Judge Mary H. Strobel, Case BS169541 2023-03-21 Tentative Ruling

Petitioner Sullivan Equity Partners, LLC (“Petitioner”) petitions for a writ of administrative mandate directing Respondent City of Los Angeles (“City” or “Respondent”) to set aside a decision of its Board of Public Works (“Board”) to revoke Petitioner’s building permits for residential development at 1834 N. Old Ranch Road and 1838 N. Old Ranch Road (“Property”) pursuant to City’s Protected Tree Ordinance. The court previously granted the petition in favor of Petitioner based solely on its fair trial claim. The Court of Appeal reversed the judgment. The court now considers Petitioner’s claim that City abused its discretion in revoking Petitioner’s permits under City’s Protected Tree Ordinance.

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

Pursuant to City’s Protected Tree Ordinance (“PTO”), a property owner seeking to remove a protected tree must apply for and obtain a permit. (RJN Exh. A; LAMC § 46.02.) The ordinance defines “protected tree” as any of several Southern California native tree species which measures four inches or more in cumulative diameter, four and one half feet above the ground level at the base of the tree. The protected tree species include oak tree, Southern California black walnut, western sycamore, and California bay. (Id. § 46.01.)

Should an applicant or permittee remove a protected tree in violation of the PTO, the Bureau of Street Services (“BSS”) may withhold building permits and/or revoke building permits for which construction has not commenced for up to 10 years. (Id. § 46.06.) The BSS must give the applicant or permittee notice of its intent to act under section 46.06 and shall hold an evidentiary hearing to determine if a protected tree was removed or relocated in violation of the PTO. (Id. § 46.06(b), (c).) Section 46.06(c) further states, in pertinent part: “In the event the Bureau finds that a protected tree was removed or relocated in violation of Section 46.00 of this Code, it shall specify to the Superintendent of Building the length of time the issuance of building permits shall be withheld and whether building permits for which construction has not commenced shall be revoked. In making its determination, the Bureau shall consider the following factors: the number of trees removed or relocated, the size and age of the trees removed or relocated, the knowledge and intent of the owners of the property with respect to the removal or relocation and prior violations of law with respect to removal or relocation of protected trees.” (Ibid.)

The applicant or permittee may appeal the decision of the BSS to revoke or withhold permits to the Board of Public Works (“Board”). If an appeal is timely filed, the Board shall hold a hearing and may make a “final determination” on the matter. (Id. § 46.06(d), (e); see also § 46.05.)

Petitioner owns the Property, which consists of about 12 acres of vacant and unimproved land near the end of Old Ranch Road in the Brentwood community. (See AR 3, 863.) In 2013-2014, Petitioner obtained various permits to develop two large single-family homes on the Property, including a tree removal permit and grading permits. (See AR 364, 484, 488, 570, 1877-78.)

In 2011-2012, Petitioner’s arboricultural consultant, Robert Wallace, conducted tree inventories of the Property and prepared a protected tree report (“PTR”) dated July 23, 2012. (AR 863-864.) Wallace determined that there were 117 protected trees on the Property: 104 California Live Oaks, 10 Southern California Black Walnut, 2 California Sycamores, and 1 California Bay. (AR 3-4.) Wallace included within his report a Protected Tree Preservation Program, which included procedures for protection of trees during grading and construction, (AR 5, 89-94.) A BSS arborist inspected the Property in October 2012 and “concurred with Mr. Wallace’s tree assessment and recommendation,” including with respect to removal of 56 protected trees due to the topography and grading required for the project. (AR 1091.)

In 2013, Petitioner applied for a permit to remove 56 of the 117 protected trees from the Property. (AR 490-491.) BSS recommended approval of the permit. (AR 1091-92.) Board issued the permit on February 28, 2014, for removal of 51 Coast Live Oaks, 3 Southern California Walnuts, 1 California Sycamore, and 1 California Bay. (AR 958-959.) The permit identified the trees to be removed and required Petitioner to plant replacement trees. (Ibid.)

Petitioner contracted with Ricardo Gonzales, a professional tree cutter, to remove 56 trees pursuant to the permit. (AR 864, 1107-10, 1916-17.) On September 29, 2014, Gonzales and his assistants removed three protected trees without a permit: trees 5, 29, and 30. (AR 865, 1078-79, 1107-09.) Gonzales also left standing approximately 4 trees that had been permitted for removal, including tree 6. (See AR 1880, 856.) It is undisputed that trees 5, 29, and 30 were improperly removed and that tree 6 was not removed, even though it was permitted for removal.

Tree 5 was an adult California Sycamore tree, 26 inches in diameter, 80 feet in height, and approximately 50-75 years old. According to Wallace’s PTR, tree 5 scored “excellent” in terms of health, aesthetics, and balance, and was one of the largest protected trees on the Property. Tree 5 was located near the front of the property. (AR 7-14, 703.) Tree 29 was 4 inches in diameter, 20 feet in height, and a relatively young tree. Tree 30 was 22 inches in diameter (2 trunks), 35 feet in height, and a young adult. According to the tree report, Trees 29 and 30 were also rated “excellent” in health, aesthetics, and balance. (AR 703, 7-14, 1631.)

In or about December 2015, at the request of community members, City inspected the Property and discovered the unpermitted removal of trees. (AUG 389, 1603.) Ron Lorenzen, Assistant Director of BSS, led the investigation and corresponded with the project opponents who requested the investigation. (See AR 1119-29, 1841-47, AUG 471-472, 481.)

On December 21, 2015, BSS gave Petitioner written notice of an administrative hearing to determine whether to revoke Petitioner’s building permits for the Property based on the removal of trees 5, 29, and 30. (AR 426.)

Lorenzen conducted the administrative hearing on February 12, 2016. The hearing was attended by Petitioner’s owners, arborist, and attorney, several neighbors, and other community members. Petitioner’s attorney, Patrick Mitchell, submitted extensive written materials and argued at the hearing, inter alia, that the tree removals were inadvertent. (AR 1771-1818, 578-696.) BSS also considered evidence and argument, including from attorney Gideon Kracov, that the tree removals were intentional. (See e.g. AR 1793-1800.)

On March 14, 2016, BSS issued a written decision stating that it would request the Department of Building and Safety to revoke and withhold Petitioner’s building permits for five years. (AR 1629-32.) BSS made express written findings: (1) about the number of trees removed, their ages, and size; (2) that the loss of the trees, particularly tree 5 and 30, was significant to the Property; and (3) that the removal of the three trees was done “intentionally to provide better access to the property or in some other fashion enable easier development.” (Ibid.)

On April 12, 2016, Petitioner appealed BSS’s decision to the Board. Petitioner’s attorney submitted a lengthy appeal letter and multiple exhibits and declarations in support. (AR 861-1167.) The Board heard the appeal at a hearing held on June 24, 2016, which was attended by Petitioner’s owners, arborist, project engineer (Larry Gray), attorney Mitchell, tree-cutter Gonzales, as well as opposition attorney Kracov, neighbors, and community members. (AR 1834-1981.) Petitioner again asserted its position that the tree removals were accidental. (See e.g. AR 1899.)

After the hearing, Board the Board voted unanimously to uphold the BSS’s determination to revoke and withhold Petitioner’s building permits for the Property for five years. (AR 1832, 1973-1981.)

On May 9, 2017, Petitioner filed a verified petition for writ of administrative mandate. On May 12, 2017, Petitioner filed a verified first amended petition for writ of administrative mandate, writ of ordinary mandate, and inverse condemnation (“FAP”). The FAP is the operative pleading. The first cause of action alleges that City abused its discretion when it found a violation of the PTO and imposed a revocation penalty, and also that City deprived Petitioner a fair trial. The second cause of action alleges that City did not have authority to revoke Petitioner’s grading permits.

On August 12, 2019, the court issued its ruling on submitted matter, in which the court granted the first cause of action solely on the basis that City did not provide Petitioner a fair hearing. On August 20, 2019, the court issued another written ruling wherein it dismissed the second cause of action. City appealed the judgment and Petitioner filed a cross-appeal.

On July 19, 2022, the Court of Appeal reversed this court’s ruling on the first cause of action and affirmed the dismissal of the second cause of action. As a result, the only remaining claim in this matter is Petitioner’s contention in its First Cause of Action that the City abused its discretion when it found a violation of the PTO and imposed a revocation penalty.

On February 3, 2023, Petitioner filed its supplemental brief in support of the petition (hereafter “Suppl. OB”). The court has received Respondent’s opposition (“Oppo.”), Petitioner’s supplemental reply (“Suppl. Reply”), the administrative record, and the joint appendix.

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).)

Generally, “[w]here, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) However, Petitioner contends that, in this case, City’s fact findings must be reviewed under the independent judgment test because City “revoked plaintiff’s existing building permits” and because “substantial work, construction and grading had already commenced.” (See Suppl. Reply 3; see also OB 18 and Reply 7.)

CCP section 1094.5 does not specify which cases are subject to independent review, leaving that issue to the courts. (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 811.) “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.)

Here, BSS issued a written decision stating that it would request the Department of Building and Safety to revoke “any existing building permits and withhold the issuance of future building permits on both properties for a period of five (5) years.” (AR 1632.) Thus, as Petitioner acknowledges, the standard of review depends on whether City’s decision affected a fundamental vested right in the building permits that were issued for the Project. (See e.g. AR 1927, 1888.)

“In California, the developer's right to complete a project as proposed does not vest until a valid building permit, or its functional equivalent, has been issued and the developer has performed substantial work and incurred substantial liabilities in good faith reliance on the permit.” (Toigo, supra, 70 Cal.App.4th at 321, citing Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791; see also Rasmussen v. City Council (1983) 140 Cal.App.3d 842, 848.)

“As described in Avco (17 Cal.3d at p. 793, 132 Cal.Rptr. 386, 553 P.2d 546), the vested rights rule draws a distinction between ‘soft’ development costs (land, options, planning and design) and ‘hard’ construction costs.” (Raley v. California Tahoe Regional Planning Agency (1977) 68 Cal.App.3d 965, 985-986.) “[N]o right to develop vests until all final discretionary permits have been authorized and significant ‘hard costs’ have been expended in reliance on those permits—that is, until substantial construction has occurred in reliance on a building permit.” (Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach (2001) 86 Cal.App.4th 534, 552.) In their briefs, Petitioner and Respondents both failed to address this distinction between hard and soft costs.

As these authorities show, issuance of building permits to Petitioner did not, in itself, establish a vested right to develop. To obtain a vested right, Petitioner must also have performed substantial work and incurred substantial liabilities in reliance on the building permits. Furthermore, Petitioner cannot rely on “soft costs,” such as the cost to purchase the land, and other costs that Petitioner did not expend in reliance upon the building permits.

In the reply brief filed in 2019, Petitioner asserted that it “had commenced grading under the grading permits and the City had conducted and approved an inspection.” (Reply 8:1-7, citing AR 812-814, 1134, 1144, 1148, 1243, 1888-1891.) Petitioner’s record citations support only that Petitioner commenced grading and clearing of the site, and had brought heavy construction equipment (i.e., excavator and front loader) to the property. (See e.g. AR 812, 1134, 1144, 1148, 1888-91.) At the Board hearing, Petitioner’s attorney stated: “Guys go out there and cut down a bunch of trees. We haul in a loader. We haul in an excavator. We have construction fence. We have a construction truckee out there.” (AR 1888.) However, Petitioner’s attorney did not cite evidence of actual construction or cite the costs of bringing equipment and erecting a fence. He also acknowledged that development had been placed on hold shortly after the trees were cut because “[w]e did some things wrong with the Regional [Water Quality Control] Board.” (AR 1888.) “Some of the erosion control measures weren’t in place” causing development of the properties to be halted. (AR 1888; see RJN Exh. D at 6, fn. 4 [“In the meantime, development of the properties had been halted due to purported violations of the Clean Water Act and alteration of an adjoining stream bed.”].)

In the supplemental reply, filed in March 2023, Petitioner argues for the first time that it obtained a vested right in the building permits because it invested $10,000,000 in the project overall, including $6 million to purchase the land, $560,000 in habitat mitigation fees to the Department of Fish and Wildlife, $1.5 million to “start[] permit process,” and $2 million to “finalize our permits.” (AR 1792, 1888-91, 1926-27; see Suppl. Reply 3-4.) “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.) The court permitted Petitioner to submit a new opening brief after the remand from the Court of Appeal. Petitioner should have raised all arguments concerning the standard of review in its supplemental opening brief. Nonetheless, the court is inclined to consider the argument, as it is relevant to the standard of review. Respondents’ counsel may address this new argument at the hearing.

Subject to further argument, the court concludes Petitioner’s record citations do not show that construction or similar work was performed in reliance on the building permits sufficient to establish a vested right.

The $6 million purchase price for the land is a “soft cost” that does not create a vested right in the building permits. It appears that most or all of the alleged permitting costs were incurred before Petitioner received the building permits. Petitioner did not rely on the building permits to purchase the land or obtain the permits issued before the building permits. None of Petitioner’s record citations suggest that bringing the front loader and excavator to the property; commencing the grading work; or erecting a construction fence were substantial monetary costs.

Petitioner’s attorney asserted below that Petitioner spent $560,000 “in compensatory habitat required by the Cal Fish and Wildlife and other permits” about 10 days after Petitioner received the building permits in July 2014. (AR 1890.) Depending on the circumstances, this evidence could plausibly be consistent with a finding that Petitioner incurred substantial liabilities in reliance on the building permits. (See generally Miller and Starr, Cal. Real Estate 4th § 25:39 and Congregation ETZ Chaim v. City of Los Angeles (9^th Cir. 2004) 371 F.3d 1122, 1125 [applying California law and concluding that congregation obtained vested rights in permits after it “paid in excess of $21,000 in permit fees and over $15,000 for demolition pursuant to the renovation plans approved by the City”].) However, in its writ briefs and in the cited testimony (AR 1890), Petitioner did not describe the legal requirements for the habitat mitigation or cite evidence supporting a conclusion that Petitioner invested these sums in reliance on the building permits.

Subject to further argument, the court tentatively concludes that Petitioner did not perform substantial construction work or incur substantial liabilities in reliance on the building permits. Accordingly, Petitioner has not proven that it had a vested right in the building permits.

Petitioner’s other arguments for applying independent judgment to Board’s fact findings are not persuasive. In its ruling on the motion to dismiss, the federal district court was not opining on an issue of federal preemption law and its determination of the standard of review under California state law is not entitled to deference. (Reply 7, citing Sciborski v. Pacific Bell Directory (1984) 205 Cal.App.4^th 1152, 1165.) The cases cited concerning driver’s, business, and professional licenses are inapposite because City did not revoke a similar license held by Petitioner. (Reply 8; Suppl. Reply 3.) Petitioner does not show, with discussion of relevant ordinances, that Petitioner’s rights in the building permits vested under the LAMC. (See Reply 8:5-7, citing AR 429, 549, 1873-74.) Finally, Petitioner does not show that revocation of its building permits or withholding of building permits for five years for this Project could drive it out of business. (OB 18, citing Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 1529.)

Because Petitioner has not proven that it had a vested right in the building permits, the substantial evidence standard applies to Board’s fact findings. 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.) “Courts 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.)

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that substantial evidence does not support the findings. (See Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) When an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [his] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) Compliance with the Topanga findings requirement also raises a question of law.

Petitioner contends that Board did not make sufficient fact findings under LAMC section 46.06 to satisfy Topanga. (OB 20-24; Suppl. Reply 2 and 5-10.)

In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." “Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.) However, “mere conclusory findings without reference to the record are inadequate.” (Id. at 1521.) “The nature of the statute, ordinance, or rule being applied by that agency is also relevant to the analysis of the adequacy of an administrative agency's findings.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421.)

Topanga requires the agency to “justify the penalty imposed, including ‘a statement of the factual and legal basis for the decision.’” (Oduyale v. Cal. State Bd. of Pharmacy (2019) 41 Cal.App.5th 101, 113.) “However, there is no legal requirement to explicitly discuss, consider, and explain the rejection of all forms of discipline short of the one selected.” (Id. at 115.) “So long as the findings ‘enable the reviewing court to trace and examine the agency's mode of analysis’ (Topanga, supra, 11 Cal.3d at p. 516, 113 Cal.Rptr. 836, 522 P.2d 12), there is no abuse of discretion under Code of Civil Procedure section 1094.5, subdivision (b).” (Ibid.)

Section 46.06 requires the BSS and Board to determine if the permittee violated the PTO. BSS and Board made that determination and expressly found that Petitioner cut down trees 5, 29, and 30 in violation of the PTO. Board’s findings of liability comply with Topanga.

In making its determination as to the appropriate penalty, the BSS “shall consider the following factors: the number of trees removed or relocated, the size and age of the trees removed or relocated, the knowledge and intent of the owners of the property with respect to the removal or relocation and prior violations of law with respect to removal or relocation of protected trees.” (LAMC § 46.06(b), (c).) On appeal, the Board makes a “final determination” on these issues. (Ibid.)

City contends that Board was only required to make a finding that Petitioner removed protected trees without a permit, not about the four factors in section 46.06(c). (See Oppo. 12-14.) The court agrees in part. The standard of review when considering the propriety of a penalty is more deferential than when considering required findings with respect to liability. Section 46.06 requires BSS and Board to “consider” four factors when determining penalty. The section does not require BSS or Board to make written findings with respect to each factor. Nonetheless, the court must be able to determine from the decision whether BSS and Board considered the four factors, and to ascertain the factual and legal basis for the penalty decision. (Oyudale, supra.)

On March 14, 2016, BSS made express written findings: (1) about the number of trees removed, their ages, and size; (2) that the loss of the trees, particularly tree 5 and 30, was significant to the Property; and (3) that the removal of the three trees was not done “by accident but intentionally to provide better access to the property or in some other fashion enable easier development.” (AR 1629-32.)

After the Board hearing, the Board voted unanimously to uphold the BSS’s determination to revoke and withhold Petitioner’s building permits for the Property for five years. (AR 1832, 1973-1981.) The vote was made in response to the motion of Board President James, seconded by Commissioner Rodriguez, to “affirm the position of the Bureau on – on this Agenda Item No. 1.” (AR 1975.) Prior to making this motion, James explained why he thought the trees were removed intentionally. (AR 1970-1971.) James opined it was not reasonable to think removal of the tree was an accident. (AR1971, ln 10-14.) He also found a lack of credibility on the claim of accident. (AR1972, ln 19-20.)

In discussion following the motion, Board members expressed their views on Developer’s knowledge and intent with respect to removal. Commissioner Davis stated that he believed the trees were removed negligently. (AR 1977.) However, after giving that opinion, Commissioner Davis stated that he would nonetheless support “the President’s motion.” (AR 1977.) Commissioner Repenning expressed her agreement with Lorenzen’s position that the tree removal could not have been accidental. (AR1979, ln.5-10.) She then stated she was going to vote “in support of President James’ motion to uphold the recommendation of our staff.” (AR1980, ln. 1-3.) Before the vote, James reiterated his position that he didn’t believe that the removal was by accident. (AR1980, ln. 18-19.)

The record includes a report from BSS to Board dated June 24, 2016, that sets forth BSS's recommendation that Board deny Petitioner’s appeal. The report includes a stamp stating “adopted by the Board Public Works of the City” on June 24, 2016. (AR 1602.) Unlike the initial BSS decision, the BSS staff report states that Petitioner removed trees 5, 29, and 30 either intentionally or negligently. The report states, in relevant part: “The Bureau opines that [Petitioner] was fully aware of the Protected Trees on the parcels owned by them, the need to protect the Protected Trees, and further had the opportunity to preserve the Protected Trees. Nevertheless, [Petitioner] willfully directed the contractor to remove the subject trees or through the negligence of [Petitioner’s] contractor the subject trees were removed.” (AR 1604.)

Board’s penalty findings sufficiently comply with Topanga. James made a motion to affirm BSS’s “position” as to Agenda Item 1. Board, as a body, unanimously approved James’ motion and affirmed BSS. The hearing transcript shows that the Board, as a body, considered all four factors as required. Board also adopted the BSS report. In this context, Board impliedly adopted the findings in the Bureau’s staff report, that Petitioner willfully directed the contractor to remove the subject trees or through the negligence of Petitioner’s contractor the trees were removed. (AR1604.)

The court acknowledges that, as a result of Board’s adoption of the BSS staff report, there is some ambiguity as to whether Board found Petitioner removed the trees intentionally or negligently. (See AR 1604.) As discussed below, Board’s penalty findings are supported by substantial evidence and the Board’s penalty determination was reasonable regardless of whether Petitioner removed the trees intentionally or negligently. The court reaches the same result even if the independent judgment test applies to the fact findings. Accordingly, to the extent there is ambiguity in Board’s findings of knowledge and intent under section 46.06(c), Petitioner does not show a prejudicial abuse of discretion or any basis to remand for clarification of Board’s findings. (See CCP § 1094.5(b); Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928 [procedural errors, “even if proved, are subject to a harmless error analysis”]; Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [same].)

Board found that Petitioner removed trees 5, 29, and 30 without a permit and in violation of the PTO. Substantial evidence, including Petitioner’s own admissions, support that finding. (See e.g. AR 578-582, 865, 1078-79, 1107-09, 1603, 1778-1786, 1880.) Based on that finding, City was authorized to impose a penalty under section 46.06.

Board considered the four factors set forth in section 46.06(c) and upheld the penalty imposed by BSS, specifically to revoke and withhold Petitioner’s building permits for five years. Petitioner contends that Board’s penalty findings are not supported by substantial evidence or the weight of the evidence. (OB 18-24; Reply 8-10; Suppl. Reply 5-10.)

The court considers below whether substantial evidence supports the penalty determined by the Board based on the factors it was to consider. The court then considers whether Board’s determination of penalty, based on such findings, was a manifest abuse of discretion.

In its initial decision, BSS made the following finding regarding Petitioner’s knowledge and intent: “It is clear from the evidence that SEP had knowledge that trees numbers 5, 29, and 30, were not proposed for removal. It is also clear from SEP’s own admission that the project had implemented a comprehensive process to ensure that only those trees permitted to be removed would in reality be removed. Additionally, respective to tree number 5, no California Sycamore trees were included in the PTR for removal and this species is distinct in appearance, growth habits, and foliage relative to the tree adjacent to it, tree number 6, Coast Live Oak which was permitted for removal. Therefore, the BSS finds that the removal of the three unpermitted trees, numbers 5, 29, and 30, were not removed by accident but intentionally to provide better access to the property or in some other fashion enable easier development.” (AR 1631-32.)

In the staff report concerning the appeal to the Board, the Bureau opined that Petitioner “was fully aware of the Protected Trees on the parcels owned by them, the need to protect the Protected Trees, and further had the opportunity to preserve the Protected Trees. Nevertheless, [Petitioner] willfully directed the contractor to remove the subject trees or through the negligence of [Petitioner’s] contractor, the subject trees were removed.” (AR1604.) Board impliedly adopted these findings made by BSS when voting to affirm the position of the Bureau an Agenda Item No. 1.

Substantial supports these findings. Petitioner’s own tree report, prepared by arborist Robert Wallace, identified trees 5, 29, and 30 as protected trees and the mitigation measures necessary to preserve the trees. (AR 2-100.) The exact location of these trees was shown in a detailed tree location map prepared by Wallace. (AR 1.) Wallace also tagged the trees on the Property. (See AR 971, 1078.) The tree cutter, Ricardo Gonzales, had “a lot of experience as a tree-cutler, doing permitted tree cutting work similar to that required by the Sullivan Canyon Project.” (AR 1107.) He received “an oversized map, identifying the trees which were to be cut down,” which refers to Wallace’s detailed tree location map. (AR 1107; see also AR 1081.) Petitioner’s member, Sam Shakib, “toured the subject property with [tree cutter] Ricardo Gonzale[s]” and “reviewed the permits, tree site map, and observed the tree tags previously placed by arboricultural consultant Robert W. Wallace.” (AR 1081.) Board could reasonably find from this and other evidence that Petitioner “implemented a comprehensive process to ensure that only those trees permitted to be removed would in reality be removed.” (AR 1631-32.)

Notably, tree 5 was an adult California sycamore, 26 inches in diameter, 80 feet in height, and approximately 50-75 years old. According to Wallace’s PTR, tree 5 scored “excellent” in terms of health, aesthetics, and balance, and was one of the largest protected trees on the Property. Tree 5 was located near the front of the Property and was not located next to any sycamores. (AR 7-14, 703; see AR 1 [tree location map].) There were only one to two other sycamores on the Property. (AR 1-14.) Thus, Board could reasonably find it unlikely that the tree cutter would mistake tree 5 for another tree.

Petitioner argues that it did not intentionally remove these trees. Petitioner cites declarations from arborists (Wallace and Applegate), the tree cutter (Gonzales), and a Project engineer (Gray), among other evidence, in support of its position. (OB 20-23, citing record; see also Reply 8-10; Suppl. Reply 6-8.) The court has considered all of Petitioner’s cited evidence. Gonzales denied that he intentionally cut trees 5, 29, and 30 in violation of the tree removal permit. (AR 1107-09.) The declaration of arborist Gregory Appellate exemplifies other evidence Petitioner relies upon to prove that it did not remove the trees intentionally. Appellate declared, in pertinent part:

a. The property can best be described as jungle-like, and access is difficult in most areas. The property looks completely different when viewed from different angles, complicating the identification of specific trees.

b. Upon reviewing the site, I discovered that trees on the properties were marked with three separate sets of tags. These tags are still attached to the trees. One set of tags appears to have been placed by Mr. Wallace for the Project in 2012. The second set appears to have been placed by consulting arborist Richard Ibarra for the Project in 2008. The third set of tags appears to have been placed for a different project by a previous property owner.

e. Further complicating any review of trees on the site, is the fact that some of the non-protected trees were also tagged, and the tags used to mark the various trees used different numbers. Given these different sets of tags, it was difficult for me, a trained arborist, to tell the difference between which trees were tagged for which permit. In fact, based on these conditions, I find it remarkable that only three trees were removed by mistake. Of the 56 approved for cutting, this suggests that good care was taken to identify and cut the correct trees.

d. During my site visit, I also confirmed that tree numbers 6, 11, 111, and 115, which were permitted for removal, were not actually removed. The fact that these four trees were not removed contradicts the finding that the three other trees were intentionally removed. Rather, the errors were likely caused by the difficult site conditions, including the confusing tree tag situation. In fact, Mr. Gonzalez informed me that he specifically did not cut tree number 11 because he could not find the tree tag for that tree. This further confirms his efforts to only cut properly identified and marked trees.

In opposition, Respondent cites testimony and documentary evidence that, to varying degrees, supports a finding that Petitioner intentionally or negligent removed trees 5, 29, and 30. (Oppo. 15-17, citing record.) The court has considered Respondent’s cited evidence.

As discussed, there is evidence that Petitioner’s arborist marked and mapped the trees and that the tree cutter had lots of experience in similar tree-cutting jobs. Tree 5 was located at the front of the Property, which suggests Petitioner received a benefit from removing this tree in terms of construction of the Project. Tree 5 was also a large sycamore and only one of two or three sycamores on the site, which would have stood out to an experienced tree cutter. A reasonable decisionmaker could infer from this evidence that trees 5, 29, and 30 were removed intentionally or negligently.

Substantial evidence supports Board’s penalty findings related to Petitioner’s knowledge and intent in removing trees 5, 29, and 30.

With respect to the number of trees removed, BSS made the following finding in its decision: “The removal of one California Sycamore relative to the total number of California Sycamore on the subject properties is significant both to the California Sycamore population and the woodland in total. The removal of the two Coast Live Oak trees relative to the subject properties Coast Live Oak tree population is less than significant but is significant relative to the holistic woodland on the properties.” (AR 1631.) Board impliedly adopted this finding.

Substantial evidence supports Board’s implied finding that the number of trees removed was significant. Wallace’s 2012 tree report states that there were two California sycamores on the Property, but identifies three trees (5, 20, and 46) as sycamores. (AR 4-10.) Tree 5, which was substantially larger than trees 20 and 46, was the only sycamore protected from removal. Whether there were 2 or 3 sycamores, a reasonable person could find that the removal of the only protected sycamore was significant.

The 2012 tree report shows 104 California coast live oaks on the Property. (AR 4.) Board could reasonably find as it did that the removal of 2 coast live oaks, out of 104 coast live oaks, was less than significant. However, as discussed below, there is substantial evidence that tree 30 was relatively large and healthy and its loss was significant. In that context, Board could reasonably find that the loss of trees 29 and 30, collectively, was “significant relative to the holistic woodland on the properties.”

Petitioner contends that “the number of non-permitted trees removed (one on one lot, two on another) was minor.” Petitioner points out that it improperly removed about 2% of the 117 protected trees and 5% of the 56 trees permitted for removal. (OB 19.) Petitioner fails to address the significance of the removal of the single remaining California sycamore from a population of two or three sycamores. Moreover, considering the size and age of the trees (further discussed below), substantial evidence supports Board’s implied finding that removal of trees 5, 29, and 30, collectively, was significant to the woodland on the Property.[1]

Substantial evidence supports Board’s penalty findings related to the number of trees removed.

With respect to the size and age of the trees, BSS found: “Tree number 5, California Sycamore was in excellent condition, large in size, and at least seventy years of age and potentially much older. It would have been able to withstand stress, such as drought and pest infestations, due to its size, age and condition, and would have been expected to live much longer had it not been cut down. Therefore, its loss is very significant to the subject property. In addition, given the location of the tree at the front of 1838 Old Ranch Road, its removal is especially relevant to the adjoining public right of way. Tree number 29, Coast Live Oak, was a young and small tree and its loss is less significant. Tree number 30, Coast Live Oak, was a young adult tree, approximately thirty years of age and with a significant spread. Had it not been cut down, this tree would have been expected to live through stress, such as drought and pest infestations, due to its health, age and condition, and would have been expected to live much longer. Therefore, its loss is significant to the subject property.” (AR 1631.) Board impliedly adopted BSS’s findings regarding the size and age of the trees removed.

Substantial evidence supports these findings. Tree 5 was an adult California sycamore tree, 26 inches in diameter, 80 feet in height, and approximately 50-75 years old. According to Wallace’s PTR, tree 5 scored “excellent” in terms of health, aesthetics, and balance, and was one of the largest protected trees on the Property. Tree 5 was located near the front of the property. (AR 7-14, 703; see AR 1 [tree location map].) At the Board hearing, Lorenzen testified that tree 5 was one of the largest trees on the Property and “it’s the first tree you see when you approach this property.” (AR 1846.) Project opponents and residents commented about the significance of tree 5 to the Property. (See e.g. AR 1857, 1939, 1414, 1420, 1267-68, 1271.) Given the size and health of tree 5, as found by Wallace, as well as the mitigation measures he recommended (see AR 1-84), Board could reasonably find that tree 5 “would have been expected to live much longer had it not been cut down” and that its loss was “very significant” to the woodland on the Property.

Tree 29 was 4 inches in diameter, 20 feet in height, and a relatively young tree. Tree 30 was 22 inches in diameter (2 trunks), 35 feet in height, and a young adult. According to the tree report, Trees 29 and 30 were also rated “excellent” in health, aesthetics, and balance. (AR 703, 7-14, 1631.) An arborist estimated Tree 29 to be 15-20 years old and Tree 30 to be 50-75 years old. (AR 703.) Board reasonably found that the loss of tree 29 was less significant given that it was a “young and small tree.” Given the size, age, and health of tree 30, as well as the mitigation measures Wallace recommended, Board could reasonably find that tree 30 “would have been expected to live much longer” and its loss was significant.

Petitioner argues that “City approved the removal of numerous other protected trees of similar or greater size and also approved grading within the driplines of those two trees knowing they may not survive such construction activity.” (OB 19, citing AR 7-14.) Relatedly, Petitioner argues that both trees 5 and 29 would be impacted by construction. (OB 20, citing AR 6, 874, 972-73.) Under substantial evidence review, Petitioner’s record citations are not convincing. Board could reasonably find from Wallace’s report that trees 5 and 30 could have lived much longer and their loss was significant.

Substantial evidence supports Board’s penalty findings related to the size and age of the trees removed.

BSS and Board found that Petitioner had no prior violations of section 46.06 or similar law. (AR 1631.) Substantial evidence supports Board’s finding regarding prior violations.

Based on the foregoing, all of Board’s penalty findings are supported by substantial evidence.

“The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion.” (Williamson v. Board of Medical Quality Assurance (1990) 217 Cal.App.3d 1343, 1347.) “If reasonable minds may differ with regard to the appropriate disciplinary action, there is no abuse of discretion.” (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.)

Board revoked Petitioner’s building permits and ordered new permits to be withheld for five years. (AR 1629-32.) The PTO authorized Board to revoke Petitioner’s building permits and withhold issuance of permits for up to 10 years. (§ 46.06(a).) Board found that Petitioner knowingly and intentionally removed trees 5, 29, and 30 in violation of the PTO. Board also found that the loss of the trees, particularly tree 5, was significant to the woodland on the Property. Notably, Board imposed a penalty that was substantially less than that authorized by the PTO. Given the findings of intentional or negligent violation of the PTO and the significance of tree 5, the penalty was reasonable and not a manifest abuse of discretion.

As noted above, the court has concluded that the substantial evidence test applies to Board’s fact findings. However, the parties’ briefing for the standard of review was not complete and the court requires further argument on that issue, as outlined above. However, even if the independent judgment test were applied, the court would reach the same conclusion.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, supra, 4 Cal. 3d at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.)

The weight of the evidence supports Board’s finding of liability. Specifically, Petitioner removed trees 5, 29, and 30 without a permit and in violation of the PTO. (See e.g. AR 578-582, 865, 1078-79, 1107-09, 1603, 1778-1786, 1880.)

The weight of the evidence also supports Board’s findings that trees 5, 29, and 30, collectively, were significant to the Property both in terms of numbers and size and age. Notably, tree 5 was the only remaining sycamore on the Property, was about 50-75 years old, and one of the largest trees on the Property. It was also located at the front the Property and was a visible and significant tree. Wallace also rated all three trees “excellent” in health, aesthetics, and balance. (AR 703, 1-14, 1631.)

Based on the same evidence discussed above, the weight of the evidence supports the finding that Petitioner negligently or intentionally removed trees 5, 29, and 30 in violation of the PTO. Petitioner’s arborist tagged and mapped the trees, and at least one of Petitioner’s members walked the site with tree cutter Gonzales, who had prior experience in similar tree-cutting jobs. Despite his mitigation measures requiring supervision by a project arborist (see AR 93-94), arborist Wallace did not walk the site with Gonzales or ensure that he understood which trees were permitted for removal. Since Petitioner knew of the location of the trees, the court concludes that its removal of the trees in violation of the PTO was intentional or negligent.

By adopting the BSS report, Board affirmed BSS even if the trees were removed negligently. (See AR 1602-04.) Thus, the court must decide, applying the deferential standard for review of an administrative penalty, whether that penalty determination was a manifest abuse of discretion. One purpose of section 46.06 is to deter wrongful removal of protected trees. (See AR 1430.) Considering the significance of the trees, particularly tree 5; Petitioner’s knowledge of the trees and opportunity to preserve them; and the strong evidence that Petitioner was at least negligent in preserving trees 5, 29, and 30, the court concludes that the penalty imposed was reasonable and not a manifest abuse of discretion. Indeed, BSS opined in its staff report, and at least one commissioner opined at the hearing, that the penalty should be affirmed even if Petitioner’s conduct was only negligent.

For these reasons, even if the independent judgment test applies to Board’s fact findings, the court reaches the same result and denies the petition.

[1] The parties refer to a statement of James at the hearing that “it was just 3 trees out of 25,” which would be 12 percent. (Oppo. 17-18 and Suppl. Reply 9-10.) It is unclear where James obtained the number 25 in this comparison. However, James stated immediately thereafter “if you want to -- you know, there are any number of ways we can discuss all kinds of issues around tree replacement.” (AR 1973.) In context, his reference to “3 trees out of 25” appears to have been an argument that various numerical comparisons could be made. Board, as a body, did not find that 3 trees out of 25 were removed. Thus, these statements by James are not material.