Judge: Salvatore Sirna, Case: 23PSCP00435, Date: 2024-07-16 Tentative Ruling

Case Number: 23PSCP00435    Hearing Date: July 16, 2024    Dept: G

Defendant City of Pomona’s Demurrer to Complaint

Respondent:  Hillview MHC, LLC

Defendant City of Pomona’s Motion to Strike portions of the Complaint

Respondent:  Hillview MHC, LLC

TENTATIVE RULING

The motions are CONTINUED to permit additional briefing by the parties.  The court intends to set a briefing schedule and a new hearing date.

ANALYSIS

The court seeks additional briefing from the parties on whether the exhaustion of remedies doctrine required Petitioner (Hillview MHC) to apply for a variance and conditional use permit before challenging the City’s ability to impose those requirements pursuant to Government Code section 65943.

In this case, Hillview MHC, a mobile home park, challenges the City’s failure to consider as complete their subdivision conversion application. Petitioner claims the City failed to notify it of any deficiencies in its application within thirty (30) days after submission as mandated by the Permit Streamlining Act (PSA). (Gov. Code, § 65943.) While the City eventually notified Petitioner that their application was incomplete because they did not apply for a variance and conditional use permit, Petitioner argues this notice was untimely pursuant to the PSA. Because the Government Code section 65943, subdivision (a) states a development project application is considered complete if the City fails to timely notify the Petitioner of any deficiencies, the Petitioner seeks declaratory relief or a writ directing the City to treat the Petitioner’s application as complete.

In the City’s demurrer, the City argues Petitioner failed to exhaust administrative remedies because the Petitioner failed to submit a formal application, failed to pay the application fee, and failed to apply for the variance and conditional use permit. Without addressing the merits, the court notes the parties do not specifically address the applicability of Government Code section 65943 and whether the City is no longer able to demand additional permits or fees if an untimely response was made to Petitioner’s application. Accordingly, the court seeks additional briefing which addresses whether Petitioner was still required to seek these permits under the exhaustion of remedies doctrine.

The court acknowledges the cases to which the City cites where the court held a plaintiff was required to seek a variance before challenging the constitutionality of a zoning ordinance. (Mountain View Chamber of Commerce v. City of Mountain view (1978) 77 Cal.App.3d 82, 93-94; County of Alameda v. Superior Court (2005) 133 Cal.App.4th 558, 567-568.) But it is unclear to the court if these authorities demand the same result in cases where Petitioner is not challenging the constitutionality of the zoning ordinances but rather the legality of the City applying them to Petitioner when Government Code section 65943 requires the City to deem the application complete.

Furthermore, Petitioner does not provide the court with legal authority for the argument that administrative remedies cannot be duplicative. While Petitioner cites to a case that states “an administrative remedy is exhausted only upon ‘termination of all available, nonduplicative administrative review procedures,’” (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 382), Petitioner does not provide the court with authority that analyzes whether an administrative remedy is not required because it is duplicative.

The court intends to set a briefing schedule for the parties to address the issues identified above, along with a new hearing date.