Judge Stephen I. Goorvitch, Case Number: 23STCP04397, Date: 2025-01-08 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCP04397, Date: 2025-01-08 Tentative Ruling

Kenter Investment Land, LLC and Saeed Kohanoff (the “Real Parties”) developed a four-story residence located at 824 North Kenter Avenue in Los Angeles, California (the “Property”). The City of Los Angeles (“Respondent” or the “City”) approved the project. Petitioner Friends of Kenter (“Petitioner”) appealed the issue to the Los Angeles Department of Building and Safety, the Planning Director, and the West Los Angeles Area Planning Commission to no avail. Now, Petitioner seeks a writ of mandate ordering the City to rescind the building permit or vacate the denial of Petitioner’s appeals and remand the matter for further consideration. Petitioner raises a series of issues that were not raised in the underlying appeals, some of which were raised for the first time in the reply briefs. With respect to the remaining issues, Petitioner does not demonstrate that the City erred in its interpretation of the applicable regulations or its approval of the permits. Therefore, the petition for writ of mandate is denied.

The Real Parties own the Property, which is a 2.5 acre, irregularly shaped, sloping lot that is zoned RE40-1-H. (AR 478-479, 1466.) The Property is subject to the Baseline Hillside Ordinance (the “BHO”) and the Hillside Retaining Wall Ordinance (the “HRWO”). (AR 283, 478, 831-34.) The adjacent properties are developed with one-story to three-story single-family dwellings. (AR 478.)

On June 15, 2018, the Real Parties submitted applications and plans for building permits for a four-story single-family home (the “Project”). (AR 282, 484, 1729-1747, 2045.) As proposed, the Project consists of a 28,638 square foot single-family dwelling with an attached garage, attached accessory dwelling unit (“ADU”), water fountain, new retaining wall, planter walls, and a new pool and spa. (AR 479, 1729.) The Los Angeles Department of Building and Safety (the “LADBS”) determined that the proposed Project complies with the Los Angeles Municipal Code (“LAMC”) and issued ministerial building permits on December 11, 2019 (the “Building Permits”). (AR 64-83, 478, 493.) On or about October 26, 2020, the Real Parties submitted plans for supplemental permits to correct an error regarding the approved building height. (AR 340, 704, SAR 2463- 2471.) The original permit stated that the Project height was 30 feet, but the approved height was 36 feet. (AR 340, 704.) The LADBS issued supplemental permits on January 10, 2021. (Ibid.)

On May 17, 2021, Petitioner submitted a Request for Modification of Building Ordinances to the LADBS asserting that the Building Permits were improperly issued. (AR 106-109.) On July 15, 2021, Petitioner filed a subsequent appeal to the LADBS on the same grounds. (AR 106-109.) On September 27, 2021, the LADBS issued a written determination that analyzed and rejected each of Petitioner’s appeal points. (AR 50-55.)

On October 12, 2021, Petitioner appealed the LADBS’s determination to the Director of Planning (the “Director”). (AR 175-190, 273-4.) Petitioner reiterated the arguments made in the LADBS Appeal, but also raised new issues concerning construction activities at the Project site. Specifically, Petitioner asserted that the Project, as constructed, exceeds the height limit and number of retaining walls approved by the LADBS in the Building Permits. (See AR 175-190, 558-568.) On June 13, 2022, the Zoning Administrator (“ZA”), acting on behalf of the Director of Planning, issued a 21-page determination denying the appeal (the “ZA Determination”). (AR 477- 497.) The ZA stated that the appeal was limited to “whether LADBS acted within the scope of its authority” in issuing the Building Permits. (AR 493.) As relevant to this writ petition, the ZA also stated that the “neighbors and the appellants are well within their right to register complaints if there is a belief that the current construction of the single family residence is not consistent with the plans approved by the LADBS Plan Check Division,” but that these complaints “should be filed with the Enforcement Division of the Department of Building and Safety.” (AR 494-495.)

On June 27, 2022, Petitioner appealed the ZA Determination to the West Los Angeles Area Planning Commission (the “APC”). (AR 526-535, 927-935.) On September 23, 2022, after considering the matter at a public meeting, the APC denied Petitioner’s appeal and adopted the findings made by the ZA. (AR 961-962.)

On October 4, 2022, the City Council exercised its authority to take jurisdiction of the appeal under City Charter section 245 and passed a motion instructing the LADBS, in consultation with the Planning Department:

[T]o prepare a report … that thoroughly reviews of [sic] the applicability of Los Angeles Municipal Code (LAMC) Section 12.22 C.22 to the subject property, provides an alternate calculation of lot width pursuant to the methodology outlined in LAMC Sec. 12.22 C.22, and outlines how this alternate calculation for lot width may impact the proposed project in relation to the allowable residential floor area bonus (LAMC Sec. 12.21 C.10(b)(3)), particularly via the cumulative side yard setbacks option (LAMC Sec. 12.21 C.10(b)(3)(iii)).

(AR 1013.) On November 30, 2022, the LADBS issued the report requested by the City Council, in which the LADBS opined as follows:

Although, using the lot width calculation in Section 12.22 C.22 creates a more restrictive circumstance for the applicant, this option is not mandated by code. The applicant has the discretion to apply either lot width calculation for the Cumulative Side Yard Setback Option in Section 12.21C10(b)(3)(iii). Therefore, the applicants use of lot width as defined in Section 12.03 is both appropriate and code compliant.

The parties submitted additional correspondence and evidence in advance of the APC hearing of September 6, 2023. (See, e.g., AR 1461-1466, 1502-1506, 1797-1799, 1802-1811, SAR 2202-2234, 2452-2475.) On November 6, 2023, the APC issued a written determination denying the appeal. (AR 1832-1833.) This writ petition followed.

Under Code of Civil Procedure section 1094.5(b), the pertinent 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(b).)

“Where, as here, a land use decision is challenged by administrative mandamus, courts are to apply the substantial evidence standard of review.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion or evidence of legal significance which is reasonable in nature, credible and of solid value. (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85; Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305

fn. 28.) Under this standard of review, “[c]ourts may reverse an [administrative] decision only if, based on the evidence …, 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.)

Petitioner bears the burden of proof and must demonstrate, by citation to the administrative record, that the evidence does not support the administrative findings. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 513; Toigo, supra, 70 Cal.App.4th at 317.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.)

“[A] trial court must afford a strong presumption of correctness concerning the administrative findings.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) When an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.” (Toigo, supra, 70 Cal.App.4th at 317.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

Petitioner has requested that the court take judicial notice of 13 exhibits. One exhibit is the City’s Baseline Hillside Ordinance and the remaining 12 exhibits are sections of the Los Angeles Municipal Code. The City has requested that the court take judicial notice of eight exhibits, and the Real Parties have requested that the court take judicial notice of three exhibits, all of which are sections of the Los Angeles Municipal Code. None of the requests for judicial notice is opposed. The court grants all requests for judicial notice.

Petitioner argues that the City failed to proceed in the manner required by law when it narrowly defined the scope of Petitioner’s appeal and refused to consider whether the Project, as constructed, was built in compliance with the Building Permits. (Opening Brief (“OB”) 7.) This argument implicates two issues: (1) Whether Petitioner raised this issue in its initial appeal to the LADBS; and (2) Whether the Planning Department and the APC had the authority to consider this issue.

“Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520 [emphasis added].) “[A] corollary principle to the doctrine that administrative remedies must be exhausted [is that] a litigant must fully present its arguments and evidence at the administrative hearing.” (Sustainability, Parks, Recycling & Wildlife Defense Fund v. Department of Resources Recycling & Recovery (2019) 34 Cal.App.5th 676, 696 [hereafter, “Sustainability”].) “The requirement that a full presentation be made before the adjudicating agency applies equally when a second administrative agency, exercising appellate functions, enters the picture. A party may not raise new issues on review before such a tribunal if the issues could have been asserted before the lower administrative body.” (Ibid.)

The LAMC also required Petitioner to raise all issues in its LADBS appeal. Specifically, “[a]n appeal to the Director of Planning may only be made after the Department of

Building and Safety has rendered a decision in writing and provided written justification and findings on an appeal made pursuant to Section 98.0403.2 (a) of the Code.” (LAMC

§ 12.26.K.1; Pet. RJN Exh. 1 at 18 [emphasis added].) Since LADBS cannot issue a written decision on matters not presented, the right to appeal to the Director of Planning only applies to issues raised in the LADBS appeal.

Here, in its appeal filed with LADBS, Petitioner asserted that: (1) The structure depicted in the Project plans exceeds the applicable height limit in the LAMC; (2) The retaining walls depicted in the plans exceeded the amount allowed pursuant to the HRWO; (3) The grading approved for the Project exceeded the amount allowed under the BHO; and (4) The Project is ineligible for a residential floor area (“RFA”) bonus. (AR 106-109, 110-120.) Petitioner argued that “the grant of the ministerial permits was in error” and requested that the City “revoke all ministerial permits.” (AR 110, 120.) Petitioner did not assert that the Project, as constructed, failed to comply with the Building Permits. Nor did Petitioner file a supplemental appeal with LADBS to raise such issues. Accordingly, the Planning Department and the APC properly limited the scope of appellate review to the issues raised in Petitioner’s LADBS appeal. (See Sustainability, supra, 34 Cal.App.5th at 696-697.)

In its reply briefs, Petitioner argues, for the first time, that it should be excused from raising its arguments about construction activities before LADBS because “due to COVID-19 emergency procedures closing government offices, Petitioner was unable to access a set of plans to formulate its arguments.” (Reply to City’s Opposition 2.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner has not shown good cause to raise these arguments for the first time in reply, depriving the City and Real Parties an opportunity to respond in their written oppositions.

Regardless, Petitioner has not shown a valid excuse from the exhaustion requirement. First, Petitioner argues: “At the time Petitioner’s appeal was filed on May 17, 2021, the LADBS offices were closed to the public due to the COVID-19 emergency and did not permit inspection of plans.” (Reply To City’s Opposition 3:11-13.) Petitioner cites to AR 2315, which is a letter to that effect, but it is dated January 17, 2021, four months before Petitioner filed its appeal. Even assuming that was the case in May 2021, Petitioner admits that it received “copies of relevant portions of the plans [when] the Zoning Administrator attached them in response … to the appeal.” (Id. 3:23-24, citing AR 705, 683-696.) Thus, Petitioner admittedly had access to the plans no later than June 2022, and could have filed an appeal at that point. (See AR 645, 661-664, 683-696.) Indeed, Petitioner’s new argument concerns ongoing construction activities, not the issuance of the building permits, so Petitioner should have filed a new appeal before the LADBS. Petitioner failed to do so. Therefore, the court finds that the alleged lack of access to plans due to COVID-19 does not excuse Petitioner’s obligation to raise the issue before the LADBS.

Petitioner contends that the Planning Department and the APC erred in concluding that they lacked jurisdiction to decide whether ongoing construction activities complied with the Building Permits or the City’s ordinances. Petitioner raises an issue of statutory construction. To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency’s interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.) “Under well-established law, an agency’s view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized.” (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.)

Here, in defining the scope of Petitioner’s appeal, the ZA and APC observed that “[a] review (inspection) of the actual development or construction at the project site is conducted by the LADBS Enforcement Division (Inspectors), which generally issues citations when non-compliant matters are discovered during inspection.” (AR 980, 1856.) The ZA and APC then stated:

The Zoning Administrator acknowledges the concerns and complaints related to the on-going construction at the project. . . . The neighbors and the appellants are well within their right to register complaints if there is a belief that the current construction of the single-family residence is not consistent with the plans approved by the LADBS Plan Check Division. Complaints regarding ongoing construction at a particular site should be filed with the Enforcement Division of the Building and Safety. The Department of

Building and Safety Inspectors will take action if it is determined the complaints are valid.

(AR 981-982, 1857-1858.) Thus, the ZA and APC interpreted the applicable City ordinances to confer initial authority over inspection of construction activities and related enforcement issues on the LADBS, not the Planning Department.

Petitioner has not shown that this interpretation of the applicable City ordinances is “clearly erroneous.” LADBS, not the Planning Department, has authority over the inspection of construction work for which a permit has been issued. “A permit is merely an application for inspection, the issuance of which entitles the permittee to inspection of the work which is described therein.” (LAMC § 91.106.4.3.1; City RJN Exh. 6.) “All construction or work for which a permit is required shall be subject to inspection by authorized employees of [LADBS]…. Prior to the issuance of a Certificate of Occupancy …, a final inspection shall be made by [LADBS] of all construction or work for which a permit has been issued.” (LAMC § 91.108.1; City RJN Exh. 7.) LADBS also has broad authority over enforcement matters related to construction activity:

Whenever any construction work is being done contrary to the provisions of any law or ordinance enforced by the Department, the Department shall have the authority to issue a written notice to the responsible party to stop work on that portion of the work on which the violation has occurred. The notice shall state the nature of the violation and no work

shall be done on that portion until the violation has been rectified and approval obtained from the Department.

(LAMC § 91.104.2.4; City RJN Exh. 3.) LADBS “is granted the power to enforce all ordinances and laws relating to the construction … of buildings or structures in the City.” (LAMC § 98.0403.1(a)1; Pet. RJN Exh. 2.)

Nonetheless, Petitioner argues that the Planning Department and the APC have jurisdiction to review LADBS’s enforcement decisions pursuant to LAMC section 12.26.K.1, which provides in pertinent part:

1. Right of Appeal. The Director of Planning shall have the power and duty to investigate and make a decision upon appeals from determinations of the Department of Building and Safety where it is alleged there is error or abuse of discretion in any order, interpretation, requirement, determination or action made by the Department of Building and Safety in the enforcement or administration of Chapter I of this Code and other land use ordinances in site-specific cases. . . . An appeal to the Director of Planning may only be made after the Department of Building and Safety has rendered a decision in writing and provided written justification and findings on an appeal made pursuant to Section 98.0403.2(a) of the Code.

(OB 7-8; Pet. RJN Exh. 1.) LAMC sections 98.0403.1 and 98.0403.2, which are referenced in section 12.26, provide in pertinent part that LADBS “shall have the power to hear and act upon requests for slight modifications in individual cases to the building ordinances of the City” and that appeals of such decisions shall be made to the Board of Building and Safety Commissioners (“BBSC”). (See LAMC §§ 98.0403.1(a), (b); 98.0403.2(a), (b).)

Section 12.26.K “must be construed in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.” (People v. Hull (1991) 1 Cal.4th 266, 272.) As noted, inspections of ongoing construction are performed by LADBS after a permit is issued, but before a certificate of occupancy is issued. (LAMC §§ 91.106.4.3.1, 91.108.1.) Then, if construction work is being done in a manner contrary to the building permits or City’s ordinances, LADBS is the agency responsible for enforcement. (LAMC §§ 91.104.2.4, 98.0403.1(a)1.) Harmonizing these ordinances, the City reasonably interpreted section 12.26.K to authorize the Director of Planning and the APC to decide appeals related to the LADBS’s enforcement or administration of the Zoning Code, as reflected in the LADBS’s permitting decisions. The City also reasonably concluded that “[a] review (inspection) of the actual development or construction at the project site is conducted by the LADBS Enforcement Division (Inspectors),” not by the Planning Department. (AR 980, 1856.) Petitioner has not shown that the City’s interpretations of its own ordinances are clearly erroneous.

The City’s interpretation is also consistent with the well-established maxim that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” (Heckler v. Chaney (1985) 470 U.S. 821, 831.) Here, Petitioner challenges LADBS’s alleged decision not to issue citations based upon alleged deviations between the construction and the Building Permits. This is not a challenge to any express or affirmative “orders, interpretations, requirements, determinations, or actions” of LADBS. Rather, Petitioner challenges LADBS’s inaction, which generally falls beyond the scope of review.

Petitioner attempts to raise a new issue, arguing that the construction deviated from the Building Permits. But Petitioner did not raise this issue in any appeal to the LADBS and has not demonstrated any good cause to excuse the exhaustion requirement. Moreover, Petitioner does not demonstrate that the Planning Department and the APC clearly erred in finding that they lacked authority to review this issue. Therefore, the petition for writ of mandate is denied on this ground.

Petitioner contends that the City erroneously “granted Real Party the right to choose how to calculate lot width” in the calculation of the residential floor area (“RFA”) bonus for the Project, and that the City’s findings related to the RFA bonus are not supported by substantial evidence. (OB 10-11.)

The LAMC provides that a 20 percent RFA bonus “shall be allowed” if one of several listed options is utilized, including, as relevant here:

Cumulative Side Yard Setbacks Option. The combined width of Side Yards shall be at least 25% of the total Lot Width, as defined in Section 12.03 of this Code, but in no event shall a single Side Yard setback be less than 10% of the Lot Width or the minimum required by Paragraph (a) of this Subdivision, whichever is greater. One (1) foot shall be added to each required Side Yard for each increment of 10 feet or fraction thereof of height above the first 18 feet of height. The width of a required Side Yard setback shall be maintained for the entire length of a Side Yard and cannot alternate from one Side Yard to the other….

(LAMC § 12.21.C.10(b)(3)(iii); Pet. RJN Exh. 4 at 6.) “Lot Width” is defined as “[t]he horizontal distance between the side lot lines measured at right angles to the lot depth at a point midway between the front and rear lot lines.” (LAMC § 12.03; Pet. RJN Exh. 9.) “Lot Depth” is defined as “[t]he horizontal distance between the front and rear lot lines measured in the mean

For “flag lots” located in a Hillside or a Very High Fire Hazard Severity Zone, the LAMC provides an alternative method of calculating lot width, which states in pertinent part:

[T]he lot width may be calculated by measuring the width of the main buildable portion of said flag lot on a straight line parallel to the general direction of the frontage street and midway between the rear and front lines of the main buildable portion of the flag lot….

(LAMC § 12.22.C.22; Pet. RJN Exh. 12 at 4 [emphasis added].) A “flag lot” is defined as “[a] lot so shaped and designed that the main building site area is set back from the street on which it fronts and includes an access strip not less than 20 feet in width at any point connecting the main building site area to the frontage street.” (LAMC § 12.03; Pet. RJN Exh. 9.) “A flag lot gets its name from its resemblance to a flag pole (minimum 20'0" wide access strip) supporting a flag (main building site area).” (AR 934.)

A Lot Width Diagram in the Project plans shows that the lot width of the Property is 80.3 feet. (AR 1732.) Twenty-five percent of 80.3 feet is 20.1 feet. (AR 935.) The cumulative sum of the Project’s side yards is 27 feet, exceeding the 20.1-foot minimum required by LAMC section 12.21.C.10(b)(3)(iii). (Ibid.) Accordingly, substantial evidence supports the City’s determination that Real Parties are entitled to a 20 percent RFA bonus.

Petitioner does not challenge the City’s calculations under section 12.21.C.10(b)(3)(iii). Rather, Petitioner argues that the APC erred when it did not require the use of the flag lot measurement to determine lot width when it approved a RFA bonus for the Project. (OB 9-11.) Petitioner’s arguments are not persuasive.

LAMC section 12.22.C.22 plainly states that the width of flag lots “may be calculated” using its alternative measure of width. The phrase “may be calculated” indicates that the exception is permissive, not mandatory. (See LAMC § 11.01(a) [“‘Shall’ is mandatory; ‘May’ is permissive.”]; Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614 [“the usual rule with California codes is that ‘shall’ is mandatory and ‘may’ is permissive”].)

Petitioner argues that the LADBS, and not the applicant, “is empowered” to decide which of the two alternative measurements of lot width to employ. (OB 10.) The City disagreed and found that “[t]he applicant has the discretion to apply either lot width calculation for the Cumulative Side Yard Setback Option in Section 12.21C10(b)(3)(iii).” (AR 745, 1044; see also AR 1832-1833.) The City’s interpretation of its own ordinance is entitled to deference, is supported by the plain language of section 12.22.C.22, and is not clearly erroneous. (See Friends of Davis, supra, 83 Cal.App.4th at 1015.) Regardless, LADBS, the Planning Director, and the APC all approved the use of the standard measurement of width lot and denied Petitioner’s administrative appeals. (AR 55, 106, 663, 961-962, 1043-1045, 1832-1833.)

Petitioner’s reliance on the City Council’s section 245 motion is misplaced. (See OB 10.) The City Council did not purport to offer an authoritative interpretation of the code’s lot width or flag lot regulations. Rather, the City Council instructed the LADBS, in consultation with Planning and other relevant departments, to prepare a report reviewing the applicability of the code’s flag lot regulations to the proposed Project. (AR 1012-1013.) The LADBS complied with the City Council’s directive and found that the RFA bonus was properly applied to the Project. (AR 1043-1045.) The City Council did not assert further jurisdiction over the matter pursuant to section 245 of the City Charter after the APC denied Petitioner’s appeal on November 6, 2023, after the flag lot issue was reconsidered by LADBS and the APC. (AR 1832-1833.)[1]

4. Substantial Evidence Supports the City’s Determination that the Plans Accurately Depict the Property Lot Lines

Petitioner contends that LADBS “utilized plot plans to calculate the lot width and area bonus eligibility that had incorrect lot dimensions that deviated significantly from those dimensions in official recorded maps filed with the County Recorder, namely Parcel PMEX No. AA-2014–3449.” (OB 11.) Petitioner relies on a 2014 lot line adjustment, case number PMEX No. AA-2014-3449 (“2014 PMEX”), which Petitioner claims “was created to divide the lots for 822 and 824 Kenter.” (AR 2227, 2444.)

Real Parties argue that “[o]n its face, the 2014 PMEX adjusted the lot boundaries between 822 Kenter Avenue, 774 Kenter Avenue, and 841 Leonard Road, and did not implicate 824 Kenter.” (Real Parties Oppo. 15.) The Real Parties are correct. (See AR 45, 1804-1807, 2413.)[2] Petitioner did not respond to this argument in reply. (See Reply to City’s Opposition 11; see also Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) Thus, Petitioner’s cited evidence does not support its position that the plot plans used to calculate the lot width and area bonus had incorrect lot dimensions.

In any event, with their building plans, the Real Parties included a stamped survey performed by a licensed surveyor. (AR 1733-1734, 2070-2071.) The dimensions shown on the permits and approved Project plans align with the survey. (AR 66, 1729-1747; SAR 2465-2466.) Petitioner has not argued, or shown, to the contrary. At the APC hearing, the LADBS plan checker testified that LADBS typically accepts a stamped survey from a licensed surveyor as authoritative evidence of lot lines and dimensions. (AR 2070-2071, 1931.) The plan checker also testified that if a discrepancy is found during an LADBS inspection, the inspector may request further information to determine the survey’s accuracy. (AR 2070-2071.) There is no evidence that an inspection revealed a discrepancy with the survey. Further, the stamped survey is substantial evidence of the lot’s dimensions, and the City was entitled to give it more weight than it gave to the 2014 PMEX. (Association of Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th 1383, 1397 (2003) [“decisionmaker is ‘permitted to give more weight to some of the evidence and to favor the opinions and estimates of some of the experts over the others’”].) On substantial evidence review, the court cannot reweigh the evidence or substitute its own inferences for those of the City. (McAllister v. California Coastal Com. (2008)169 Cal. App. 4th 912, 921-22.)

Based on the foregoing, substantial evidence supports the City’s finding that the Project is entitled to a 20 percent RFA bonus. Petitioner has not shown a prejudicial abuse of discretion or other legal error in that finding. (CCP § 1094.5(b).)

C. Substantial Evidence Supports the City’s Findings that the Project Complies with the Baseline Hillside Ordinance’s Height Restrictions

Petitioner argues that the APC’s “determination that the Project was within the maximum height limit of 36 feet set forth in the BHO is not supported by substantial evidence.” (OB 11-12.) Petitioner acknowledges that the “applicable height limit is 36 feet” for ADU part of the Project. (OB 12, fn. 6, citing Table 12.21.C.10-4; AR 85; Pet. RJN Exh. 7 at 2; see also Reply to Real Parties 8, fn. 4.) Petitioner does not challenge LADBS’s initial determination that the Project plans for the ADU comply with this heigh limit. Instead, Petitioner cites a photograph of the home under construction (SAR 2232) and estimates from that photograph that the ADU portion of the Project “would be upwards of 43.5 feet tall upon completion.” (OB 12:1-7.)

As discussed, Petitioner did not argue in the LADBS appeal that the Project, as constructed, failed to comply with the applicable height limits. (AR 106-109, 110-120.) Regardless, Petitioner’s arguments are not persuasive. Height is governed by LAMC section 12.21.C.10(d)(1), which states that the height limits in Table 12.21.C.10-4 “shall be measured” based on the “Maximum Envelope Height,” defined as follows:

Envelope height (otherwise known as vertical height or “plumb line” height) shall be the vertical distance from the Hillside Area Grade to a projected plane at the roof Structure or parapet wall located directly above and parallel to the Grade. Measurement of the envelope height shall originate at the adjacent Hillside Area Grade at the exterior walls of a Building or Structure.

(Pet. RJN, Exh. 6 at 5; AR 283.) “Hillside Area Grade” is defined as “the Elevation, at the perimeter of a Building or Structure, of the finished or natural surface of the ground, whichever is lower, or the finished surface of the ground established in conformance with a grading plan approved pursuant to a recorded tract or parcel map action.” (Pet. RJN Exh. 9.)

In other words, height is measured at the exterior wall at the grade adjacent to the measured point. Petitioner, in contrast, estimates the height of the ADU from a point on the opposite end of the structure. (SAR 2232.) As shown by Petitioner’s picture, the grade adjacent to the ADU is significantly higher than the measurement point at the opposite end of the structure. (SAR 2232.) Section elevations in the record, which Petitioner does not address, show that the Project will be under the 36-foot height limit on all sides. (SAR 2470-2471; Toigo, supra, 70 Cal.App.4th at 317 [when an appellant challenges “’the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.”].) Substantial evidence supports the City’s determination that the ADU complies with the 36-foot height limit, which, as Petitioner admits, applies to that portion of the Project. (See Reply to Real Parties 8, fn. 4.)

Petitioner also asserts that the main house is subject to a 30-foot height limit for certain parts of the Project structure. (OB 12; Reply to Real Parties 8-10.) Specifically, Petitioner contends that a 30-foot height limit applies to the portions of the Project’s roof that are “flat” and that the “open trellis” is not a “projecting roof structure” that may be “erected above” the 30-foot limit pursuant to LAMC Table 12.21.C.10-5. (OB 12.)

Petitioner did not raise these arguments in its LADBS appeal. (AR 106-109, 110-120.) Contrary to Petitioner’s assertion, the issue was not raised in any matter and not with “sufficient specificity for purposes of administrative hearings.” (Reply to Real Parties 8, citing Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1395.) Moreover, whether the Project plans justify a height limit of 30 or 36 feet for the main house presents, at least in part, a fact question that the LADBS should decide in the first instance. (Reply to Real Parties 8:18-21.) Accordingly, the issue was not properly before the APC and cannot be raised in the first instance on writ review. (Sustainability, supra, 34 Cal.App.5th at 696.)

Regardless, Petitioner’s arguments from the opening brief about a purported “open trellis” are not persuasive. (See OB 12.) In the RE40-1 Zone the height limit is 36 feet “[w]hen the roof of the uppermost story of a building or structure or portion thereof has a slope of 25% or greater.” (Pet. RJN Exh. 5 at 18; AR 283.) The City’s BHO Comprehensive Guide also states:

The 25% roof slope is a Southern California standard which is also commonly referred to as the 3:12 slope. This slope can be expressed as a ratio of 1 foot of vertical rise for every 4 feet of horizontal distance…. When a roof is made up of a combination of roof slopes, the portions of the structure with a roof slope less than 25% will be considered flat and as a result be required to comply with the lower height.

Here, Petitioner’s slides and the corresponding Project plan include a sloped roof with the notation “3:12 sloped trellis.” (AR 1743, SAR 2424-2425, 2470.) The plans are substantial evidence that the main house qualifies for the 36-foot height limit and that the trellis falls within that height limit. (AR 1743, SAR 2424-2425, 2470.) Accordingly, Petitioner’s argument that the trellis is not a “projecting roof structure” subject to LAMC Table 12.21.C.10-5 is misplaced. Table 12.21.C.10-5 only applies to structures that are “erected above” the applicable height limit, and the plans show that the trellis does not extend above the 36-foot height limit. (Pet. RJN Exh. 8 at 2; AR 1743, SAR 2424-2425, 2470.)

In reply, Petitioner argues, for the first time, that “an open trellis is obviously not a roof” because it “is an ornamental structure which affords no protection from the elements and is not integral to the concept of a building.” (Reply to Real Parties 9:13-14.) Accordingly, Petitioner argues that the trellis “does not establish a 36-foot height limit at that portion of the building.” (Id. 9:18-19.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Petitioner does not show good cause to raise this argument for the first time in reply, depriving Real Parties an opportunity to respond in their written opposition. Moreover, Petitioner failed to argue in its LADBS appeal that the “3:12 sloped trellis” is not part of the Project’s roof. Accordingly, Petitioner did not preserve the issue for judicial review. (Sustainability, supra, 34 Cal.App.5th at 696.) The court cannot determine the definition of “roof” for purposes of the BHO—i.e., whether a “3:12 sloped trellis” is part of the “roof”—without the LADBS first addressing the issue. Nor can the court decide this issue without giving the Real Parties and the City an opportunity to respond.

Finally, Petitioner argues that a retaining wall intended for 822 Kenter was incorrectly built on 824 Kenter, which allegedly caused the Project to exceed the limit of two retaining walls from the City’s Hillside Retaining Wall Ordinance (“HRWO”). (OB 13-15, citing AR 831-834 and LAMC § 12.21.C.8(a) [HRWO retaining wall limit].) As support, Petitioner relies on “aerial photography from ZIMAS (AR 1803, SAR 2240), the County of Los Angeles Assessor’s Portal (AR 1804, SAR 2239), Google Earth (AR 1804) and NavigateLA (AR 1805),” as well as videos and photos of the two properties taken on September 2, 2023, by a licensed drone operator hired by Petitioner (AR 1805, 1811). (OB 13.) These arguments were raised in a letter dated September 4, 2023, just two days before the final September 6, 2023, APC hearing. (AR 1802.)

These arguments fail for several reasons. With respect to retaining walls, Petitioner only argued in the LADBS appeal that a planter wall should be considered a retaining wall; that another retaining wall was, in fact, “more than one wall … because [it] twists and turns and changes directions”; and that a wall along a storage building was also a retaining wall. (AR 4-5.) Petitioner did not argue in its LADBS appeal that a retaining wall intended for 822 Kenter was incorrectly built on 824 Kenter, resulting in the Project’s exceedance of the two-wall limit established by the HRWO. Further, as Real Parties state, Petitioner’s argument that a retaining wall was built “in the wrong place” does not raise a Zoning Code issue to be decided by the APC, but rather a matter for inspection and enforcement of the applicable building permit by LADBS. (Real Parties Oppo. 17-18.) To illustrate, if a retaining wall was improperly constructed on 824 Kenter, one possible remedy (among others) could be to destroy the wall and rebuild it on 822 Kenter. LADBS is the agency responsible for deciding such issues of enforcement. (LAMC §§ 91.104.2.4, 98.0403.1(a)1; Pet. RJN Exh. 1-3.) Accordingly, that issue was not properly before the APC and Petitioner failed to preserve the issue for judicial review. (Sustainability, supra, 34 Cal.App.5th at 696.)

Regardless, there is substantial evidence demonstrating that the retaining wall at issue was built on 822 Kenter and not 824 Kenter. Specifically, a Topographic Survey prepared by a licensed surveyor indicates that the retaining wall is located on 822 Kenter. (AR 1733-1734.) The City was entitled to rely on this survey over Petitioner’s evidence, including the report from Petitioner’s aerial drone expert. (Association of Irritated Residents, supra, 107 Cal. App. 4th at 1397; see AR 1805-1811.)

Petitioner argues that “[t]he LAMC requires the identification of existing-onsite walls as a ‘condition precedent to issuing a grading permit,’” and cites LAMC section 91.7006.1.4 as support. (OB 14, citing Pet. RJN Exh. 13.) Relatedly, Petitioner argues that the LADBS was required by a “Condition 2” of the Project plans “to verify that existing site conditions conformed with the plans prior to permit issuance.” (OB 14, citing AR 1730.) Neither argument is persuasive. Petitioner’s reliance on section 91.7006.1.4, a building regulation, and Condition 2, from a soils report, shows that Petitioner’s arguments do not involve a zoning issue and were not properly before the APC. Furthermore, section 91.7006.1.4 requires identification of walls to be constructed and Condition 2 requires verification of geological data, not the existing walls. Regardless, LADBS did verify the location of the retaining wall on the 822 Kenter property based on the survey, as noted above. (AR 1733-1734.)

Petitioner argues that permits that are issued based upon a misrepresentation are void, citing to Stokes v. Board of Permit Appeals (1997) 52 Cal. App. 4th 1348. (OB 15.) However, Petitioner has not offered evidence that a misrepresentation was made to LADBS when it issued the permits. Accordingly, Stokes does not benefit Petitioner.

In a footnote, Petitioner asserts that “the Court may shift the burden of proof regarding the location of the existing retaining wall to Respondent.” (OB 15, fn. 11, citing Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644, 660-661.) Lakin was a personal injury case, and the Supreme Court did not find that burden shifting was appropriate under the facts of that case. As discussed above, Petitioner did not properly raise the issue concerning the retaining wall in its LADBS appeal. Petitioner also does not show that it would be impossible for it to prove its case without burden shifting. (See Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1670.) For all these reasons, Lakin does not support a request for burden shifting in the instant case.

Based on the foregoing, Petitioner failed to raise its current arguments related to the retaining walls of the Project in an appeal to LADBS. Accordingly, those issues were not preserved for judicial review in this writ action. (See Sustainability, supra, 34 Cal.App.5th at 696-697.) Alternatively, the City’s findings and decision with respect to the number of retaining walls on the Project site are supported by substantial evidence. Petitioner has not shown any prejudicial abuse of discretion or legal error in the City’s decisions related to retaining walls of the Project. (Code Civ. Proc. § 1094.5(b).)

[1] Section 245(e) of the City Charter states: “The Council shall not be limited to veto of actions of the City Planning Commission or Area Planning Commissions, but, subject to the time limits and other limitations of this section, after voting to bring the matter before it, shall have the same authority to act on a matter as that originally held by the City Planning Commission or Area Planning Commission.”

[2] Although the 2014 PMEX refers to “Parcel 1” in the lot adjustment as “824 Kenter,” the map in the 2014 PMEX identifies Parcel 1 as the real property now designated as 822 Kenter on various other maps in the record, including those supplied by Petitioner. (See AR 45, 1804-1807, 2413.)