Judge James C. Chalfant, Case Number: 22STCP02053, Date: 2023-09-05 Tentative Ruling

Petitioner Robert Nolan (“Nolan”) seeks writ of mandate to compel Respondent City of Los Angeles (“City”) to set aside the decision of the West Los Angeles Area Planning Commission (“APC”) on the appeal of Real Party-in-Interest Rao Boppana (“Boppana”).

The court has read and considered the moving papers, oppositions of the Respondents and Boppana, and consolidated reply, and renders the following decision.

Petitioner Nolan commenced this proceeding on May 31, 2022 against Respondents City and Department of City Planning (“Planning”), alleging a cause of action for administrative mandate, declaratory relief, and injunctive relief.[1] The verified Petition alleges in pertinent part as follows.

Nolan and Boppana are neighbors in Playa Del Rey, California. Nolan’s property (“Nolan Property”) fronts Berger Avenue and is adjacent to Veragua Walk, an abandoned walkway. Nolan built his home in 1989.

In 2002-03, Shore Cliff Park was constructed next to the Nolan Property. With the increase in pedestrian traffic, Nolan purchased an adjoining vacant lot and constructed a perimeter fence (“Nolan Fence”) based on the existing six to seven-foot construction fence.

Nolan erected a wrought iron fence along the perimeter of the Nolan Property. He updated the fence in 2008 when he added a permitted swimming pool. Some parts of the Nolan Fence extend out of the Nolan Property and onto the public right-of-way.

On December 1, 2015, the City’s Bureau of Engineering granted Nolan’s request to allow the encroachment in the public right-of-way of both Berger Avenue and Veragua Walk and issued Revocable Permit (“R-Permit”) No. R-1585-0032 (“2015 Permit”) to that effect. The 2015 Permit also allowed various existing landscaping along both roads. The encroachments were consistent and compatible with other similar structures and features the City has permitted in the neighborhood.

In May 2016, Boppana filed a lawsuit to invalidate the 2015 Permit because no associated Planning action allowed the over-height Nolan Fence. Although the superior court upheld the 2015 Permit, the appellate court reversed this decision in March 2019 and directed the Bureau of Engineering to revoke the 2015 Permit unless Planning issued approval for the over-height Nolan Fence.

Boppana has his own R-Permit for a fence in the public right-of-way on Veragua Walk.

On October 25, 2019, Nolan applied to Planning for a R-Permit for the continued use of the Nolan Fence and improvements. After a hearing, the Zoning Administrator (“ZA”) issued a determination that permitted the continued use and maintenance of the fence, gates, and attendant structures within the front yard setback and public right-of-way along Berger Avenue.

Boppana appealed the ZA decision. The APC heard the appeal on February 2, 2022. Nolan submitted various letters of support for the Nolan Fence from neighbors. The APC granted the appeal in a March 3, 2022 Letter of Determination (“LOD”). The LOD findings were capricious, conclusory, and based on a personal difference of opinion with the ZA rather than independent, specific facts.

The City has not proceeded in the manner required by law and has issued an LOD that is not supported by substantial evidence. Nolan seeks a writ of administrative mandamus to compel the City to vacate and set aside the LOD, and a preliminary and permanent injunction enjoining the City from taking any code enforcement action against the Nolan Fence. Nolan also seeks attorney’s fees and costs.

On June 1, 2022, Nolan served the City, Planning, and Boppana with the Petition and Summons.

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

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

“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (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 hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 51415.¿ Implicit in 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.¿¿

A ZA as the initial decisionmaker, or the APC as an appellate body, can permit fences up to eight feet high in the required front yard, side yard, or rear yard of any lot. RJN Ex. 4 (LAMC §12.24.X.7(a)).

The decisionmaker shall not grant this permit without finding that (1) the increased fence will enhance the built environment in the surrounding neighborhood, or will perform a function or provide a service that is essential or beneficial to the community, city, or region; (2) its location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety; and (3) it substantially conforms with the purpose, intent and provisions of the General Plan, applicable community plan, and applicable specific plan. LAMC §12.24(E).

The decisionmaker also must consider the environmental effects and appropriateness of materials, design and location of any proposed fence or wall, including any detrimental effects on the view which may be enjoyed by the occupants of adjoining properties, and security to the subject property which the fence or wall would provide. LAMC §12.24.X.7(c).

If someone is aggrieved by a ZA’s initial decision as to any application for a conditional use approval, that person may appeal the ZA’s decision to the APC. LAMC §12.24.I.2. An APC consists of five private citizens who largely serve as appeals boards for actions taken by the ZA on such matters as conditional uses and variances. RJN Ex. 1 (LAMC Chapter 1). The appeal shall set forth the points at issue, the reasons for the appeal, and the basis upon which the appellant claims there was an error or abuse of discretion. LAMC §12.24.I.2. Based on the record, the APC shall then decide whether the initial decision-maker erred or abused his or her discretion. LAMC §12.24.I.3.

No City department or employee shall issue any permit pertaining to the use of land or buildings unless the application for the permit has been approved by the Department of Building and Safety (“DBS”) as to conformance of said use with LAMC Chapter 1. RJN Ex. 5 (LAMC §12.26.2). Any permit or certificate of occupancy, issued in conflict with the provisions thereof shall be null and void. Id.

"Where the City Engineer finds that a building, structure or improvement maintained or proposed to be constructed within a public street will not interfere with the maintenance or use of the street, and is not intended for use by the public, the Bureau of Engineering may issue one or more permits for the maintenance or proposed construction of such building, structure or improvement, or for an excavation in connection with such maintenance or construction."

“Notwithstanding any other provisions of this Code or any other ordinance of the City of Los Angeles, no permit or license shall be issued in violation of any provisions of this Code or any other ordinance of the City of Los Angeles; if any permit or license is issued in violation of any provision of this Code or any other ordinance of the City of Los Angeles the same shall be void. Any permit or license issued, which purports to authorize the doing of any act prohibited by any other provision of this Code or any other ordinance of the City of Los Angeles, shall be void.”

Nolan has owned the Nolan Property since the mid-1980s. AR 1306. He built his home in 1989 and currently resides there. AR 1306.

In 2002-03, the City installed a construction fence between six and seven feet high to keep people out of a construction zone for the grading and construction of Shore Cliff Park. AR 1306. In 2003, Nolan bought the lot next to his home and built the Nolan Fence, a permanent wrought iron fence with a height between five and six feet, a driveway gate, and planted vegetation, in roughly the same location as the City’s construction fence. AR 1306. Nolan updated this fence in 2008. AR 1306.

In June 2012, one of Nolan’s neighbors called DBS to ask whether it would confront Nolan about his over-height fence in the front yard. AR 1768. DBS responded that it would address the issue in future inspections. AR 1768.

In November 2012, the complainant visited DBS offices to inquire about the matter. AR 1769. A representative told him that DBS met with Nolan about an unacceptable soils report. AR 1769. When the complainant asked about the construction of the unauthorized retaining walls and the over-height Nolan Fence, the representative said it would be handled. AR 1769.

On April 19, 2013, Boppana obtained a R-Permit from the Bureau of Engineering that allowed for encroachment by four juniper trees, a four-foot wide fence and a 2.5 foot high retaining wall and miscellaneous landscaping into the ten-foot wide Veragua Walk next to the Boppana Property. AR 192.

On December 1, 2015, the Bureau of Engineering issued a R-Permit to Nolan for several encroachments onto the public right-of-way from the Nolan Property. AR 186. Along Berger Avenue, the encroachments were for (1) a 16-foot high, 14-foot wide wooden sliding gate, (2) seven six-foot high pillars, (3) 535 square feet of stamped concrete; (4) 57 feet of 5.5-feet high wrought-iron fence, (5) a four-foot wide, eight-foot tall wooden entry gate, and (6) a 28-foot long, six-foot high wooden sliding gate. AR 186. Along Veragua Walk, the encroachments were for (1) a concrete wall whose height varied between one and seven feet, (2) a chain-link fence whose height varied between three and five feet, (3) a 24-inch high planter box, (4) a set of concrete steps with three risers for a total height of seven inches, two treads that were 11 inches wide, a five-foot by six-foot concrete landing, and a handrail, and (5) a set of concrete steps with a handrail plus six risers and five treads with the same height and width as the other concrete steps. AR 186. There was also a variety of landscaping along both rights-of-way. AR 186.

On the same day, Boppana filed a petition for writ of mandate Boppana I to contest the 2015 Permit. AR 1307. Boppana argued that the City should not have issued the R-Permit before it required Nolan’s improvements to comply with the Building Code, Zoning Plan, Specific Plan, and applicable City Codes. AR 417-18.

This court denied the Boppana I petition. AR 418, 1307. Boppana appealed the decision. AR 418, 1307. On March 19, 2019, the Second Appellate District reversed and remanded that decision in Boppana I. AR 414, 416. The appellate court noted that Nolan built the Nolan Fence to protect his family in 2006. AR 416. He did not apply for a R-Permit from the Bureau of Engineering until 2015. AR 417. LAMC section 12.26.A.2 provides that no permit for use of land or buildings shall be issued unless DBS approves the application as in conformance with the Zoning Plan and the rest of Chapter 1 of the LAMC. AR 1192-1193. LAMC section 11.02 also voids any permit or license issued in violation of any LAMC provision or City ordinance. AR 1193.

The appellate court held that City laws governing land use also apply to buildings, structures, or improvements constructed or maintained in the public right-of-way. AR 421. The Bureau of Engineering had a mandatory and ministerial duty under LAMC section 62.118.2 to apply the Building Code, the Zoning Code, and the Specific Plan to the Nolan Fence. AR 1208. The appellate court remanded the case with instructions for this court to issue a writ of mandate compelling the City to revoke the 2015 Permit. AR 436.

Pursuant to this direction, this court issued a writ of mandate compelling the City to revoke the 2015 Permit. AR 94-95. On October 8, 2019, the Bureau of Engineering notified Nolan notice that it had revoked the 2015 Permit. AR 96.

On October 17, 2019, Nolan’s agent Randall Akers (“Akers”) sent the City several materials for case clearance for the Nolan Property. AR 823, 1313. This included an “approved Revocable Permit.” AR 823.

On October 21, 2019, Nolan filed a Geographic Project Planning Referral for the Nolan Fence. AR 2. It described the Nolan Fence as extending into the public right-of-way, with a height of eight feet instead of the 42 inches allowed by applicable codes. AR 2.

On October 25, 2019, Nolan filed a Planning application for the Nolan Fence. AR 4. The application explained that the Project sought to increase the allowable height of his fence to eight feet and to obtain permission to extend the Nolan Fence into the public right-of-way. AR 4. The application said that the Bureau of Engineering had previously issued a R-Permit for the Nolan Fence. AR 4. The requested action was for the City to “allow the continued use and maintenance” of the Nolan Fence in lieu of the 3½ feet allowed by code. AR 5.

The Planning application form asked about previous or pending cases for the Nolan Property, and Nolan responded that he had filed and withdrawn applications in 2005 and 2016. AR 6. Planning’s Plan Case Tracking System database shows that the 2005 application was for the ZA to permit a 6.5-foot fence in the front yard and a ten-foot tall wall on the side and rear yards with a five-foot pool fence on top. AR 278.

On February 24, 2020, Boppana objected to Planning about Nolan’s application. AR 803. Boppana alleged that Nolan and his representative Akers had a disturbing pattern of providing false information in his application “for a variance.” AR 803. The application represented to Planning that Nolan had a valid R-Permit for the Nolan Fence even though this was false because the R-Permit had been revoked. AR 804. Nolan had not applied for a R-Permit since the revocation. AR 804.

On April 9, 2020, Boppana submitted another objection discussing the effect of the Nolan Fence on Shore Cliff Park and Bluff Trail entrance. AR 125-26. The fence walls directly adjacent to the park entrance obstruct the sightline for passing vehicles which puts pedestrians at risk when they cross Berger Avenue to reach the entrance. AR 125.

Boppana attached a set of proposed findings (AR 181-83) that the Nolan Fence creates a safety hazard because it impedes sightlines within and from Berger Avenue. AR 182. Vehicles, cyclists, and pedestrians on Berger Avenue cannot see a vehicle exiting a driveway. AR 182. The operator of the exiting vehicle cannot see such vehicles, cyclists, and pedestrians as they pass. AR 182. This blind spot also affects the entrance to Shore Cliff Park and the Bluffs Trail, where pedestrian or bicycle travel occurs. AR 182. Another proposed finding addressed Nolan’s privacy and security and stated that Nolan failed to show that a code-compliant, 42-inch fence with walls, gates, and plants could not provide adequate and commensurate security. AR 183.

Between June and July 2021, Nolan submitted identical form letters of consent from five neighbors asked Planning and the ZA to approve the Nolan Fence. AR 494, 497, 500, 503, 507.

Between July and August 2021, Boppana submitted nine identical form objection letters from neighbors. AR 990-98. The form letters asserted that the Nolan Fence had no construction permits and would create hazardous conditions. AR 990. It blocks the sightline of members of the public who step onto Berger Avenue from the adjacent park. AR 990. It removes the pedestrian escape path in front of the Nolan Property. AR 990. Drivers who drive northwest on Berger Avenue cannot see Boppana’s driveway. AR 990. Drivers who go either direction can no longer see the Nolan Property’s driveway or any cars that back out of it. AR 990. Because the Nolan Fence’s gate is so close to the street, it compels vehicles to wait on the street as it opens and cause stoppage. AR 990. The form objection letters also asserted that a tall fence in a front yard that extend into a public right-of-way is inconsistent with the neighborhood and the Coastal Bluffs Specific Plan subarea. AR 990.

Boppana submitted another objection letter to the ZA on August 6, 2021. AR 1017. He asserted that Nolan is a successful real estate investor and developer who is familiar with the LAMC requirements and City workings. AR 1017. He knew that he needed a variance to build the Nolan Fence. AR 1016. He applied for one in 2005 but then withdrew it and built the tall fence anyway. AR 1016. This was not even the first time that Nolan built on the Nolan Property without permits. AR 1016. After he obtained the Nolan Property in 2003, he built the tall retaining wall on property that he did not own and built a recreation building with a roof patio and a fourth floor to his house without permits. AR 1016. Only recently has he obtained after-the-fact permits for some of the work and demolished some of the other unlawful construction, and only because of enforcement actions by City officials. AR 1016.

On August 11, 2021, Nolan submitted a letter asking the ZA asking to grant the application. AR 1166. Nolan explained that he obtained the 2015 Permit from the Bureau of Engineering, and Boppana appealed its issuance to the City. AR 1166. When the City denied the appeal, Boppana sued the City and Nolan. AR 1166-67. The superior court denied Boppana’s petition and he appealed. AR 1167. The appellate court granted the appeal on the narrow basis that the City should have required Nolan to undergo a Planning and Zoning hearing before issuance of a R-Permit. AR 1167. Nolan has now applied for the approvals the writ of mandate requires, following the appellate court’s direction that he should apply for a Planning and Zoning determination before issuance of a second R-Permit. AR 1167.

As to the merits, Nolan asserted that every argument Boppana raised defies and contradicts the courts’ rulings. AR 1167. They are also hypocritical because Boppana argued to the appellate court that Nolan should have obtained Planning and Zoning approval before the 2015 Permit and now takes the exact opposite position. AR 1168.

Nolan obtained a valid R-Permit -- the 2015 Permit -- for the Nolan Fence in the public right-of-way. AR 1168. Although the writ of mandate revoked the 2015 Permit, Nolan will obtain a new R-Permit if the ZA approves his Planning application. AR 1168.

Nolan also responded to written questions which the ZA asked before the hearing. AR 1247-48. When asked how the Nolan Fence provides security to the Nolan Property, he explained that strangers would often walk their dogs or lounge around in his backyard before he built the wall in 2002 and improved it in 2008. AR 1248. When the Nolan Property became the gateway to the Shore Cliff Park and Bluffs Trail, he expected the number of people who do not respect his property rights to increase. AR 1248. An eight-foot tall fence would give him needed privacy and security. AR 1248.

Planning gave notice of a public hearing on Nolan’s Planning application set before the ZA on August 12, 2021. AR 32.

At the hearing, Nolan and Akers spoke in favor of the application. AR 1314. Nolan’s counsel, Ella Thompson, Esq. (“Thompson”), also spoke in favor of the application, summarizing cases and stating that she did not believe the court instructed Nolan to do anything other than obtain authorization from Planning. AR 1314. Boppana, Boppana’s wife, their counsel, Craig Sherman, Esq. (“Sherman”), and Jeffrey Anson spoke against the application. AR 1313-14.

On August 13, 2021, the day after the hearing, Boppana informed the ZA in writing that he had spoken to several of the neighbors whom Nolan had asserted support the Nolan Fence. AR 1251. Of the eleven letters of consent, ten have withdrawn their support. AR 1251. Some said that they never saw the letter of consent, which suggests that Nolan attached their signatures without permission. AR 1251-52. Others assert that they did not fully understand the letter that they then signed. AR 1253.

On November 10, 2021, the ZA issued a determination approving Nolan’s Planning application. AR 1299-323. The approval was subject to 11 conditions to ensure compatibility with the rest of the neighborhood. AR 1299-1301. One of the conditions was that Nolan must obtain a new R-Permit. AR 1301.

The ZA determination described the project as the continued use and maintenance of the Nolan Fence, consisting of the fence, a pedestrian gate, and two vehicular driveway gates within the required front yard setback in lieu of the maximum 3 and 1/2 feet permitted by LAMC section 12.21.C.1(g). AR 1299. The Nolan Fence’s maximum height varies from six feet and five inches to seven feet and 10.5 inches. AR 1299.

Nolan’s information suggests that while tropical plantings dwarf the Nolan Fence, none of these features block significant views for adjacent residents. AR 1305. Similar plantings and fences are found throughout the neighborhood and are consistent with surrounding neighborhoods. AR 1305. These landscape features soften the frontage of the Nolan Property and prevent the fortress-like qualities of solid walls alone. AR 1305. Nolan built the Nolan Fence in 2008 and he enjoyed it without complaint until Boppana’s complaint in 2016. AR 1305.

Before the Nolan Fence was erected, strangers would often walk their dogs or lounge around in Nolan’s backyard. AR 1305. Because his property is at the gateway to Shore Cliff Park and the Bluffs Trail, traffic from the general public has increased. AR 1305-06. Even before that, the area was a popular walking destination. AR 1306. Landowners needed good fencing to ensure that others respected the property lines. AR 1306. Fences and gates up to eight feet in height provide security because they discourage climbing and breaching. AR 1306.

Berger and Verugua are situated at the top of a steep bluff overlooking the Ballona Wetlands. AR 1306. Berger has a dual personality with one side having large setbacks and sidewalks and the bluff side having minimal setbacks, no sidewalks, and loots of deliberate visual obstruction between the houses and the street. AR 1306.

When the court of appeals in Boppana I directed the lower court to reverse its decision, it ordered the Bureau of Engineering to revoke the 2015 Permit unless Nolan obtained an adjustment from Planning to allow the Nolan Fence. AR 1307.

The submitted plans show that the Nolan Fence is largely within the Berger Avenue public right-of-way, with a smaller portion in the Veragua Walk public right-of-way. AR 1307. It encroaches upon the Berger Avenue public right-of-way by five feet, eight inches, which leaves another five feet, eight inches between the fence and the opposite curb. AR 1307. The space between the fence and the curb is entirely landscaped, including several varieties of palm trees. AR 139-07.

The Nolan Fence consists of 6.5-foot tall stone or masonry pilasters with decorative lamps that are seven feet and 10.5 inches tall, respectively. AR 1307. The wrought iron between the pilasters is six feet, one inch tall. AR 1307. Masonry pilasters flank two vehicular gates made of wooden slats at the driveway entrances on Berger Avenue. AR 1307. A matching pedestrian gate is between the vehicular gates. AR 1307. To the south, the Nolan Property abuts the privately owned Shore Cliff Park and the terminus for the Bluffs Trail. AR 1307.

The ZA summarized the history of permit applications for the Nolan Property. AR 1308-09. Nolan’s 2005 Planning application was for a 6.5-foot fence in the front yard and a ten-foot-tall wall on the side and rear yards with a five-foot pool fence on top. AR 1309. The Office of Zoning Administration terminated the application without prejudice for lack of required follow-up communication from Nolan. AR 319, 1309.

As for other properties within a 500-foot radius, a ZA in 1987 denied an application for a permit to build in the front yard setback when a setback of nine feet was otherwise required. AR 1309. In 2010, another ZA approved an application for a solid, stainless steel panel fence within the front yard setback over eight feet tall. AR 1309. In 1985, another ZA approved the construction, use, and maintenance of a six-foot high slumpstone wall about 90 feet long. AR 1310.

Correspondence from community members asserts that the Nolan Fence obstructs sightlines, provides the public with no path to walk outside of the roadway, and obstructs oncoming traffic’s view of the vehicles that exit the Nolan Property. AR 1311.

Boppana’s wife testified to the same. AR 1314. Sherman testified that the Nolan Fence uses public property for a private use. AR 1314. Anson added that no other properties in the area developed with something like the Nolan Fence. AR 1314. Akers testified that pedestrian traffic is higher because the Nolan Property is next to the park. AR 1313. While Sherman asserted that the Nolan Fence results in lost views, Nolan asserted that it does not. AR 1313.

After the hearing, the ZA visited the neighborhood. AR 1315. There are no fences along the western side of Berger Avenue or south side of Veragua Drive that are similar in height, span, construction, or relative location on the property as the Nolan Fence. AR 1315. On the eastern side of Berger Avenue and the northern side of Veragua Drive, the fences vary in height, span, construction, and relative location. AR 1315-16. However, only one Veragua Drive property had a fence over 3.5 feet; it has an opaque eight-foot high fence. AR 1316.

(i). The project will enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region.

The ZA found that the Nolan Fence would enhance the built environment in the surrounding neighborhood and will perform a function or provide a service that is or beneficial to the community. AR 1317, 1319. The neighborhood properties are predominantly uniform in size but varied in shape, configuration, and topography. AR 1317. Several properties have over-height hedges within the front yard setback, including some in the public right-of-way. AR 1317.

The ZA admitted that there are no fences of a height similar to the Nolan Fence in a 500-foot radius along Berger Avenue and Veragua Drive. AR 1318. The Nolan Fence is an anomaly. AR 1318. The eight-foot high fence on Veragua is 900 feet away. AR 1318. The eastern side of Berger and the northern side of Veragua generally have no fence or else fences of 3 1/12 to 4 feet and landscaping. AR 1318. A few properties have fence and landscaping improvements of greater height, but none are as visually inconsistent with the environment as the Nolan Fence. AR 1318. The Nolan Fence would not enhance the built environment in the surrounding neighborhood because it is a structure that is out of character with other front yard fences in the neighborhood. AR 1318.

A few fences in the immediate area do exceed 3.5 feet in height, up to six feet. AR 1318. The height of these fences is diminished both by setback and an open design. AR 1318. The ZA found a tenuous pattern that sold and opaque fences are acceptable at or behind the property line and fences encroaching into the right-of-way are more acceptable if they are open fence designs. AR 1318. The Nolan Fence encroaches into the public right-of-way but has a six-foot open wrought-iron design that minimizes its visibility. AR 1318. The Nolan Fence would be more representative of the pattern of development if it did not extend into the right-of-way. The ZA did not think the Nolan Fence should encroach into Berger Avenue. AR 1318. This, however, is an issue for the DPW. AR 1318.

Approval of the Nolan Fence as conditioned would bring it into greater conformance with existing fences in the immediate area but still continue the pattern that has evolved within the community of open fence design encroaching into the right-of-way. AR 1318-19. Therefore, the project will enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region. AR 1319.

(ii). The project’s location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety.

The ZA determined that the Nolan Fence’s location, size, height, operations, and other significant features would be compatible with and not adversely affect or further degrade adjacent properties or public welfare. AR 1319-21. There was disagreement in the community on this point. AR 1320. For example, Boppana stated that the Nolan Fence obstructs the view of on-coming northbound traffic along Berger Avenue, offers no opportunity for pedestrians to walk out of the roadway because it is in the public right-of-way, and enables a private use of public land. AR 1320.

The Nolan Fence is an anomaly in the immediate area, dissimilar to other fences along Berger and Veragua. No over-height fences have been approved by the ZA Office within 500 feet and in 1987 a request for a nine-foot high fence was denied. AR 1320. The only over-height fence on Veragua is 900 feet away, and it had documented safety concerns. It also is not visible from the Nolan Property. AR 1320. Along the eastern side of Berger and northern side of Veragua, there is either no fence or else fences 3 1/2 to 4 foot in height, and landscaping. The proposed Nolan Fence is incompatible with the surrounding neighborhood. AR 1320.

The ZA again relied on his finding of a tenuous pattern of development whereby fences had more open fence designs when they encroach into the public right-of-way. AR 1320. The Nolan Fence has a six-foot open wrought-iron design that minimizes its visibility and encroaches into the public right-of-way. AR 1320. With a prohibition on over-height landscaping, it would be more representative of the existing pattern of development. AR 1320-21. The ZA reiterated that the Nolan Fence should not encroach into the Berger right-of-way, but that decision is within the DPW’s purview. AR 1321.

Boppana’s argument that the Nolan Fence obstructs the view of oncoming traffic is largely because of the encroachment. AR 1321. The ZA stated that his decision only approves the Nolan Fence up to the limit of the front property line. AR 1321. He did not disagree that the fence as it exists in the right-of-way reduces visibility of ongoing traffic, but he did not determine whether it is a hazardous condition. AR 1321.

The ZA was unsympathetic to Nolan’s argument that it would compromise the functionality of his semi-circular driveway if he had to move the Nolan Fence onto his own property. AR 1321. Nolan’s 2005 Planning application predated construction of the Nolan Fence and the driveway and, if he been sufficiently responsive to avoid termination of that case, he could have more holistically resolved this issue. AR 1321.

Nevertheless, if the Nolan Fence is conditioned with regard to maximum height, appearance, and maintenance to ensure its compatibility with similar improvements in the surrounding community, it will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety. AR 1321.

(iii). The project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan.

The Nolan Fence substantially conformed to the purpose, intent, and provisions of the General Plan, the applicable community plan, and any specific plan. AR 1321-22. The special plans at issue are the Coastal Bluffs Specific Plan and the Westchester-Playa Del Rey Community Plan. AR 1322. The Coastal Bluffs Specific Plan had no relevant guidance. AR 1322. The goal of the Westchester-Playa Del Rey Community Plan is to preserve visual resources in residential areas, which includes existing scenic views from surrounding residential uses, public streets and facilities, or designated scenic view sites. AR 1322. It also emphasizes the need to protect the public views and scenic quality of the highly unique residential areas in this community, such as those located along the coast and on the Westchester Bluffs. AR 1322.

The Nolan Fence has no impact on scenic views from surrounding residential uses or public streets. AR 1322. The ZA has also conditioned the Nolan Fence to better reflect the pattern of development within the immediate community, which would preserve a more consistent feel to the community’s development. AR 1322. Therefore, the Project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan. AR 1322.

(iv). The environmental effects, appropriateness of materials, detrimental effects to adjoining properties and the security of the subject property.

The ZA found that the Nolan Fence gave consideration to the environmental effects and appropriateness of the materials, design, and location. AR 1322. This included any detrimental effects on the view enjoyed by occupants of adjoining properties or on security to the subject property. AR 1322.

The Nolan Fence has been at its current location for about 15 years. AR 1323. The Nolan Property is in a residential community and has no significant biological resources, recognized views, vistas, or viewsheds that the Nolan Fence would adversely affect. AR 1323. Meanwhile, that fence will dissuade the trespassing that Nolan testifies has occurred because of the adjacent private park. AR 1323.

The ZA approved the Project with 11 conditions of approval to ensure the Nolan Fence’s compatibility with the similar improvements in the surrounding community. AR01300-01.

On November 21, 2021, Boppana appealed the ZA’s determination. AR 42. On November 22, 2021, he asserted three grounds for appeal. AR 46. First, the ZA’s factual findings do not support his conclusions. AR 46. The decision was based on an incorrect jurisdictional conclusion that the DPW had all authority over the part of the Nolan Fence in the public right-of-way. AR 46. Second, the conditions for approval were ambiguous for the areas in City streets and rights-of-way. AR 46. Planning and Zoning laws limit setbacks, fences, and other unpermitted development. AR 46. The ZA did not apply the factual findings to all areas and structures that the Planning application encompassed. AR 46. Third, the ZA abused his discretion when he made the findings supporting the grant of the application. AR 46.

Boppana reiterated that Nolan had created a safety hazard because the Nolan Fence jut out into the City’s right-of-way. AR 47. There is no support for the ZA’s findings that the Nolan Fence would enhance the built environment in the surrounding neighborhood and provide a beneficial function or service to the community. AR 49. There is also no support for the decision to shift responsibility to the DPW for the unsafe, excessively tall, opaque, and obtrusive development at issue. AR 48.

On January 24, 2022, Nolan filed a letter in opposition to Boppana’s APC Appeal. SAR 5. Nolan asserted that Boppana is litigious, having sued Nolan and another neighbor multiple times each, including any permit Nolan has received since 1997. SAR 6. Boppana even has a pending lawsuit for monetary damages stemming from the 2015 Permit. SAR 7, n.1.

Nolan built the Nolan Fence in 2007, a few years after a park and walking path opened next to the Nolan Property. SAR 6. People were taking short cuts across the Nolan Property to get to the park, and they sometimes engaged in other dubious activity in the process. SAR 6, 11. In the 15 years since the construction of the Nolan Fence, there has not been a single pedestrian, cyclist, or automotive accident related to it. SAR 6.

Nolan has already applied for a new R-Permit. SAR 8. The City will likely issue one after the approval of the 2019 Planning application is final. SAR 8.

Nolan rejected the argument that the Nolan Fence impedes vehicular or pedestrian access. SAR 9. There is no sidewalk along the side of the Nolan Property. SAR 9. The Nolan Fence does not go past the curb, so it does not block vehicular or pedestrian access. SAR 9. Even without the Nolan Fence’s gate, there is no public access to the Nolan Property. SAR 9. Any member of the public who wants to go to the park must walk alongside and into the road to do so. SAR 9.

Multiple other homes in the area, especially on the side of Berger without sidewalks, have gates or landscaping located in the front yard. SAR 10. Nolan provided pictures of such fences and landscaping. SAR 73-83.[4] The City approved an eight-foot tall fence for one of them, and it appears that the City approved a six-foot tall fence for another. SAR 10. Boppana’s tall hedge is more of a hindrance to line of sight than anything on the Nolan Property. SAR 10.

Other pictures attached to Nolan’s January 2022 letter show that there is adequate space for parked cars next to the Nolan Fence (SAR 64), that Bopanna’s hedge and palm tree disrupt the line of sight (SAR 65-66), and that there is no line of sight on the Nolan Property (SAR 68).

On February 1, 2022, Nolan sent the APC a letter asking that it uphold the ZA determination. AR 677-78. He reiterated that the Nolan Fence existed for a decade without any complaints until Boppana moved into his home in 1997. AR 677. Nolan built a fence after a park opened next door in 2005-2006 because hikers and walkers would cross the Nolan Property to get there and let their dogs defecate on his lawn. AR 677. Nolan and Boppana live on a small street with minimal traffic, but Boppana acts like the fence is a huge hazard. AR 677.

Boppana has appealed four or five different cases about Nolan’s home. AR 678. He has appealed every decision to the Court of Appeals and has only prevailed on one. AR 678. Years ago, he filed a civil action against Nolan for nuisance and demanded millions in damages based on improvements for which Nolan had obtained the necessary permits and approvals. AR 678. Boppana’s position is that no matter how many permits or approvals Nolan obtains, he does not have the right to improve his own property. AR 6781.

One of the conditions of the ZA determination is that Nolan could not maintain the hedge at its existing height of six to seven feet. AR 678. To avoid harming the hedge, Nolan has trimmed it little by little. AR 678. He submitted pictures to show that the hedges are now almost the height permissible under the LAMC. AR 1341-46.

On February 1, 2022, Boppana responded to the Nolan January and February 2022 letters. AR 675. He noted that Nolan and he do not have the same disputes as typical neighbors. AR 675. A typical neighbor is not a wealthy real estate developer with decades of experience getting what he wants from the City. AR 675. The fact that the Nolan Fence has not caused an accident yet does not mean that it will not do so in the future. AR 2084.

Boppana submitted pictures to show that the portion of the Nolan Fence in the front yard blocks both driver sight lines and views from the Boppana Property. AR 2067. Other properties on Veragua Drive have no such fences and have an unimpeded line of sight of the street. AR 2074-80.

Boppana prepared a presentation for the APC hearing which reiterated that a code-compliant fence within the Nolan Property could resolve the trespassing issues that prompted him to construct the oversized Nolan Fence on a public right-of-way. AR 685, 699. Nolan’s opaque fence creates a walled-off fortress unlike any other property in that neighborhood. AR 689.

The ZA noted that, while fence cases are normally straightforward, this one had a long and convoluted history behind it. AR 2099-2100. The appellate court in Boppana I ordered the 2015 Permit revoked. AR 2101. It held that DPW first needed Planning to review the Nolan Fence and ensure that it is compatible with the community, general plan, and specific plan. AR 2101.

His authority as a ZA ended at the Nolan property line. AR 2101. A ZA does not have authority to permit construction on a public right-of-way. AR 2101. A ZA can instead consider a similar kind of construction that in theory ends at the property line, ask if that construction would be compatible with the surrounding community, and make a finding based on that determination. AR 2101.

This case was not easy to decide, but the ZA went to the Nolan Property and observed other construction within the vicinity. AR 2101. He saw construction that was within the traditional front yard setback, but he saw other construction in the public right-of-way. AR 2101. He could not say if the owners had permits for that construction or not. AR 2101.

The ZA observed that the Nolan Fence is significantly different than other fences within the immediate area. AR 2102. This made him wonder whether he should deny the proposal or conceive that, because there are other fences in the area, a fence of a particular height, construction, and placement would be compatible with the surrounding area. AR 2102. He chose the second option. AR 2102.

The ZA determination extensively details the difference between the Nolan Fence and other fences that he observed. AR 2128. He based his conclusions on those solid observations, as described in his determination. AR 2128-29.

Boppana’s argument is that the ZA’s determination allows the fence to remain, and that the ZA denied his responsibility to tell the DPW if a fence can exist within the public right-of-way. AR 2102. This issue again stems from the fact that a ZA’s authority ends at the property line. AR 2102. A ZA has no authority to proscribe a fence from existing within the public right-of-way. AR 2102.

He does not think that the Nolan Fence should be in the public right-of-way. AR 2102. His determination allows for reconstruction of the fence away from the public right-of-way. AR 2103. The ZA’s recommendation to Boppana is that he bring this recommendation to the DPW’s attention because it has the authority to prohibit such construction. AR 2103.

The ZA determination expressed the anomalous nature of the existing Nolan Fence. AR 2102. He imposed conditions that include the removal of a lot of the vegetation, size of the wrought iron, and the size of the pickets and the spacings in between. AR 2103-04. Those conditions were based on existing regulations for oversized fences. AR 2104. The vegetation needed to be reduced to 3.5 feet to allow for visibility through the Nolan Fence. AR 2104. This transparency is more in line with other fences in the community. AR 2104.

One motivation for Boppana’s appeal is a concern that the Nolan Fence is a safety hazard because it encroaches so far into the public right-of-way that it obstructs the view of oncoming traffic. AR 2104. The ZA only approved a fence at the front property line, not one that extends into the right-of-way. AR 2105. It is important to maintain a degree of visibility for all public rights-of-way to avoid conflict between vehicles and pedestrians in traffic. AR 2105. Although Boppana seemed to assume a visibility triangle of 15-by-20 feet, the City uses 10-by-10 feet. AR 2105. Once the Nolan Fence moves back to the property line, the visibility triangle is wide enough. AR 2105-06. This means that approval of a fence ending at the front property line is appropriate. AR 2106. The DPW will also look at a visibility triangle, among other factors, when it decides on a R-Permit. AR 2106.

Based on these considerations, the ZA recommended that the APC deny the appeal, correct a misstatement in one of the ZA’s findings, and adopt the findings with conditions of approval. AR 2106.

Commissioner Yellin confirmed that the APC was in effect voting on an approval of a fence up to the Nolan Property line. AR 2107. The ZA confirmed that this is all that his grant alone allows. AR 2107.

Commissioner Morocco asked for confirmation that Nolan built the fence in 2008 and had a permit at the time. AR 2131. The ZA replied that he could not speak on the Nolan Fence history. AR 2132. His understanding is that Nolan currently does not have a R-Permit for the Nolan Fence. AR 2132. Morocco asked about the front yard setback and the ZA explained that it is five to six feet away from the curb. AR 2133.

Morocco then asked if the ZA had heard of any police reports of activities from the adjacent park on the Nolan Property. AR 2133. He had not. AR 2134. He had asked Nolan to provide copies of any official reports, and there were no police reports among them. AR 2134. There was also no photos, documentation, or other evidence about trespassing or loitering beyond Nolan’s word. AR 2134.

Commissioner Margulies asked the ZA how the placement of the Nolan Fence on a public right-of-way is not a private taking of public property. AR 2135. The ZA reiterated that he could not speak to that because his authority ends at the property line. AR 2136. Marguiles replied that it seemed like his authority only ends there because no one expects someone to build fences on public property. AR 2136-37. Upon suggestion from another Commissioner, Marguiles asked if the ZA’s recommendation was to demolish the Nollan Fence and rebuild it at the property line. AR 2137. The ZA replied that he approved the Project as if it ends at the property line to reenforce the pattern of development that the community has accepted. AR 2137-38. Even without Planning’s discretionary action, communities build structures that signal what is acceptable amongst themselves. AR 2138. By legalizing the fence at the borderline, the ZA was endorsing it. AR 2138.

Commissioner Yellin noted that the APC’s power is limited. AR 2139. The ZA had said to the neighborhood that Nolan can build a fence along his property line. AR 2139. That was all the APC could rule on. AR 2139.

Commissioner Newhouse asked what the APC could even “hitch the wagon” onto if it granted the appeal under these circumstances. AR 2142. This was at its core a conflict between neighbors. AR 2142. It is clear that the 42-inch requirement for fences is widely violated in different neighborhoods. AR 2142. This makes it hard to find any reason to grant the appeal. AR 2142.

Commissioner Liang responded that the APC must answer whether a fence at the property line would be consistent with the neighborhood. AR 2143. Liang thought so, but that also meant that would be a different fence than the Nolan Fence is now. AR 2143.

Commissioner Marguiles said that Liang had brought up a good point. AR 2144. Even if they pushed the fence back, it is unclear why the APC should grant special permission for such a tall fence. AR 2144. If everyone had a six-foot tall fence, it would make more sense. AR 2144. It was unclear why the APC should approve something above and beyond what everyone else was doing. AR 2145.

The conversation turned to whether the APC could deny the appeal but modify the Planning application approval to limit the fence height to six feet. AR 2146-47. Commissioner Newhouse stated that they were getting into a topic with a lot of moving parts. AR 2147. Either way, this was a ten-year War of the Roses that was clearly going to continue past this appeal hearing, probably to the courts. AR 2147. That is why Newhouse wanted to focus on the basis the APC could even provide for granting the APC appeal. AR 2147-48. It is unclear whether it is worth the candle to regulate the precise height of an acceptable fence, or to attach other conditions, on something that some other body would ultimately rule on. AR 2148-49.

Commissioner Morocco said that it comes down to whether there were enough findings to say that the fence should be higher than the 42-inch entitlement under law. AR 2149-50. Morocco had been to the neighborhood and saw completely transparent wrought iron fences that were a little taller than 42 inches. AR 2150. She disagreed with the ZA’s findings. AR 2150. There is no evidence to justify either in the right-of-way or the extra height of the Nolan Fence. AR 2150. There is no substantial evidence of a safety issue or even the alleged trespassing. AR 2150-51. Morocco could not agree with the findings necessary to grant extra height. AR 2151. It would not enhance the building environment or perform a function or service that is essential or beneficial to the community. AR 2151. It was an anomaly and the proposed fence’s height and other features would not be compatible with the adjoining properties. AR 2151.

Commissioner Newhouse interpreted Commissioner Morocco’s analysis as a motion to adopt findings that would grant the APC appeal and reject Nolan’s application. AR 2152.

Morocco moved to overturn the ZA’s determination and adopt the following findings. AR 2155. The first finding was that, as proposed, the Nolan Fence would not enhance the building environment or perform a function or service that is essential or beneficial to the community. AR 2155. The fence is an anomaly because it is inconsistent with other front gates and fences. AR 2155. There is no substantial evidence that Nolan suffered any safety issues or trespassing incidents because his property was next to the park. AR 2155. Assuming arguendo that he had, a 42-inch fence could have solved them. AR 2155. This meant that the over-height fence had no community benefit. AR 2155.

The second finding was that the Nolan Fence’s size, height, operation, and other significant features would not be compatible with, and would adversely affect or degrade, adjacent properties and neighborhoods as well as public health, welfare, and safety. AR 2155. Its gates are opaque and made of wood, rather than transparent and wrought iron. AR 2155. It could impede some visual capacities for neighbors, and she did not think it was compatible with the specific plan. AR 2156.

Based on a Google street view, Commissioner Marguiles asked to add that, if the Nolan Fence became a pattern, it could have impact on views of the coast and the coastal mountains, especially as the Nolan Fence sits on the public right-of-way. AR 2156. Morocco agreed and incorporated the Commission’s recent discussion into her motion. AR 2156.

The City Attorney confirmed that the motion concluded that the ZA erred in finding that that the Project is compatible and served a benefit to the public. AR 2157. Morocco confirmed that this was right; she felt strongly that the Nolan Fence is inappropriate given the height at the property line. AR 2157-58. Marguiles seconded the motion. AR 2158. The APC then voted 4-1 to pass the motion. AR 2158-59.

On March 3, 2022, the APC issued an LOD granting Boppana’s appeal and overturning the ZA’s determination. AR 393-413. In doing so, it chose not to authorize the continued use and maintenance of the Nolan Fence. AR 393.

The Project is for continued use and maintenance of pilasters, decorative lamps, fencing, gates, and landscaping to a maximum height of eight feet. AR 395. Specifically, the Nolan Fence includes over-height 6.5-foot tall stone pilasters topped with decorative lamps (a total height of 7 feet), 6.1-foot tall wrought iron fencing spans, and steel vehicle and pedestrian gates with wooden slats that are six feet, five inches tall, as well as associated landscaping. AR 395. In front of the fence are six to eight-foot hedges. AR 395. Portions of the fence extend into Berger and Veragua public rights-of-way. AR 395. The right-of-way encroachment is about five feet, eight inches, which leaves about the same space between the fence and the curb. AR 395-96.

The APC heard testimony that largely echoed the arguments both sides made through written comments and prior testimony. AR 396. The APC questioned the location of the fence in the right-of-way and the public benefit that private use of public lands could yield. AR 396. The APC decided that the Nolan Fence is an anomaly within the community. AR 396. It is not consistent with other front yard fences and gates in the community and there is no evidence to suggest that the fence is compatible with the community. AR 396. There is no evidence that Nolan suffered security issues or trespassing due to his property’s adjacency to the park that a 42-inch tall fence would not have resolved. AR 396. Therefore, the requested height serves only Nolan’s need and provides no benefit to the community. The project will not enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region. AR 396.

In front of the Nolan Fence are hedges about six to eight feet tall. AR 397. The space between the fence and hedges and the curb is landscaped and has several palm trees. AR 397. Both Nolan and Boppana submitted signatures from surrounding property owners and residents supporting their respective positions. AR 397.

Boppana asserts that the Nolan Fence obstructs the view of northbound traffic on Berger Avenue. AR 397. He also asserts that, because the Nolan Fence is in the public right-of-way, it offers no opportunity for pedestrians to walk out of the roadway. AR 397. In any case, the location of the Nolan Fence enables a private use of public land. AR 397.

The APC Commissioners were concerned that the Nolan Fence’s position constitutes a taking of public land. AR 397. Approval of an over-height fence could be used to justify the issuance of a R-Permit that allows Nolan to maintain the fence on a public right-of-way. AR 397. The ZA therefore erred in finding that the Nolan Fence is compatible with the surrounding neighborhood and would not adversely affect adjacent properties or the surrounding neighborhood. AR 397-98.

The APC also determined that the fence’s maximum height of seven feet, 10.5 inches is inconsistent with other fences in the vicinity. AR 398. The same is true for the use of opaque gates instead of see-through ones. AR 398. The opaque gates could impair the visual capacity of the Boppanas from their driveway. AR 398. Approval of the fence could also create a precedent that could erode and diminish views of the coast and distant mountains, which would violate the Coastal Bluffs Specific Plan. AR 398. In any case, the Nolan Fence’s placement at the front property line or in the public right-of-way was not appropriate. AR 398.

The Nolan Fence’s size, height, operation, and other significant features would not be compatible with, and would adversely affect or degrade, adjacent properties and neighborhoods as well as public health, welfare and safety. AR 398.

(iii). The project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan,

The APC agreed with the ZA determination that the Nolan Fence substantially conforms to the purpose, intent, and provisions of the General Plan, the Coastal Bluffs Specific Plan, and the Westchester – Playa Del Rey Community Plan. AR 398. It would have no impact on scenic views from surrounding residential uses or public streets. AR 399. The Nolan Fence is also conditioned to better reflect the pattern of development within the immediate community to preserve a more consistent feel to the development of the residential neighborhood. AR 399.

(iv). The environmental effects, appropriateness of materials, detrimental effects to adjoining properties and the security of the subject property.

The APC considered the environmental effects and appropriateness of the materials, design, and location. AR 399. This included any detrimental effects on the view enjoyed by occupants of adjoining properties and security to the subject property. AR 399. The APC noted that the Nolan Fence has opaque gates and encroaches into adjacent public rights-of-way. AR 399. Nolan failed to provide evidence to substantiate safety or trespassing claims that a code-compliant 42-inch fence could not solve. AR 399. The fact that this fence could impede a neighbor’s view of the roadway also creates a safety hazard. AR 399-400.

Petitioner Nolan challenges the APC’s decision because (a) it is not supported by its findings, which are a post hoc rationalization and do not bridge the analytic gap between the raw evidence and the decision, and (b) its findings as not supported by substantial evidence.[5]

“A decision-maker shall not grant a conditional use or other approval specified in Subsections U, V, W, or X of this Section without finding:

1. that the project will enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region;

2. that the project’s location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety; and

3. that the project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan.”

LAMC section 12.24(x)(7)(c) also requires that consideration be given to environmental effects, appropriateness of materials, detrimental effects to adjoining properties and the security of the subject property.

If the APC properly found any of the ZA’s findings lacking, the APC’s denial must be upheld. See Desmond v. County of Contra Costa, (1993) 21 Cal.App.4th 330, 336–37.

An agency’s quasi-judicial land use decision is subject to the Topanga rule. See City of Rancho Palos Verdes v. City Council, (1976) 59 Cal.App.3d 869, 885. The APC’s decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Topanga, supra, 11 Cal.3d at 15. Less formality is required for the findings in land use cases, which are sufficient if they inform the parties and the court whether the decision is based on lawful principles. Id. at 514-16. A transcript of taped oral remarks by the decision-maker at a public hearing when rendering a decision can be considered. City of Carmel-by-the-Sea v. Board of Supervisors, “Carmel-by-the-Sea”) (1977) 71 Cal.App.3d 84, 92. The agency’s oral findings need not be stated with the precision required in judicial proceedings. Where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision, the decision should be upheld. Craik v. County of Santa Cruz, (2000) 81 Cal.App.4th 880, 884-85.

A mere recitation of statutory language, terse statements, and boilerplate findings do not contain sufficient details to bridge the analytic gap. Glendale Memorial Hospital & Health Center v. State Dept of Mental Health, (“Glendale Memorial Hospital”) (2001) 91 Cal.App.4th 129; Carmel-by-the-Sea, supra, 71 Cal.App.3d at 92. The findings must be supported by substantial evidence and bridge the analytic gap between the evidence and the final decision. Glendale Memorial Hospital, supra, 91 Cal 4th at 140. However, where the ordinance requires specific factual findings, the agency may state its findings by following the language of the ordinance which by itself may inform the parties of the analytical path. See Young v. City of Coronado, (2017) 10 Cal. App. 5th 408, 423–24.

Nolan correctly notes that administrative agency findings “are not supposed to be a post hoc rationalization for a decision already made,” and must “‘conduce the administrative body to draw legally relevant sub-conclusions supportive of [the agency’s] ultimate decision.’” Bam, Inc. v. Board of Police Comrs., (“Bam”) (1992) 7 Cal. App. 4th 1343, 1346 (citation omitted). Where an agency reviews and rejects the findings of another administrative body, “the reviewing court has to be told why that was done; so it can trace and examine the agency's mode of analysis.” Id. (citation omitted). Findings that fail to bridge the analytic gap between the evidence and the final decision are insufficient. West Chandler Blvd. Neighborhood Ass’n v City of Los Angeles, (“West Chandler”) (2011) 198 Cal. 4th 1506, 1521 (2011) (city council abused its discretion because its “conclusory findings did not show how the city council traveled from evidence to action nor indicate how the zoning administrator erred or abused her discretion”); Glendale Memorial Hospital, supra, 91 Cal 4th at 140 (terse boilerplate findings did not provide sufficient detail to bridge analytic gap between evidence presented and agency's ultimate decision). Pet. Op. Br. at 10.

According to Nolan, the ZA undertook a comprehensive investigation of the neighborhood, visited the site, and made detailed findings supported by careful analysis and concrete evidence. The ZA testified at the APC hearing that he found many fences similar to Nolan’s in the community and “detailed extensively the kind of fences and placements and situations in which those constructions exist… [his conclusions] were based on solid observations.” AR 2128. On that basis, the ZA reasonably concluded the Nolan Fence is compatible with the neighborhood. In fact, one Commissioner found the Nolan Fence “doesn’t appear to be” out of character with the neighborhood and doubted that they could make findings to “viably grant the appeal.” AR 2147. Pet. Op. Br. at 11.

Nolan argues that the APC failed to make sufficiently detailed findings why the ZA determination erred in finding the Nolan Fence compatible with the neighborhood. The hearing transcript makes clear that the APC got the process backwards. Rather than make detailed findings that explain the analysis leading to its conclusion, the APC decided on the outcome it wanted, then searched for findings to justify the result. Commissioner Waltz Morocco moved to grant the appeal on the basis she “[felt] so very strongly that this is just not appropriate.” AR 2158. Commissioner Margulies opined that “maybe this fence is an anomaly in this neck of the woods” without offering any evidentiary basis for that assertion. AR 2151. These statements do nothing to bridge the analytical gap between the evidence and ultimate decision; feelings are not findings. Pet. Op. Br. at 10-11; Reply at 6.

The APC’s discussion at the hearing, and the resulting LOD, simply recited the boilerplate language of the required findings without any citations to evidence in the record. None of the Commission majority supported their opinions with actual evidence, let alone substantial evidence. Commissioner Morocco suggested that “this fence is an anomaly in this neck of the woods and it’s not consistent with other gates and fences,” but then neglected to offer any evidentiary support for this opinion. AR 2151. She merely recited the boilerplate language of the required finding, claiming that the over-height fence has no community benefit and will not be compatible and will adversely affect or degrade adjacent properties, without citing specific data or credible observations. AR 2155. The Commissioner’s references to the fence/gate incompatible materials were purely reflective of her individual aesthetic preferences and not grounded in any objective City policies, regulations, or applicable design guidelines. The APC’s findings are nothing more than an improper “post hoc rationalization for a decision already made.” Bam, supra, 7 Cal. App. 4th 1346. Pet. Op. Br. at 11-12.

The APC’s discussion and LOD also are completely silent regarding why the ZA erred. The ZA observed no established uniformity of design for fences and gates in the neighborhood and, based on documented evidence, determined the Nolan fence and gates are compatible with other over-height and permitted structures in the area. AR 2128. Similarly, Nolan presented ample evidence showing his fence is consistent with many similar fences in the neighborhood and would not adversely impact the public or neighboring properties. Nolan’s written submission provided dozens of photographs of nearby properties with similar fences showing his landscaping did not interfere with users of the road or adjacent properties, which refuted Boppana’s allegations and supported the ZA’s findings. AR 1340-46; SAR 64-68, 73-78. At no point did the Commission address this evidence, except to concede that the Nolan fence “doesn’t appear to be” out of character with the neighborhood, so they could not make findings to “viably grant the appeal.” AR 2147. Reply at 6-7.

When pressed by the City Attorney to articulate the basis for their decision, the Commissioners were unable to provide detailed findings supported by evidence. The City Attorney attempted to fill in the blanks by suggesting that the “error resulted from the findings themselves. They were made in error by finding the project to be compatible by finding a benefit to the public.” AR 2157.[6] This is simply a perfunctory restatement of the required standard. The Commissioners did not address the ZA’s findings or explain why he erred. See West Chandler, supra, 198 Cal. 4th 1521 (2011) (reversing decision where the city did not address the evidence before the zoning administrator or explain how the zoning administrator’s decision was erroneous). Pet. Op. Br. at 12; Reply at 7.

Aside from the facts that he relies on snippets of evidence and the Commissioners discussion, and that he is incorrect that there are similar fences in the neighborhood (see post), Nolan’s argument ignores the standard for land use findings. While the APC’s decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision (Topanga, supra, 11 Cal.3d at 15), less formality is required for the findings in land use cases, which are sufficient if they inform the parties and the court whether the decision is based on lawful principles. Id. at 514-16. Moreover, where, as here, the ordinance requires specific factual findings, the agency may state its findings by following the language of the ordinance which by itself may inform the parties of the analytical path. See Young v. City of Coronado, supra, 10 Cal. App. 5th at 423–24. Finally, the agency’s oral findings need not be stated with the precision required in judicial proceedings. Where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision, the decision should be upheld if the agency found those facts which as a matter of law are essential to sustain its decision. Craik v. County of Santa Cruz, supra, 81 Cal.App.4th at 884-85.

Applying this standard, the APC’s deliberations must be coupled with the LOD’s findings and the administrative record in assessing whether the APC has bridged the analytic gap between the evidence and findings and has explained how the ZA erred and how its decision is supported by the evidence. The APC met this standard. The Commissioners were not required at the hearing to explain in detail what particular evidence they were relying upon. Nor were they obligated to make step-by-step findings at the hearing that ineluctably led to the ultimate decision in order to avoid making a post hoc rationalization. There is nothing wrong with the APC deliberating the merits of the appeal in a public meeting; in fact, it is required to do so. See Gov’t Code §54950 (“It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly”); Govt. Code §§ 54950–63.

The APC’s findings and written transcript specifically discuss how the ZA erred and there can be no realistic confusion about how the APC reached these findings. By itself, Commissioner Morocco’s motion to overturn the ZA’s determination does so. AR 2155.

Her first proposed finding was that the Nolan Fence would not enhance the building environment or perform a function or service that is essential or beneficial to the community. AR 2155. The fence is an anomaly because it was inconsistent with other front gates and fences. AR 2155. There also is no substantial evidence that Nolan suffered any safety issues or trespassing incidents because his property was next to the park. AR 2155. Assuming arguendo that he had, a 42-inch fence could have solved them. AR 2155. This meant that the over-height fence had no community benefit. AR 2155.

Her second proposed finding was that the Nolan Fence’s size, height, operation, and other significant features would not be compatible with, and would adversely affect or degrade, adjacent properties and neighborhoods as well as public health, welfare and safety. AR 2155. Its gates were opaque and made of wood, rather than transparent wrought iron. AR 2155. It could impede some visual capacities for neighbors, and she concluded that it is not compatible with the specific plan. AR 2156. By itself, this motion sufficed to meet the requirements of bridging the analytic gap and explaining how the ZA erred. See RPI Opp. at 18.

Only one of the APC’s findings need be supported by substantial evidence to uphold its decision that the ZA erred. See Desmond v. County of Contra Costa, supra, 21 Cal.App.4th at 336–37. In its review, 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.¿

Nolan contends that the City’s opposition does not address the evidence of the ZA and Nolan, nor offer a reasonable explanation why it could be disregarded by the APC. This evidence coupled, with the complete lack of evidence supporting the APC’s findings, means that the APC abused its discretion by reversing the ZA’s decision. Reply at 7.

The LOD states that the proposed project is for continued use and maintenance of pilasters, decorative lamps, fencing, gates, and landscaping to a maximum height of eight feet. AR 395. The Nolan Fence includes over-height 6.5-foot high stone pilasters topped with decorative lamps with a total height of 7 feet, 6.1-foot high wrought iron fencing spans, and steel vehicle and pedestrian gates with wooden slats that are six feet, five inches tall, as well as associated landscaping. AR 395. In front of the fence are six to eight-foot hedges. AR 395. Portions of the fence extend into Berger and Veragua public rights-of-way. AR 395. The right-of-way encroachment is about five feet, eight inches, which leaves about the same space between the fence and the curb. AR 395-96.

The APC heard testimony that largely echoed the arguments both sides had made through written comments and earlier testimony. AR 396. The APC questioned the location of the fence in the right-of-way and the public benefit that this private use of public lands could yield. AR 396. The APC decided that the Nolan Fence is an anomaly within the community. AR 396. It is not consistent with other front yard fences and gates in the community and there is no evidence to suggest that it is compatible with the community. AR 396. There also is no evidence that Nolan suffered security issues or trespassing due to his property’s adjacency to the park that a 42-inch fence would not have resolved. AR 396. Therefore, the requested height serves only Nolan’s need and provides no benefit to the community. Therefore, the Project will not enhance the built environment in the surrounding neighborhood or perform a function or provide a service that is essential or beneficial to the community, city, or region. AR 396.

Nolan contends that the only evidence cited in the LOD is Boppana’s testimony and the APC’s “concern about the location of the proposed fence within the public right-of-way…utilizing public lands for private purpose.” AR 2093. These subjective concerns are not evidence. Concerns regarding the location of the fence on public land are irrelevant to the APC’s inquiry. The ZA confirmed that his “authority [in] this case extends to the property line and no further” and the APC could “consider a similar kind of construction that would theoretically exist at the property line” AR 2101. Only the DPW can determine whether a private structure may encroach on public land, and in 2015 the Bureau of Engineering already determined that the Nolan Fence met the standards for a R-Permit. AR 186. When the APC granted the appeal due to concerns about the fence’s location on the public right-of-way, it improperly arrogated the DPW’s role and based its decision on irrelevant grounds. Pet. Op. Br. at 13; Reply at 2-3.

Not so. The evidence shows that Nolan illegally built the Nolan Fence in the public right-of-way and that the ZA erred in concluding that he could not discuss the Nolan Fence as it currently exists. The ZA was faced with the fact that Nolan built the Nolan Fence in 2006, he did not obtain an R-Permit until 2015, the Bopanna I court held that the City has a mandatory and ministerial duty to apply the Building Code, the Zoning Code, and the Specific Plan to the Nolan Fence, the court issued a writ of mandate compelling the City to revoke the 2015 Permit, and on October 8, 2019, the Bureau of Engineering notified Nolan notice that it had revoked the 2015 Permit.

Faced with the circumstance of a constructed Nolan Fence which lacks an R-Permit, the ZA concluded that his authority ended at the Nolan property line because he does not have authority to permit construction in a public right-of-way. AR 2101. The ZA observed that the Nolan Fence is significantly different than other fences within the immediate area and he did not think it should be in the public right-of-way. AR 2102. However, he had no authority to tell the DPW if a fence can exist within the public right-of-way. AR 2102. Therefore, he considered a similar kind of construction that in theory ends at the property line, asked if that construction would be compatible with the surrounding community, and made a finding based on that determination. AR 2101. In other words, his determination allowed for reconstruction of a fictional fence at the property line and away from the public right-of-way. AR 2103. He also acknowledged that it is important to maintain a degree of visibility for all public rights-of-way to avoid conflict between vehicles and pedestrians in traffic. AR 2105. Once the Nolan Fence moves back to the property line, the visibility triangle will be wide enough. AR 2105-06.

The ZA applied the Zoning requirements to the wrong fence. The Project he was considering is the existing Nolan Fence built in the public right-of-way. The ZA was required to determine whether that existing Nolan Fence will enhance the built environment in the surrounding neighborhood or will perform a function that is beneficial to the community. No one asked him to evaluate a fictional fence at the property line. He should have evaluated the benefits of the Nolan Fence where it is presently located.[8]

Even without the ZA error in evaluating the wrong project, it is clear that there is substantial evidence that the Nolan Fence provides no community benefit or enhancement of the built environment. Boppana presented evidence that vehicles, cyclists, and pedestrians on Berger Avenue cannot see a vehicle exit a driveway onto it. AR 182. The operator of the exiting vehicle cannot see such vehicles, cyclists, and pedestrians as they pass. AR 182. This blind spot also affects the entrance to Shore Cliff Park and the Bluffs Trail, where pedestrian or bicycle travel occurs. AR 182. Because the Nolan Fence’s gate is so close to the street, it compels vehicles to wait on the street as it opens and cause stoppage. AR 990. Nolan failed to show that a code-compliant, 42-inch fence with walls, gates, and plants could not provide adequate and commensurate security. AR 183.

Correspondence from community members similarly asserted that the Nolan Fence obstructs sightlines, provides the public with no path to walk outside of the roadway, and obstructs oncoming traffic’s view of the vehicles that exit the Nolan Property. AR 1311. Boppana’s wife testified to the same. AR 1314. Sherman testified that the Nolan Fence uses public property for a private use. AR 1314. Anson added that no other properties in the area developed with something like the Nolan Fence. AR 1314. Akers testified that pedestrian traffic is higher because the Nolan Property is immediately next to the park. AR 1313.

The ZA’s testimony also supports the APC’s finding. He acknowledged that it is important to maintain a degree of visibility for all public rights-of-way to avoid conflict between vehicles and pedestrians in traffic and implicitly concluded that the Nolan Fence impedes visibility where it is located. AR 2105-06.

The AZ expressly found that the existing Nolan Fence is an anomaly. AR 1318. The neighborhood properties are predominantly uniform in size but varied in shape, configuration, and topography. AR 1317. There are no fences of similar height in a 500-foot radius along Berger Avenue and Veragua Drive. AR 1318. The eight-foot fence on Veragua is 900 feet away. AR 1318. The eastern side of Berger and the northern side of Veragua generally have no fences, or fences of 3 1/12 to 4 feet, and landscaping. AR 1318. A few properties have fence and landscaping improvements of greater height, but none are as visually inconsistent with the environment as the Nolan Fence. AR 1318. The ZA concluded that the existing Nolan Fence would not enhance the built environment in the surrounding neighborhood because it is a structure that is out of character with other front yard fences in the neighborhood. AR 1318.

There also is no evidence that Nolan suffered any safety or trespassing that a code-compliant fence would not solve. AR 647, 685, 699. The over-height Fence serves only Nolan and provides no community benefit. AR 2, 4, 32, 46–54, 1305–07, 2134. Nolan replies that he provided comments and testimony that he had numerous incidents with trespassers coming onto his property before he erected the Nolan Fence. AR 677-78, 1248, 1323, SAR 5-12. Reply at 4. He ignores the fact, however, that a code-compliant fence could perform the same protective function.

Substantial evidence supports the APC’s finding that the Nolan Fence is an anomaly within the community, is not consistent with other front yard fences and gates in the community, and does not enhance the built environment.

The LOD found that in front of the Nolan Fence are hedges about six to eight feet tall. AR 397. The space between the fence and hedges and the curb is landscaped and has several palm trees. AR 397.

Boppana asserted that the Nolan Fence obstructs the view of northbound traffic on Berger Avenue. AR 397. He also asserted that because the Nolan Fence is in the public right-of-way, it offers no opportunity for pedestrians to walk out of the roadway. AR 397. In any case, the location of the Nolan Fence enables a private use of public land. AR 397.

The Commissioners were concerned that the Nolan Fence’s position constituted a taking of public land. AR 397. Approval of an over-height fence could also be used to justify the issuance of a R-Permit that allows Nolan to maintain the fence on a public right-of-way. AR 397. The ZA therefore erred in finding that the Nolan Fence is compatible with the surrounding neighborhood and would not adversely affect adjacent properties or the surrounding neighborhood. AR 397-98.

The APC also determined that the fence’s maximum height of seven feet, 10.5 inches is inconsistent with other fences in the vicinity. AR 398. The same is true for the use of opaque gates instead of see-through ones. AR 398. The opaque material could impair the visual capacity of the Boppanas from their driveway. AR 398. The approval of this fence could also create a precedent that could erode and diminish views of the coast and distant mountains, which would violate the Coastal Bluffs Specific Plan. AR 398. In any case, the Nolan Fence’s placement at the front property line or in the public right-of-way was not appropriate. AR 398. The Nolan Fence’s size, height, operation, and other significant features would not be compatible with, and would adversely affect or degrade, adjacent properties and neighborhoods as well as public health, welfare and safety. AR 398.

Nolan argues that the LOD cites no evidence supporting this finding. There are no details regarding the height and opacity of other fences in the vicinity. Although Commissioner Morocco suggested that “[m]aybe this fence is an anomaly in this neck of the woods and it’s not consistent with other gates and fences,” she neglected to offer any evidentiary support for this opinion. AR 2151. The Commissioner’s references to incompatible materials of the fence or gates were reflective of her individual aesthetic preferences and not grounded in any objective City policies, regulations, or applicable design guidelines. Pet. Op. Br. at 13.

By contrast, the ZA supported his findings about the fence’s compatibility with detailed analysis and actual evidence. The ZA observed no established uniformity of design for fences and gates in the neighborhood and determined that the Nolan Fence is compatible with other over-height and permitted structures in the area. AR 2101. There are other fences within this community not within the front yard setback and in the public rights-of-way. AR 2101. The ZA asked himself whether he should deny what has been proposed or “conceive that there are other fences within the area and that a fence of a particular height and construction and placement would be compatible with the surrounding area, and in fact that is what I found….” AR 2102. “[M]y conclusions about the consistency of the fence were not capricious. They were based on solid observations….” AR 2128. Pet. Op. Br. at 13.

Nolan argues that he similarly presented ample evidence that the Nolan Fence is consistent with many similar fences in the neighborhood and would not adversely impact the public or neighboring properties. Nolan provided dozens of photographs of nearby properties with similar fences (SAR 73-83), and photographs showing that his landscaping did not interfere with users of the road or adjacent properties (SAR 64-68). Pet. Op. Br. at 14.

According to Nolan, the City’s opposition selectively cites the evidence and “ignore[s] the overwhelming evidence showing over-height and opaque fences throughout the neighborhood. The APC even states in its findings that “[s]everal residences in the surrounding neighborhood have over height hedges within the front yard setback, including some situated in the public right-of-way.” AR 396-99. Several of these over-height fences had been approved by Planning, including one made entirely of stainless steel and is eight feet in height, and a six-foot high stone wall. See AR 1309, 1310. See also AR 661 (showing a stainless-steel fence at 7841 Veragua Drive, over six feet in height); SAR 74-83 (same). Additionally, the ZA approved the Nolan Fence with conditions of “maximum height, appearance, and maintenance to ensure its compatibility with similar improvements in the surrounding community.” AR 1321. Nolan has complied with the ZA’s conditions by trimming the hedges down to roughly 42 inches and obtaining an electrical permit. AR 1340-46; SAR 4. Pet. Op. Br. at 14-15; Reply at 3-4.

Nolan is incorrect. The undisputed evidence is that, in the ZA’s words, the Nolan Fence is an anomaly. AR 1318. The ZA explained that he visited the neighborhood (AR 1315) and there are no fences in a 500-foot radius along the western side of Berger Avenue or south side of Veragua Drive similar in height, span, construction, or relative location on the property to the Nolan Fence. AR 1315, 1318. On the eastern side of Berger Avenue and the northern side of Veragua Drive, the fences vary in height, span, construction, and relative location. AR 1315-16. Only one Veragua Drive property had a fence over 3.5 feet. That fence is an opaque eight-foot tall fence, but it is 900 feet away. AR 1316, 1318. The eastern side of Berger and the northern side of Veragua generally have no fence, or fences of 3 1/12 to 4 feet, and landscaping. AR 1318. A few properties have fence and landscaping improvements of greater height, but none were as visually inconsistent with the environment as the Nolan Fence. AR 1318.

Nolan notes that the LOD found that “[s]everal residences in the surrounding neighborhood have over height hedges within the front yard setback, including some situated in the public right-of-way.” Reply at 10. True, but these are hedges, which can be cut back, not fences. This finding does not undermine the anomalous nature of the Nolan Fence.

Leaving aside Commissioner speculation that approval of the Nolan Fence could lead to a precedent for opaque fences that would erode and diminish views of the coast and mountains (AR 2095, 1321),[9] the anomalous Nolan Fence obstructs the view of traffic along Berger for Boppana, is in the public right-of-way and offer no opportunity for pedestrians to walk out of the roadway (AR 2094, 1320), and the location in the public-right-of way enables a private use of public land for only Nolan’s benefit. It is clear that the Nolan Fence is not consistent with other fences in the vicinity.

Nolan argues that Boppana’s own landscaping presents the primary obstruction of the view of traffic along Berger. SAR 10-11, 64-68. The fact that Nolan’s front yard improvements have “been so located for approximately 15 years” with no evidence of any accidents undercuts any safety concern. AR 399. Finally, while pedestrians cannot walk out of the roadway because of the Nolan Fence, there is no footpath or sidewalk in front of Nolan’s house that pedestrians could use. SAR 8-10. Reply at 4-5.

It is true that Boppana’s own hedge blocks his view of the street, but the opaque materials used and location of the Nolan Fence in the right-of-way also block the views of other neighbors, pedestrians, and vehicle drivers. The City is not required to wait for an accident to occur to make the determination of adverse effect on the adjacent properties and surrounding neighborhood. Finally, the lack of a sidewalk in front of Nolan’s home does nothing to alleviate the pedestrian safety risk.

Substantial evidence supports the APC’s conclusion that the Nolan Fence’s size, height, operation, and other significant features would not be compatible with, and would adversely affect or degrade, adjacent properties and neighborhoods as well as public health, welfare and safety. AR 398.

(iii). The project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan,

The City argues that substantial evidence supports the APC’s finding because, as the ZA stated, the goals and policies of the plans are to “preserve visual resources in residential areas . . . scenic views from surrounding residential uses . . . [and] “[p]rotect the public views and scenic quality of the highly unique residential areas in this community such as those located along the coast and on the Westchester Bluffs.” AR 1322. The evidence shows that the Nolan Fence is over-height and opaque (AR 48, 49, 1304–05), the Buffs Trail abuts the Nolan Property, the Nolan Fence eliminates the public’s view (AR 125–26, 182, 1305, 1307, 1316, 1319), and the Commissioners noted that the opaqueness and size of the Nolan Fence impacts the view of public. AR 2155–56. City Opp. at 16-17.

It is not clear why the City cites this evidence because, as Nolan argues, the City is defending a finding the APC did not make. The APC found that the Nolan Fence is consistent with the community plan and specific plan. Reply at 5.[10]

(iv). The environmental effects, appropriateness of materials, detrimental effects to adjoining properties and the security of the subject property.

As the City notes, the Nolan Fence is unlike other fences in the vicinity in that it is opaque and encroaches significantly into the public right-of-way. The evidence shows that the Fence/Gates are “not consistent in terms of height, in terms of material with others in the community,” opaque, and “impede some visual capacities from the neighbor to the north or west.” Additionally, there is no evidence that Nolan’s security concerns supported a deviation from a code-compliant fence. AR 183, 2093, 2096, 685. City Opp. at 17-18.

Nolan replies that Boppana’s view of the street is impeded by his own landscaping. SAR 0010-11, 0064-68. Nolan also reiterates that he provided comments and testimony that he had numerous incidents with trespassers before he erected the front yard improvements. AR 677-78; SAR 5-12. Reply at 5-6.

The court has addressed the latter point; Nolan has not shown that a code-compliant fence would not provide adequate privacy and safety protection. It is true that Boppana’s own hedge blocks his view of the street, but the opaque materials used and location of the Nolan Fence in the right-of-way also block the views of neighbors, pedestrians, and vehicle drivers.

Substantial evidence supports the APC’s finding that the ZA erred in his consideration of the environmental effects and appropriateness of the materials, design, and location, including any detrimental effects on security of the Nolan Property.

Nolan argues that the City’s opposition represents a dramatic departure from its prior litigation position in which it defended the 2015 Permit in the trial court and before the Court of Appeal in Boppana I. In this circumstance, the City is judicially estopped from changing its position.

Judicial estoppel is focused on the relationship between the litigant and the judicial system. Swahn Group, Inc. v Segal, (2010) 183 Cal.4th 831, 842. (“Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts” and is invoked to prevent a party from changing its position over the course of judicial proceedings. Id. at 841. It applies when (1) the same party has taken two positions in two different judicial or quasi-judicial proceedings, (2) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true), (3) the two positions are totally inconsistent, and (4) the first position was not taken as a result of ignorance, fraud, or mistake. Id. (citation omitted). Judicial estoppel does not require a final judgment. Id. at 841.

Nolan contends that the City argued in Boppana I that the R-Permit was properly issued, and relied on the Bureau of Engineering’s findings to support that position. Importantly, the R-Permit concluded that the Nolan Fence could permissibly encroach on the public right-of-way because it would not interfere with the maintenance or use of the street. The City also argued, in support of the R-Permit, that “there are many similar fence/gates in the neighborhood.” Reply at 8.

According to Nolan, the City’s current posture is a complete reversal of its prior litigation position. Notwithstanding that the City previously defended their appearance and placement, the City’s opposition repeatedly claims that there are no similar fences in the neighborhood and that the Nolan Fence is improperly located in the public right-of-way. The APC’s decision was largely based on this issue. The City is judicially estopped from relying on the APC’s findings in this mandamus case because they are completely inconsistent with the City’s prior litigation position. The City’s change of position is highly prejudicial. If upheld, the APC’s decision would require Nolan to remove his fence and gates that have been in place for approximately 15 years, at great cost and inconvenience. Reply at 8-9.

Nolan’s judicial estoppel argument suffers from several defects. First, the court has declined to judicial notice RJN Exs. A-B, which is the basis for his judicial estoppel argument. Without this evidence, his argument lacks support.

Finally, even if arguendo the City were judicially estopped, Boppana is not. Therefore, judicial estoppel has no affect on the outcome of the court’s decision.

The Petition is denied. Real Party Bopanna’s counsel is ordered to prepare a proposed judgment, serve it on other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for October 10, 2023 at 1:30 p.m.

[1] Although the Petition header cites CCP section 1085, no cause of action is alleged for traditional mandamus.

[2] The City requests judicial notice of (1) Los Angeles Municipal Code (“LAMC”) Chapter 1 (RJN Ex. 1); (2) LAMC section 11.02 (RJN Ex. 2); (3) LAMC section 12.21 (RJN Ex. 3); (4) LAMC section 12.24 (RJN Ex. 4); (5) LAMC section 12.26 (RJN Ex. 5); and (6) LAMC section 62.118.2 (RJN Ex. 6). The requests are granted. Evid. Code §452(b).

In reply, Nolan requests judicial notice of (1) Nolan’s and the City’s joint opposition brief in Rao Boppana and Rita Boppana v. City of Los Angeles, (“Boppana I”) Case No. BS159371, filed on December 1, 2015 (RJN Ex. A); (2) a Declaration of Jim Burman in Boppana I filed on December 1, 2015 (RJN Ex. B); and (3) emails from Bureau of Engineering Civil Engineers Tracy Tate and Tao Yang dated January 24, 2022 (RJN Ex. C). Although Nolan filed the request on August 14, 2023, he failed to include the exhibits. He attached them to a notice of errata that he filed and served on August 17, 2023.

The City and Boppana separately oppose these requests. The City first asserts that the exhibits are inadmissible because the principal of judicial estoppel does not apply. City RJN Obj. at 2. This argument concerns the merits of the judicial estoppel issue and cannot be used to oppose judicial notice. See Pet. RJN Reply at 3, n. 1.

The City then asserts that the exhibits are not judicially noticeable because the facts therein are subject to dispute. City RJN Obj. at 3. Boppana similarly argues that Nolan improperly requests judicial notice of factual assertions in the exhibits. RPI RJN Obj. at 3. As Nolan asserts in response, judicial notice of the exhibits does not mean that the court judicially notices their truth. RJN Obj. Reply at 2. Nolan offers RJN Exs. A-B to show the position that the City took in Boppana I. RJN Exs. A-B.

Nonetheless, the City and Boppana correctly argue that RJN Exs. A-B are an attempt to augment the administrative record without a noticed motion. City RJN Obj. at 3; RPI RJN Obj. at 4-5. Boppana adds that Nolan fails to show the criteria of CCP section 1094.5(e) for extra-record evidence. RPI RJN Obj. at 5-6. Although Nolan correctly notes that judicial notice is not prohibited in writ cases (RJN Obj. Reply at 1), judicial notice of exhibits in an administrative mandamus case must meet the criteria for admission through a motion to augment and compliance with CCP section 1094.5(e). Nolan offers no reason why he did not move to augment the record with RJN Exs. A-B other than that they were not before the ZA or APC. RJN Obj. Reply at 1-2. Yet, the fact that the exhibits were not before the APC is the reason why Nolan must show the need for extra-record evidence pursuant to CCP section 1094.5(e) through a motion to augment. The requests for judicial notice of RJN Exs. A-B are denied. The court need not consider the opposing parties’ further argument that they are untimely presented. City RJN Obj. at 4; RPI RJN Obj. at 6.

As for the emails (RJN Ex. C), Nolan explains that they became relevant when the oppositions pointed out that he has not obtained a new R-permit. Reply RJN at 1. This may explain why RJN Ex. C has been offered in reply, but the emails are not official acts and are not subject to judicial notice at all. Evid. Code §452(c). The requests are denied.

[3] The parties cite AR 1015 and 2068-81 but failed to include them in their Joint Appendix. The parties did not cite AR 181, 803, 1017, and 127, but the court has reviewed these pages and found them relevant.

[4] Nolan miscites these pictures as SAR 64-68. Reply at 10. Nolan’s letter states that “Exhibit H” (SAR 73-83) includes the relevant pictures.

[5] For convenience, the court will refer to the joint opposition of the City and Boppana as the City’s opposition.

[6] The City correctly notes that there is nothing wrong with the City Attorney giving advice to the APC. City Opp. at 19.

[7] The City argues (City Opp. at 20) that Nolan has shown no prejudice from the APC’s decision or proceedings. Quintanar v. County of Riverside, (2014) 230 Cal. App. 4th 1226, 1236 (hearing officer abused discretion whether he was required to exercise independent judgment but the error was harmless). This is just another way of saying that the court can ascertain from the APC’s mode of analysis in finding that the ZA erred. See Bam supra, 7 Cl. App. 4th at 1346 (board’s perfunctory rejection of examiner’s findings did not meet Topanga).

[8] Nolan argues that the APC did not explain why it could base its decision on findings that are within the DPW’s purview. Reply at 2-3. This may be true; the APC merely expressed concern that the Nolan Fence in the right-of-way constituted a taking of public land (AR 397) and that approval of an over-height fence could also be used to justify the issuance of a R-Permit that allows Nolan to maintain the fence on a public right-of-way. AR 397. The APC did not explain how the ZA erred in relying on a fictional project. However, Nolan raises this issue for the first time in reply and it is waived. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.

[9] Nolan correctly argues that this speculation lacks foundation. Indeed, the LOD concludes that the Nolan Fence does not obstruct scenic views. AR 399. Reply at 4-5. See post.

[10] Nolan suggests that due process prohibits Commissioner Marguiles from using Google street view while the hearing was in progress as the basis for her speculative opinion that “if this becomes more of a pattern in the neighborhood, there may be impacts on views of the coast and the coastal mountains.” AR 2156. This statement shows how the Commission rejected the comprehensive evidence presented by the ZA and Nolan in favor of on-the-spot research and is the very definition of arbitrary and capricious. See California Hotel & Motel Assn. v. Indus. Welfare Com., (1979) 25 Cal. 3d 200, 212 (an agency’s decision is arbitrary and capricious if it has not “adequately considered all relevant factors…”). As a matter of law, the Commissioners’ reliance on unsubstantiated conclusions violated Nolan’s due process rights and deprived him of a fair hearing. Pet. Op. Br. at 15.

It is unclear whether Nolan is contending that due process foreclosed Commissioner Marguiles from using Google street view or is merely complaining about her speculative opinion. In any event, the APC found in his favor on the community/specific plan issue and he cannot show any prejudice.