the applicant with written documentation identifying and explaining the claimed inconsistency within either 30 or 60 days of the submittal of a complete application, depending upon the size of the project. §65589.5(j)(2)(A). Absent timely notice, the project is deemed to be in compliance with all applicable standards as a matter of law. §65589.5(j)(2)(B).

If the court finds that an agency acted in bad faith in disapproving a project in violation of the HAA, the appropriate remedy is an “order or judgment directing the local agency to approve the housing development project.” §65589.5(k)(1)(A)(ii). “Bad faith” “includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.” §65589.5(l).

The City bears the burden of proving that its decision conforms to the conditions specified in section 65589.5. §65589.6.

Section 65589.5(j) applies to market rate housing as well as affordable housing. Honchariw, supra, 200 Cal.App.4th at 1070. The HAA Act applies to all residential housing developments and takes away the agency’s ability to deny residential projects based on subjective development policies. Id. at 1072-77.

In 2019, the Legislature enacted the HCA, declaring, despite the HAA, a temporary housing emergency statewide in order to preserve existing housing, enhance protections for occupants, and increase certainty in the development review process. See SB 330 §2(b).

Among other limitations, the law ensures housing production is not stymied by precluding an affected county or city – including charter cites and the electorate – from either reducing existing residential intensities or imposing a limitation on housing development within all or a portion of an affected city without first making a finding of an “imminent threat” to public health and safety. §§ 66300(a)(1)(B)(3), (b)(1)(A), (b)(1)(B)(i), 65589.5. The HCA prohibits an affected city

“…from enacting a development policy, standard, or condition, as defined, that would have the effect of (A) changing the land use designation or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing zoning district below what was allowed under the general plan or specific plan land use designation and zoning ordinances of the county or city as in effect on January 1, 2018….” §66300(b)(1) (emphasis added).

An “affected county” or “affected city” includes the electorate of an affected county or city exercising its local initiative or referendum power, whether that power is derived from the California Constitution, statute, or the charter or ordinances of the affected county or city. §66300(a)(3). “Reducing the intensity of land use” includes reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity. §66300(b)(1)(A). These prohibitions apply to any land use designation amendment or change adopted on or after January 1, 2020, and any change as of that date is void. §66300(b)(2).

To maximize the development of housing within this state, section 66300 should be broadly construed and any exception thereto narrowly construed, including an exception for the health and safety of occupants of a housing development project. §66300(f)(2).

Any city or county may enter into a development agreement with any person having a legal lor equitable interest I real property for its development. §65865(a). The development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. §65865.2. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. Id. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time. Id.

Unless otherwise provided by the development agreement, the rules, regulations, and official policies governing permitted uses of the land, density, and design, improvement, and construction standards and specifications that are in force at the time of execution of the agreement she apply to development of the property. §65866(a).

Unless amended or canceled pursuant to section 65868, or modified or suspended pursuant to section 65869.5, and except as otherwise provided in section 65865.3(b), a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in section 65866. §65865.4.

The City Manager has the duty and power to: (2) control, order and give directions to all heads of departments, subordinate officers and employees of the city, except the city clerk, city treasurer and city attorney; and (4) exercise control over all departments of the City government and over all appointive officers and employees thereof. Opp. RJN Ex. A (MPMC 2.08.070).

Except as otherwise provided by Chapter 1 of the MPMC, decisions rendered by City department directors in accordance with this code may be administratively appealed to the City Manager or his/her designee. MPMC 1.10.010(c). The Planning Commission is designated to hear and decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretation of this code. Opp. RJN Ex. A (MPMC 16.01.040, §113.1).

All appeals must be filed within ten calendar days of the date of the rendering of the decision. MPMC 1.10.020. If the tenth day occurs on a holiday or weekend, the appeal period is extended to the next city workday. Id. No appeal can be accepted after the appeal period expires. Id. Any person appealing the decision of the Building Official must file with the Building Official a written application accompanied by a filing fee in accordance with the fee schedule adopted by City Council resolution at any time not more than 20 calendar days after the decision of the Building Official. Opp. RJN Ex. A (MPMC 16.01.040, §113.3).

Notwithstanding any other provision of law, CCP section 1094.6 applies to any decision of the City or any of its commissions, boards, officers or agents which are subject to review under CCP section 1094.5. Opp. RJN Ex. A (MPMC 1.16.010). Any person dissatisfied with a final decision by the City Council, Planning Commission, or a City official under the MPMC may challenge it within 90 days. Opp. RJN Ex. A (MPMC 3.12.030). The definition of “final decision” mirrors that of CCP section 1094.6(e). Id. Notices required under CCP section 1094.6(f) for final decisions must be substantively worded as “This constitutes the City’s final decision and becomes immediately effective. Any challenge brought against this final decision must be filed within ninety days pursuant to Code of Civil Procedure Section 1094.6.” Id.

No amendment of the LUE of the City’s General Plan, the zoning map, and/or the Zoning Code as amended, or any other action of the City Council by which there would be permitted any use of land other than as presently defined in the LUE, zoning map, and/or Zoning Code shall be valid or effective for any purpose unless and until such amendment shall have been approved by a majority of those voters of the City voting thereon at any regular or special municipal election. Te City Council shall refer any such amendment approved by it to said voters pursuant to the provisions of Elections Code section 4017. MPMC 21.42.010.

Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the codes, or to cause any such work to be done, must obtain a valid permit from the Building Official. MPMC 16.01.040, §105.1.

The MPMC incorporates the California Building Code, Title 24 of the California Code of Regulations (“24 CCR”). MPMC 16.21.010 (Opp. RJN Ex. A). The code official will examine or cause to be examined applications for permits and amendments within a reasonable time after filing. Building Code §§ 105.3.1, 105.4. If the application or the construction documents do not conform to the requirements of applicable law, the code official must reject such application in writing. Building Code §105.3.1. Conversely, when the code official is satisfied that the proposed work conforms to the requirements of applicable law, and the specified fees have been paid, the code official must issue a permit in accordance with applicable law. Building Code §§ 105.3.1, 105.4. No building permit or similar applicable permit bearing on property development or use including additions, modifications or revisions may be issued unless and until the review and approval of all other departments and agencies having legal authority for review of construction projects have found the construction project to be in compliance with all applicable code provisions or entitlements. Building Code §105.3.1.

An application for a permit for any proposed work is deemed expired or abandoned 180 days after the completion of any submittal review unless a permit has been issued. Building Code § 105.3.2. For such purposes, contact by a City representative indicating that review is complete qualifies as completion of the submittal review. MPMC §16.01.040; Building Code §105.3.2. The code official is authorized to grant one extension of time of an unexpired application for additional periods not exceeding 90 days. Building Code §105.3.2. The extension must be requested in writing and justifiable cause demonstrated. Building Code §105.3.2.

The Property consists of 6.22 acres of undeveloped land on a hillside along West Garvey Avenue located at 1688 West Garvey, Monterey Park, California. AR 96, 19132. Its appraisal value as of October 2022 is $6.4 million. AR 18960.

The Property is historically unstable. AR 19132. In 1983, a hillside slope failure on the Property blocked and damaged West Garvey Avenue. AR 19132. The City took emergency action to construct various soil stabilization and drainage infrastructure. AR 19132. The City removed soils debris from the roadway and installed a soils impact wall along a portion of the Property line along West Garvey Avenue. AR 19132.

In 1986, the City entered into an agreement with the Property owner, Good Views Land Development Company (“Good Views”), to construct permanent structures to stabilize the hillside. AR 19132. Good Views was required to finish the structures by December 5, 1986. AR 19132. Although City consultants identified the necessary measures to stabilize the hillside over the next three years, Godd View did not implement any of them. AR 19132. Beginning in 1991, the City issued annual notices of violation that identified the Property as a public nuisance requiring abatement. AR 19132.

In 1994, the City could no longer locate Good Views’ representatives. AR 19132. In 1997, the City Council declared the Property a public nuisance and ordered construction of various abatement measures. AR 19132. One measure was to install a gate on the abandoned private road on the Property. AR 19132. The City took additional abatement measures in 2000 and 2002. AR 19132. By 2013, the City had expended between $200,000 to $300,000 to abate dangerous nuisances on the Property. AR 19132.

In 2009, Center purchased the Property to build a residential development of 16 homes. AR 19788.

Beginning in 2013, the City took various code enforcement actions against Center with respect to the Property. AR 15813-24. On March 8, 2013, the City issued an administrative citation for improper slope drainage, improper slope maintenance, unsightly appearance, and illicit discharge/disposal. AR 15820. The Center did not comply with the citation. AR 15821.

Between March 26, 2013 and December 1, 2014, the City issued four additional citations for continuing violations of trash, debris, overgrown vegetation, erosion control, storm water runoff, improper slope maintenance, and other issues. AR 15813-16. The City directed Center to provide mitigation plans to address these issues. AR 15813-16. Center implemented only minor corrective actions that failed to remediate the cited matters. AR 15821-22.

On December 16, 2014, a large pine tree on the Property toppled and crushed an electric pole. AR 15833. This led to the emergency street closure of West Garvey Avenue for about 18 hours and left 60 homes without power. AR 20139.

On May 12 and October 31, 2015, the City issued two additional administrative citations for improper slope drainage, improper slope maintenance, unsightly appearance, and illicit discharge/disposal. AR 20139. The May 12 citation ordered Center to set a timeline for corrective actions and both citations ordered Center to obtain professional help for the corrective action. AR 20139.

Because Center failed to take corrective action, on November 7, 2015 the City sent Center a Notice to Repair or Abate with a history of Center’s non-compliance with the MPMC. AR 15834-15835. The abatement notice identified specific, immediate steps for Center to undertake to remedy the conditions on the Property. AR 15835.

The City attempted to inspect the Property multiple times in December 2015. AR 15835-36. Although it could not complete some inspections, the inspections that were conducted revealed a failure to remedy the violations in the earlier citations. AR 15835-36.

On December 31, 2015, the City filed the Abatement Case against Center, alleging that the Property was in an unsafe, unsightly and dangerous condition and seeking injunctive relief compelling Center to immediately bring the Property in compliance with the MPMC, or an order allowing the City to do so and compelling Center to reimburse it. AR 20136-37, 201144.

In April 2017, the parties reached the Settlement Agreement. AR 20311-18. In the Settlement Agreement, Center agreed to work with the City to complete the review and correction process for a Restoration Plan to address all slope stability and public safety issues, and to obtain a permit with all due speed. AR 20312. Center must then complete the hillside restoration before December 31, 2017, unless the City Attorney extends the deadline for good cause, such as a delay by the City in permit issuance or inclement weather impeding construction. AR 20312. Center was required to obtain performance bonds of $1 million and, after completion of the construction required under the Restoration Plan, regularly monitor and maintain the Property through winterization measures and a temporary erosion control plan until the City considered the permanent remediation complete. AR 20312-13.

If the Center failed to perform its obligations under the Settlement Agreement, the City could file a stipulated judgment enabling it to abate the nuisance with reimbursement of its cost from Center. AR 20314, 20322. The City was not obligated to exercise its discretion in a particular way, and Center waived any right to a notice and hearing for which it otherwise would have a right under Rooney v. Vermont Investment Corp. (1973), 10 Cal.3d 351. AR 20314.

By March 2019, Center had failed to take action to permanently stabilize the hillside and the parties amended the Settlement Agreement. AR 20319. The amended Settlement Agreement outlined two different courses of action to abate the nuisance. Plan A allowed Center to pursue the residential project and seek the necessary discretionary approvals, including a Development Agreement and subdivision map. AR 20320. Center would abate the hillside nuisance as part of the project. AR 20320.

Plan B addressed the hillside slope nuisance independent of any development. AR 20320. If Center failed to obtain the approvals needed for Plan A or otherwise implement it by applicable deadlines, it must implement Plan B. AR 20320-21. If Center failed to implement either Plan, the City unilaterally would implement Plan B to abate the nuisance at Center’s expense. AR 20321.

The amended Settlement Agreement included deadlines for compliance under either Plan. AR 20328-29. By March 18, 2019, Center was required to complete new site grading and preliminary wall analysis. AR 20328. If the City Council denied the residential project, Center was required to the complete Plan B slope stabilization by November 25, 2020. AR 20328. Nothing in the amended Settlement Agreement was intended to limit the City’s present or future exercise of municipal powers in accordance with the California Constitution and applicable law. AR 20324.

The amended Settlement Agreement required a performance bond to secure performance of Plan B, and on July 29, 2019 the parties agreed on a bond amount of $6.8 million. AR 16037, 20321-22. On October 1, 2019, the City notified Center that it was in default on the amended Settlement Agreement because it had not posted the performance bond. AR 16036-37. The City threatened to pursue all legal remedies, including immediate abatement through Plan B. AR 16037.

On June 8, 2020, the parties amended the Settlement Agreement again. AR 20331. The amended Settlement Agreement modified the schedule for compliance under either Plan A or B. AR 20333-34. Under the timeline, Plan B would begin on November 5, 2020 if the City Council denied the project. AR 20337. The City would issue horizontal permits by January 15, 2021, and Center would mobilize for horizontal improvements by March 8, 2021. AR 20337.

Center agreed to cause liens to be recorded in favor of the City in the amount of $6.8 million. AR 20333. In the event Plan B was not underway by the deadline, the City could enter the Property and abate the nuisance or complete Plan B and foreclose on the liens. AR 20334, 203337. The Project schedule would not further change absent good cause, which the City would determine in its sole discretion. AR 20333.

On December 5, 2019, the City Council passed Resolution No. 12124 which updated the General Plan’s LUE and accepted the findings of the related EIR. AR 17695. The City’s voters rejected Resolution No. 12124, on the ballot as Measure II, on March 3, 2020. AR 16479-80.

On June 17, 2020, the City Council passed Resolution No. 12179, which approved a new LUE. AR 16662. The new LUE conformed to the LUE the General Plan Advisory Committee had vetted and the Planning Commission proposed in Resolution No. 12124. Pet. RJN Ex. C. It changed the Property’s land use designation from High-Density Residential (up to 25 units per acre) to Low-Density Residential (up to 8 units per acre). AR 284. The zoning designation remained R-3, High-Density Residential, which allows a broad range of dwelling units at a density of up to 25 units per acre. AR 284.

In November 2020, City voters passed Measure JJ, which adopted Resolution No. 12179 and the new LUE. AR 16650-51. On December 2, 2020, the City certified the results of the election, which gave the new LUE an effective date of December 12, 2020. AR 16662.

As amended, Plan A of the Settlement Agreement required slope stabilization in conjunction with the development of residential units on the Property. AR 20178. Because Center sought to build and develop residential homes, Center needed to obtain both discretionary and non-discretionary approvals from the City to proceed.

In March 2021, Center prepared a DEIR for the Project based on the Property’s current conditions. AR 290-98, 308.

At a June 16 City Council meeting, staff reported that Center was given an August 1 deadline to bring design-ready specifications for consideration. AR 2685, 2742-43. The City must then review them to ensure compliance with the geotechnical report, and it would issue permits for hillside grading and construction if appropriate. AR 2743. Center did not object to this statement. See AR 2743-49. Center also acknowledged the August 1, 2021 deadline in a July 6, 2021 email. AR 14747.

At the end of the June 16, 2021 meeting, the City Council, in Resolution 12253, certified the EIR for the Project, which included mitigation measures for each potentially significant impact of the Project. AR 4-8.

On the same date, the City Council, in Resolution 12254, approved the Project, described as 16 single-family homes, with the Entitlements of a zone change from R-3 to Specific Plan, a VTM, and a Development Agreement, and finding the Project consistent with the General and Specific Plans for the Property. AR 96, 98.

Again, on June 16, 2021, the City Council, in Resolution 12255 and acting out of an abundance of caution, City found that an emergency exists to abate the Property, which constitutes an imminent threat to public health and safety that requires immediate action under Public Contracts Code section 20168. AR 123-24. The City Council stated that it is in the public interest to ensure completion of the Project as required by the Settlement Agreement. AR 124. If Center fails to complete the Project by the Settlement Agreement’s deadlines, the City will assume responsibility for completing the hillside abatement at Center’s cost. AR 124. In a Public Contracts Code Waiver, the City Council found that any delay resulting from public bidding would adversely affect public health and safety. AR 123, 128. 123-124. If the City Manager, in his sole discretion, did not find that Center made substantive progress by August 1, 2021, he could bid the improvements and select the best qualified contractor to execute them. AR 123-24.

On July 7, 2021, the City Council passed Ordinance No. 2210, which amended the zoning for the Property from R-3, High-Density Residential, to match the Specific Plan and allow for single-family homes. AR 129, 132.

Also on July 7, 2021, the City Council passed Ordinance No. 2211, which approved the Development Agreement. AR 185, 188. The ordinance, and therefore the Development Agreement, became effective 30 days later, on August 6, 2021. AR 188.

In the Development Agreement’s recitals, the City recognized the benefits of the Project and stated that it was taking all actions required for Center to begin and consummate the Project. AR 192. This included the approval, adoption, or issuance of necessary development permits, the future ministerial approval of building plans, and ministerial approval of final maps, appropriate building permits, lot line adjustments, and other necessary or desired permits, approvals and entitlements which are consistent with the development of the Project. AR 192.

In exchange for Center’s investment of monies in the Project, the City agreed to approve future land uses for the Project, provided that Center satisfactorily complied with all procedures, actions, payments, and criteria applicable as of the Development Agreement’s effective date. AR 192, 197.

The City recognized that expeditious processing of ministerial and discretionary permits and approvals would be helpful to the Project and it agreed to reasonably cooperate with Center to establish time frames for processing and reviewing such ministerial permits and approvals and discretionary actions. AR 203. Once Center completed all required preliminary actions and payments of appropriate processing fees, the City would promptly commence and diligently proceed to complete all required steps necessary for the implementation of the Development Agreement and the development of the Project. AR 203. This included holding any required public hearings, and processing and approving all ministerial approvals. AR 203-04.

The rules, regulations, and policies applicable to the ministerial approvals that Center needs before it can begin construction would be those in effect at the time of the Development Agreement. AR 204. The City must make any ministerial approval within a reasonable time after the Center has applied for it. AR 204.

The parties could institute legal action to cure a default, enforce any provision of the Development Agreement, enjoin any violation or attempted violation, or enforce the Development Agreement by specific performance. AR 210. A separate term sheet identified the duration of the Development Agreement as 20 years. AR 3148.

On June 18, 2021, Center submitted the Permit application. AR 19557. The application sought a permit for grading and slope stabilization plans, geotechnical reports, calculations, and grading permit applications. AR 16965-66, 16972-88, 17007, 17011-68, 17169-78, 17187, 17188-92, 17193-94, 17196-97.

The City advised Center that the plans were outdated and included aspects that were not reviewed for the DEIR. AR 15778. As a result, the City would perform the plan check review as a technical construction document (shovel ready) and not as a feasibility document. AR 15778.

On June 30, 2021, the City reminded Center that they were 39 days away from the August 1, 2021 deadline for the City’s determination whether to pull the trigger for Plan B. AR 19559. A review of the submitted plans revealed that they were the plans from May 2020 for environmental review. AR 19559. They were not plans that may be used for issuing permits. AR 19559.

On July 16, 2021, Center submitted revised application materials. AR 17007-08. This included responses to City comments, updated calculations, an Erosion Control Plan (“ECP”), and an updated SWPPP. AR 17008.

On July 26, 2021, the City sent Center comments on the Permit application materials. AR 17011. One comment noted the 2013 start date of the submitted SWPPP. AR 17034.

On July 30, 2021, the City asked Center if it was working on resubmittals based on its comments. AR 19566. Center replied that it was working on addressing the comments and would inform the City when finished. AR 19568.

On August 9, 2021, the City demanded that Center submit the Permit application by the end of the next day. AR 17693.

On August 10, 2021, Center sent a revised Permit application. AR 17186-87. In response, the City asked Center to identify the destination for 80,600 cubic yards of soil material. AR 19570. The previously submitted plans showed 80,600 cubic yards of cut soil, 7,000 cubic yards filled, and 73,600 cubic yards exported offsite. AR 19570. The Permit application should document all material imported or exported, not the delta, and needed to clarify if any cut soil was worked onsite. AR 19570.

On August 19, 2021, Center submitted an updated traffic control plan, Plan B2 grading plan, and responses to City comments. AR 19583, 19585. It also promised to upload the SWPPP when ready, likely the next Monday. AR 19583, 19585. On August 25, the City replied it still did not have the SWPPP or ECP and added a couple of new comments on the grading plan. AR 17197, 19582.

Also on August 25, 2021, the City issued a Notice of Breach. AR 17656. The Settlement Agreement permits the City Manager to determine if Center is making substantive progress toward completing Plan B. AR 17656. Center failed to provide all the necessary application materials to obtain a grading permit to commence work on Plan B. AR 17656. The City informed Center that the City Manager was selecting a contractor to proceed with Plan B per Resolution No. 12255. AR 17656. The City gave Center a five-day opportunity to cure its breach. AR 17656.

On August 30, 2021, Center submitted an updated SWPPP and responses to City comments, revised B2 Plan grading plans, and other plans. AR 19587-88. The next day, City asserted that the submission did not respond to its previous SWPPP comments. AR 19587. On September 10, 2021, the City advised that the SWPPP still had issues. AR 19590. After a response from Center on September 20, the City gave one more day to submit an appropriate SWPPP and ECP “before the flood gates open up.” AR 19592. On September 23, 2021, Center submitted the rest of the documentation required for the Permit. AR 17660.

On October 5, 2021, the City confirmed that it had “what we need for now”. AR 19607.

On October 13, 2021, the City issued a NOD on the Settlement Agreement. AR 17660. The NOD stated that the City had given Center a five-day cure period after the Notice of Breach, which ended on August 31, 2021. AR 17657, 17660. Center failed to submit all documentation required for grading permits until September 23, 2021. AR 17657, 17660. Discussion between counsel resulted in Center’s assurance that it would provide a payment schedule demonstrating its ability to pay its proposed contractor for completing Blan B. Despite written assurance that this information would be forthcoming soon, there was a delay of more than a month with no further communication. AR 17660. As a result, the City was exercising its right under the Settlement Agreement to assume control of completion of Plan B. AR 17658, 17661. The NOD ordered Center to take no further action regarding Plan B. AR 17661.

On October 19, 2021, Center responded to the NOD. AR 17662. Since June 18, 2021, Center has constantly submitted new plans in response to City comments. AR 17763. When Center resubmitted grading plans on August 26 and 30 and September 21, the City delayed its review and failed to timely process the Permit application. AR 17763. Even the NOD acknowledges that the application was complete on September 23, and yet the City had not issued the Permit. AR 17763. Center should not be held at fault when the City’s actions delayed Center’s attempt to remediate the slope. AR 17763.

Center noted that the City had entered the Property and changed the locks and cited the Settlement Agreement’s provision that the City could intervene and abate the nuisance if Plan B was not “underway.” AR 17664. Given Center’s Permit applications, the Project was underway. AR 17664. Center asked the City to approve the Permit and refrain from seizing control of the Property and implementing Plan B. AR 17664.

On December 17, 2021, the City entered a maintenance agreement with C.A. Rasmussen, Inc. (“Rasmussen”) for winterization measures. AR 19981-82. Rasmussen then began discussions to enter a design and build contract for the Good Views Abatement Project (“GAP”) to permanently remediate the Property at a cost not to exceed $12 million. AR 19982. The City entered a contract with Rasmussen and, on January 21, 2022, issued a Notice to Proceed with the GAP. AR 19125-26.

When the City began the hillside stabilization, it tried to use the Center’s construction plans. AR 15963. However, those plans did not sufficiently incorporate the relevant geotechnical recommendations. AR 15963. Center’s plans for retaining walls also applied inappropriate assumptions about lateral earth pressure distribution. AR 15963. After consultation with the City’s contractor revealed other problems, the City had to abandon Center’s plans and make a new plan. AR 15964.

On February 4, 2022, Rasmussen submitted a detailed processing, construction, and hillside stabilization schedule. AR 15980-85. The City returned the submittal and informed Rasmussen that the baseline schedule must reflect the schedule in the contract, which was 205 days. AR 15980.

From May 2021 through March 2023, the City recorded several liens against the Property to reflect over $10 million spent by the City through December 31, 2022. AR 17705-07, 17889-90, 18375-76, 18391-92.

On June 29, 2023, Rasmussen recorded notice of the GAP’s completion. AR 16962-64.

On April 4, 2022, Center sent the City a NOD on the Development Agreement. AR 17672. The Development Agreement required the City to expeditiously process any ministerial approvals and discretionary actions and yet the City failed to do so. AR 17672-73. Center submitted application materials on June 18, 2021, but the City did not comment until June 30 and July 14. AR 17673. Center promptly responded to the Jun 30 and July 14 comments. AR 17673. When the City provided comments on September 10, 2021, Center responded with requested materials on September 21. AR 17673. Yet, the City was silent about Permit approval. AR 17673.

On October 4, 2021, Center asked about the status of the Permit. AR 17673. The City confirmed the next day that it had everything it needed, but it still did not issue the Permit. AR 17673. When the SOS case was filed, the City failed to cooperate with Center in defending the lawsuit as the Development Agreement requires. AR 17673-74. Center demanded that the City cure these defaults or it would resort to the courts. AR 17674.

After a few exchanged letters, the City responded on May 13, 2022. AR 17685. The City noted that since the Development Agreement was not in effect until August 16, 2021, nothing occurring beforehand could constitute a breach. AR 17685. The City stated that Center did not file a Permit application on June 18, 2021 because it was incomplete, and that Center did not submit a complete application until August 19, 2021, and only after the City Attorney emailed Center on August 9 and 10, 2021. AR 17685-86. The City alleged that Center took a long time between submissions whereas the City provided comments the next day. AR 17686. A series of back-and-forth emails followed until Center addressed all issues. AR 17686.

In addition, on August 25, 2021 the City sent a NOD for the Settlement Agreement with the opportunity to cure by August 31, 2021. AR 17686. Even after this deadline passed, the City exerted every reasonable effort for Center to obtain the Permit. AR 17686. Center did not submit the necessary paperwork until September 23, 2021, long after the cure period ended. AR 17686.

The City also cited the MPMC and the Building Code to calculate when the Permit application expired. AR 17686. If Center was correct and the application was complete on June 18, 2021, it expired on December 20, 2021. AR 17686. If the City was correct and the application was complete on September 23, 2021, it expired on March 18, 2022. AR 17686. There was no longer an active permit application, and the City cannot issue a permit without one. AR 17686.

On October 5, 2022, the City Council adopted Resolution No. 2022-R80, which identified the taking of the Property and all structures thereon as necessary to complete and maintain the GAP to protect the public health and safety. AR 18371, 18373.

On November 18, 2022, while Rasmussen worked on the GAP, the City filed an eminent domain action, City of Monterrey Park v. Center Int’l Investments, Inc. et al., (the “Eminent Domain” case), Case No. 22STCV36603, to take permanent possession of the Property. AR 20271, 20274-75.

On February 21, 2023, the court in the Eminent Domain case granted the City’s motion for an order of pre-judgment possession of the Property. AR 20302-03. The court contrasted the Property’s appraised value of $6.4 million against the City’s $8,355,236.16 liens against the Property. AR 20306. As a result of this differenct, the court concluded that the City only needed to post a $1,000 deposit with the State Treasury pursuant to CCP section 1255.410(a). AR 20303, 20308.

The court judicially notices a Department 56 minute order dated August 31, 2023 stating that the Eminent Domain case is set for trial on April 23, 2024.

Petitioner Center seeks a mandamus writ compelling the City to issue the Permit and all future Project-related entitlements, as sell as setting aside Measure JJ. The City contends that (1) the City’s disapproval of the Project, which met all objective standards, violated the HAA because it did not timely process the Permit application and make the necessary findings required by section 65589.5(j)(1), (2) the City breached the Development Agreement by not timely processing the Permit application, (3) the City violated the MPMC by not processing the Permit application for ministerial approval, and (4) Measure JJ violates the HCA, and is preempted and void, because it reduces the intensity of the residential use permitted on the Project site from 16/1-30 units per acre to 0-8 per acre.

The City responds that (1) the court in the Eminent Domain case has ordered that the City obtain possession of the Property and Center cannot show that it can obtain a grading permit for property it does not possess, (2) the City has finished abatement of the Property, rendering the Permit application moot, (3) the City cannot be compelled to issue the Permit based on an expired application, (4) Center failed to exhaust its administrative remedies, and (5) Center failed to timely file its Petition.[4]

The court need only address the City’s procedural and non-merits defenses and need not address the merits of Center’s claims.

1. The Center’s Permit Application is Not Mooted by the City’s Completion of the GAP

The City argues that Center’s Permit application is mooted by the City’s completion of the GAP to stabilize the hillside. Opp. at 15-16.

Center’s Permit application was based on grading and construction plans for the unimproved Property. AR 290–98. Center submitted plans, schedules, certifications, calculations, site analysis, and management practices specific to the conditions of the Project site as it was in August 2021 in support of constructing retaining walls and other features to permanently stabilize the hillside. AR 308.

On October 13, 2021, the City issued a NOD on the Settlement Agreement and the City exercised its contractual right to assume control over completion of Plan B. AR 17658, 17661. On December 17, 2021, the City entered a maintenance agreement with Rasmussen, subsequently entered into a contract with Rasmussen to permanently remediate the Property at a cost not to exceed $12 million and issued a Notice to Proceed to Rasmussen on January 21, 2022 to begin the GAP. AR 19982, 19125-26. From May 2021 through March 2023, the City recorded several liens against the Property to reflect over $10 million it spent on the GAP. AR 17705-07, 17889-90, 18375-76, 18391-92. On June 29, 2023, Rasmussen recorded Notice of the GAP’s completion. AR 16962-64.

The City argues that, now that the GAP is complete, the Permit application’s plans, schedules, and other elements are irrelevant to the Property’s current condition. Center’s FAP, filed in August 2022, acknowledges that the City’s construction was resulting in “ongoing physical change to the Site.” FAP, ¶¶ 2, 3. Any grading permit application must be substantially, if not completely, submitted anew to account for the change of conditions at the site and Center will again have to comply with the technical requirements for the new grading permit. Center’s mandamus claim cannot be granted under these circumstances. Opp. at 15-16.

Center replies that “[t]he pivotal question in determining if a case is moot is…whether the court can grant the plaintiff any effectual relief.” Ruegg & Ellsworth v. City of Berkeley, (2023) 89 Cal.App.5th 258, 271 (citation omitted). The City’s completion of slope stabilization does not moot Center’s the requested mandamus requiring the City to grant the Permit because the Permit application does not exclusively relate to remediation of the slopes on the Property. The Permit is for both slope stabilization and Center’s planned construction of single-family homes. AR 16972-88. Despite the City’s assertion that it has remediated the slope, the Permit would provide Center the ability to grade the Property for the planned housing construction. Reply at 8-9.

Center adds that the relief for the first cause of action’s claim for violation of the HAA can include more relief than granting the Permit. “[T]he HAA authorizes a trial court that finds a violation of the statute with respect to approval of a project or conditions imposed on it to compel compliance, retain jurisdiction to ensure enforcement of its orders and impose fines for noncompliance.” Ruegg & Ellsworth v. City of Berkeley, supra, 89 Cal.App.5th at 271-72. Reply at 9.

Even if Center would be required to revise its Permit application to account for the City’s slope remediation, this does not thwart the court’s ability to order the City to process and approve a revised Permit application in accordance with the HAA, MPMC and Development Agreement. The City’s argument that performance of a portion of the permitted construction moots the application would effectively mean that any change in circumstances or lapse in time that may impact an application during the pendency of a lawsuit would render it moot. The City’s argument also misunderstands the thrust of the Petition, which is that the City should have approved the Permit application when it was deemed complete, and that the City violated that HAA, the Development Agreement, and MPMC by intentionally letting the application languish. Reply at 9.

Without subscribing to Center’s arguments that the scope of relief for a violation of the HAA needs to be broad in this case and that the City’s delay in processing the Permit application violates the HAA, Development Agreement, and MPMC, the fact is that the Permit application is for both hillside stabilization and the planned construction of single-family homes. The City has completed the former but not the latter. The City makes no showing that partial completion of the grading that would be authorized by the Permit somehow negates the remaining portion. The FAP’s causes at issue are not mooted by the City’s performance of the GAP.

2. The Statute of Limitations Did Not Pass Before the First and Eight Causes of Action Were Made

The City notes that the FAP’s first (HAA violation) and eighth (HCA violation) mandamus causes of action seek relief under CCP section 1094.5. Judicial review of any decision of a local agency or of any commission, board, officer or agent thereof, may be had pursuant to CCP section 1094.5 only if the petition for writ of mandate is filed not later than the 90th day following the date on which the decision becomes final. CCP §1094.6. CCP § 1094.6 applies to final decisions issued by public officials. Farmer v. City of Inglewood, (1982) 134 Cal.App.3d 130. A writ regarding an administrative order is subject to the 90-day time limit of CCP section 1094.6. Holden v. Los Angeles City Ethics Com., (2006) 137 Cal.App.4th 1274. Opp. at 19.

The MPMC also establishes a 90-day statute of limitations for the City’s final decisions. “Notwithstanding any other provision of law, Section 1094.6 of the California Code of Civil Procedure shall apply to any decision of the city, or of any commission, board, officer or agent of the city, which is subject to review pursuant to Code of Civil Procedure Section 1094.5.” MPMC §1.16.010. See also MPMC § 3.12.030 (final decision of city council, city planning commission, or city official subject to 90-day limitation of CCP§1094.5) Opp. at 19.

The City argues that the FAP suggests that the 90-day time limit accrued no later than December 17, 2021 because the FAP alleges that “[o]n or about December 17, 2021, the City Attorney informed counsel for Center that the City would not be issuing the Permit as applied for.” FAP, ¶126. This allegation assumes that the City Attorney can render a final decision regarding a grading permit which he cannot under the Building Code. Arguably, the 90-day accrual began on October 5, 2021 when Center alleges the complete grading permit packet was submitted to the City, but no permit was issued. The City’s October 13, 2021 NOD to Center also clearly established that the Permit was not going to be issued. Regardless of which date is used, the 90-day limitations period expired before any mandamus claim was filed. Opp. at 20.

The City adds that the eighth cause of action for violation of the HCA is a new cause of action not pled in the Petition. The FAP alleged a violation of the HCA was filed on September 30, 2022, and any conceivable accrual of this cause of action also has long since passed. Accordingly, the mandamus claims are time-barred pursuant to CCP section 1094.6(b). Opp. at 20.[5]

The City is incorrect. The 90-day statute of limitations identified in CCP section 1094.6 is for administrative mandamus for local agency decisions reviewed under CCP section 1094.5. CCP §1094.6(a). To be reviewable under CCP section 1094.5, an agency’s action must be an exercise of an adjudicatory or quasi-judicial function. The order or decision must be final after a hearing required by law at which evidence is required to be taken, and discretion is vested in the decision-maker. CCP §1094.5(a). Such a decision requires that the agency determine the facts in relation to specific property rights or interests in an adjudicative fashion, and that it apply existing law, rules, or policy to the facts. Cal. Administrative Mandamus §§1.1–1.4 (3d ed Cal CEB); see Horn v. County of Ventura, (1979) 24 Cal.3d 605, 613.

The FAP’s first and eighth causes of action seek review for both traditional and administrative mandamus. Agency decisions under the HAA are reviewed as administrative mandamus. §65589.5(m). This is true whether or not there was a hearing required by law. Therefore, the first cause of action is governed by the 90-day limitation period of CCP section 1094.6.

The City argues that the 90-day period accrued either on October 5, 2021, when the complete Permit packet was submitted and no Permit was issued, or with the October 13, 2021 NOD. Opp. at 20. Center argues that the 90-day period began when the Permit application expired, which was the final action on a housing development project. See §65589.5(m). Pet. Op. Br. at 14.

None of these dates matter. CCP section 1094.6 states that where the agency is required to issue a written decision or findings, it is not final until mailed by first class mail, including a certificate of mailing, to the party seeking the writ. CCP §1094.6(b). The City has not shown that it mailed any findings required by section 65589.5(j)(1) for denial of a housing development project complies with applicable objective general plan, zoning, and subdivision standards. Additionally, the local agency shall provide notice that judicial review must be sought within the 90-day period. CCP §1094.6(f). The City has not provided Center with written notice of the 90-period to file for judicial review. Therefore, the 90-day clock never started for the first cause of action (violation of the HAA) before the Petition was filed.

The HCA does not provide for a particular form of mandamus review. If a petition seeks review of a quasi-legislative action, such as the adoption of regulations, it is properly viewed as a petition for traditional mandamus. Del Mar Terrace Conservancy, Inc. v City Council, (1992) 10 Cal.App.4th 712, 725. Center is alleging that the voters’ adoption of Measure JJ, and the City’s subsequent enactment, violated the HCA. This is an as-applied challenge to Measure JJ. The adoption of it was quasi-legislative in nature and includes the “formulation of a rule to be applied in all future cases.” S. Cal. Cement Masons Joint Apprenticeship Committee v. Cal. Apprenticeship Council, (2013) 213 Cal.App.4th 1531, 1541. Therefore, traditional mandamus applies to the eighth cause of action.

The three- or four-year catch-all statute of limitations in CCP section 338(a) applies to traditional mandamus unless a more specific statute applies. See Conti v. Bd. of Civil Serv. Comm’rs, (1969) 1 Cal.3d 351, 357, n. 3. The HCA does not contain a statute of limitations and CCP section 338 applies. The City’s electorate approved Measure JJ on November 3, 2020. Even under the shorter three-year limitation period in CCP section 338(a), the FAP’s HCA claim, filed on August 31, 2022, is timely.

The City notes that Center alleges that its Permit application was complete on October 5, 2021. “An application for a permit for any proposed work is deemed expired 180 days after the completion of any submittal review unless a permit has been issued.” Building Code §105.3.2. Based upon the FAP’s allegations, Center’s Permit application expired 180 days from the October 5, 2021 date the application was complete, which was April 3, 2022. Center acknowledges this timing in both its opening brief and the FAP. Pet. Op. Br. at 14, n. 15; FAP, ¶207. Opp. at 16.

The City has no legal authority to issue a permit without an active application. [M]andate does not lie when the respondent no longer has the legal authority to discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has expired.” California Assn. for Health Services at Home v. State Dept. of Health Services, (2007) 148 Cal. App. 4th 696, 709 (court could provide retroactive relief of raising historical Medi-Cal reimbursement rates). With no active Permit application, the court cannot mandate the City to do something which it has no authority to do. Opp. at 16.

Center does not directly respond to this contention. It agrees that “[a]n application for a permit for any proposed work is deemed expired 180 days after the completion of any submittal review unless a permit has been issued.” MPMC §105.3.2. The City did not inform Center until May 16, 2022 that the Permit application had expired as of March 18, 2022 – 180 days after the most recent resubmission of the application. AR 17686. Center contends that the City’s March 18, 2022 date is incorrect. Per MPMC section 105.3.2, if the Permit application legally expired, it did so on April 4, 2022 because the expiration period is calculated from the October 5, 2021 date the application was deemed complete. Pet. Op. Br. at 14.

Center concludes that, since the Permit application expired on April 4, 2022, it was required to bring this action within 90 days of the expiration date – the final action on a housing development project. §65589.5(m). The Petition, including allegations related to HAA violations, was filed on May 3, 2022, within 30 days of the April 4, 2022 date on which the Permit application expired and well within the statute of limitations. Pet. Op. Br. at 14.

The City fails to explain why Center should be foreclosed from seeking mandamus to compel the City to issue the Permit simply because the Permit application expired. Center seeks to compel the City to perform an act which Center contends the City should have performed within the 180 period of MPMC section 105.3.2. The April 4, 2022 expiration of the Permit application affects the City’s authority to act but does not affect Center’s right to seek mandamus to compel the City to issue the Permit based on its failure to do so. The only limitation on the Center’s ability to obtain relief is the statute of limitations, which did even accrue for administrative mandamus and therefore has not passed.

The City argues that Center failed to appeal the denial of its Permit application. A writ of mandate will only issue when the petitioner has no plain, speedy, or adequate remedy at law. CCP §1086. As a general rule, a court will not issue a writ of mandate unless a petitioner has first exhausted its available administrative remedies. See, e.g., Alta Loma School Dist. v. San Bernardino County Com. On School Dist. Reorganization, (1981) 124 Cal.App.3d 542, 554. Under this rule, an administrative remedy is exhausted only upon termination of all available, non-duplicative administrative review procedures. Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., (2005) 35 Cal.4th 1072, 1080.

The exhaustion doctrine has been described as “a jurisdictional prerequisite to resort to the courts.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 293. The exhaustion doctrine contemplates that the real issues in controversy be presented to the administrative body, which must be given the opportunity to apply its special expertise to correct any errors and reach a final decision, thereby saving the already overworked courts from intervening into an administrative dispute unless absolutely necessary. Farmers Ins. Exchange v. Superior Court, (1992) 2 Cal.4th377, 391.

There are exceptions to the exhaustion doctrine; exhaustion is excused when an administrative remedy is unavailable, is inadequate, or it would be futile to pursue it. McAllister v. County of Monterrey, (2007) 147 Cal.App.4th. 253, 275. Other exceptions include "situations where the agency indulges in unreasonable delay...when the subject matter lies outside the administrative agency's jurisdiction, [or] when pursuit of an administrative remedy would result in irreparable harm...." Ibid; Green v. City of Oceanside, (1987) 194 Cal.App.3d 212, 222.

The City argues that Building Code section 105.3.2 provides an exclusive administrative remedy for denial of any building permit, including a grading permit. An appeal from denial of a building permit must be made to the City’s Planning Commission, acting as the Construction Appeals Board, within 20 days of the denial. MPMC §16.01.040. The FAP fails to allege compliance with Building Code section 105.3.2. Opp. at 17.

The City notes that Center’s moving papers argue that it did not fail to exhaust its administrative appeal remedy because “the City never provided Center with a final determination or formal notice of its unilateral determination not to process the Permit application.” Pet. Op. Br at 13. Center ignores the City’s October 13, 2021 NOD wherein Center was informed as follows: “Because of Center’s default, the City is assuming control over completing Plan B in accordance with the Settlement Agreement. Center is to take no further action regarding Plan B.” AR 17660-61. Because Center’s Permit application was based on the same Plan B hillside abatement taken over by the City, the Permit had not been issued to Center, and the City directed Center to take no further action regarding the hillside stabilization, the NOD amounted to a final determination that the City was not going to process the Permit application. Center had no reasonable basis to think otherwise. The NOD was a final determination and formal notice to Center that the Permit would not be issued and therefore was denied.[6] Center does not dispute that it failed to appeal that decision. Opp. at 17-18.

Center replies that the City wrongly relies on the October 13, 2021 NOD as its final determination on the Permit application such that it would qualify as the “rendering of the decision” required by MPMC section 1.10.020 for appeal, or as “orders, decisions or determinations made by the Building Official” from which to appeal as provided by MPMC section 113.1. The NOD was issued for a breach of the Settlement Agreement, and merely alleges that Center was required to obtain the Permit by August 1, 2021 and did not submit a complete Permit application until September 23, 2021. AR 17660. Reply at 10.

The City suggests that Center should have inferred from the NOD, coupled with the facts that the Permit had not been issued and that the City was taking over hillside stabilization, that the Permit application had been rejected. Yet, this the type of inferential step that was rejected in Martino v. Concord Community Hosp. Dist., (1965) 233 Cal.App.2d 51, 56, where the court determined that the administrative hearing procedure provided for in the defendant’s bylaws was not available to the doctor because the doctor’s application for staff privileges was “deferred” rather than being “rejected or denied.” Similarly, in Farmer v. City of Inglewood, (“Farmer”) (1982) 134 Cal.App.3d 130, 137-38, the court determined administrative remedies were not available because “the notice of final action only made reference to charges rather than the requisite grounds” such that the triggering “prerequisite to starting the time period within which to request an appeal never was satisfied.” Pet. Op. Br. at 13; Reply at 10-11.

In fact, this inferential step is contradicted by the City’s position that the Permit application expired. AR 17686. For a permit application to expire, there must be an active application on file. If the NOD was intended to be a final determination on the Permit application, the application would be considered denied and there would be no open application to expire. However, the administrative record and the City’s opposition show that the City believes the Permit application expired on March 18, 2022. AR 17686. Application expiration and denial are mutually exclusive. Reply at 11.[7]

The court agrees. To compel Center to exhaust its administrative remedies through an appeal, the City must provide clear notice of denial. While it may seem obvious that the City intended to deny the Permit from the fact that it was taking over the Property to perform the GAP, Center was entitled to a clear statement of the denial in order to trigger the appeal deadlines. Additionally, as discussed ante, the City’s performance of the GAP does not moot Center’s rights to the rest of the grading sought in the Permit application. The City’s failure to expressly and directly inform Center that its Permit application had been denied is an insufficient communication to trigger an administrative appeal. See Farmer, supra, 134 Cal.App.3d at 137-38.[8]

As such, there was no administrative remedy available for Center to pursue, and its claims are not barred by the doctrine of exhaustion of administrative remedies.

5. The City has Court-Ordered Possession of the Property from the Eminent Domain Case and the Mandamus Claims Should Be Stayed

Although Center disputes its default under the Settlement Agreement, it does not dispute that the City now possesses the Property based on a court ruling. On February 21, 2023, the court in the Eminent Domain case granted the City’s motion for an order of pre-judgment possession of the Property. AR 20302-03. Trial of the Eminent Domain case is set for April 23, 2024.

Although there is a pre-judgment ruling giving the City possession of the Property, Center is contesting both the City’s right to eminent domain and the proper amount of compensation. The City recognizes that it is technically possible that the Eminent Domain court could reverse its decision on the City’s exercise of its eminent domain power for the Property and argues that such reversals are rare and there is no good reason to believe it will happen. The City contends that determining the fair market value of the Property is realistically the only remaining issue. Opp. at 14.

The court essentially agrees, particularly because the City may well not owe Center any substantial amount of compensation. In its pre-trial ruling, the Eminent Domain court contrasted the Property’s appraised value of $6.4 million against the City’s $8,355,236.16 in liens against the Property. AR 20306. The court concluded that the City only needed to post a $1,000 deposit with the State Treasury pursuant to CCP section 1255.410(a). AR 20303, 20308. The court’s conclusion that Center is likely to recover little compensation makes completion of the City’s exercise of eminent domain more likely.

As the City argues (Opp. at 15), completion of the Eminent Domain case directly impacts any issuance of the Permit. The City will own the Property and Center will have no right or need for a permit to grade Property it does not own. Nor could the court issue a mandate for the City to issue a grading (or any other building) permit. The FAP causes at issue will be mooted.

Center replies that the City is asking the court to allow the City to profit from its wrongdoing in failing to process and approve Center’s Permit application. Civil Code §3517 (“No one can take advantage of his own wrong.”). The City’s argument about pre-judgment possession fails to acknowledge that it cannot equitably rely on mootness to avoid the consequences of failing to abide by statutory and contractual mandates. Reply at 8.

This argument is a non-sequitur. The court has made no assessment of the merits of Center’s claims, but if, arguendo, the City violated its statutory and contractual duties by delaying issuance of the Permit, that has nothing to do with the City’s right to condemn the Property through eminent domain. Eminent domain serves a public purpose which has nothing to do with development permits.

Center also argues that, while the City has pre-judgment possession of the Property pursuant to CCP section 1255.410, there is no final judgment in the Eminent Domain case and the court’s pre-judgment’s decision is subject to reversal. The Legislative Committee Comments to CCP section 1255.410 expressly provide that “it should be noted that the determination of the plaintiff’s right to take the property by eminent domain is preliminary only. The granting of an order for possession does not prejudice the defendant’s right to demur to the complaint or to contest the taking.” The Eminent Domain Law, (Dec. 1975) 13 Cal. Law Revision Com. Rep. (1976) pp. 1001–12. Given that this prejudgment possession is preliminary only, it does not moot Center’s mandamus claims. Reply at 8.

The mandamus claims (first, six, seventh, and eighth causes of action) are ordered stayed pending judgment or dismissal of the Eminent Domain case. If the City does not obtain ownership of the Property, the parties will be limited to the undecided claims on the merits when the stay is lifted. The court will discuss with the parties whether, in the interim, the court should lift the stay on the second through fifth causes of action and transfer them to Dept. 1 for reassignment to an I/C court.

[1] Both parties violated the court’s order on oversized briefs. The court’s September 15, 2022 trial setting order required 15/15/10 page limits. On June 16, 2023, the parties stipulated to oversize page limits of 25/20/15. Center actually filed a 26-page opening brief and a 15-page reply, and the City filed a 28-page opposition. Additionally, the footnotes in both parties’ briefs are smaller than the 12-point type required by CRC 2.104. The court has exercised its discretion to read and consider only the first 25 pages of Center’s opening brief, the first 20 pages of the City’s opposition, and none of either party’s footnotes.

[2] Center requests judicial notice of (1) the State Legislative Analyst Office’s Considering Changes to Streamline Local Housing Approvals, (May 2016) (Pet. RJN Ex. A); (2) the State Legislative Analyst Office’s California’s High Housing Costs: Causes and Consequences, (March 2015) (Pet. RJN Ex. B); (3) Resolution No. 12179, approved by the City Council on July 1, 2020 (Pet. RJN Ex. C); (4) Department of Housing and Community Development’s (“HCD”) Letter of Support and Technical Assistance to the City of Claremont, dated June 23, 2022 (Pet. RJN Ex. D); and (5) HCD’s Guidance on the HAA, dated September 2020 (Pet. RJN Ex. E). With the exception of the letter of support (Pet. RJN Ex. D), the requests are granted. Evid. Code §§ 452(b), (c). Pet. RJN Ex. D is not an official act, and the request is denied.

The City requests judicial notice of (1) sections of the Monterrey Park Municipal Code (“MPMC”) (Opp. RJN Ex. A) and (2) sections of the Building Code (Opp. RJN Ex. B). The requests are granted. Evid. Code §452(b).

[3] All future citations are to the Government Code unless specified otherwise.

[4] In the portion of the City’s opposition not considered due to page limit violation, the City contends that it was entitled to take possession of the Property to perform the GAP under the Settlement Agreement, the City has authority to abate an imminent threat to public safety pursuant to its police powers, it is immune to Center’s claims pursuant to section 8655 and 866, the HAA is inapplicable because the emergency abatement of an imminent threat takes precedence over Center’s development rights, and Center supported the LUE change from high to low density that became Measure JJ.

[5] The City does not challenge the timeliness of the FAP’s sixth and seventh causes of action.

[6] The NOD was issued by the City Manager, who can step into the shoes of Building Official by virtue of the authority to, “control, order and give directions to all heads of departments, subordinate officers and employees of the city,” and “exercise control over all departments of the city government and over all appointive officers and employees thereof.” MPMC § 2.08.070(2), (4).

[7] Center also notes that a local agency disapproves a housing development project when it votes on a housing development project application, including any required land use approvals or entitlements necessary for the issuance of a building permit, and disapproves it. §65589.5(h)(6)(A). None of these three instances of denial occurred for the Permit application prior to (or even after) the Notice of Default. Reply at 11.

[8] Center’s contention that any appeal would be futile is insufficiently supported. Pet. Op. Br. at 14.