Judge Mitchell L. Beckloff, Case Number: 22STCP01432, Date: 2024-04-03 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01432, Date: 2024-04-03 Tentative Ruling

Petitioner, James Chung, seeks an order compelling Respondent, the City of South Pasadena (City), to “comply with [the South Pasadena Municipal Code] and state law, . . . .” (Pet. Prayer.) More specifically, Petitioner contends the City unlawfully issued building and grading permits in the absence of a valid hillside development permit (HDP). According to Petitioner, the grading and building permits “show on their face the facts that the City did not comply with its Building Code and perform fully and completely all plan checks, issuance, and inspections.” (Opening Brief 13:16-17.) Petitioner specifies 13 instances of the City’s alleged “fail[ure] to perform in 2020-2021 the acts that are required of it by law.”[1] (Opening Brief 14:2-3.) Real Parties in Interest, Edmund Louie and Deborah Kotani, and the City oppose the petition.

In February 2016, Real Parties applied for a HDP to “grade rear yard to create a larger area at the same level and install 6 [foot] perimeter walls, [and] install new swimming pool.” (AR 6.) Real Parties’ application provided a justification statement for hillside development. (AR 8.) The City’s application requested proposed factual findings required for a HDP pursuant to SPMC section 36.410.065. (AR 8.)

Real Parties’ 2016 application represented the “proposed use complies with the requirements of Division 36.340 (Hillside Protection) and all other applicable provisions of the Zoning Code” because “both the site grading and the 6 [foot] retaining walls are allowed per the hillside development guidelines.” (AR 8.) The application also specified the proposed use did not affect the City’s general plan or the applicable specific plan; would not be detrimental to the health, safety or general welfare of the community or property and improvements in the neighborhood. (AR 9.) Finally, Real Parties’ application advised the “design, location, operating characteristics, and size of the proposed use would be compatible with the existing and future land uses in the vicinity . . . .” (AR 9.)

Through their 2016 application, Real Parties sought City approval to remove “350 cubic yards of the hillside . . .” for the project. (AR 8, 44, 80.)

The City approved the project through its planning commission. (AR 80-82.) As part of the approval process, the planning commission adopted a negative declaration in compliance with the California Environmental Quality Act, Public Resources Code section 21000 et seq. (AR 80.) The planning commission also found the “proposed project [] consistent with all five applicable findings to grant the [HDP] for the project pursuant to [SPMC] Section 36.410.065, . . . .” (AR 80.)

On January 13, 2017, the City issued a building permit and a grading permit for the approved project. (AR 115-116.) The building permit described the work permitted as the construction of a six foot-high retaining wall. (AR 115.) The grading permit indicated the work “shall be in accordance with the approved plans” which allowed 360 cubic yards of soil to be “handled.” (AR 116.)

At some point Real Parties performed the grading work under the permits but did not complete the project. (Opening Brief 11:18-19. AR 256. [“The work that was actually completed under the approved building permit was to grade the site but the retaining walls and swimming pool were never installed.”] Reply 2:11-25.) Real Parties performed the grading work allowed under the permits. (AR 256. [“. . . the grading was completed under the previously approved project”].)

The permits thereafter expired. (AR 256 [“the permits have expired”]. See also AR 152.) The grading performed under the grading permit was never inspected by the City.

Several years later, on April 27, 2020, Real Parties wrote to the City. (AR 152.) Real Parties advised they wished to “put up our retaining wall” and recognized they would have to obtain permits because they were “sure they expired.” (AR 152.) Real Parties advised the City they were “having an erosion issue” so they needed to get the retaining wall built as soon as possible. (AR 152.)

The City advised Real Parties “[t]he project need[ed] to be submitted as a new HDP application in order for the work to continue[2] and for it to be completed.” (AR 142.)

On November 17, 2020, Real Parties submitted their HDP application that is the subject of the petition. (AR 175.)

At a planning department staff meeting in December 2020, the City’s planning department decided Real Parties’ HDP application could be decided by the City’s planning director as a minor HDP. (AR 237, 259. See SPMC § 36.410.065, subd. (D)(2).) The director’s approval nonetheless required “all the HDP requirements [to be] applied to [the] project . . . .”[3] (AR 258.)

On February 25, 2021, a “contract planner” found the project “conforms to the planning and zoning standards” for the City. (AR 255.) The contract planner’s approval was contingent upon “the approval of the City of South Pasadena planning division.” (AR 255.) On April 14, 2021 or sometime prior, the City obtained the planning director’s approval for the HDP. (AR 258 [“here is the Director’s approval for planning”].)[4]

On April 29, 2021, the planning department advised Real Parties the project would “not be going through a public hearing as it has already been approved by Planning.” (AR 283.) The planning department also advised Real Parties to “coordinate with Building for permit.” (AR 283.)

On August 4, 2021, the City issued a building permit allowing a six-foot retaining wall running 140 feet to be constructed. (AR 683.) The City also issued a grading permit specifying the work “shall be in accordance with the approved plans,” and the plans specify “all site grading was completed under previous permits.” (AR 254, 684.) Real Parties represented during the permitting process the grading had been completed pursuant to the 2017 grading permit and no additional grading would be undertaken.[5]

Petitioner challenges the 2021 HDP, building permit, and grading permit. He seeks a determination from the court that they were “not lawfully issued” and are “legally invalid ab initio.” (Pet. Prayer.) He also requests the court find Real Parties in interest “have no vested right as to any of the excavation, grading, and construction work” done at their property. (Pet. Prayer.) Finally, he requests a court order compelling the City to comply with the law as to any “activities Real Parties [] may want to undertake” on their property “for which any kind of City-issued permit is required.” (Pet. Prayer.)

Petitioner seeks relief from the court pursuant to Code of Civil Procedure sections 1085 and 1094.5. The parties do not discuss which statute applies here; they merely engage in general discussion of the statutes.

In a traditional mandamus proceeding under Code of Civil Procedure section 1085, the trial court determines “whether the agency's action was arbitrary, capricious, or without evidentiary support, and/or whether it failed to conform to the law. The trial court may not substitute its judgment for that of the agency or force the agency to exercise its discretion in a certain way. [Citation.] [¶] The reviewing court exercises independent judgment in determining whether the agency action was ‘consistent with applicable law.’ [Citation.] Where the issue is one of statutory [or regulatory] interpretation, the question is one of law for the courts, which are the ‘ “ultimate arbiters” ’ of statutory [or regulatory] construction. [Citations.]” (Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist. (2008) 168 Cal.App.4th 535, 542-543.)

Administrative mandate addresses final orders by an agency “made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the . . . board or officer, . . . .” (Code Civ. Proc., § 1094.5, subd. (a).) Under Code of Civil Procedure section 1094.5, subdivision (b), the relevant issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)

Here, the City did not conduct a hearing (an issue contested by Petitioner), but the City was required to make certain factual findings based on evidence submitted to issue a HDP. There is also a formal appeal process available to contest the City’s decision on a HDP application. (SPMC § 36.410.065, subd. (I).)

While a “ ‘purely documentary’ hearing can satisfy section 1094.5, there must still be something in the nature of a hearing, i.e., an adversarial process in which the agency resolves disputed facts after affording interested parties an opportunity to present evidence.” (300 DeHaro Street Investors v. Department of Housing & Community Development (2008) 161 Cal.App.4th 1240, 1251.) “Here, no law required the [City] to entertain input from interested parties . . . or to allow [Real Parties] an opportunity for rebuttal.” (Id. at 1252.) As no administrative hearing was required by law, the court finds Code of Civil Procedure section 1094.5 does not apply here. That is, the matter is governed by Code of Civil Procedure section 1085.[6]

Thus, the court must determine whether the City actions were arbitrary, capricious, without evidentiary support or failed to conform to the law.

The SPMC provides HDPs “may be approved or disapproved by the Planning Commission.” (SPMC § 36.410.040, subd. (D)(1).) The SPMC also specifies “[m]inor [HDPs] may be approved or disapproved by the Design Review Board (DRB), DRB Chair, or Planning Director in accordance with SPMC 36.410.040.” (SPMC § 36.410.040, subd. (D)(2).)

SPMC section 36.700.020, subdivision (D) defines Director as: “The City of South Pasadena Director of Planning and Building, or designee of the Director, referred to in this Zoning Code as the ‘Director.’ ”

The Director may delegate the responsibilities of the Director to assigned Department staff under the supervision of the Director. When the Director designates a Department staff person, the staff person shall perform the duties assigned by the Director in addition to those listed in Subsection B above, as appropriate to the personnel title of the designee.

SPMC section 36.410.065, subdivision (B) specifies a minor HDP is required for any proposed development subject to the requirements of SPMC Division 36.340 (Hillside Protection) that is other than the proposed construction of a new primary dwelling unit. The City’s planning commission may approve or disapprove a HDP. (See SPMC § 36.410.040, subd. (D)(1).) The issuance of a HDP—not a minor HDP—is subject to a notice public hearing before the planning commission. (SPMC § 36.410.065, subds. (B), (D), (E).) A “[m]inor HDP may be approved or disapproved by the . . . Planning Director in accordance with SPMC 36.410.040[]”—a design review provision. (SPMC § 36.410.040, subd. (D).) “Minor Design Review by the . . . Planning Director shall be considered administratively without conducting a public hearing or providing public notice before taking action.” (SPMC § 36.410.040, subd. (F)(2).)[7]

The SMPC delegates the Planning Director (as defined under the SPMC) with design review authority for “[m]odifications to existing graded and/or improved outdoor areas on a property subject to Division 36.340 (Hillside Prection), . . . .”[8] (SPMC § 36.410.040, subd. (D)(5)(c).)

Real Parties submitted a planning commission application form to the City to obtain approval to build a retaining wall.[9] (AR 169.) Real Parties’ proposed project required a minor HDP since Real Parties were not proposing construction of a new primary dwelling unit. (SPMC § 36.410.065, subd. (B).) The Planning Director or his designee—pursuant to SMPC sections 36.700.020, subdivision (D) and 36.600.060, subdivision (C)—is responsible under the SPMC for approval or disapproval of a minor HDP application given the scope of the proposed project.[10] (SPMC

§ 36.410.040, subd. (D)(5)(c).) Since the SPMC designates the Planning Director or his designee as responsible for approving the minor HDP application, no public hearing is required. (See SPMC § 36.410.065, subds. (D), (E).)

The Planning Director’s designee approved the plans as conforming with the City’s planning and zoning standards on February 25, 2021. (AR 357.) Sometime prior to April 14, 2021, the Director approved the minor HDP.[11]

Based on the foregoing, the court finds the City complied with its municipal code when it approved Real Parties HDP application. That is, Petitioner has not demonstrated the City’s process for approving the minor HDP and related permits was inconsistent with the SPMC.

The SPMC authorizes an appeal from a design review decision of the Planning Director. (SPMC

§ 36.410.040, subd. (J).) An aggrieved party must file an appeal “within 15 days of the decision.” (Ibid.)

Given that the SPMC does not require (and the City did not provide) notice to interested parties that it was considering Real Parties’ application for a HDP and there is no evidence the City provided Petitioner with notice of its decision within 15 days of having made it, it would be inappropriate (and unfair) to find Petitioner failed to exhaust his administrative remedies and cannot seek judicial review. The City’s position would suggest a property owner could obtain a minor HDP with no notice to interested parties, wait more than 15 days to obtain permits and/or begin work on the project, and claim the City’s decisions were thereafter insulated from review based on the short 15-day appeal period. That Petitioner did not appeal after learning of the City’s decision sometime after the 15-day period had run is irrelevant. The SPMC makes clear any appeal must be filed within 15 days of the decision.

The court rejects the exhaustion of administrative remedies defense asserted by the City and Real Parties.

Is the City’s Decision to Issue the HDP and Related Building Permits Arbitrary, Capricious or Without Evidentiary Support?

As noted, this matter is governed by Code of Civil Procedure section 1085—the City issued the minor HDP without any administrative hearing or adversarial process. Thus, the court’s standard of review is whether the City’s acts were arbitrary, capricious or without evidentiary support.

1. The proposed use complies with the requirements of Division 36.340 (Hillside Protection) and all other applicable provisions of this Zoning Code.

2. The proposed use is consistent with the General Plan and any applicable specific plan;

3. The establishment, maintenance, or operation of the use would not, under the circumstances of the particular case, be detrimental to the health, safety, or general welfare of persons residing or working in the neighborhood of the proposed use;

4. The use, as described and conditionally approved, would not be detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the City; and

5. The design, location, operating characteristics, and size of the proposed use would be compatible with the existing and future land uses in the vicinity, in terms of aesthetics, character, scale, and view protection. (§ 36.410.065, subd. (F).)

1. Is consistent with the General Plan, any adopted design guidelines and any applicable design criteria for specialized areas (e.g., designated historic or other special districts, plan developments, or specific plans);

2. Will adequately accommodate the functions and activities proposed for the site, will not unreasonably interfere with the use and enjoyment of neighboring, existing, or future developments, and will not create adverse pedestrian or traffic hazards;

3. Is compatible with the existing character of the surrounding neighborhood and that all reasonable design efforts have been made to maintain the attractive, harmonious, and orderly development contemplated by this section and the General Plan; and

4. Would provide a desirable environment for its occupants and neighbors, and is aesthetically of good composition, materials, and texture that would remain aesthetically appealing with a reasonable level of maintenance and upkeep. (§ 36.410.040, subd. (I).)

The Director had evidence before him to support findings necessary to issue a minor HDP. That is, the Director had a factual basis to issue the minor HDP.

First, the Director had the City’s planning commission’s findings and determinations for Real Parties’ prior HDP which addressed the same retaining wall and development.[12] While the planning commission’s resolution addressed the 2016 HDP, the information was nonetheless relevant to the Director’s decision for the 2021 minor HDP.

The planning commission’s resolution explained how the proposed use (1) complies with the City’s hillside protection ordinance (SPMC section 36.40) (AR 80-81); (2) is consistent with the general plan and any applicable specific plan (AR 81); (3) would not be detrimental to the health, safety, or general welfare of persons residing or working in the neighborhood (AR 81); (4) would not be detrimental or injurious to property and improvements in the neighborhood (AR 81-82); and (5) would be compatible with the existing and future land uses in the vicinity. (AR 82.) (See SPMC § 36.410.065, subd. (F).)

The Director also had a planning commission staff report prepared for consideration of Real Parties’ 2016 HDP application. (AR 42-90.) The staff report provided a thorough evaluation of the 2016 proposed project. The staff report provides evidence necessary for some design review requirements—consistency with the general plan and any applicable specific plan (AR 45-46), compatibility with the character of the neighborhood (AR 46), and compatibility with future land uses. (AR 46.)

As to the 2020 HDP, the Real Parties submitted an application providing a factual basis for the findings required for a minor HDP. (AR 169-170.) The application also addressed design guidelines and how the proposed project complied with those guidelines. (AR 171-172.) As to the design, Real Parties’ application explained the retaining wall would not be visible from the street (AR 171), complies with the City’s height limitations (AR 171), is screened from street view (AR 172) and does not alter existing landscaping. (AR 172.)

Based on the evidence before the Director, the court finds Petitioner has not met his burden of demonstrating the City acted in an arbitrarily or capriciously or without evidentiary support when it issued the minor HDP and related building permits in 2021.

[1] There appears to be no dispute the City issued a HDP in 2016 as well as grading and building permits issued in 2017 to Real Parties. The HDP and permits had expired by the time Real Parties sought to improve their property with a retaining wall in 2020. (See Opening Brief 11:11-21.) There also seems to be no dispute—because of the expiration of the HDP and permits—Real Parties required a new HDP and permits for the retaining wall project. (See Opening Brief 11:21-28.) The issue raised by Petitioner is whether the City complied with its municipal code when it issued the 2021 HDP and related permits. The City’s actions in 2016 and 2017 are not in issue.

[2] The City’s reference to continuing the work was to that work performed under the HDP issued in 2016 and the permits issued in January 2017. (AR 142.)

[3] The findings necessary to issue a HDP are set forth in SPMC sections 36.140.065, subdivision (F) and 36.410.040, subdivision (I).

[4] There is no attachment to the email communication. It is not entirely clear what, if anything, the City transmitted with the communication. This single email communication appears to be the only reference in the administrative record to the Director’s approval.

[5] As the court understands it, to inspect and sign off on the grading done pursuant to the 2017 permit, the City required Real Parties to obtain a new grading permit.

[6] Petitioner appears to agree Code of Civil Procedure section 1094.5 is inapplicable here. He advises “ . . . so there is nothing adjudicatory, quasi-adjudicatory, or after hearing and evidence.” (Opening Brief 10:8-9.) He also states: “Because there is no decision, there is no discretion or adjudicatory act that could be reviewed.” (Opening Brief 10:20-21.)

[7] A minor HDP application does not require a staff report because the planning commission does not consider minor HDP applications.

[8] Petitioner’s claim the Planning Director had no authority here because the area was graded “in violation of law” ignores the 2017 grading permit and work authorized and done under that permit. (Opening Brief 1:25.) Moreover, Petitioner provides no authority for his legal position.

[9] Despite Petitioner’s claim to the contrary, Real Parties’ application described the project as a retaining wall. (AR 169.) Real Parties completed the entire HDP application. The application included a site plan showing the proposed retaining wall. (AR 176. See AR 177.) While the plans were drafted in 2014, the plans included engineered construction drawings and showed the location of the wall. (AR 177.) The application also advised there would be no excavation on the site. (AR 168.) On January 26, 2021, Real Parties updated their plan “to show that no grading is being performed . . . .” (AR 248.) On March 9, 2021, Real Parties explained a drainage plan was not required “because the tributary area is very small and the proposed swales will easily handle the runoff.” (AR 256.)

[10] While Petitioner contends the Planning Director had no authority to approve the minor HDP, the court agrees with the City. (Opening Brief 5, fn. 1; City Opposition 11:15-20.) The site had been graded pursuant to a HDP and grading permit issued in 2016 and 2017, respectively. As specified in the updated plan, the project as proposed did not include any grading, and therefore was to be built on the “existing graded[] . . . outdoor areas.” (SPMC § 36.410.040, subd. (D)(5)(c).) Moreover, as argued by the City, substantial evidence supports the City’s finding the project involved “existing graded[] . . . outdoor areas . . . .” (Ibid.) (See AR 256, 429.) Petitioner has not cited any evidence to suggest Real Parties graded their property after the 2017 permit had expired.

[11] It is not entirely clear when the City approved the minor HDP. The City contends the Director’s designee approved the site plan “and by extension, the Minor HDP.” (City Opposition 11:12.) Email communications demonstrate the City considered the Minor HDP approved sometime on or before April 14, 2021. (AR 258 [“. . . here is the Director’s approval . . .”].) (See Opening Brief 13, fn. 7.) Those same communications reflect an approval by the Director, not his designee.

[12] While Petitioner contends the City’s prior investigation and findings “did not address the property in 2020-2021” (Opening Brief 1:15), Petitioner does not explain how the information before the Director was no longer relevant to his decision in 2021 to issue the minor HDP.