Judge Mitchell L. Beckloff, Case 19STCP03995 2022-12-07 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 19STCP03995, Date: 2022-12-07 Tentative Ruling

Petitioner, Loma Linda Holdings, Ltd., seeks a court order directing Respondent, the City of Beverly Hills, “to proceed with a plan check review” of its development project “under the laws existing at the time of the submission of those plans and to perform the ministerial task of issuing a building permit for the” project, a single-family residence at 1193 Loma Linda Drive (the Project).[1] (First Amended Petition [petition], Prayer.)

The City’s unopposed request for judicial notice (RJN) of Exhibits A through D is granted. (Evid. Code, § 452, subds. (b).)

Petitioner’s objections to the Declaration of Ryan Gohlich are overruled except objection 1 is sustained in part (as to “Because . . . City’s codes”) and objection 4 is sustained.

Petitioner owns 1193 Loma Linda Drive (the Property), a vacant lot, in the City. (Tabaian Decl., ¶ 2.)

In June 2016, “Petitioner sought to build a by-right single-family residence at” the Property. (Gohlich Decl. ¶ 3.) Originally, Petitioner intended to build a discretionary project requiring approval of an R-1 permit by the City’s planning commission. (Tabaian Decl., ¶ 4.) However, on July 31, 2017, after various delays, Petitioner revised its plans and began pursuing development of the Property by-right through ministerial approval of the Project. (Tabaian Decl., ¶ 4.)

During the plan check process, the City required Petitioner to dedicate an easement to it to allow emergency vehicle turn around on the Property. (Tabaian Decl., ¶ 5. JA 67.) The City also required vacation of storm drain easement (SDE) running through the Property. (Tabaian Decl., ¶ 5. JA 67.)

On October 12, 2017, the City’s planning commission staff issued a report recommending the City’s planning commission “conduct a public hearing and receive testimony on” the SDE abandonment and the easement allowing emergency vehicle turn around. (JA 67.) The City’s planning commission staff also recommended adoption of a resolution finding the SDE vacation and vehicle access easement were consistent with the City’s General Plan.

On November 7, 2017, at a regular City Council meeting, the City Council heard debate on two resolutions – one about the SDE and one about the emergency vehicle access. (JA 79, 77-150.) At the conclusion of the meeting, the City Council voted to adopt the resolution to accept Petitioner’s offer of dedication of the easement for emergency vehicle access only. (JA 148-149.) The City Council did not vote on the SDE abandonment. (AR 148-149.)

Despite the transcript from the City Council meeting, the parties dispute whether the City Council voted and agreed to vacate the SDE at this meeting.[2]

As a result of the omission of a vote to adopt the resolution about the vacation of the SDE, the City Council placed the proposed approval of the vacation of the SDE on its consent calendar for November 21, 2017. (JA 151, 152-165.) Despite the City Council having placed the matter on the consent calendar, the City Council “pulled” the matter for public hearing and continue it to “uncertain” for consideration at a later date. (JA 152-165, 163; Tabaian Decl., ¶ 14.)

From June 2016 to March 2018, Petitioner submitted numerous plan revisions for the Project to the City. In fact, Petitioner submitted twelve different plans for plan check between July 31, 2017 and the expiration of plan check on May 6, 2018. Petitioner also submitted additional informal/intermediate revisions and changes submitted through “slip sheets.” (Tabaian Decl., ¶ 4; Gohlich Decl. ¶ 6.)

On March 6, 2018, the City adopted an ordinance affecting basements, grading and retaining walls in the hillside area of the City, the Basement Ordinance. The Basement Ordinance became effective on April 6, 2018. (JA 447.)

In response to each of the twelve plans submitted by Petitioner, the City issued a notice of correction. (Tabaian Decl., ¶ 3; Fong Decl., ¶ 4; see e.g. JA 1-14, 15-29, 30-65.)

On April 25, 2018, the City sent a letter explaining building permits could not be issued for the Project until Petitioner made several corrections. (JA 1-2.) “The twelfth and final correction letter dated April 25, 2018 is the document that is in dispute.” (Opening Brief 16:15.)

Petitioner argues it is entitled to by-right building permits for its Project and that the “corrections” identified in the April 25, 2018 letter are erroneous.

“may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

Ordinary mandate under Code of Civil Procedure section 1085 is generally used to review an agency’s ministerial acts, quasi-legislative acts, and quasi-judicial decisions which do not meet the requirements for review under Code of Civil Procedure section 1094.5. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

“A ministerial duty is one that a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the propriety of such act.” (Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 528 [cleaned up].) “Mandate will not issue to compel action unless it is shown the duty to do the thing asked for is plain and unmixed with discretionary power or the exercise of judgment.” (Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center (2001) 93 Cal.App.4th 607, 618.) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 177.)

Where an agency’s ministerial duty is in issue, the appropriate standard of judicial review is whether the agency's action was arbitrary, capricious, entirely lacking in evidentiary support, or whether the agency failed to follow the procedure required by law. (Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, 814; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 846.)

Petitioner contends the City failed to comply with its ministerial duty to issue a by right building permit for the Project. Petitioner argues it submitted code compliant plans with the City and any claims otherwise are false.

The City contends otherwise. The City argues no ministerial duty arose where Petitioner failed to correct deficiencies in its plans identified by the City.

There is no dispute to obtain its building permit, the City required Petitioner to obtain a vacation of the SDE running through the Property from the City. (JA 3; see also JA 71. [“Issuance of building permits for those proposed projects are contingent upon the Planning Commission's findings for General Plan conformance and the City Council's approval of the requested storm drain easement vacation and acceptance of the vehicle access dedication.” JA 80.) The SDE cuts through the Property and Project site; if the SDE is not vacated any building erected would impede the SDE.[3] (JA 73-74).

Petitioner asserts the City vacated the SDE. Petitioner argues the City’s position otherwise is “demonstrably false because the City Council unequivocally and undeniably voted to vacate the storm drain easement on November 7, 2017.” (Opening Brief 6:19-20.) Petitioner explains the City vacated the SDE on November 7, 2017 by a voice vote. Petitioner’s position misstates the facts and mischaracterizes the single motion before the City Council on November 7, 2017.

The agenda report for the City Council meeting of November 7, 2017 involved consideration of two separate and distinct resolutions related to the Project. The agenda report provides in pertinent part:

“Subject: ACCEPTING VEHICLE ACCESS EASEMENTS AND VACATING A STORM DRAIN EASEMENT, AND FINDING ACTIONS EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AS FOLLOWS:

A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BEVERLY HILLS APPROVING TWO AGREEMENTS CONTAINING IRREVOCABLE OFFERS OF DEDICATION OF EASEMENTS ALONG LOMA LINDA DRIVE ADJACENT TO 1184 LOMA LINDA DRIVE AND 1193 LOMA LINDA DRIVE, BEVERLY HILLS, FOR PUBLIC STREET PURPOSES AND CONDITIONALLY AUTHORIZING THE CITY ENGINEER TO ACCEPT DEDICATION OF THE EASEMENTS; AND

B. RESOLUTION OF THE COUNCIL OF THE CITY OF BEVERLY HILLS VACATING A STORM DRAIN EASEMENT OVER A PORTION OF THE PROPERTY LOCATED AT 1193 LOMA LINDA DRIVE AND AUTHORIZING THE EXECUTION OF A QUITCLAIM DEED TO LOMA LINDA HOLDINGS, LTD AS TRUSTEE OF THE LOMA LINDA TRUST, FOR TERMINATION OF THE EASEMENT” (JA 183 [emphasis added].)

At the City Council meeting on November 7, 2017, the City Council considered and debated the two separate resolutions. (JA 77-150.) Ultimately, despite debating both resolutions at the meeting, a single motion was made concerning the vehicle access easements:

“Councilmember Friedman: Oh, that’s because its 1:30 past. I move that the resolution entitled resolution of the Council of the City of Beverly Hills approving two agreements containing irrevocable offers of dedication of the easements along Loma Linda Drive adjacent to 1184 Loma Linda Drive and 1193 Loma Linda Drive, Beverly Hills, for public street purposes and conditionally authorizing the City Engineer to accept dedication of the easements be adopted and that the easements be accepted and substantially the form presented.” (AR 149.)

Vice Mayor Gold seconded Councilmember Friedman’s motion. Thereafter, a roll call vote was conducted resulting in four votes in favor of the single motion made and one against. (AR 149.)

After the Councilmember Friedman’s motion passed, the City Council immediately adjourned. The City Council made no motion concerning the SDE vacation resolution, and no City Council member made a motion to adopt the SDE vacation resolution prior to the conclusion of the meeting. (AR 149; see also JA 151 [email explaining no second motion made on SED vacation resolution], 166.)

The City Council’s meeting minutes reflect the City Council voted on a single motion adopting the resolution approving the vehicle access easements. (JA 1285.) The minutes provide:

Further, on November 15, 2017, eight days after the City Council meeting, the City contacted Petitioner’s representative to advise the City Council did not vote on the resolution vacating the SDE on November 7, 2017. (JA 151.) A senior City planner wrote:

“At the end of the November 7th City Council meeting, the Council’s motion on the Loma Linda item (Item G-2) covered only the fire turnaround and did not cover the abandonment of the storm drain. Although both motions appeared in the script, there was not a second motion made.

As a consequence, the abandonment of the storm drain will be placed on the consent calendar for approval at the November 21st meeting. The consent calendar item will indicate that the item was debated but a motion never made.” (JA 151.)

Despite the evidence to the contrary, Petitioner asserts on November 7, 2017, the City Council “voted to vacate the abandoned SDE.” (Opening Brief 16:25-26.) To support its claim, Petitioner relies upon the sworn statements of two lawyers representing Petitioner (only one of whom apparently attended the November 7, 2017 City Council meeting) and the City Council meeting transcript. (Opening Brief 16:26.) While the transcript reflects debate on whether the City should vacate the SDE, it also reflects no City Councilmember moved the City Council to adopt the resolution to vacate the SDE. Thus, to the extent Petitioner’s attorneys’ attestations conflict with the City Council meeting transcript, they are unpersuasive.

To be sure, whether the City should vacate the SDE was before the City Council on November 7, 2017 and debated. (JA 79.) As implicitly acknowledged by Petitioner, however, the City Council did not vote to adopt the resolution to vacate the SDE. (Tabian Decl., ¶ 9. [Compare “voted and agreed to vacate the abandoned SDE” with “also voted to adopt the resolution to accept Petitioner’s offer of dedication . . . .”])

That the City did not adopt the resolution about the SDE is consistent with the City Council placing the matter on its consent calendar for approval on November 21, 2017. (JA 166.) The agenda report for November 21, 2017 explained:

“At its meeting of November 7, 2017, the City Council discussed the projects at 1184 and 1193 Loma Linda Drive and indicated support for adoption of the resolutions accepting the easement for the fire turnaround and vacating the unused storm drain easement. However, a motion was not made to adopt the resolution vacating the storm drain easement. Thus, this item is being brought back to the City Council on the consent calendar for formal approval.” (JA 166.)

On November 21, 2017, Lori Gordon, the Chair of the City’s planning commission, addressed the vacation of the SDE. (JA 155.) Gordon acknowledged the City Council’s prior discussions of the SDE vacation. (JA 155.) Gordon also advised prior reports about the SDE and the Stagg Property were inaccurate.[4] (JA 156.) Gordon suggested the planning commission’s decision in favor of vacating the SDE finding it to be in conformity with the City’s General Plan may have been different. (JA 156.) Gordon opined “it’s very important that [the City Council] reassess this.” (JA 157.) Gordon advised the planning commission could reevaluate the vacation of the SDE. (JA 156.1) Gordon concluded by suggesting if the City Council felt it was “capable of making a decision without [reevaluation by the planning commission] that would be fine as well.” (JA 156.1.)

At the conclusion of the November 21, 2017 City Council meeting, the City Council passed a motion to send the SDE vacation issue back to the planning commission for further consideration. (JA 162.) The City Council did not vote to adopt the resolution to allow the City to vacate the SDE.

On March 16, 2018, the City Council advised Petitioner it would not vacate the SDE because Petitioner had not otherwise provided plans for a by-right project “due to exceeding the maximum allowable soil export.” (JA 446-447.)

Despite the evidence, Petitioner claims the City Council voted and passed a motion to adopt the resolution providing for the City’s vacation of the SDE. (Opening Brief 16:25-26.) Petitioner labels any failure to formally pass a motion to adopt the ordinance a mere “technical error to follow Robert’s Rules” of Order. (Opening Brief 17:8.)

Relying on City of Pasadena v. Paine (1954) 126 Cal.App.2d 93, Petitioner argues parliamentary rules are procedural.[5] Accordingly, any failure by the City to follow its own procedural rules does not invalidate a city’s action. (Id. at 96.)

Petitioner’s argument assumes, without authority, the City may adopt a resolution in the absence of a specific motion and a vote on that motion. Petitioner does not suggest how to distinguish matters of procedure from matters of substance in the context of municipal actions and votes by a city’s legislative body.

As a preliminary matter, City of Pasadena v. Paine, supra, 126 Cal.App.2d at 93 addresses whether a city’s action may be invalidated. City of Pasadena v. Paine concerned a challenge to the city’s adoption of a resolution. City of Pasadena v. Paine did not address when a city’s inaction may be deemed action binding on a city. Unlike City of Pasadena v. Paine, no one is before the court attempting to invalidate the City’s action.[6]

Beverly Hills is a general law city. (Gohlich Decl., ¶ 11; Beverly Hills Municipal Code [BHMC] § 1-1-2.) Government Code section 36936 provides: “Resolutions, . . . and all ordinances require a recorded majority vote of the total membership of the city council.” (Emphasis added.) BHMC section 2-1-11 requires a “roll call vote . . . upon the passage of all ordinances [and] resolutions” with the vote recorded “in the minutes of the council showing those council members voting aye, those voting no, and those not voting or absent.”

The court cannot find on the evidence the City “recorded a majority vote” on the resolution to vacate the SDE.[7] While the City Council may have engaged in a fulsome debate about the SDE resolution, it is indisputable no City Councilmember ever made a motion subjecting the resolution to vote. In fact, the City Council adjourned the meeting without voting on the SDE resolution. Councilmember Friedman specifically stated his motion concerned only the irrevocable offers of dedication easements for emergency vehicle access. (JA 149.) Councilmember Friedman later admitted he did not make a motion concerning vacation of the SDE. (JA 159.1) Mayor Bosse also recognized the City Council’s error in failing to vote on a motion concerning the SDE. (JA 160.)

The court rejects Petitioner’s characterization of the City Council’s vote on a single motion on November 7, 2017 as a “misread of the script.”[8] (Reply 8:26.) There was no misreading and no misstatement made—it was a complete omission of a motion for a vote by the City Council such that no vote took place. While both resolutions may have been debated and apparently included for the City Council in its “script,” the City Council failed to move the adoption of the SDE resolution such that the City Council had no recorded vote on it. The City cannot be deemed to have voted on a motion that no Councilmember ever made.

Petitioner argues even assuming the City Council did not record a majority vote to adopt the SDE resolution, the court should nonetheless deem the SDE vacated on equitable estoppel grounds. Petitioner argues that “courts have consistently used estoppel to enforce public agencies promises and representations.” (Opening Brief 19:10-11 [citing US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 131-132].)[9] Petitioner contends the City must be held to its “at least three express representations that it would vacate the SDE.” (Opening Brief 19:25.) The court disagrees.

The elements of equitable estoppel with a private party are “(1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citation.]” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.)

“The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.” (Berkeley Lawn Bowling Club v. City of Berkeley (1974) 42 Cal.App.3d 280, 288.)

The first representation argued by Petitioner as serving as the basis to estop the City—that the City actually voted to adopt the SDE resolution at the City Council meeting on November 7, 2017—is unavailing. As discussed, the City did not vote on a motion to adopt the SDE resolution on November 7, 2017.

Petitioner also claims the City’s employees twice represented the SDE vacation resolution would be placed on the City Council’s consent “for approval” calendar at the November 21, 2017 meeting. (Opening Brief 19:27-20:3; Tabaiain Decl., ¶ 12.) Assuming for the sake of argument that a City employee could bind the City Council with his “promise,” [10] the “promise” alleged by Petitioner is supported by a mischaracterization of the evidence. Nothing in the City staff member’s email to Petitioner’s representative suggests the matter would be placed on the “consent calendar for quick adoption.” (See JA 151.) Nothing in the email guarantees approval of the SDE resolution such that Petitioner’s reliance on the statement was reasonable. (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261 [“The detrimental reliance must be reasonable.”].) Additionally, the City Attorney’s statement to Petitioner’s representative on November 8, 2017—even as characterized by Petitioner—did not “promise” any result of a motion or a “formalized vote” on the SDE resolution. (Tabaian Decl., ¶ 12.)

Nor is there evidence the three identified representations were detrimentally relied upon by Petitioner. Petitioner claims it relied on the representations to continue “moving forward with the plan check process and making numerous costly revisions to building plants,” (Opening Brief 20:3-4; Tabaian Decl., ¶ 12.) However, Petitioner does not demonstrate any detrimental reliance it experienced from November 8, 2017 to the date the representations was purportedly proven untrue, November 21, 2021. (Tabaian Decl., ¶¶ 12-14.)[11] After the City Council meeting on November 21, 2017, Petitioner could no longer reasonably rely on any of the alleged three “promises.”

Accordingly, given the facts here, Petitioner has not met its burden of demonstrating each element of general equitable estoppel. (Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 438 [party asserting estoppel bears burden of proving each element of estoppel].) The court therefore need not reach the additional issue of estoppel against a public agency.

As Petitioner has not demonstrated the City adopted the SDE resolution and has not met its burden of demonstrating estoppel applies here thereby precluding the City from asserting it holds the SDE, Petitioner is not entitled to writ relief. Petitioner’s Project is not by right given the SDE. Without the City vacating the SDE, Petitioner is not entitled to relief in this proceeding because there is no ministerial duty at issue. Whether the City elects to vacate the SDE is a discretionary decision. The court has no authority to compel the City to exercise its discretion in any particular manner.

[The court is inclined to end its order here as the other issues raised by Petitioner, even if meritorious, do not entitle Petitioner to writ relief. Moreover, as Petitioner has other civil claims pending against the City, it may be more appropriate to omit the court’s discussion of Petitioner’s other claims.]

The parties dispute whether Petitioner submitted BHMC-compliant plans to the City. Petitioner must have done so to obtain building permits by right. Given that Petitioner cannot demonstrate the City vacated the SDE, the balance of Petitioner’s arguments before the court do not change the outcome. Petitioner cannot demonstrate its Project is by right based on the City’s discretion associated with the SDE. Nonetheless, for completeness, the court addresses Petitioner’s claims about its plans.

Between June 2016 and May 4, 2018, Petitioner submitted various plan revisions for the Project. (Gohlich Decl., ¶ 6; Tabaian Decl., ¶ 28.) During the plan submission and resubmission process, the City issued twelve correction letters to Petitioner. (Opening Brief 16:15; Opposition 5:4-5; Fong Decl., ¶ 4.) The correction letters identify certain changes to the plans required by the City to obtain building permits. (Fong Decl., ¶ 4.)

Whether Petitioner’s plans complied with the BHMC turns on consideration of the City’s Basement Ordinance, soil export limitations, and construction-over-slope requirements.[12]

The City found the Project does not comply with its Basement Ordinance, a requirement effective April 6, 2018. Specifically, to comply with the Basement Ordinance Petitioner would be required to redesign the Project for a by-right project or obtain a discretionary Hillside R-1 permit.[13] (Gohlich Decl., ¶ 10. [“After the City’s Basement Ordinance became effective on April 6, 2018, Petitioner has not submitted revised plans demonstrating the [] Project’s by-right compliance with the Basement Ordinance.”])

Petitioner does not argue the Project complies with the City’s Basement Ordinance. Instead, Petitioner contends it need not comply with it. Petitioner asserts it submitted its plans to the City prior to the effective date of the Basement Ordinance such that its plans are not subject to it.

The evidence before the court indicates the City advised Petitioner that it failed to submit plans compliant with the BHMC as of March 16, 2018. Based on Petitioner’s failure, the City advised Petitioner that it would not be able to obtain a vacation of the SDE (a discretionary decision) and a building permit prior to April 6, 2018, the effective date of the Basement Ordinance. (JA 446-447.) The City also represents Petitioner did not submit BHMC-compliant plans prior to the effective date of the Basement Ordinance, April 6, 2018. (Gohlich Decl., ¶ 10.)

Petitioner reports the Basement Ordinance did not go into effect on April 6, 2018 as planned. Petitioner asserts for some period of time the City Council’s adoption of the Basement Ordinance was stayed based on a petition for referendum. The details and evidence concerning the petition for referendum are scant.

[What evidence in the JA informs on the petition for referendum other than JA 564 and the Fong Declaration at paragraph 32?]

The little evidence before the court demonstrates the public submitted a petition for referendum to the City on the Basement Ordinance. In an April 17, 2018 email, a planner for the City reported:

“However, as you are aware, on Thursday, April 12, 2018, enough signatures were submitted to the City to allow for a referendum of the City's recently adopted code amendments. In light of this, City staff has been advised by the City Attorney that the implementation of the new code is stayed until the ordinance is put before a vote. As it pertains to this project, it would mean that plan check can continue because the old code is still in effect now that the new code is stayed. Therefore, the project would not be subject to a Hillside R-1 Permit or redesign at this time.” (JA 564; Fong Decl., ¶ 32.)

[As Petitioner made the stay argument in reply, the City has not had an opportunity to address the claim.]

It appears Election Code section 9237 is consistent with the City’s position the petition for referendum suspended the effective date of the Basement Ordinance. Elections Code section 9237 provides:

“If a petition protesting the adoption of an ordinance, and circulated by a person who meets the requirements of Section 102, is submitted to the elections official of the legislative body of the city in his or her office during normal office hours, as posted, within 30 days of the date the adopted ordinance is attested by the city clerk or secretary to the legislative body, and is signed by not less than 10 percent of the voters of the city according to the county elections official's last official report of registration to the Secretary of State, or, in a city with 1,000 or less registered voters, is signed by not less than 25 percent of the voters or 100 voters of the city, whichever is the lesser, the effective date of the ordinance shall be suspended and the legislative body shall reconsider the ordinance.”

[The court requires more input from the parties on this issue. The evidence suggests Petitioner did not have soil export calculations consistent with section 10-3-2521.1 (C) before the City until May 4, 2018. The evidence also suggests Petitioner did not submit construction over slope revisions until May 4, 2018. (Tabaian Decl., ¶¶ 37-38.) If the City deemed the petition for referendum invalid on or prior to May 4, 2018, the Basement Ordinance would have taken effect (at the very latest) when the City deemed the petition for referendum invalid. Under such circumstances, it appears the City’s failure to review plans submitted on or after May 4, 2018 would have been justified.]

Petitioner contends the City “[i]nappropriately [d]elayed” third-party review of its soil export calculations. (Opening Brief 23:9.) Petitioner contends the City has a “ministerial and mandatory duty to timely conduct plan check . . . .” (Opening Brief 24:9.) Petitioner finds its authority for the ministerial and mandatory duty in the California Building Code[14] at section 105.3.1 and its requirement that a building official “shall examine or cause to be examined applications for permits . . . within a reasonable time after filing.” (Opening Brief 23:12-13.)

As a preliminary matter, what constitutes review “within a reasonable time after filing” does not constitute a ministerial, mandatory and non-discretionary duty. That the City failed to

(1) advise the third-party reviewer to expedite review, (2) independently review Petitioner’s calculations or (3) insure the third-party reviewer had all necessary materials for the review does not inform on traditional mandamus.[15] (Opening Brief 23:19-25.)

The City consistently determined Petitioner’s plans did not comply with BHMC section 10-3-2521.1 (C). (JA 16 [March 6, 2018 correction letter]; see also JA 45 [February 1, 2018 correction letter], 4-5 [April 25, 2018 correction letter].)

Under BHMC section 10-3-2521.1 (C), a by-right project’s soil export cannot exceed 1,500 cubic yards (CY) in the Hillside Area immediately adjacent to a street that is less than 24 feet wide. Any project with soil export exceeding 1,500 CY in such location requires review by the planning commission and consideration of a Hillside R-1 permit (i.e., discretionary approval).

Petitioner’s December 2017 plans reflect the Project required 1,449 CY of soil export. (JA 728; see also JA 45.)

On January 20, 2018, GeoKinetics—who provided the City with a third-party review—found Petitioner’s calculations incorrect. GeoKinetics determined the Project would require 2,102 CY of soil export. (JA 717-718, 45.)

Petitioner thereafter revised its plans to reflect 1,439 CY of soil export, an amount sufficient to avoid discretionary review by the City. (AR 61.)

On February 28, 2018, GeoKinetics reviewed Petitioner’s calculations and again found they were incorrect. GeoKinetics’ review demonstrated Petitioner’s plans required more soil export than permitted for a by right project because the export exceeded BHMC section 10-3-2521.1 (C)’s allowances. (JA 16.) GeoKinetics determined Petitioner’s revised plans required 1,925 CY of soil export, not 1,439 CY.

On March 13, 2018, seven days after the City Council adopted the City’s Basement Ordinance but 21 days prior to its effective date, Petitioner submitted Project plans revealing only 924 CY of soil export. (JA 743-886.) Three days later, the City advised Petitioner “that no additional building plan check review will continue due to the project requiring discretionary approval as currently designed.” (JA 446-447 [noting next regular City Council meeting was April 10, 2018].)[16] The City reported the Project must comply with the Basement Ordinance or seek discretionary approval for a Hillside R-1 permit. (JA 447.)

On April 25, 2018, despite its March 16, 2018 statement it would no longer review Petitioner’s plans, the City advised Petitioner its soil export calculations required revision based on construction-over-slope projections. (JA 4-5.)

Petitioner submitted another set of plans on April 23, 2018 and May 4, 2018 to address soil export given the City’s construction-over-slope requirements. Petitioner claims the plans complied with the 1,500 CY soil export limitation in BHMC section 10-3-2521.1 (C). (JA 513-515 [April 23, 2018 plans] 568-716 [May 4, 2018 plans], 887; see also Liston Decl., ¶¶ 10, 13.) The City does not demonstrate otherwise.

Petitioner argues the City improperly “refused to allow the peer reviewer to review those calculations and plans despite the fact that the plan check period had not expired.” (Opening Brief 25:6-7.)

The City argues its decision to halt peer review by GeoKinetics of Petitioner’s revised plans was justified to avoid “wast[ing] public funds.” (Opposition 22:8-11.)[17] It also notes City staff continued to review Petitioner’s plans in March and April 2018 resulting in its final correction letter of April 25, 2018. (JA 2-14.)

Petitioner argues the evidence of its compliance with the soil export limitation ordinance with its May 4, 2018 plans is uncontradicted. While true, Petitioner cites no authority that the City was required—under these circumstances—to submit Petitioner’s plans for peer review.[18] That is, Petitioner has not identified any ministerial duty with which the City failed to comply as to peer review.

[In addition, the facts surrounding the petition for referendum are relevant here.]

On April 25, 2018, the City advised Petitioner the Project as designed did not comply with BHMC section 10-3-2507 pertaining to construction-over-slope requirements. (JA 3-4.)

As applicable to the Project, the City interprets the City’s construction over slope requirement as follows:

“Under [BHMC] § 10- 3-2503, if a building extends beyond the edge of the level pad by at least twenty-feet, measured horizontally to the pad, then the maximum permitted height for that portion of the building located on the pad shall be thirty-feet. ([RJN Ex. D].) The maximum permitted height for a structure constructed over a slope shall be twenty-two feet. ([RJN Ex. D].) However, the vertical distance between the lowest exposed point of the structure and the highest element of the structure shall not exceed 55 feet. ([RJN Ex. D].) The [] Project proposed a carport structure that extends beyond the edge of the level pad and would therefore need to comply with the 20-feet projection over slope requirement. (JA 3.) Because the proposed trellis at the back of the carport structure and the bridge planters downslope from the carport structure are not part of the principal residential structure, they could not be counted as part of the 20-foot projection over slope requirement. (JA 4.) Thus, the carport only projected 12-feet and six-inches from the edge of the level pad, which fails to satisfy the 20- foot projection over slope requirement. Id.” (Opposition 23:16-28.)

While Petitioner argues the court should not allow the City to apply its stated interpretation of the BHMC for equitable reasons, Petitioner makes no legal argument to contradict the City Council’s interpretation of its construction-over-slope provision.[19] (Opening Brief 20:14-23:6; Reply 11:17-12:3.) That is, Petitioner contends equity should provide relief.

Petitioner provides four reasons to support its claim it is entitled to relief. First, Petitioner argues, “The City’s failure to identify that element [construction over slope] as needing ‘correction’ through multiple plan checks in an express representation that the element in code-compliant and the City should be estopped from reversing the Building Official’s determination on this issue.” (Opening Brief 20:21-24.) Second, Petitioner contends the City Council usurped the role of the City’s Building Official. Third, Petitioner argues the City withheld guidelines advising how to comply with the City’s interpretation of the statute. Finally, Petitioner asserts it plans (eventually) complied with the City Council’s interpretation of BHMC section 10-3-2507. (See Opening Brief 20:14-23:6.)

As to Petitioner’s claim the City is estopped from interpreting the construction-over-slope ordinance as it did based on prior plan checks conducted by the City, Petitioner asserts estoppel. Petitioner notes from December 2017 to March 6, 2018, City staff consistently determined the Project’s carport, trellis and bridged planter components complied with BHMC section 10-3-2507. (JA 15-29, 30-65, 465-472 [March 6, 2018 City Council meeting].) Petitioner argues the City Council is therefore estopped form asserting its new “eleventh-hour” interpretation.

Even assuming a City employee could bind the City through his/her representations, Petitioner makes no showing to support all required elements for equitable estoppel. Importantly, Petitioner has not demonstrated injustice and/or public policy considerations warrant estoppel against a public entity. Petitioner has therefore not met its burden of demonstrating equitable estoppel precludes the City from requiring Petitioner to comply with BHMC section 10-3-2507 based on prior results of plan checks conducted by the City’s building department.

Petitioner also claims the City Council has no authority to review a decision of the City’s Building Official concerning building plan compliance with the BHMC. Petitioner argues, “The City’s action was illegal on the face of the BHMC, in violation of the City’s own policy regarding its ‘boots-on-the-ground reviewers,’ and cannot form the basis to deny a building permit.” (Opening Brief 21:21-22.)

Petitioner’s claim is undeveloped. Petitioner provides no analysis of who serves as the City’s Building Official, and authority delegated to the Building Official’s deputies. Petitioner offers no evidence the City’s Building Official made any construction-over-slope determination that might bind the City given the Building Official’s authority. As phrased, Petitioner asserts without legal authority the City’s Community Development Department staff members have the authority to bind the City.

Further, the record shows the City Council has previously made determinations requiring interpretation and application of the BHMC to proposed projects. (JA 297-298.) In fact, one City staff member testified the City Council’s interpretation must be accepted by City staff as it is the final decision-making authority regarding discretionary matters and interpretations. (JA 330-331.) Again, Petitioner’s failure to provide a fulsome analysis of the Building Official and his/her authority undermines its claim.

Petitioner also contends the City failed to provide compliance guidance concerning the City Council’s “new” interpretation of the construction-over-slope requirement. The claim is undeveloped. Petitioner has provided no legal authority requiring the City provide such guidance. In addition, Petitioner has identified no mandatory, ministerial, non-discretionary duty to support a writ of mandate based on the City’s failure to provide guidance.

Finally, Petitioner argues it submitted plans on April 23 and May 4, 2018 that complied with the BHMC and the City Council’s “new” interpretation of the construction-over-slope requirement. (Ruzittu Decl., ¶¶ 15-21.) [This argument again turns on timing associated with the effective date of the Basement Ordinance.]

[1] Petitioner’s Opening Brief states the relief it requests a bit differently: “. . . the Court should grant the Petition . . . and require the City issue a building permit. In the alternative, the City should be required to complete the peer review process and plan check process within 50 days . . . or any other time the Court deems appropriate.” (Opening Brief 25:19-24.)

[2] The City Council voted at 1:30 a.m. on the motion. An issue arose with the SDE abandonment at the meeting based on the City requiring Petitioner to indemnify the City deemed “extremely onerous on the property owners” by Petitioner’s representative. (AR 147.)

[3] Petitioner notes the City vacated and quitclaimed the lower portion of the SDE on a third party’s property to the south (the Stagg Property). (JA 1341, 934-936.)

[4] Gordon’s statements were disputed later during the meeting by Ryan Gohlich, the City Planner and Assistant Director of Community Development for the City. (JA 158-159; Gohlich Decl., ¶ 1.)

[5] City of Pasadena v. Paine, supra, 126 Cal.App.2d 93 considered whether the adoption of a resolution by unanimous vote could stand were the city had failed to have a full reading of the resolution at a regular public session of the board of directors for the city and without a report from the city’s staff. The Court noted valid resolutions were “formal acts of the legislative body passed under ‘legal restrictions’ governing action thereon.” (Id. at 95.) The Court considered the applicable “legal restrictions” under the city’s charter. (Ibid.) The Court noted under the city’s charter a resolution would not be “valid unless it receives the affirmative vote of four members of the board of directors, and that every ordinance and resolution so adopted shall be signed by the chairman, or, in his absence, by the vice chairman, or by four members of the board.” (Ibid.) The Court concluded the city’s charter “enumerates three ‘legal restrictions’ governing action on resolutions.” (Ibid.) The Court specified, “Such ‘restrictions’ are undoubtedly mandatory and the omission of any one of them would be fatal.” (Id. at 96.) Ultimately, the Court concluded a full reading of the resolution did “not fall in the same category with the aforementioned ‘restrictions’ ” and the board of director’s procedural failings did not invalidate the resolution in issue. (Ibid.)

[6] CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5hh 265, 283 is also unhelpful to Petitioner. In CV Amalgamated LLC v. City of Chula Vista, the City failed to deem an applicant for a cannabis retail storefront license qualified despite its own rules to the contrary. (Ibid.) CV Amalgamated LLC v. City of Chula Vista simply has no application here.

[7] Contrary to Petitioner’s assertion, the Andre Sahakian, a senior planner for the City, did not “admit that the vote occurred, but that there was a technical error that could be easily remedied.” (Opening Brief 17:3-5. See JA 151.) The court also finds based on Petitioner’s overall liberties taken with its characterization of the evidence Lindsay Tabaian’s report of her telephone with the City Attorney on November 8, 2017 and the City Attorney’s statement of a “technical or ‘procedural error’ ” unreliable. (Tabaian Decl., ¶ 12.)

[8] Petitioner’s contention the City Council merely did not “properly read[] the script” ignores the specific motion voted on by the City Council. (See Reply 8:18.) The City Council’s failure to vote on a motion to adopt the SDE resolution is also not a “technical flaw in the reading of the resolution.” (Opening Brief 17:1 [emphasis added].)

[9] Petitioner does not acknowledge several of the cases it relies upon for support on estoppel arose in a different procedural posture. For example, in US Ecology, Inc. v. State of California, supra, 92 Cal.App.4th at 113, the Court held a petitioner had sufficiently alleged a claim for promissory estoppel and reversed a trial court’s decision to sustain a demurrer without leave to amend. Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349 similarly addressed the sufficiency of the pleadings.

[10] In Boren v. State Personnel Bd. (1951) 37 Cal.2d 634, the court rejected a plaintiff's effort to invoke “agency by estoppel,” noting that “[t]o invoke estoppel in cases like the present would have the effect of granting to the state's agents the power to bind the state merely by representing that they have the power to do so. It [has been] held that the authority of a public officer cannot be expanded by estoppel. [Citations.]” (Id. at 643.)

[11] The Opposition also notes subsequent correction letters from the City included the requirement Petitioner obtain a vacation of the SDE. (JA 2-3 [April 25, 2018 correction letter]; JA 15-16 [March 6, 2018 correction letter]; JA 44-45 [Feb. 1, 2018 correction letter]; JA 30-31 [Dec. 22, 2017 correction letter]; JA 937-938 [Dec. 14, 2017 correction letter]; Ahmed Decl. Ex. D [Nov. 27, 2017 correction letter].)

[12] The City argues Petitioner failed to address all issues identified in the correction letters. (Opposition 17:3-20:8.) Petitioner appears to concede the plans are not compliant with the BHMC but suggests such deviations may be ignored as “admittedly non-substantive, correctable over-the-counter, already completed or waived until a permit is issued.” (Opening Brief 25:15-16.) Petitioner’s evidence supports its position. (Tabaian Decl., ¶ 40.)

[13] Petitioner describes the Basement Ordinance as one “that indisputably kills the [] Project.” (Fong Decl., ¶ 31.)

[14] The California Building Code is found at part 2 of title 24 of the California Code of Regulations.

[15] Petitioner has other claims pending against the City. Those claims have been stayed pending resolution of Petitioner’s traditional mandate claim.

[16] Presumably, as the SDE vacation required City Council approval and the next City Council meeting would not occur until April 10, 2018 after the effective date of the Basement Ordinance,

[17] Petitioner responds it “was required to pay for the peer review – no public funds could have been squandered in this process.” (Reply 11:3-4.)

[18] The Court acknowledges Petitioner’s expert does opine the City’s action was inappropriate. (Curtis Decl., ¶ 11.)

[19] Indeed, Petitioner concedes the City Council’s interpretation must be treated as “persuasive.” (Reply 11:28-12:3; see also City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, 1021. [“[T]here is a strong policy reason for allowing the governmental body which passed legislation to be given a chance to interpret or clarify its intention concerning that legislation. The construction placed on a piece of legislation by the enacting body is of very persuasive significance. [Citation.] Also, construction of a statute by officials charged with its administration must be given great weight.”])