Judge: Mary H. Strobel, Case: 21STCP00438, Date: 2023-01-10 Tentative Ruling

Case Number: 21STCP00438    Hearing Date: January 10, 2023    Dept: 82

             Petitioner Paramount Recovery Service, Inc. (“Petitioner”) petitions for a writ of administrative mandate directing Respondent County of Los Angeles (“Respondent” or “County”) to set aside a hearing officer’s decision that denied Petitioner’s appeal of a Final Zoning Enforcement Order (“FZEO”) requiring Petitioner to obtain a conditional use permit (“CUP”) to operate an automotive repossession business at 7702 Maie Avenue, Los Angeles, CA 90001 (the “Property”). 

            Petitioner also petitions for a writ of ordinary mandate directing Respondent to set aside its denial of Petitioner’s request for a clean hands waiver to allow Petitioner to continue its operations at the Property pending an application for a CUP.

Judicial Notice

Petitioner’s Request for Judicial Notice (“RJN”) Exhibits A-D – Granted.

Petitioner’s Reply RJN Exhibits E-F – Granted. 

Background

The Property, Petitioner’s Business, and the FZEO

            The Property is zoned Light Manufacturing M-1 and is located within the Florence-Firestone Community Standards District.  (AR 283-84.)   The Property is comprised of three parcels.  Petitioner leases two of the parcels.  Non-party Eagle Portables, Inc. leases another portion of the Property, upon which it operated a portable restroom rental business.  (AR 22-35.) 

            Surrounding properties to the west, across Maie Avenue, are zoned R-3 (Limited Density Multiple Residence).  Aerial photograph shows multiple residences directly across the street from the Property.  (AR 284, 164-165.)  The property to the east is Franklin D. Roosevelt Park.  (AR 284, 164-165.) 

Petitioner leased a portion of the Property in March 2019 to operate its auto repossession business.  (AR 293.)  Petitioner collects vehicles upon termination of a lease or sales contract and temporarily stores the vehicles at the Property pending delivery to the lessor or seller. (AR 293, 29, 218-219.) 

The Property was previously subject to enforcement actions for maintaining an auto dismantling yard without a CUP.  The Property owner, Mitchell Investors, LLC, applied for a CUP in 2012 to approve the land use and the Regional Planning Commission denied the CUP.  Mitchell’s appeal to the Board of Supervisors was denied in September 2018.  (AR 28, 284.) 

In 2019, during monitoring inspections, staff of the County Department of Regional Planning (“DRP”) learned that Petitioner began operating its business on the Property without obtaining any land use approvals.  (AR 284-285.)  DRP subsequently inspected the premises; issued a notice of violation; and informed Petitioner that it needed a CUP to operate its business on the Property.  (AR 28-33 [inspection history]; 59-60 [notice of violation]; 112-163 [inspection photos]; 283-292 [inspector testimony].) 

On June 11, 2020, DRP mailed to Petitioner a Final Zoning Enforcement Order (“FZEO”), which listed the following two violations applicable to Petitioner:

2. Outdoor Storage

Outdoor storage is being maintained on the premises without meeting development standards (Los Angeles County Zoning Code 22.02.030(B); 22.22.020; 22.22.030(B); 22.22.030(C)(2); 22.22.060(A); 22.22.070; 22.140.430; 22.140.430(C))

There are vehicles being parked across the property outside of a building.

3. Land Use Without DRP Approval

A land use is being maintained on the premises without approval from the Department of Regional Planning (Los Angeles County Zoning Code: 22.02.030(B); 22.22.020; 22.22.030(A); 22.22.030(B); 22.22.030(C)(1))

There is an auto repossession storage yard in operation at the location.

(AR 68-69 [bold and italics in original].)[1] 

Administrative Appeal, Hearing, and Decision

            Petitioner appealed the FZEO, and a hearing was held before a hearing officer on September 22, 2020.  (AR 25-36, 282.)  The hearing officer found that “outdoor storage is being maintained on the Property without meeting development standards, and that a land use is being maintained on the Property without approval from Regional Planning.”  (AR 36.)  Accordingly, the hearing officer sustained the FZEO, denied Petitioner’s appeal, directed Petitioner to correct the violations, and assessed a non-compliance fee of $822.  (AR 36.) 

DRP Denies Petitioner’s Request for a Clean Hands Waiver

On November 10, 2020, Petitioner submitted a written request to DRP Director Amy Bodek for a clean hands waiver (“CHW”) to continue conducting its auto repossession business on the Property pending a decision on Petitioner’s application for a CUP. (AR 11-16.) The Director of DRP ("Director") reviewed Petitioner’s written materials and found that Petitioner’s use of the Property is inconsistent with goals and policies of the Florence-Firestone Community Plan. (AR 1-9.) Accordingly, the Director denied the request for a CHW. (Ibid.)

Writ Proceedings

            On February 10, 2021, Petitioner filed its petition for writ of mandate and complaint for declaratory and injunctive relief.  The first cause of action is for writ of administrative mandate pursuant to CCP section 1094.5.  The second cause of action is for writ of ordinary mandate pursuant to CCP section 1085.  The third cause of action is for declaratory relief. 

            On June 15, 2021, at a trial setting conference, the court stayed the cause of action for declaratory relief until the writ causes of action are ruled upon. 

            On November 14, 2022, Petitioner filed its opening brief in support of the petition.  The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

Standard of Review

First Cause of Action – CCP Section 1094.5

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion.  An abuse of discretion is established if the agency 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(b).)

Petitioner contends that the independent judgment test applies “because enforcement of the FZEO abrogates a vested right of PRS under the zoning code to operate a parking lot at the Property without a CUP, and … because Regional Planning … made clear PRS would have to go out of business before it would accept and process a CUP application.”  (Opening Brief (“OB”) 9; Reply 1-3.)  Respondent contends that the substantial evidence test applies because Petitioner’s “interests are purely economic” and because Petitioner should have “consulted with DRP and complied with the County Code before leasing the Property.”  (Oppo. 6.) 

“The courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights and thus requires independent judgment review.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)  “The ultimate question in each case is whether the affected right is deemed to be of sufficient significance to preclude its extinction or abridgement by a body lacking judicial power.”  (Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.) 

In cases reviewing decisions that do not affect a fundamental vested right, the court is directed to review the record for substantial evidence supporting the administrative findings.  (JKH Enterprises, Inc. v. Dept. of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.)  “Administrative decisions which result in restricting a property owner's return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights.”  (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325.)  “[T]here is no vested right to conduct a business free of reasonable governmental rules and regulations.”  (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 23.) 

“In contrast, the independent judgment test is applied to review administrative decisions that will drive an owner out of business or significantly injure the business's ability to function.”  (Benetatos, supra at 1281; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529 [independent judgment test applied because city’s decision would have resulted in the loss of owner’s 35-year-old tavern, a business in which the owner had recently spent $1.75 million to refurbish]; Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367 [vested right where conditional use permit has been granted and applicant has acted upon the grant to his detriment]; Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 391, fn. 5 [“If the permittee has incurred substantial expense and acted in reliance on the permit, the permittee has acquired a vested property right in the permit “].) 

Here, the hearing officer’s affirmance of the FZEO impacts purely economic interests of Petitioner.  The decision requires Petitioner to pursue and obtain a CUP before it can operate an auto repossession business on the Property.  The decision also imposes a non-compliance fee of $822.   

Unlike in Goat Hill and related cases, Petitioner does not show that the administrative decision will “drive[] [it] out of business.”  (Reply 3.)  Petitioner employs about 150 employees statewide and had four fulltime staff members at the Property location.  (AR 293, 218-219, 23-24, 29.)  Petitioner cites no evidence that being required to pursue a CUP will significantly impact its business at other locations.  Moreover, unlike in Goat Hill, Petitioner has not operated at the Property for a long period of time, and it does not show that it invested substantial money into the Property in reliance on any statements or actions of Respondent.  Because no fundamental vested right is at issue, the court applies the substantial evidence test to the fact findings for the administrative decision affirming the FZEO. 

Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), 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.)  Under the substantial evidence test, [c]ourts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.”  (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)  

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.”  (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817; see also Evid. Code § 664.)  Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the administrative findings.  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal. App. 2d 129, 137; see Local Rule 3.231(i)(2).) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) 

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’”  (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)   The interpretation of statute or regulation is a question of law.  (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Second Cause of Action – CCP Section 1085

Petitioner challenges the Director’s denial of a Clean Hands Waiver under CCP section 1085.  (Pet. ¶¶ 17-21; OB 14-15.)  That decision is subject to the standard of review that applies in ordinary mandate, not administrative mandate.

There are two essential requirements to the issuance of an ordinary writ of mandate: (1) a clear, present and ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.)  “Normally, mandate will not lie to control a public agency's discretion, that is to say, force the exercise of discretion in a particular manner. However, it will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.”  (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) 

Analysis

Substantial Evidence Supports the Findings that Petitioner Operated an Automotive Repossession Business on the Property Without Any Land Use Approvals from DRP

            The hearing officer found that Petitioner “is an automotive repossession company” and that it operated such business on the Property without any land use approvals from DRP, in violation of County Code section 22.02.030.  (AR 34-35, Findings E and I-J.) 

At the administrative hearing, Petitioner’s representative stated that Petitioner “is a Southern California repossession company that is the lessee of the subject property.”  (AR 293.)  Petitioner’s representative stated that Petitioner collects vehicles upon termination of a lease or sales contract and temporarily stores the vehicles at the Property pending delivery to the lessor or seller. (AR 293, 29, 218-219.)  In its writ briefs, Petitioner does not challenge the finding that it operated an automotive repossession business on the Property.  (See OB 13:7 [conceding “use of the Property for an automotive repossession company”].)  Substantial evidence supports the findings that Petitioner is an automotive repossession company and that it operated such business on the Property. 

Petitioner contends that the hearing officer erred in affirming violation No. 3 in the FZEO that a land use is being maintained on the Property without approval from DRP.  (OB 12.)  However, Petitioner does not claim that it obtained any land use approvals for use of the Property.  Petitioner concedes that it required, at the least, a ministerial site plan review (“SPR”) and that it did not obtain such review as required by County Code sections 22.02.030 and 22.186.020.  (OB 10-12; RJN Exh. C.)[2]

Substantial evidence supports the findings that Petitioner operated a business on the Property for a substantial period of time in 2019 and 2020 without any land use approvals.  DRP staff observed such operations, conducted inspections, and issued a notice of violation.  (AR 35, Findings I and J; see e.g. AR 28-33 [inspection history]; 59-60 [notice of violation]; 112-163 [inspection photos]; 283-292 [inspector testimony].) 

Petitioner seems to contend that it should be excused from obtaining a SPR or other land use approval because DRP would not process a SPR application without a CUP.  (OB 12:2-6.)  The court considers infra whether substantial evidence supports the finding that a CUP was required and, if not, how that impacts violation No. 3 in the FZEO.

Petitioner also contends that DRP “conflated” an automobile repossession company with an automobile impound yard.  (OB 13.)  Petitioner’s discussion of zoning regulations related to automobile impound yards is irrelevant to the court’s ruling and will not be discussed further.  (OB 13-14.)  The hearing officer made no findings that Petitioner is an automobile impound yard and he did not sustain the FZEO based on any zoning regulations related to automobile impound yards.  Under CCP section 1094.5, the court only reviews the findings made by the hearing officer.

Does Substantial Evidence Support the Findings that Storage of Vehicles is the Principal Activity on the Property, and that Outdoor Storage is Being Maintained Without Meeting Development Standards?

            The hearing officer found that storage of vehicles is the principal activity on the Property; that the vehicles are stored overnight and sometimes for multiple days; and that the cars are therefore not considered parked vehicles.  The hearing officer found that the vehicles are stored outdoors and that a CUP is required for outdoor storage uses in the Florence-Firestone Community Standards District (“CSD”) pursuant to Development Standards section 22.324.070(C)(2)(e)(1).  Based on these findings, the hearing officer upheld violation No. 2 from the FZEO.  (AR 34-36, Findings F-H.) 

            Petitioner “does not dispute that it parks vehicles on the Property” but contends that the hearing officer erred because Petitioner’s “use of the Property, including any potential outdoor storage, falls squarely within the definition of a parking lot as found in said Zoning Code Section 22.14.160.”  (OB 10.)  Petitioner contends that only ministerial site plan review (“SPR”) is required to establish a parking lot in the M-1 zone, and that certain code provisions governing parking lots should take precedence over the provision requiring a CUP for outdoor storage in the Florence-Firestone CSD.  (OB 10-11.) 

Code Provisions Concerning “Outdoor Storage” and “Parking Lots”

Petitioner contends that “[t]he rules of statutory interpretation required Regional Planning to give precedence to Section 22.14.160 and Table 22.22.030-B of the Zoning Code.”  (OB 11.)  Petitioner contends that these statutes should be give precedence because they are more specific than the development standard for the Florence-Firestone CSD, section 22.324.070(C)(2)(e), that requires a CUP for outdoor storage.  (Ibid.) 

“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning.”  (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)  “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.”  (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)  As Petitioner points out, “a more specific statute controls over a more general one.”  (Lake v. Reed (1997) 16 Cal.4th 448, 464.) 

The Property is zoned Light Manufacturing M-1 and is located within the Florence-Firestone CSD.  (AR 283-84.)   It is undisputed that County Code section 22.324.070(C)(2)(e), upon which DRP and the hearing officer relied, applies in the Florence-Firestone CSD and to the Property.  This development standard states that, in the M-1 zone, a CUP is required for “outdoor storage.”  (RJN Exh. D.)  “Outdoor storage” is defined generally in Title 22 as “the storage of goods, equipment or materials outside of a building for any purpose other than outdoor display.”  (County Code § 22.140.150-O.) 

Table 22.20.030-B of the Zoning Code, identifying the permit or review required to establish principal uses on properties in the County’s industrial zones, also provides that ministerial site plan review (“SPR”) is required to establish “parking lots and parking buildings, commercial” in the M-1 zone.  (RJN Exh. B.)  Footnote 17 for Table 22.20.030-B states that “Parking provided is separate from required parking in Chapter 22.112 (Parking), however, use shall be developed in compliance with Chapter 22.112 (Parking).”  Table 22.20.030-C states that SPR is required for “accessory overnight safe parking” in the M-1 zone.  (RJN Exh. B.)   Section 22.324.070(C)(2)(b) also states that a CUP is required for all “principal business activities” for outdoor businesses in the M-1 zone, except, as relevant here, “parking lots.”  (RJN Exh. D; OB 10-11.) 

“Parking areas, buildings, facilities, or lots” is defined in Title 22 as “[a]ny readily accessible area within structures or surface parking areas, exclusive of aisles, driveways, ramps, and columns, maintained exclusively for the parking of vehicles, not including areas for the parking or storage of commercial vehicles with registered net weights in excess of 5,600 pounds, unladen.”  (§ 22.14.160 – P; RJN Exh. A.)  “Commercial parking lot or building” is defined in Title 22 as “a lot, building, area, or structure established or operated as a business providing off-street parking for a fee or charge.”  (§ 22.14.030 – C.) 

Petitioner fails to show that section 22.14.160 and Table 22.22.030-B are materially more specific than section 22.324.070(C)(2)(e) or the definition of “outdoor storage” as applied to the facts of this case.[3]  Nor does Petitioner show a material conflict between these code provisions that would require the court to give precedence to certain provisions over others. Table 22.22.030-B provides that only SPR is required for “parking lots and buildings, commercial.”  Section 22.324.070(C)(2)(e) states that a CUP is required for “outdoor storage” in the Florence-Firestone CSD, but that only SPR is required for parking lots for outdoor businesses in the M-1 industrial zone.  While Petitioner relies on the general definition of “parking lot” from section 22.14.160-P, Petitioner fails to explain why that definition should apply in the M-1 zone instead of the definition of “commercial parking lot” in section 22.14.030 – C.  In any event, the definitions of both “parking lot” and “commercial parking lot” are general in nature and not specific.  Although there are specific code provisions regulating parking in Chapter 22.112 of the Zoning Code, Petitioner has not relied on those provisions in its writ briefing, as discussed further below.  The court finds no reason to give precedence to code provisions relied upon by Petitioner concerning parking lots, over the code provisions governing outdoor storage.  Further, given that there are definitions of “parking lot” and “outdoor storage,” the hearing officer could reasonably determine based on the record evidence whether “[o]utdoor storage is being maintained on the premises without meeting development standards.”  The court addresses that issue next.

Substantial Evidence Supports the Finding that Petitioner Used the Property for Outdoor Storage Within Meeting Development Standards  

As noted, “[o]utdoor storage” is defined in Title 22 as “the storage of goods, equipment or materials outside of a building for any purpose other than outdoor display.”  (County Code § 22.140.150-O [bold italics added].)   The definition is broad and can reasonably be applied to the storage of repossessed vehicles.   

Applying this definition, substantial evidence supports the finding that Petitioner used the Property for outdoor storage.  Petitioner collects vehicles upon termination of a lease or sales contract and temporarily stores the vehicles at the Property pending delivery to the lessor or seller. (AR 293, 29, 218-219.)  Photographs of the Property, taken by DRP Inspector Andrew Flores and also submitted by Petitioner, show that Petitioner regularly stored the vehicles outdoors.  (See AR 16-21, 131-141, 147-163, 173-179, 372-376.)  Flores, who inspected the Property, testified that “vehicles on the property are being stored outdoors” and that more than 50 cars were being stored outdoors at the time of an inspection in January 2020.  (AR 288.)  At a different inspection in September 2020, DRP staff observed more than 49 vehicles being stored outside at the Property.  (AR 290-291.) 

In an email dated August 13, 2019, Petitioner’s Vice President, Kevin Morgan describes Petitioner as a "service provider to automobile leasing companies." (AR 218.) Mr. Morgan further states, "we always make sure that there is room within the yard for them [drivers] to work. We never load or unload any vehicles in the street." Mr. Morgan further describes Petitioner’s business activities as "more in line with less intensive vehicle-related uses [sic], like truck or bus storage, or an equipment yard." (AR 218-219 [bold italics added].)

In an internet article dated March 27, 2019, Petitioner is described as "a leading Southern California based automotive repossession company." (AR 241.) The article further emphasizes that the company now services 15 counties with brick and mortar repossession storage facilities …"  (Ibid. [bold italics added].) 

Based on the evidence summarized above, the hearing officer could reasonably find that Petitioner principally used the Property for outdoor storage and required a CUP pursuant to section 22.324.070(C)(2)(e).  Vehicles may reasonably be considered “goods” or “equipment” and thus fall within the definition in section 22.140.150-O.  The vehicles were not stored outdoors for the purpose of outdoor display.   

Under substantial evidence review, Petitioner’s reliance on the general definition of “parking lot” in section 22.14.160 – P is not persuasive.  This definition states that a parking lot is “any readily accessible area within structures or surface parking areas … maintained exclusively for the parking of vehicles.”  (bold italics added.)  Photographs taken by inspector Flores show that the repossessed vehicles were not stored in a readily accessible area and there were not defined parking spaces.  (AR 131-141, 147-163, 173-179, 372-376.)  The vehicles are stored in a “yard” which is behind fencing and landscaping and not readily accessible to the public.  (AR 218, 37-38, 41; see also OB 4:8-14.)  Outside the premises, there is a sign that reads "Appointment Parking Only."  (AR 50, 31; see also AR 23 [referring to “scheduled appointments” and securing the site with “locking gates”].)   There is substantial evidence that Petitioner did not use the Property “exclusively” for parking vehicles, but also for facilitating vehicle delivery to or pick up by the lessor or seller.  (AR 23, 218-219, 37-38, 293-294.)  As found by the hearing officer, the vehicles are stored overnight in non-accessible areas, which further supports  a conclusion that they are not parked vehicles within the meaning of section 22.14.160 – P.  (AR 35, Finding G.)

            As noted above, Petitioner fails to explain why it relies on the general definition of  ‘parking lot” from section 22.14.160-P, instead of the definition of “commercial parking lot” in section 22.14.030 – C.  Tables 22.20.030-B and 22.22.030-B provide that only SPR is required for “parking lots and buildings, commercial” in the C-M and M-1 zones.  Those tables appear to incorporate the definition of “commercial parking lot or building” in section 22.14.030 – C, i.e., “a lot, building, area, or structure established or operated as a business providing off-street parking for a fee or charge.”  (§ 22.14.030 – C.)  Petitioner does not claim to operate such business.  Substantial evidence, summarized above, supports that Petitioner did not operate a business providing off-street parking for a fee or charge.

            Petitioner wholly fails to address the detailed parking provisions set forth in Chapter 22.112 of the Zoning Code, which are not cited or discussed in Petitioner’s opening brief.  Without any argument about how its auto repossession business could comply with those parking provisions, Petitioner does not show that it was an abuse of discretion for the hearing officer to conclude that Petitioner’s outdoor storage of vehicles is not “parking” within the meaning of the Zoning Code.   A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742; see also Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised or adequately briefed].)

            In reply, Petitioner argues, for the first time, that the court should apply dictionary definitions of the word “parking” and conclude that Petitioner “is using the Property for parking.”  (Reply 3-4.)  Petitioner does not show this argument was raised in the administrative proceedings.  Further, Petitioner does not show good cause to raise this argument for the first time in reply.  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Even if considered, the argument is unpersuasive.  The Zoning Code provides definitions of “parking lot,” “commercial parking lot,” and “outdoor storage.”  There are also detailed parking regulations in Chapter 22.112.  There is no justification for relying on a dictionary definition of “parking” to decide this writ petition. 

            The court has considered all other arguments and record citations presented in reply, including Petitioner’s contentions that Respondent did not accurately describe certain community complaints in the record.  (Reply 5-7.)  Those arguments do not change the court’s analysis. 

Based on the foregoing, substantial evidence supports the hearing officer’s finding that “[o]utdoor storage is being maintained on the premises without meeting development standards”; that Petitioner needs a CUP to operate its business on the Property; and that Petitioner failed to obtain a CUP.  Substantial evidence supports the hearing officer’s decision upholding violations Nos. 2 and 3 in the FZEO.  In light of this conclusion, the court does not reach Respondent’s arguments that Petitioner’s business is subject to the Collateral Recovery Act, and that Petitioner must obtain a CUP to operate a “vehicle storage facility.”  (Oppo. 12-14.) 

The first cause of action for writ of mandate is DENIED.

Did the Director Abuse Her Discretion in Denying the Clean Hands Waiver?

Petitioner challenges Director Bodek’s denial of the CHW in its second cause of action for ordinary mandate pursuant to CCP section 1085. 

Generally, County may not process or approve an application for an existing land use that was “not previously authorized by any statute or ordinance” and that “is being maintained or operated in violation of any applicable provision of” the County’s zoning code.  (Los Angeles County Code § 22.02.070(A).)  However, section 22.02.070(B) provides the following exception: “Where in the sole discretion of the Director, whose determination shall be final, the Director determines that the use in question is consistent with the objectives, goals, and policies of the General Plan, or that the continuation of said use is essential or desirable to the public convenience or welfare, this provision shall not apply.”  This exception is commonly referred to as a “clean hands waiver.”  (See AR 11.)[4] 

Petitioner first contends that Director Bodek’s decision was arbitrary and capricious because Petitioner “became collateral damage in a long-running dispute between the County and PRS’s landlord, Mitchell.”  (OB 14-15, citing AR 27 and AR 1.)  To grant a CHW, Director Bodek was required to consider whether “continuation of said use is essential or desirable to the public convenience or welfare.”  In assessing this factor, Director Bodek noted “the continuous zoning enforcement history at the site by the current owner Mitchell Investors, LLC …, which includes PRS’s existing business operations, and the impacts identified by neighboring businesses and residents.”  (AR 1.)  Director Bodek also noted that “staff have notified PRS on several occasions that a CUP is required to operate at the property, including issuing notices of violation.”  (Ibid.)  Director Bodek further stated:

[Petitioner’s] Letter also makes a case for PRS [i.e. Petitioner] being desirable to the public convenience and welfare. A Regional Allocation of Police Services (“RAPS”) inquiry from November 2018 to November 2020 by the Los Angeles Sheriff’s Department (“LASD”) disclosed frequent calls to law enforcement by PRS’ alarm company, PRS staff, customers, neighboring businesses and residents. The incidents documented by law enforcement do not support the claim that PRS is a desirable business operation at the current location. Moreover, DRP has received multiple emails describing large truck beds blocking driveways and vehicular traffic on Maie Avenue when loading and unloading vehicles onto the Property. The emails also describe PRS operating during the weekend, including Sundays.

The Letter emphasizes PRS’ intent to be a good neighbor. Unfortunately, PRS operations do not entirely occur within the Property. The public right of way is used to facilitate vehicle delivery and pick up. Specifically, trucks used to transport the vehicles for off-loading and on loading block the street, the public right of way, residential driveways and neighboring business driveways. This is a significant impact to the surrounding community given that it is indicated in the Letter that the delivery and pick-up average is 18 vehicles a day, Monday through Friday between the hours of 7 a.m. and 9 p.m.  (AR 1-2.)

Thus, contrary to Petitioner’s assertion, Director Bodek did not deny the CHW based solely on the long-standing enforcement history against Mitchell, but rather considered the totality of the circumstances, including the notices of violations against Petitioner and the impacts on the neighborhood from Petitioner’s business.  Section 22.02.070(B) vests broad discretion in the Director to determine whether “continuation of said use is essential or desirable to the public convenience or welfare.”  In making that determination, it was not arbitrary and capricious for Director Bodek to consider the long-standing enforcement history at the Property in conjunction with evidence concerning Petitioner’s use of the Property. 

While Petitioner states in reply that “the only complaint in the cited portion of the AR relates to a May 13, 2020 email to Regional Planning about a portable bathroom business unrelated to PRS,” the record shows other complaints in November 2020 concerning a “car carrier trailer” used to “unload/load vehicles 90% of time blocking residential driveways” and that the “loading/uploading happens like 2-3 days out of the week and is random[].”  (AR 434.)  Petitioner fails to address those complaints, which appear to apply to Petitioner’s auto repossession business. 

Director Bodek also found that Petitioner’s use of the Property is inconsistent with goals and policies of the Florence-Firestone CSD. (AR 1-9.)  Director Bodek made detailed findings that Petitioner had not shown its operations are compatible with nearby land uses or improvements to reduce the impacts created by its operations.  She noted that “the delivery of vehicles to and from the site is a key function of PRS’s business” and “the delivery trucks associated with PRS operations can pose negative noise, odor, vehicular traffic, and aesthetic impacts to the surrounding uses.”  (AR 2-3.) She found that “Staff inspections, neighbor complaints and a Regional Allocation of Police Services report document PRS' current operations burden and impede the use of the public right of way for the exclusive benefit of parking, loading and unloading of vehicles associated with PRS.”  (Ibid.)

Petitioner challenges these findings as follows:  “[T]he record reflects the County admission that PRS’ use is compatible with the allowable uses for the Property and would qualify for a conditional use permit if it applied for one. [AR ____] When PRS sought a Clean Hands Waiver, however, the County denied it [AR 1], citing the zoning enforcement history with Mitchell, which PRS should not be prejudiced by. Regional Planning also took an ‘about face’ on its admission that PRS could qualify for a CUP, stating that PRS’s use is not consistent with the objectives, goals and policies of the Florence-Firestone Community Plan. Such action by Regional Planning was arbitrary and capricious.”  (OB 15.) 

Petitioner provides no record citation for its assertion that County admitted Petitioner’s use is compatible with the goals in the Florence-Firestone CSD and would necessarily qualify for a CUP.  Petitioner also does not show that Director Bodek would be bound by any statements of DRP staff.  Petitioner does not otherwise provide any legal analysis that Director Bodek’s findings were unsupported by substantial evidence or arbitrary and capricious.  Given the deferential standard of review, and the absence of any reasoned analysis about the Director’s consistency findings, Petitioner fails to show an abuse of discretion.

The second cause of action for writ of mandate is DENIED.

Conclusion

 The first and second causes of action for writ of mandate are DENIED.

Counsel should address at the hearing whether the court’s ruling on the writ petition fully resolves the third cause of action for declaratory relief.