Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN51840, Thomas P. Nugent, Judge.
AARON, J.
I.
INTRODUCTION
In April 2006, Leucadia Cares, Andree Pyfer, and Ron Ranson (Leucadia Cares) filed a petition for writ of mandate and complaint for declaratory and injunctive relief against respondent City of Encinitas (City) and real party in interest and respondent Barratt American, Inc. (Barratt). In its petition and complaint, Leucadia Cares claimed that the City violated its Municipal Code (Municipal Code) in granting a design review permit and a coastal development permit to Barratt for the development of nine single-family residences. Leucadia Cares claimed that the City violated the Municipal Code by "allowing Barratt to measure the elevations of the residences from the finished grade rather than the original, natural grade."
Leucadia Cares is an unincorporated association concerned about the environmental quality and community character of the City of Encinitas.
For ease of reference, we refer to the appellants collectively as Leucadia Cares throughout this opinion, since the identities of the individual appellants are not relevant to this appeal.
The trial court entered an order denying the petition. In its order, the court cited former Municipal Code section 30.04 (section 30.04), which provided, "An approved subdivision map may establish the building pad elevation from which building height is measured." The trial court reasoned that Barratt's "tentative subdivision map properly established the finished building pad elevation from which building height would be measured." The court entered judgment in favor of the City and Barratt.
Although not specifically defined by the parties, it is clear from the briefs that the term 'building pad elevation' refers generally to the number of feet above mean sea level at which a building pad rests.
The current Municipal Code contains this provision in section 30.16.010(B)(7)(d). The current Municipal Code became effective on January 12, 2005, after the City's October 2004 approval of the tentative subdivision map at issue in this case, but prior to the City's January 2006 resolution of Leucadia Cares's administrative appeal of the permit approvals. The City and Barratt argue that the version of the Municipal Code that was in effect at the time the City approved Barratt's tentative subdivision map governs this appeal. (See Govt. Code, § 66474.2, subd. (a) ["[I]n determining whether to approve or disapprove an application for a tentative map, the local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete"].) Although Leucadia Cares cites to the current Municipal Code in its brief, Leucadia Cares acknowledged in the trial court that "there is no substantive difference," between the former and current versions of the Municipal Code.
On appeal, Leucadia Cares claims that the trial court erred in determining that the City's approval of Barratt's tentative subdivision map that contained building pad elevations necessarily established the elevations from which the building heights of the residences in the subdivision would be measured. Leucadia Cares asserts that in order for building height elevation to be measured from the building pad elevation, the City must "specifically approve, as a part of the tentative map process . . . that measurement of building height will occur from the finished pad elevation." Leucadia Cares claims that express approval is required because section 30.04 provides only that a subdivision map may establish the elevation from which building height is measured. Leucadia Cares contends that because there is no such express approval in this case, the heights of the residences in the subdivision must be measured from the natural grade, not from the building pad elevations. In contrast, the City and Barratt note that Barratt's tentative map for the subdivision establishes building pad elevations for the residences, and maintain that building height is to be measured from the building pad elevations because section 30.04 provides that in all instances in which a tentative map establishes building pad elevations, it is from these elevations that building height is to be measured. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The City's approval of Barratt's tentative map
On October 13, 2004, Barratt filed various documents in support of its application for approval of a tentative subdivision map for the project. Included among these documents was a map entitled, "Preliminary Grading Plan for 290 Andrew Avenue Subdivision Leucadia, California" (Grading Plan). The Grading Plan consists of a map of the proposed subdivision and includes notations that indicate the natural grade contours of the land, the planned finished grades for the lots, and the planned building pad elevations for each of the nine proposed residences. For example, Lot 1 on the map contains notations that indicate grading contours varying from 79 feet to 81 feet above mean sea level, finished grades varying from 79.8 feet to 84.2 feet above mean sea level, and a building pad elevation of 82.9 feet above mean sea level.
City staff prepared a report regarding Barratt's application for an October 21, 2004 meeting of the City Planning Commission (Planning Commission). The report states, "[c]onceptual grading of the site is included as part of the Tentative Map request," and describes the proposed grading as follows:
"Grading ─ The site will be graded into some relatively flat pad areas. Project grading will include approximately 61 cubic yards of cut and 9909 cubic yards of fill which requires 9848 cubic yards of import. The fill quantity is required to accommodate gravity sewer fall to Andrew [Avenue]. As depicted on the Tentative Map, maximum fill heights for pads appear to be approximately four to five feet."
On October 21, 2004, the Planning Commission held a hearing and passed a resolution approving Barratt's application for a tentative map. The resolution provided that the Planning Commission's approval was conditioned on Barratt's application and its project drawings, including the Grading Plan. The resolution also specifies that "all project grading shall conform with the approved Tentative Map."
B. The design review permit and coastal development permit
In September 2005, Barratt applied for a design review permit and a coastal development permit. On November 15, 2005, the Planning Commission held a hearing on Barratt's application. At the hearing, City staff member and associate planner Kerry Kusiak noted that he had received correspondence in which the writer questioned whether building height for the proposed residences should be measured from the building pad elevations. Kusiak stated to the Planning Commission, "In the case of the tentative map as per [current] Municipal Code Section 30.16.010 (B)(7)(d) a tentative map can set a pad elevation by which building height is measured which is the case for this Project. The Map did set those building pad elevations and that is where the Municipal Code would say the height would be measured." Several residents spoke at the hearing and expressed their view that the Municipal Code required that building heights for the residences be measured from the natural grade.
This provision was formerly contained in section 30.04. (See fn. 3, ante.)
During the hearing, Tom McCabe, a Planning Commission member, stated the following:
"Well, like I said I've been here long enough that I remember approving the tentative map and it [sic] was on the record at that time as being opposed to the raising of the grade, but since nobody spoke, you know, I went along with it. Well, now I look at it and now I see there's issues and I'm looking at evidence here, you know, that I don't have enough knowledge to clearly make a decision on, but there's enough evidence submitted tonight for me to say, that the pad, that the elevation should be taken from the lower grade, the existing grade prior to the map.
"That may go against everything that we've always done in the past, but if the code says 'may' that's a big difference between 'shall' and so I'm not going to vote for this tonight, so I am assuming the Applicant [is] going to want to, you know, postpone it because of that."
Barratt requested a continuance of the hearing. The Planning Commission continued the hearing.
City staff prepared a report for the continued hearing. The report states:
"Project grading, including pad elevations raised above the previously existing grade to accomplish sewer fall, was considered and approved with the subdivision of the property. Approval of the tentative map and grading plan, which stated proposed pad elevations for each lot, established pad elevations by which building height would be measured."
The report also notes that, "[t]he Commission does not have the authority to reconsider items already considered and approved with the tentative map, including but not limited to the approved pad elevations, [and] the measurement of building height from the approved pad elevations . . . ."
On December 15, 2005, the Planning Commission reconvened the hearing on Barratt's applications for a design review permit and coastal development permit. Members of the public again expressed their view that the Municipal Code required the Planning Commission to measure the height of the residences from the natural grade rather than from the building pad elevations. A member of the Planning Commission asked Kusiak why building heights were to be measured from building pad elevations. Kusiak responded, "It's the Planning Department's standard practice as well as this Commission's standard practice, that when a grading plan is approved with a tentative map . . . that does establish those pad elevations from which to measure building height."
At the conclusion of the hearing, the Planning Commission passed a resolution approving a design review permit and a coastal development permit for the Project. The resolution provides, "The proposed residences comply with all applicable development standards, including building height. . . ." The resolution also states that the Project is conditionally approved as set forth in the project drawings for the proposed residences.
It appears to be undisputed that the proposed residences comply with Municipal Code building height restrictions if, and only if, the elevations for the residences are measured from the building pad elevations rather than the natural grade.
Pyfer and Roger Baldwin appealed the Planning Commission's approval of the permits to the City Council of Encinitas (City Council). In their appeal, Pyfer and Baldwin argued that the permits were invalid because the Project drawings depicted residences that are taller than allowed by the Municipal Code when the height of the residences is measured from the natural grade. Pyfer and Baldwin argued that the Municipal Code requires that building height "be measured by the natural grade [citation] unless a tentative map resets the building envelope [citation]," and that the "tentative map for this project does not reestablish the building heights." On January 25, 2006, after a hearing, the City Council affirmed the Planning Commission's decision.
C. Proceedings in the trial court
In April 2006, Leucadia Cares filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief. In its petition and complaint, Leucadia Cares alleged the following:
"1. This action challenges the [City's] approval . . . of a Design Review and Coastal Development Permit to project applicant [Barratt], to allow construction of nine single-family residences within the Coastal Zone on a 2.3-acre site at 290 Andrew Avenue in the City of Encinitas ('Project').
"2. The City violated its own Municipal Code and planning requirements by allowing Barratt to measure the elevations of the residences from the finished grade instead of from the original, natural grade."
Leucadia Cares argued that the City's approval of the Project violated section 30.04. In its prayer for relief, Leucadia Cares requested, among other forms of relief, that the court grant alternative and peremptory writs of mandate vacating the City's approval of the Project and an injunction prohibiting the City or Barratt from taking any steps to further the Project. In July 2006, Leucadia Cares lodged the administrative record.
In September 2006, after briefing and argument, the trial court entered an order denying Leucadia Cares's petition for writ of mandate. In its order, the court quoted section 30.04 and stated that Barratt's tentative subdivision map properly established the finished building pad elevations from which building height would be measured. The trial court rejected Leucadia Cares's argument that the tentative map did not establish that the building pad elevations would be used to measure building height. The court stated that this argument was belied by statements made by City staff during the design review permit and appeal process to the effect that the tentative map established that the building pad elevations would be used to measure building height. The trial court noted, as an example, that a 2006 City Council staff report stated that the City's 2004 tentative subdivision map approval "established the pad elevations depicted thereon as the basis from which building height would be measured."
In October 2006, the trial court entered judgment in favor of the City and Barratt.
III.
DISCUSSION
A. Pursuant to section 30.04, the City's approval of Barratt's tentative map documents established that the building pad elevations depicted therein would be used as the basis from which to measure building height
Leucadia Cares claims that the trial court erred in "determining that [pursuant to section 30.04] the mere approval of a grading plan and related establishment of pad elevations automatically establishes the elevations from which building height will be measured." The City and Barratt contend that section 30.04 provides that where a tentative map establishes building pad elevations, it is from these elevations that building height is measured.
1. Standard of review and governing law
In Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8 (Yamaha), the California Supreme Court discussed the degree of deference that courts should accord an administrative agency's interpretation of a statute:
"Courts must . . . independently judge the text of the statute, taking into account and respecting the agency's interpretation of its meaning, of course, whether embodied in a formal rule or less formal representation. Where the meaning and legal effect of a statute is the issue, an agency's interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth. [Citation.] Considered alone and apart from the context and circumstances that produce them, agency interpretations are not binding or necessarily even authoritative. To quote the statement of the Law Revision Commission in a recent report, 'The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.' (Judicial Review of Agency Action (Feb.1997) 27 Cal. Law Revision Com. Rep. (1997) p. 81, italics added.)"
The Yamaha court further stated, "Whether judicial deference to an agency's interpretation is appropriate and, if so, its extent ─ the 'weight' it should be given ─ is . . . fundamentally situational." (Yamaha, supra, 19 Cal.4th at p. 12.) Greater deference should be given to an agency's interpretation where "'the agency has expertise and technical knowledge, especially where the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.'" (Id. at p. 12, quoting Cal. Law Revision Com., Tent. Recommendation, Judicial Review of Agency Action (Aug. 1995) p. 11 (Tentative Recommendation).) For example, where an "'agency interprets its own regulation . . . the agency is likely to be intimately familiar with regulations it authored and sensitive to the practical implications of one interpretation over another.'" (Yamaha, supra, 19 Cal.4th at p. 12, quoting Tentative Recommendation, supra, at p. 11.)
In addition, greater deference is appropriate where there are "indications of careful consideration by senior agency officials." (Yamaha, supra, 19 Cal.4th at p. 13.) The Yamaha court also stated that "evidence that the agency 'has consistently maintained the interpretation in question, especially if [it] is long-standing' [citation] . . ., and indications that the agency's interpretation was contemporaneous with legislative enactment of the statute being interpreted," warrant increased deference. (Ibid., quoting Tentative Recommendation, supra, at p. 11.) Another circumstance that weighs in favor of judicial deference is where the interpretation was adopted in accordance with procedures that "enhance the accuracy and reliability of the resulting administrative 'product,'" such as the Administrative Procedures Act. (Yamaha, supra, 19 Cal.4th at p. 13.)
Courts have applied the Yamaha framework in examining the appropriate amount of judicial deference to be accorded to a municipality's interpretation of its ordinances. (See Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 928 [applying Yamaha in reviewing zoning administrator's interpretation of city charter and municipal code]; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219 [applying Yamaha in reviewing hearing officer's interpretation of mobile home rent control ordinance].)
Further, "the rules of statutory construction applicable to statutes are also applicable to local ordinances." (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502.) This court summarized those rules in Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485:
"In construing any statute, '[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.' [Citation.] 'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the statutory language is unambiguous, 'we presume the Legislature meant what it said, and the plain meaning of the statute governs.' [Citation.]"
"If [a law] is ambiguous, we may consider a variety of extrinsic sources in order to identify the interpretation that best effectuates the legislative intent." (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 508.)
2. Section 30.04
Section 30.04 provides:
"BUILDING HEIGHT shall mean the vertical distance from the lower of the natural or finished exterior grade adjacent to the structure, to the highest portion of the roof immediately above. An approved subdivision map may establish the building pad elevation from which building height is measured with consideration given to on-site and surrounding uses and terrain. Where the property is located significantly below the level of existing streets (as determined by the Community Development Director) a pad elevation, from which the building height is measured, may be approved subject to a Use or Design Review Permit. When a basement element or underground structures exist or are proposed, height is measured from the finished grade (above the underground parking or basement element) provided the finished grade is at or below the natural grade, to the highest portion of the roof immediately above."
3. Interpretation of section 30.04
a. This court exercises its independent judgment in interpreting section 30.04 while affording a moderate amount of deference to the City's interpretation
We first consider the Yamaha factors in determining the amount of deference this court should accord to the City's interpretation of section 30.04. The first two factors weigh in favor of deferring to the City's interpretation. The City has expertise in interpreting and applying the Municipal Code in issuing permits in this context, which is an area of relatively high technical complexity. (See Yamaha, supra, 19 Cal.4th at p. 12.) Further, the City is interpreting its own Municipal Code. (Ibid.) The administrative record also contains evidence that high level City staff members, Planning Commission members, and City Council members all considered the issue. (Id. at p. 13.)
Various members of the City Planning and Building Department authored a December 15, 2005 staff report that details the City's interpretation of the relevant provisions of the Municipal Code. The City Planner, Bill Weedman, sent the report to the Planning Commission. Patrick Murphy, City Planning and Building Department Director, Weedman, Eugene Ybarra, senior planner, and Kusiak prepared a January 25, 2006 staff report that contains the City's interpretation of the relevant provision of the Municipal Code. Kerry Miller, City Manager, sent the January 2006 report to the Mayor and City Council.
The administrative record also contains at least some indication that the City has "consistently maintained the interpretation in question [citation]." (See Yamaha, supra, 19 Cal.4th at p. 13.) Specifically, Kusiak stated that the City was acting in accordance with its "standard practice," and McCabe stated, in essence, that an alternative interpretation of the Municipal Code "may go against everything that we've always done in the past." However, there is no evidence that the City expressed its interpretation of section 30.04 contemporaneously with its enactment, nor is there any evidence that the City adopted its interpretation in accordance with procedural safeguards that enhance reliability. (Id. at p. 13.) After considering the Yamaha factors, we exercise our independent judgment of the Municipal Code while affording a moderate amount of deference to the City's interpretation.
b. Although the text of section 30.04 is ambiguous, the City's interpretation of the ordinance better effectuates the legislative intent than does Leucadia Cares's interpretation
Section 30.04 provides that building height is generally measured from "the lower of the natural or finished exterior grade adjacent to the structure." However, as Leucadia Cares acknowledges, section 30.04 contains an exception to this usual method by which building height is to be measured. That section provides in relevant part, "An approved subdivision map may establish the building pad elevation from which building height is measured with consideration given to on-site and surrounding uses and terrain." (Italics added.)
The City interprets the word "may," italicized above, to mean that a subdivision map may establish building pad elevations, and that, where a subdivision map doesestablish building pad elevations, building height is to be measured from those building pad elevations. Leucadia Cares contends that the ordinance means that a subdivision map may establish building pad elevations from which building height will be measured, but only if it is clearly indicated on the subdivision map that those building pad elevations will be used as the bases from which to measure building heights. Leucadia Cares maintains that if the map simply sets out building pad elevations but does not specify that building height is to be measured from those elevations, the subdivision map does not come within the scope of the subdivision map exception contained in section 30.04.
The language of the ordinance is ambiguous. The lack of any punctuation between "building pad elevation" and "from which building height is measured" supports Leucadia Cares's view in that it strengthens the interpretation that the direct object of the sentence is "building pad elevation from which building height is measured," rather than, "building pad elevation." In addition, as Leucadia Cares's argues, the final phrase of the sentence, "with consideration given to on-site and surrounding uses and terrain," could be read to modify the preceding clause "building pad elevation from which building height is measured," so as to provide that consideration will be given to on-site and surrounding uses and terrain in determining whether to use a building pad elevation as a reference elevation for determining building height. (See California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 188 ["'"'last antecedent rule'"' ─ provides that 'qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote'"'"].)
However, the fact that the sentence provides that building height "is measured" (§ 30.04), rather than 'may be measured' from a building pad elevation supports the City's interpretation. Further, notwithstanding the last antecedent rule, the text of the ordinance does not foreclose the City's interpretation that the final clause of the sentence means that consideration will be given to on-site and surrounding uses and terrain in approving building pad elevations contained in a subdivision map. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 530 ["the last antecedent rule is '"not immutable"' and should not be 'rigidly applied' in all cases"].)
Although the parties do not discuss this point, the third sentence of the section, which provides, "Where the property is located significantly below the level of existing streets . . . a pad elevation, from which the building height is measured, may be approved subject to a Use or Design Review Permit," provides further support for the City's interpretation of the second sentence of section 30.04. (Italics added.) Although this sentence is not entirely free from ambiguity, it strongly suggests that building heights will always be measured from pad elevations in buildings that are significantly below the level of existing streets. Even assuming that there could be some reason for providing that building heights will necessarily be measured from pad elevations only in the case of buildings below existing streets, it would be odd for the City Council to manifest this distinction by using the language employed in section 30.04. In our view, the third sentence of section 30.04 supports the conclusion that the City Council intended that whenever a subdivision map establishes building pad elevations, building heights will be measured from those building pad elevations.
While Leucadia Cares argues that the City must "specifically approve, as a part of the tentative map process," the use of building pad elevations as reference elevations before the City may use building pad elevations as the basis for measuring building height, section 30.04 does not expressly require that the City give any such specific approval. The absence of any language requiring such approval also supports the City's interpretation of section 30.04.
The fact that Leucadia Cares has not identified any reason for a tentative map applicant to specify building pad elevations in its application other than to serve as the basis for measuring building height also supports the argument that building height is always to be measured from building pad elevations when those elevations are specified in an approved subdivision map. Significantly, the City and Barratt's interpretation does not force the City to utilize building pad elevations as the basis for measuring building height in instances in which the City determines that it is inappropriate to do so. In such a case, the City could simply refuse to approve the subdivision map application.
Leucadia Cares claims that the City and Barratt are incorrect in their contention that the subdivision map exception set forth in section 30.04 is intended to operate whenever a tentative map application includes building pad elevations because, according to Leucadia Cares, all tentative map applications must include building pad elevations. We disagree. While subdivision map applicants are required to file grading plans with their tentative map applications wherever grading is planned (Municipal Code, § 24.050.070(A)), and grading plan applicants are required to identify "existing and proposed topography," the Municipal Code does not mandate that the applicant specify building pad elevations in a grading plan.
We grant Leucadia Cares's unopposed request that this court take judicial notice of Municipal Code chapter 23.24 (City of Encinitas Grading, Erosion and Sediment Control Ordinance) and Municipal Code chapter 24.50 (Major Subdivision: Tentative Map Procedure). (See Evid. Code, §§ 459, subd. (a) ["reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452"], 452, subd. (b) [providing that judicial notice may be taken of "[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States"].)
Although section 30.04 is ambiguous, after exercising our independent judgment and affording moderate deference to the City's interpretation, we conclude that the trial court properly determined that the City's approval of Barratt's building pad elevations in its tentative map documents established the elevations from which building height is to be measured.
B. The trial court did not err in relying on statements made by City staff members regarding how building heights would be measured
Leucadia Cares claims that the trial court erred in relying on statements made by City staff during the design review permit hearing and appeal process in 2005 and 2006 concerning whether the City's 2004 tentative map approval established that building heights would be measured from the building pad elevations identified on Barratt's tentative map. Leucadia Cares argues that there is nothing in the administrative record from the tentative subdivision map approval process that "demonstrates any intention to establish the elevation from which building height would be measured." Leucadia Cares claims that it was error for the trial court to rely on the City's "post-hoc rationalizations" to demonstrate that it had complied with section 30.04.
Because we have concluded that the City is correct that section 30.04 provides that the City's approval of a tentative map that contains building pad elevations necessarily establishes that those elevations will constitute the basis from which to measure building height, it is irrelevant whether the City demonstrated its intent to use Barratt's building pad elevations in such a manner. Further, we interpret statements made by City staff as merely reflecting the City's interpretation of section 30.04.
Accordingly, the trial court properly denied Leucadia Cares's petition for writ of mandate.
In light of our conclusion, we need not consider the City and Barratt's contention that Leucadia Cares's action is barred by the 90-day statute of limitations period contained in Government Code section 66499.37. (See Govt. Code § 66499.37 ["Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision"].)
IV.
DISPOSITION
The judgment is affirmed. The City and Barratt are to recover costs on appeal.
WE CONCUR: HALLER, Acting P. J. McDONALD, J.
We need not decide which version of the Municipal Code applies because we conclude that Leucadia Cares's claim would fail under either version. For purposes of clarity, all subsequent references to the Municipal Code are to the version that was in effect at the time the City approved Barratt's tentative subdivision map, unless otherwise specified.