Judge Mitchell L. Beckloff, Case 21STCP00991 2022-08-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00991, Date: 2022-08-03 Tentative Ruling

Petitioner, Katherine E. Rubenstein, through her first amended petition seeks to set aside the decision of Respondent, the City of Los Angeles and its East Los Angeles Area Planning Commission (APC), to modify conditions of a conditional use permit (CUP) issued to Real Party in Interest, Vidiots Foundation (Vidiots), to sell alcohol at an existing movie theater at The Eagle Theatre (Project) located on Eagle Rock Boulevard (Property) in the Eagle Rock area of the City. The modification of the conditions of the CUP resulted from the successful appeal by The Eagle Rock Association (TERA) of the initial decision of the Zoning Administrator (ZA) to grant the CUP with conditions concerning the hours of operation, offsite parking, valet parking and security guards.

Petitioner’s opposed request for judicial notice (Petitioner RJN) is granted as to Exhibits 1 and 2. The objection to Exhibits 3 and 4 is sustained.

The petition is GRANTED. The matter is remanded to the APC pursuant to Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515 (Topanga).

As relevant here, to avoid adversely affecting the surrounding neighborhood, the City’s decision-maker cannot approve a CUP unless he or she makes the following six findings:

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

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

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

“(1) that the proposed use will not adversely affect the welfare of the pertinent community;

(2) that the granting of the application will not result in an undue concentration of premises for the sale or dispensing for consideration of alcoholic beverages, including beer and wine, in the area of the City involved, giving consideration to applicable State laws and to the California Department of Alcoholic Beverage Control’s guidelines for undue concentration; and also giving consideration to the number and proximity of these establishments within a one thousand foot radius of the site, the crime rate in the area (especially those crimes involving public drunkenness, the illegal sale or use of narcotics, drugs or alcohol, disturbing the peace and disorderly conduct), and whether revocation or nuisance proceedings have been initiated for any use in the area; and

(3) that the proposed use will not detrimentally affect nearby residentially zoned communities in the area of the City involved, after giving consideration to the distance of the proposed use from residential buildings, churches, schools, hospitals, public playgrounds and other similar uses, and other establishments dispensing, for sale or other consideration, alcoholic beverages, including beer and wine.”

In approving a conditional use, “the decision-maker may impose conditions related to the interests addressed in the [required] findings.” (Id. at subd. F.)

An “aggrieved” party may appeal the initial decision concerning a conditional use. (Id. at subd. I.)

Petitioner owns a single-family residence within 500 feet of and on the same block as the Property. (AR 51, 71.)

The Property is improved with a one-story commercial building that previously operated as a movie theater and associated retail space. (AR 430, 1579.) The Property has a General Plan designation of Neighborhood Commercial and is zoned for commercial uses under the C4 Zone. (AR 78, 421, 430.) Properties to the north, south, and west are zoned for and developed with commercial uses; properties to the east are zoned and improved with residential uses. (AR 78, 430.) Prior uses at the project site included a restaurant licensed to sell alcohol and a church with a 900-seat capacity. (AR 29-31, 431, 2262-2263.)

Vidiots is a non-profit organization in Los Angeles. It is dedicated to inspiring human interaction around film through preserving, growing, and providing access to its extensive DVD, Blu-ray, and rare VHS collection. (AR 111-112, 203.)

On February 13, 2020, Vidiots filed an application for a CUP to reactivate the Property’s theater and engage in the sale of alcohol exclusively to theater patrons in the lobby. (AR 99-124.) Vidiots also sought to operate daily from 11:00 a.m. to 1:00 a.m.[2] (AR 107; see also AR 430.) Vidiots intended to adaptively reuse the existing facility to screen movies, sell alcohol, host live entertainment, and make associated retail sales. (AR 100; see also AR 402.)

Before the ZA held a public hearing, the City received written comments about the Project. Comments made on Petitioner’s behalf[3] objected to the Project and argued the request for extended operation hours and alcohol service would cause parking and noise issues in the neighborhood. (AR 403, 405, 431.)

Comments about the Project made by others including TERA, the Eagle Rock Chamber of Commerce, and the Eagle Rock Neighborhood Council (ERNC). TERA is a “longstanding community service non-profit founded in large part to protect and rehabilitate the Eagle Rock community’s architectural heritage and improve the quality of life for the vibrant and diverse community that calls Eagle Rock home.” (AR 448.) The organizations all supported the Project. (AR 403-404, 431-432.)

On July 28, 2020, the ZA held a public hearing on the Project. (AR 402, 404.) During the hearing, the ZA heard both opposition and support for the Project. (AR 433.)

On September 8, 2020, the ZA issued his Letter of Determination (LOD) approving the CUP with several conditions (AR 421-443). The ZA also made all six findings required to approve the CUP under LAMC section 12.24, subdivisions E and W. 1. (a). (See AR 435-443 [findings].) The conditions imposed for the CUP included a requirement that Vidiots close its operations at 11:00 p.m. on Mondays through Thursdays and at 12:00 a.m. on Friday, Saturday, and Sunday, have security personnel and valet parking, and provide off-site parking spaces. (AR 393, 397.)

On September 18, 2020, TERA appealed the ZA’s decision to the APC. (AR 448.) TERA challenged 11 conditions it argued were unreasonable. (AR 448.) TERA’s appeal challenged only the conditions limiting operational hours, requiring security guards, and imposing valet and offsite parking requirements. (AR 449.) TERA argued that certain conditions would negatively impact the economic viability of the Project, ongoing cultural development in the community, economic development on Eagle Rock Boulevard, and TERA’s ongoing efforts to revitalize Eagle Rock Boulevard. (AR 449.)

TERA’s appeal alleged it was aggrieved by the challenged conditions. TERA explained the conditions affected its ongoing work to improve street safety and build a more sustainable transportation system in Eagle Rock. (AR 449-451.)

The City scheduled a public hearing on TERA’s appeal for December 9, 2020. (AR 452- 455.)

The City provided notice for the appeal hearing. (AR 453-455.) The notice indicated the public could review the complete file by making an appointment at least three days in advance of viewing. (AR 454.)

Petitioner’s representative made multiple attempts to obtain the complete file from the City. Nonetheless, Petitioner’s representative did not receive the file until six days before the scheduled appeal hearing and three days after the deadline for written submissions for consideration with the appeal. (See generally Opening Brief 7:7-18 [discussing unsuccessful attempts].)

The City received written comments in support of and opposition to the appeal. (AR 1536-1543 [Petitioner’s opposition], 1544-1552 [residential opposition], 1670-1677 [Vidiots’ support of appeal noting $1 million annual cost of condition compliance], 1654-1655 [residential support], 1970 [residential support].)

On December 9, 2020, the APC held the hearing on TERA’s appeal. (AR 2116- 2121 [agenda], 2265-2299 [hearing transcript].)

The City’s Chief Zoning Administrator (Chief ZA) recommended the APC partially grant TERA’s appeal. (AR 2178-2185.) More specifically, the Chief ZA recommended certain modifications to the CUP’s conditions: (1) expanding the hours of operation to 1:00 a.m. Monday through Thursday; (2) limiting the security guard requirement to larger events; (3) removing the condition for off-site parking; and (4) making valet parking a voluntary service. (AR 2180-2183.) The Chief ZA made the recommendation after considering Vidiots’ submission of new information its operations would not be at full capacity every night while Friday and weekend nights would incorporate pre-ticket sales permitting Vidiots to better regulate the crowds. (AR 2180-2183.)

The APC heard from TERA and others at the appeal hearing. TERA’s president spoke about TERA’s interest in the Project and its opposition to conditions it considered burdensome. (AR 2189-2193.) A member of the public (Petitioner’s representative) noted TERA’s appeal failed to consider any of the six findings required for the CUP. He also argued Vidiots, not TERA, was the proper appellant. (AR 2216-2217; see also 1563-1564 [submitted written comments].) Other members of the public spoke in support of the Project and appeal, including individuals from ERNC and a representative of City Councilmember de Leon (Council District 14). (AR 2201, 2203, 2254-2255, 2261-2262.)

The APC voted unanimously to grant the appeal in part and adopted modified conditions for the Project relating to the hours of operation, security guards and parking. (AR 2087-2111 [letter of determination], 2299-2302 [hearing transcript].) The APC’s motion also adopted the prior findings in the ZA’s LOD and purportedly incorporated the APC’s deliberations at the hearing. The APC also found the ZA erred. (AR 2300-2301.)

On January 5, 2021, the APC issued a letter of determination (APC Decision) reflecting its decision with findings similar to that of the ZA. (AR 2087-2105; see also AR 2089 [hours], 2093 [security, valet, off-street parking].)

Petitioner seeks relief through from the court pursuant to Code of Civil Procedure section 1094.5.

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision 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 respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

The parties agree this court must review the APC Decision for substantial evidence in light of the whole administrative record. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317. [“Where, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review. [Citations.]”])

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 before the agency, 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.) This perspective is deferential to the agency. (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1074 [“[The court] must accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the [administrative

Petitioner bears the burden of proof to demonstrate, by citation to the administrative record, that the evidence does not support the administrative findings. (See Steele v. Los Angeles County Civil Service Commission (1958) 166 Cal.App.2d 129, 137; Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)

Additionally, “ ‘[o]n questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ ” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) Thus, judicial review involving the interpretation of relevant statutes or regulations, including LAMC section 12.24, is pursuant to the court’s independent judgment.

Petitioner makes several arguments in support of her petition. The court addresses each in turn.

The APC found TERA was an aggrieved party for purposes of its appeal. (AR 2101.)

As a threshold matter, Petitioner argues the APC lacked jurisdiction over the appeal. Petitioner claims TERA is not an “aggrieved” party entitled to appeal the ZA’s decision under the LAMC. The court disagrees; the APC’s finding TERA was an aggrieved party is supported by substantial evidence.

LAMC section 12.24 subdivision I. 2 sets forth who may appeal a zoning decision:

2. Filing of an Appeal. An applicant or any other person aggrieved by the initial decision of the Zoning Administrator may appeal the decision to the Area Planning Commission. . . . The appeal shall be filed within 15 days of the date of mailing of the initial decision on forms provided by the Department. The appeal shall set forth specifically the points at issue, the reasons for the appeal, and the basis upon which the appellant claims there was an error or abuse of discretion by the initial decision-maker. Any appeal not filed within the 15-day period shall not be considered by the appellate body. The filing of an appeal stays proceedings in the matter until the appellate body has made a decision. Once an appeal is filed, the initial decision-maker shall transmit the appeal and the file to the appellate body, together with any report if one was prepared by staff responding to the allegations made in the appeal.

(City RJN, Ex. 1 at LAMC § 12.24 subd. I. 2 [emphasis added].) No provision of the LAMC defines an “aggrieved” person for purposes of appeal from a ZA decision.

Petitioner generally contends TERA was not aggrieved by the ZA’s LOD. Petitioner argues operating hours and security requirements merely place an undue financial burden on Vidiots, not TERA. (AR 450.) Thus, Petitioner contends TERA cannot be aggrieved. The court disagrees.

Petitioner’s argument ignores the community context of the Project, the Project as a whole and TERA’s mission and focus. TERA “is a member-based resident organization whose primary mission for the past 35 years has been the improvement of the Eagle Rock community.” (AR 2189.) TERA “is a longstanding community service non-profit founded in large part to protect and rehabilitate the Eagle Rock community’s architectural heritage and improve the quality of life for the vibrant community that calls Eagle Rock home.” (AR 448.)

As an entity in the community, TERA has been working on a streetscape improvement initiative called Rock the Boulevard which seeks to improve pedestrian, bicycle and transit mobility along Eagle Rock Boulevard on behalf of the community. (AR 449.) In TERA’s view, some of the conditions imposed by the ZA were “not consistent with Rock the Boulevard or the community goals for the area.” (AR 449.) Thus, the conditions imposed by the ZA directly impacted TERA’s interests in the streetscape plan and its mission for the community.

Additionally, the Project site, the Eagle Theatre, “is a significant cultural resource with the Eagle Rock neighborhood whose rehabilitation has been a longstanding goal of the community.” (AR 451.) The Project, in TERA’s view, an “incredible opportunity to build a lasting cultural resource that celebrates the work” of those who live in Eagle Rock and work in the television and film industries. (AR 451.) Thus, TERA has an interest in the Project’s success and financial viability.

The APC’s decision TERA was an aggrieved party in the context of a zoning decision here is supported by substantial evidence. TERA is a community organization with an interest in ensuring the Project is financially viable and promotes its mobility goals to promote TERA’s mission.

That TERA’s filing fee for its appeal was less than that a CUP applicant would pay under LAMC section 19.01 is of no consequence. The City has determined its appeal fee structure. TERA, as an aggrieved party, paid its required filing fee.

Petitioner’s reliance on laws from other jurisdictions and/or statutory or regulatory schemes with specific definitions of “aggrieved person” aligned with Petitioner’s view to support her claim TERA is not aggrieved is unhelpful. LAMC section 12.24 I. 2 is unrestricted and is subject to the City’s broad interpretation. The City’s interpretation of aggrieved party here for purposes of a zoning appeal is imminently reasonable. This is especially true given that zoning decisions may affect an entire community. Nothing in the LAMC requires TERA to show special damages—including infringement of a property right—it suffered from the ZA’s LOD.

Finally, that TERA did not appear at the hearing before the ZA is not relevant. The LAMC does impose such a requirement for standing to appeal a ZA’s decision. While TERA’s lack of participation in the ZA hearing may impact the issues it can raise on appeal, it does not limit their standing to appeal.

The court finds Petitioner has not met her burden of demonstrating TERA had no standing as a matter of law or fact.

Petitioner argues the City did not afford her due process and/or provide her with a fair hearing.

As noted earlier, Code of Civil Procedure section 1094.5, subdivision (b) provides a writ of mandate may issue where an administrative agency decided a matter without a “fair trial.” (Code Civ. Proc. § 1094.5, subd. (b).) “Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’ ” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062; see also Horn v. County of Ventura (1979) 24 Cal.3d 605, 617. [“The general application of due process principles is flexible, depending on the nature of the competing interests involved.”])

Petitioner contends the City did not provide her (or others) with proper notice of the appeal hearing before the APC. Petitioner asserts the City did not serve notice of the hearing as required by the LAMC. Petitioner also argues the contents of the City’s notice was too vague to adequately inform recipients of the reason for the APC’s hearing.

The LAMC sets forth the notice required by the City for a hearing on the application for a CUP and an appeal. The LAMC’s notice provision requires the notice be published, mailed and posted. (City RJN, Ex. 1 at LAMC § 12.24, D.) As relevant here, the LAMC requires written notice of the hearing be mailed 24 days prior to the date of the hearing to the owners and occupants of residential, commercial and industrial property within 500 feet of the property involved. (Id., subd. D.2.)

The City contends it complied with the LAMC’s requirements; it mailed written notice as required on November 9, 2020. (AR 435-435.) Accordingly, the City mailed notice of the hearing more than 24 days prior to the hearing.

Petitioner notes, however, the proof of service relied upon by the City does not indicate the City sent notice to property owners within 500 feet of the Property, including Petitioner.[4] (AR 452.) Thus, the City’s notice was incomplete and defective.

In response, the City argues evidence in the administrative record demonstrates Petitioner received the notice by mail thereby suggesting the proof of service is inaccurate. In fact, Petitioner submitted her objections to the appeal based on the written notice she admittedly received by mail. (AR 1536. [“Katherine Rubenstein received the mailed Notice of Public Hearing late in the day on November 16, 2020.”])

Without citing any authority, the City suggests Petitioner’s actual notice is sufficient to meet the LAMC’s notice provisions, and therefore she cannot prevail on a failure of notice theory.

The court finds it need not resolve the notice issue here because Petitioner concedes she received the notice by mail 24 days in advance of the hearing.[5] Moreover, assuming the City erred, any violation of the LAMC’s notice provisions are harmless since Petitioner submitted an opposition to the appeal, the APC considered it and heard from Petitioner’s representative. (AR 1536-1552, 2098, 2216-2217.)

Even assuming Petitioner is unable to demonstrate the City did not prejudicially err as to service of notice, Petitioner contends the substance of the notice provided by the City is insufficient.

The proposed project involves the sale and dispensing of beer and wine for on-site consumption in conjunction with a 10,672 square foot existing motion picture theater and associated retail space with 271 seats, live entertainment and hours of operation from 11:00 a.m. to 1:00 a.m. daily in the [Q]C4-1XL Zone in lieu of the otherwise restricted hours of operation from 7:00 a.m. to 11:00 p.m. as restricted by Commercial Corner Development Standards.

Appeal in part of Condition Nos. 7, 16, 17, 32-39 of the Zoning Administrator's determination, pursuant to Sections 12.24 W.1 of the Los Angeles Municipal Code, to approve a Conditional Use to allow the sale and dispensing of beer and wine for on-site consumption in conjunction with a 10,672 square foot existing motion picture theater and associated retail space with 271 seats, live entertainment in the [Q]C4-1XL Zone.

Petitioner argues the notice is too generic; it does not capture to the full extent what the appeal ultimately reviewed and considered.

Conditions 7, 16, 17 and 32-39 of the ZA’s LOD referenced in the notice primarily concerned: hours of operation (Condition 7); creation of a security plan and use of security guards (Conditions 16 and 17); and parking (Conditions 32-39). (AR 422-425.)

Petitioner argues the APC revised Condition 7 and allowed operating hours later than requested in the CUP application or TERA’s appeal. (Opening Brief 16:1-5.) Nonetheless, TERA’s appeal specifically challenged the condition reducing Vidiots’ operating hours. (AR 450.) The City’s notice and express reference to Condition 7 provided Petitioner with sufficient notice of the issues, including operating hours, to be addressed by the APC. This is true as to Condition 7 (c) as well given that the notice referenced Condition 7 generally, a condition consisting of three subparts. Thus, there could be no surprise Condition 7 in its entirety was before the APC for consideration. The notice did not limit the scope of consideration related to Condition 7.

The court agrees, however, the City did not notice the APC would consider Condition 45 providing that there be “no Adult Entertainment of any type . . . .” (AR 426.) TERA did not challenge the condition in its appeal. There would be no reason for Petitioner, or any other interested party, to understand the APC might eliminate Condition 45 from the CUP conditions.

The City argues the appeal notice identified LAMC section 12.24 which generally provides the APC with authority to conduct and modify any decision of the AZ. (City Opposition 15:8-23.) The APC’s authority is undisputed. Nonetheless, the City’s notice of hearing did not suggest Condition 45 would be considered by the APC—that is, nothing in the notice suggested anything other than Conditions 7, 16, 17 and 32-39 would be considered by the APC at TERA’s appeal hearing. While the City’s notice references LAMC section 12.24 W. 1., it does so after identifying the conditions subject to the appeal—Conditions 7, 16, 17, and 32-39. The City did not advise it would be considering Condition 45 in connection with TERA’s appeal.

While the failure to notice the APC would consider Condition 45 is an error, Petitioner has not identified any substantial injury she incurred from the error and that a different result “would have been probable if the error had not occurred.” (Gov. Code § 65010, subd. (b).) “Under the Planning and Zoning Law, a court may not set aside the actions of a legislative body based on an error or omission in a notice of public hearing, unless the court finds the error was prejudicial, the complaining party suffered substantial injury, and a different result was probable had the error not occurred. [Gov. Code, § 65010, subd. (b).]” (Rialto Citizens for Responsible Growth v. City of Rialto (2102) 208 Cal.App.4th 899, 919.) “Neither prejudice, substantial injury, nor the probability of a different result may be presumed based on a showing of error alone. [Citation.]” (Ibid.)

The prejudice and injury Petitioner suffered speculates the APC would not have eliminated Condition 45 if the City had provided her with proper notice. Petitioner’s claim by eliminating Condition 45 the City has increased the kinds of acceptable uses for the Project is true. There is no evidence, however, different types of entertainment will attract more visitors to the Property at late hours or otherwise. Nothing suggests the alleged disturbances to the neighborhood will be more extensive based on the kind of film displayed at the Project. Petitioner’s claim of harm is speculative.

Petitioner’s claim Government Code section 65010, subdivision (b) cannot override a due process violation assumes Petitioner has demonstrated a due process violation. A due process violation requires a showing of prejudice. “Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error.” (F isher v. State Personnel Bd. (2018) 25 Cal.App.5th 1, 20.) Prejudice is not presumed; actual prejudice must be shown in order to be balanced against a due process violation. (See, e.g., People v. Belton (1992) 6 Cal.App.4th 1425, 1433 (delay in filing criminal charges requires balancing of prejudice against justification for delay).

Petitioner has not demonstrated the result of the APC hearing and Condition 45 would probably have been different if there had been no error in the City’s notice. Accordingly, the court finds no due process violation such that Government Code section 65010, subdivision (b) is of no consequence. Thus, any error in the City’s appeal hearing notice as to Condition 45 was not prejudicial and does not require remand to the APC.

Petitioner contends that the City’s delay with providing Petitioner access to the case file prior to the appeal hearing violated her due process rights. The court disagrees.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” (Mathews v. Eldridge (1976) 424 U.S. 319, 333.)

There is evidence in the supplemental record Petitioner’s representative made multiple attempts to obtain the complete file, but he did not receive the file until six days before the scheduled hearing and three days after the deadline for full submissions to the APC.[6] (Supplemental AR 1-3, 6, 14, 24, 53, 64.) Nonetheless, Petitioner shows no prejudicial error. Petitioner fully participated in the administrative proceedings and provided her written objections to the appeal. (AR 1544-1552, 2216-2217.)

The court finds unpersuasive Petitioner’s speculation that her late filed eight-page opposition did not receive adequate consideration by the APC.[7] In addition, the APC heard from Petitioner’s representative at the appeal hearing. (AR 2216-2217.) The APC’s consideration and discussion of issues raised by Petitioner undermine her due process claim. (AR 2265-2296.)

Petitioner has not met her burden of demonstrating prejudicial error based on the City’s failure to provide her or her representative with timely access to the case file in advance of the appeal hearing.

Petitioner argues that the APC Decision is not supported by the findings because they are deficient and/or lack evidentiary support.

An agency is only required to issue findings that provide enough explanation so interested parties may determine whether, and upon what basis, to review the agency’s decision. (Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515 (Topanga).) “[I]mplicit in [Code of Civil Procedures] 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.” (Id. at 515.)

Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein” but must allow for “meaningful judicial review.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954; Glendale Memorial Hosp. & Health Center v. Department of Mental Health (2001) 91 Cal.App.4th 129, 139.) 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, 1521-1522 (West Chandler).)

“The appellate body may, by resolution, reverse or modify, in whole or in part, any decision of the initial decision-maker. . . . For all appellate bodies, any resolution to approve must contain the same findings required to be made by the initial decision-maker, supported by facts in the record.” (City RJN, Ex. 1.)

Petitioner contends the APC’s resolution failed to comply with LAMC section 12.24 I. 5. “since it made none of the required six findings.” (Opening Brief 12:3.)

The City argues the “transcript of the APC hearing shows the APC adopted the ZA’s findings concerning the [CUP], as these findings were uncontested on appeal.” (Opposition 16:23-24.) The City’s citations to the administrative record—AR 444-451 [TERA’s appeal] and 2300-2301 [Deputy City Attorney’s colloquy with APC]—do not support the City’s position. The APC made no mention of the ZA’s findings throughout the hearing. Further, as noted by Petitioner, the APC’s motion granting the appeal in part makes no mention of the ZA’s findings.

In addition, as urged by Petitioner, the APC decision presents a Topanga problem. The APC eliminated language contained in the ZA’s findings and added a single paragraph to those findings. (See Reply, Ex. A at RED 12.) The APC provides no analysis—analytical bridge—between the raw evidence and the conditions it imposed in the CUP. The APC has provided no factual support for its decision on appeal. Without findings to support the APC’s decision on appeal, the court cannot effectively review the APC’s decision. There is simply nothing the court can review.

A generalized debate amongst commissioners of the APC does not satisfy the agency’s obligations under Topanga. (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 179. [“[A] Council debate, although reflective of the views of individual councilmen, is not the equivalent of Topanga findings.”]) Further, Petitioner persuasively recounts the commissioners’ varied accounts on certain issues, including the late operating hours, and demonstrates a lack of uniformity of thought. (Opening Brief 14:25-15:21.) Such varied views and confusion does not facilitate judicial review.

Petitioner also asserts the APC did not explain how the ZA erred when it granted TERA’s appeal. (Opening Brief 13:14-15:27.) The City notes the language of LAMC section 12.24 I. 3. does not require the APC to explain how the ZA erred. (City RJN Ex. 1 at LAMC § 12.24 subd. I.3. [“When considering an appeal from the decision of an initial decision-maker, the appellate body shall make its decision, based on the record, as to whether the initial decision-maker erred or abused his or her discretion.”] [Emphasis added.])

Nonetheless, Petitioner is correct—Topanga does require some showing of the how and why the ZA erred. (West Chandler, supra, 198 Cal.App.4th at 1521-1522.) The LAMC “requires the appellate body’s decision to be based on the record as to whether the zoning administrator erred or abused [his] discretion, and the appellate body is required to set forth specifically how the zoning administrator erred. (LAMC, §§ 12.24, subd. I, . . . .)” (Id. at 1520.)

The City argues the APC explained the ZA’s error during its deliberations. As noted above, however, the APC commissioners were not uniform in their ideas throughout the hearing. Topanga requires more.

The court does not find the balance of Petitioner’s arguments on the issue of the APC’s findings persuasive.

First, nothing prevents the APC from adopting or modifying the ZA’s findings so long as the APC’s findings are supported by the evidence before the APC. This is true even where the APC might adopt different conditions for the CUP. (Whether the findings support the decision is a separate inquiry not possible today because of the lack of analytical bridge between the raw evidence and the decision.)

Second, that the APC adopted its written findings after the appeal hearing is not a post hoc rationalization. The APC January 5, 2021 Letter of Determination merely purports to memorialize the APC’s motion and decision on December 9, 2020.

Based on the foregoing, the petition is granted. The matter is remanded to the APC for reconsideration in light of the court’s opinion.

[1] This provision concerns conditional uses for the sale or dispensing of alcoholic beverages.

[2] The zoning restricted hours of operation from 7:00 a.m. to 11:00 p.m. (AR 402.)

[3] Petitioner’s father, Jeremy Rubenstein, assisted Petitioner with her opposition. He did not act as Petitioner’s counsel in this matter.

[4] The court notes the notice was expressly directed to owner and occupants within a 500-foot radius of the Project. (AR 453.)

[5] The court counted backwards with December 9, 2020 as day 24. The court notes LAMC section 12.24 D. 2. (a) requires the notice be mailed “no less than 24 days prior to the date of the hearing . . .” not received.

[6] Again, Petitioner’s representative was not her counsel. It is unclear how denying access to the file to someone other than Petitioner or her legal representative informs Petitioner’s alleged due process violation.

[7] It is pure speculation the APC would have considered Petitioner’s claims more thoroughly if she had submitted her opposition earlier. (Reply 7:1-6.) It also assumes the APC did not thoroughly consider her claims.