Judge Mitchell L. Beckloff, Case 21STCP00991 2023-05-19 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 21STCP00991, Date: 2023-05-19 Tentative Ruling

This order supplements this court’s order filed October 24, 2022 (Remand Order).[1] The court issued its Remand Order “to provide the APC [East Los Angeles Planning Commission] with the opportunity to comply with [Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514-515].” (Remand Order 15.) The court further specified “[t]he matter is remanded on an interlocutory basis for reconsideration given the court’s opinion.” (Remand Order 15.)

For reasons not entirely clear to the court given the limited scope of the court’s Remand Order, the APC conducted further proceedings concerning the Project on February 8, 2023. (SAR 247.) Those proceedings included extensive public comment and further deliberation about the CUP conditions. (SAR 337) The APC issued its revised findings on February 23, 2023 relying in part on “testimony that was provided by the community” during the February 8, 2023 proceedings. (AR 247.)

In her Reply Brief, Petitioner persuasively argued the APC failed to make “explicit findings ‘how’ the ZA erred . . .” in the decision considered by the APC on appeal. (Reply Brief 11:19; Opening Brief 11:24-25, 13:16-18.) Petitioner asserted whether such a finding was “statutorily required or not, an agency must provide findings to bridge the analytical gap between the evidence and its decision.” (Reply Brief 11:22-23; Opening Brief 11:6-7.) Petitioner clarified her claim the evidence did not support the APC’s findings was limited to the APC’s decision “to grant hours later than applied for in the entitlement request.” (Reply 13:3-4.)

After remand to the APC and on its revised findings, Petitioner makes the following arguments:

(issue 1) the APC failed to comply with the court’s Remand Order because it did reconsider the results of its appeal decision and LOD (Supp. Brief 2:9-11); (issue 2) the CUP’s closing time condition is not supported by substantial evidence or the APC’s authority (Supp. Brief 2:23); (issue 3) the APC’s refusal to consider changes given the reconsideration order violated due process (Supp. Brief 3:22-25); (issue 4) the APC decision does not comply with Topanga Association for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d as 514-515 [Topanga] as to the hours condition; and (issue 5) the APC failed to consider Petitioner’s four-page written memorandum for purposes of its revised findings. (Supp. Brief 4:20-23).

As a preliminary matter, Petitioner does not challenge the APC’s findings related to the CUP approvals. (See Los Angeles Municipal Code [LAMC], § 12.24, subds. E and W. 1. (a). [City RJN, Ex. 1.]) The APC’s revised findings discuss all six required findings. Petitioner’s challenge is focused on a single condition—the daily closing time of 1:00 a.m.

First, Petitioner contends the court’s Remand Order required the APC to reconsider its appeal decision and the LOD.[2] As noted in the Remand Order, the court found:

“The APC provides no analysis—analytical bridge—between the raw evidence and the conditions it imposed in the CUP after hearing the appeal. 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.” (Remand Order 14.)

The court acknowledges the Remand Order returned the matter to the APC for “reconsideration given the court’s opinion.” (Remand Order 15.) While the court’s language may be subject to interpretation or unclear, there can be no dispute the court found it could not find the APC erred because it had no ability to review the APC’s factual findings as they had been written. The court’s authority to remand for reconsideration of the underlying substantive APC appeal decision necessarily would have required the court to find the APC erred; the court made no such finding. The purpose of the court’s interlocutory remand was to obtain compliance with Topanga to facilitate judicial review and Petitioner’s claims. An issue with an agency’s decision under Topanga means the court cannot conduct its substantive review.

As recognized by Petitioner, “the [c]ourt indicated that it would determine if the findings supported the decision after remand.” (Supp. Brief 2:22-23.) That is, the court would address whether the APC prejudicially abused its discretion because the evidence does not support the findings or the findings do not support the decision. As the court found all other errors alleged by Petitioner in her Opening Brief unpersuasive in its Remand Order, the court had no grounds to order the APC to reconsider the substance of its appeal decision. Instead, the court “remand[ed] the matter to provide the APC with the opportunity to comply with Topanga.” Only after remand could the court then consider whether the evidence supported the findings, and whether the findings supported the decision. Accordingly, the court rejects Petitioner’s claim the APC failed to comply with the Remand Order or denied her due process by failing to consider substantive changes to its appeal decision. (Petitioner’s issues 1 and 3.)[3]

Second, the gravamen of Petitioner’s complaint after remand[4] all centers on the CUP condition related to the operating hours of Vidiots.

· The ZA imposed a condition requirement that Vidiots close its motion picture viewing operations at 11:00 p.m. on Mondays through Thursdays and at 12:00 a.m. on Fridays, Saturdays and Sundays. (AR 393.)

· Vidiots original application requested different closing hours—12:00 a.m. on Mondays through Thursdays and 1:00 a.m. on Fridays, Saturdays and Sundays. (AR 107.)

· TERA’s appeal sought hours for Vidiots consistent with Vidiots request in its CUP application. (AR 2192.)

· The APC conditioned Vidiots hours from 11:00 a.m. to 1:00 a.m. daily. (AR 2809; SAR 249.)

Petitioner also reports a staff member with the City’s planning department erroneously advised the APC Vidiots application for a CUP “proposed hours of operation from 11:00 a.m. to 1:00 a.m. daily.” (AR 2177.)

For the original appeal hearing, however, Vidiots submitted its comments in favor of TERA’s appeal. (AR 1670.) Vidiots expressly advised the APC “hours of operation of Friday through Sunday until 1:00 AM are necessary to ensure patrons have adequate time to exit the subject property in a safe and courteous manner with the assistance of staff.” (AR 1674.) Vidiots explained, “There are a number of examples of other restaurant and retail establishments in the vicinity of the Project Site that maintain later evening hours such as the subject request, ranging from 12 AM to 2 AM.” (AR 1674, 1677 [venues and closing times]) Vidiots also noted a number of the conditions imposed would “result in financial infeasibility of Vidiots to operate and meet its mission, . . . .” (AR 1674.) Thus, Vidiots requested a closing time of 1:00 a.m. on Fridays, Saturdays and Sundays at the APC appeal hearing.

The APC explained the hours condition attached to the CUP: “The modified condition to increase the hours of operation will allow the project to perform a function or provide a service that is beneficial to the community by allowing additional time for theater showings for enjoyment by the public.” (SAR 257.) The APC noted the ZA “erred by limiting the hours of operation from 11:00 a.m. to 11:00 p.m. Monday through Thursday and 11:00 a.m. to 12:00 a.m. midnight Friday, Saturday and Sunday.” (SAR 258.) The APC reported the ZA had no substantial evidence to conclude expanded hours would “have a negative impact on the surrounding neighborhood.” (SAR 258.) The APC also found:

“Moreover, other operating establishments in the well-developed commercial area surrounding the theater are allowed to maintain a closing time past 11:00 p.m. daily. Allowing the 1:00 a.m. closing time daily will ensure that there is adequate time for staff to complete end of day operations of the motion picture theater and retail business. A closing time of 1:00 a.m. would allow multiple movie showings as part of its operations. In consideration of the entirety of the evidence, the original condition would unnecessarily restrict the hours in which the movie theater could provide a service to the community by limiting the hours of operation, especially in light of testimony at the ACPE hearing that other businesses in the surrounding area operate past 11 p.m. and the overwhelming support by the community for the hours imposed by the APCE.” (SAR 258.)

Petitioner has not demonstrated the APC failed to comply with Topanga as to the hours of operation condition. (Petitioner’s issue 4.) In addition, the court finds substantial evidence supports the APC’s decision. Petitioner does not demonstrate why the APC’s findings are not substantial evidence to support the APC’s decision as to closing hours. (Supp. Brief 2:23.) (Petitioner’s issue 2 [in part].)

[The court requests the City and/or Vidiots address Petitioner’s claim the APC had no authority to expand the hours of operation beyond that requested. (Petitioner’s issue 2 [as to authority given a lack of request].) The court can find Vidiots requested a close time of 1:00 a.m. on weekends and put that issue before the APC on December 9, 2020. The court cannot locate, however, any evidence in the record to support a request related to a weekday closing time of 1:00 a.m. Petitioner raises the issue of the APC’s authority to offer the expanded hours of operation on weekdays where Vidiots never made such a request.]

Finally, Petitioner complains the APC did not consider her timely submitted four-page memorandum at the February 8, 2023 hearing. (Petitioner’s issue 5.) Petitioner’s extra-record evidence demonstrates the City neglected to provide the APC with the document for consideration. Petitioner’s memorandum addressed substantive issues related to the ZA’s decision and the appeal. (Supp. Brief, Ex. B.)

Given the limited scope of the Remand Order, the substantive issues raised by Petitioner in the memorandum would have been irrelevant to the APC’s task on remand. The APC, however, did not comply with the court’s Remand Order. The APC did not merely clarify its findings (bridge the analytical gap) on the record of December 9, 2020 as instructed by the court. Instead, the APC elected to conduct further proceedings on the CUP and its conditions with public comment. The APC then relied on that public comment in its revised findings—findings that addressed Vidiots’ operations. (See, e.g., SAR 259 [“based on testimony that was provided by the community”], 316 [full support of “upcoming operation”], 318 [full support for “condition of operations for Vidiots”].)

Given the APC’s decision to consider and rely upon evidence other than that before it on December 9, 2020, it was error for the APC to have excluded Petitioner’s memorandum from its decision—the APC improperly excluded the public comment. The APC’s failure to comply with the court’s Remand Order and merely bridge the analytical gap between the raw evidence and the findings on the December 9, 2020 record alone—the decision challenged by Petitioner—as well as the APC’s decision to conduct a new hearing and consider new evidence, requires the APC’s appeal decision of December 9, 2020 be set aside. The revised findings are a muddled mix of evidence from December 9, 2020 and February 8, 2023. That the APC excluded Petitioner’s memorandum and did not consider it presents additional problems.

The court therefore finds the APC’s December 9, 2020 decision the ZA erred is not supported by substantial evidence. Petitioner is entitled to relief.

Based on the foregoing, the City is ordered to set aside the APC’s December 9, 2020 appeal decision. The court’s decision and judgment is not intended to limit or control in any way the discretion legally vested in the City. (See Code Civ. Proc., § 1094.5, subd. (f).)

[1] The Remand Order is incorporated herein by reference.

[2] Petitioner’s confusion is understandable given the February 8, 2023 hearing before the APC.

[3] The court’s Remand Order provided the APC with an opportunity to bridge the analytical gap between the raw evidence and its findings on the record of the December 9, 2020 appeal hearing—the APC’s findings as initial constituted did not allow the court to consider whether the evidence supported the findings, and the court could not complete is substantive review of the APC’s decision. Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499 (Voices) is inapposite. In Voices, the trial court made a substantive decision and found the agency’s findings were not supported by the evidence—there was no question about the agency’s analysis. The trial court then deferred a final judgment and remanded the matter to the agency “for further ‘comprehensive’ examination of that issue . . . .” (Id. at 507.)

[4] The court is not suggesting Petitioner did not have other complaints about the administrative process. Instead, the court is focusing on the APC’s revised findings.