Opinion
C050827
12-1-2006
RICHARD RYAN, Plaintiff and Appellant, v. CITY OF WHEATLAND, Defendant and Respondent.
Plaintiff Richard Ryan, who sought to develop real property in an area governed by defendant City of Wheatlands 1995 Specific Plan (the Plan), filed this action to obtain writs of mandate directing the City to issue him a building permit and to set aside increases in development fees.
The City obtained summary adjudication as to the fee increases. The trial court then denied Ryans petition as to the building permit. Ryan appeals from both rulings. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Plan, approved in 1990, governs the development of 13 land parcels outside the Citys traditional core. When the Plan was adopted, Ryan owned parcel number 6; he later acquired parcel number 10. He claims the Citys actions have frustrated his attempts to develop both parcels.
The complaint
Ryan filed his original complaint on January 10, 2003. After a motion for judgment on the pleadings and two demurrers, Ryan filed his third amended complaint, the operative one, on February 9, 2004. Ryan alleged there as relevant:
At some time before November 12, 2002, he obtained a vested tentative map to develop parcel 6; relying on the map, he had begun construction. He had also purchased parcel 10 and had complied with all requirements to obtain a building permit on that parcel, but the City had failed to issue him a permit more than 60 days after he had submitted his complete plans on or about November 1, 2002.
On or about September 12, 2002, "pursuant to [the] request [of another owner of property in the Plan area], and over Ryans objection, the city passed a resolution increasing the hookup fees on Ryans and the others [sic] [S]pecific [P]lan property owners [sic] residential property. . . . [¶] These fee increases were earmarked to pay for obligations of [the developer who requested the increases], general City maintenance, and improvements and repairs not directly related to the burdened properties." In October 2002, Ryan tendered payment of the fees in effect on parcel 6 at the time his map vested; he also tendered the fees in effect on parcel 10 before the effective date of the new fees. The City refused his attempted tenders.
Based on these allegations, Ryan pled a cause of action for writ of mandate to compel the issuance of a building permit on parcel 10 (the second cause of action) and four "causes of action" for writ of mandate to set aside the fee increases (the third cause of action as to parcel 6, the fourth cause of action as to parcel 10, the fifth cause of action "as to all Specific Plan properties," and the sixth cause of action "as to all properties including non-Specific-Plan properties").
Ryan pled three other causes of action (numbered the first, seventh, and eighth in his third amended complaint) which are not at issue in this appeal.
As to the third through sixth causes of action, Ryan pled that he had protested the fee increases and had published a summons to all interested persons, as required by Government Code section 66020 and Code of Civil Procedure section 860 et seq., on September 26, October 3, and October 10, 2003. He admitted the summons should have been filed by March 10, 2003 (60 days after he filed his original complaint), but alleged good cause for untimely filing.
Government Code section 66020, subdivision (a), provides that any party may protest "the imposition of any fees . . . or other exactions imposed on a development project . . . by a local agency" by (1) "[t]endering any required payment in full or providing satisfactory evidence of arrangements to pay the fee when due" and (2) serving written notice on the governing body of the entity as to the tendering of payment and the factual and legal basis for the protest. Subdivision (d) provides that the protest must be filed within 90 days after the imposition of the fee or exaction, and the protestor may then file an action to attack the local agencys imposition within 180 days after delivery of the notice. (Gov. Code, § 66020, subds. (a), (d).)
Code of Civil Procedure section 860 et seq. (validating proceedings) sets out the procedural rules for pursuing an action in such a case, including the manner and timing of serving summons. (Code Civ. Proc., § 860 et seq.)
This pleading was in response to the trial courts order overruling the Citys demurrer to the second amended complaint with leave to amend. The court found that, contrary to its original order overruling demurrer, Ryan had not alleged facts in the second amended complaint stating good cause for the late service, and ordered Ryan to allege such facts in the third amended complaint.
The newly alleged facts were: (1) Ryan — not only a developer but also the owner and supervising attorney of the law office bringing the case — had suffered a health crisis in December 2002; (2) around the same time, his associate left to start his own practice; (3) due to these events, the need to file summons was overlooked until the deadline had passed.
The Citys motion for summary adjudication
The City moved for summary adjudication of Ryans third through sixth causes of action on the ground, previously raised on demurrer, of untimely service of summons under Government Code section 66022 and Code of Civil Procedure section 863. The City asserted Ryans newly alleged good cause for late service of summons was legally insufficient.
Government Code section 66022 provides in part:
"Any judicial action or proceeding to attack, review, set aside, void, or annul an ordinance, resolution, or motion adopting a new fee or service charge, or modifying or amending an existing fee or service charge, adopted by a local agency, as defined in Section 66000, shall be commenced within 120 days of the effective date of the ordinance, resolution, or motion.
"[¶] . . . [¶]
"(b) Any action by a local agency or interested person under this section shall be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure." (Gov. Code, § 66022, subds. (a), (b).)
Code of Civil Procedure section 863 (a part of Title 10 of part 2) provides:
"If no proceedings have been brought by the public agency pursuant to this chapter, any interested person may bring an action within the time and in the court specified by Section 860 [within 60 days after the challenged enactment, in the superior court of the affected county] to determine the validity of such matter. The public agency shall be a defendant and shall be served with the summons and complaint in the action in the manner provided by law for the service of a summons in a civil action. In any such action the summons shall be in the form prescribed in Section 861.1 except that in addition to being directed to `all persons interested in the matter of [specifying the matter], it shall also be directed to the public agency. If the interested person bringing such action fails to complete the publication and such other notice as may be prescribed by the court in accordance with Section 861 and to file proof thereof in the action within 60 days from the filing of his complaint, the action shall be forthwith dismissed on the motion of the public agency unless good cause for such failure is shown by the interested person." (Code Civ. Proc., § 863.)
Opposing the motion, Ryan defended the sufficiency of his alleged good cause. However, he also asserted for the first time that his third cause of action was governed by Government Code section 66020, which purportedly did not require service of summons by publication, rather than Government Code section 66022. This new argument contradicted his concession on demurrer: "As the City points out, these causes of action [attacking the fee increases] fall under Government Code [s]ection 66022, which requires Plaintiff to follow validating proceedings requirements, which are set forth in CCP [sic] [s]ection[] 860 et seq. In relevant part, [s]ection 863 dictates that an action must be dismissed for failure to file proof of publication of a summons directed to all interested parties within 60 days of filing of the complaint `unless good cause for such failure is shown by the interested person." (Italics added.)
Ruling on summary adjudication
Quoting the above statement by Ryan, the trial court ruled: "[B]y virtue of th[is] passage, the plaintiff has made a judicial admission to the effect that the publication requirement applies to the present Third Cause of Action. Plaintiff is therefore estopped from arguing otherwise in the context of this motion." Further finding that Ryans alleged good cause for late service of summons was insufficient, the court granted summary adjudication as to all the fee increase causes of action.
The building permit
On March 11, 2005, Ryan filed a petition for writ of mandate to compel the issuance of a building permit for parcel 10 (the former second cause of action of his third amended complaint). Ryan alleged in support of the petition:
On or about September 12, 2002, he submitted plans to the City for a building permit for "an upscale apartment complex" on the parcel. City Administrator Jim Thompson told him he could not accept the plans — they would have to go through the Citys Design Review or Planning Department first. City Planner Larry Larson had already reviewed Ryans plans and told him the project did not need to go through Design Review; Larson confirmed that information on September 17, 2002, and said he had so informed Thompson.
On or about October 3, 2002, Thompson notified Ryan in writing that to obtain building permits he would have to submit three complete sets of plans including truss and energy calculations; two sets would need "wet" signatures from the project architect or engineer. He would also need to provide overall plot plans showing locations of the building.
On October 17, 2002, Thompson sent Ryan a letter additionally "remind[ing]" him of the requirements of project review spelled out in section VIII of the Plan at page 33 and enclosing a copy of the Plan. The first sentence of that section states: "These guidelines are intended for use within the specific plan area to provide direction in the development of new residential subdivisions."
On the same date, Ryan replied that these guidelines did not apply to his project because it was not a subdivision.
Ryans allegations in the petition continued: On October 22, 2002, Ryan received and paid for "the final Title 24 Calculations." On or about November 1, 2002, he received the final truss calculations. On or about the same date, he completed the requirements stated in Thompsons October 3 letter and dropped the plans off with the City.
According to the City, the "Title 24 Calculations" (unexplained by Ryan) are "the energy calculations required under . . . Title 24 of the California Code of Regulations."
As supporting exhibits, Ryan attached his correspondence with Thompson (Exs. A-D), evidence of payment for the Title 24 calculations (Ex. E), a copy of the Plan (Ex. G), and Ryans own declaration (Ex. F). He cites only the declaration to support his claims that on November 1, 2002, he "received the final truss calculations[,] completed the requirements set forth in Jim Thompsons October 3, 2002 letter, and dropped the plans off with the City."
The Citys opposition
The City asserted in response:
On or around September 13, 2002, Ryan left "a set of incomplete `plans" with the City, unsupported by any "application or payment for a plan checking fee." The plans were incomplete because Ryan had not obtained the necessary approvals for sewer connections from the City Engineer, they lacked truss and energy calculations and plot plans, and they were not signed and stamped by a licensed engineer or architect. After Thompson notified Ryan of these deficiencies, the City Building Department told him he could come and pick up the incomplete plans. He never resubmitted revised plans to the Building Department for review. Nor did he submit a building permit application "complete with payment for plan check." In addition, Ryan failed to go through the City Engineering Department for approval of his requested sewer hookups, as required by the Citys Municipal Code.
The City supported these assertions with the declaration of Thompson (now former City Administrator and former head of the City Building Department), an attached memorandum from City Engineer Tom Leland, and the relevant portion of the City Municipal Code.
In reliance on this evidence, the City argued that given Ryans failure to comply with required procedure, mandamus would not lie because the City had no ministerial duty to issue him a building permit.
The trial courts ruling
The trial court denied Ryans petition because he had failed to demonstrate that he complied with the Citys permit procedures.
DISCUSSION
I
Ryan contends the trial court should have issued a writ compelling the City to grant him a building permit because the Citys inaction caused the permit to be deemed approved as a matter of law. We disagree. As the court found, Ryan failed to prove he had completed his application for the permit in the first place.
In traditional mandamus, as here, "`[t]he writ will lie where the petitioner has no plain, speedy and adequate alternative remedy, the respondent has a clear, present and usually ministerial duty to perform, and the petitioner has a clear, present and beneficial right to performance. [Citation.]" (Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 145.) In reviewing an agencys action, the trial court must uphold it unless it is arbitrary, capricious, lacking in evidentiary support, or made without due regard for the petitioners rights. (Ibid.) Because we perform the same function as the trial court in mandamus actions, we review the agencys action de novo. (Ibid.) The petitioner bears the burden of proof that he is entitled to the writ. (Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 934.)
The issuance of a building permit is ministerial if the applicant has met all legal requirements to obtain a permit. (See Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 90-91; Ellis v. City Council (1963) 222 Cal.App.2d 490, 497.) Whether the applicant has done so, however, is a discretionary decision for the responsible building official or local entity. (Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 55-57; see Inland Empire Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 593.)
When a public agency has received an application for a development project, it shall determine in writing within 30 days whether the application is complete and so notify the applicant; if the agency determines it is not complete, the agency shall specify which parts are incomplete and how they can be made complete. If the agency does not meet this deadline, and the application includes a statement that it is an application for a development permit, the application shall be deemed complete. (Gov. Code, § 65943, subd. (a).)
The public agency shall approve or disapprove a project within 60 days from the time it determines the project is exempt from the California Environmental Quality Act. (Gov. Code, § 65950, subd. (a)(4).) If the agency does not approve or disapprove the project within these time limits, and the public notice required by law has occurred, the agencys failure to act shall be deemed approval of the project. (Gov. Code, § 65956, subd. (b).)
Relying on the above statutes, Ryan asserts his "application for a building permit" was deemed complete by December 1, 2002, and was deemed approved by February 1, 2003, because he (1) submitted plans to the City on September 12, 2002; (2) was notified on October 3, 2002, of the Citys additional requirements; (3) submitted plans which met those requirements by November 1, 2002; and (4) never heard anything further from the City. However, Ryans evidentiary support for this argument fails at more than one step.
This case was tried to the court on the parties written evidence, including declarations and supporting documents. In such a case, as in a case where testimony is taken, the court may and must weigh the credibility of each sides evidence. Here, so far as the parties evidence conflicted, the court impliedly found the Citys evidence more credible than Ryans. We review that finding under the substantial evidence standard. (Doak v. Bruson (1907) 152 Cal. 17, 19 [on review, where affidavits conflict, those of prevailing party must be taken as true, including facts and reasonable inferences therefrom]; California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 832 [factual contest on written evidence treated like other factual contests]; Hammel v. Lindner (1964) 224 Cal.App.2d 426, 431-432 [lower courts determination of credibility and weight of opposing affidavits seldom disturbed on appeal].)
Ryans oral motion for an evidentiary hearing was denied.
On behalf of the City, Jim Thompson declared in part (italics added): "During my tenure as the City Building Official, the standard procedure for obtaining a building permit was to provide plans and specifications prepared in accordance with the State Building Code and submit those with a plan check fee to the Building Department. The State Building Code requires that plans and specifications submitted in support of a building permit application be signed and stamped by a person licensed in the state of California to prepare plans and specifications, unless the applicant can show that this is not required by law. . . . [¶] [] On or around September 13, 2002, Richard Ryan left a set of `plans for a proposed multi-unit apartment complex to be built on his property with the Building Department staff. I personally reviewed the `plans submitted by Mr. Ryan. The `plans dropped off by Mr. Ryan were not signed and stamped as being approved by any person licensed in the state of California as an architect or engineer as required by California law, and were incomplete because the `plans contained only one set of drawings and did not include any energy and truss calculations and an overall plot plan showing building locations. Moreover, at the time Richard Ryan left the `plans with the Building Department staff, he did not complete an application and did not submit a check to pay for plan checking." Ryan failed to produce documentary evidence that he submitted any such application or payment.
Thompson further declared: "On or around October 3, 2002, I wrote a letter to Richard Ryan detailing the many deficiencies in the `plans that Mr. Ryan dropped off on or around September 13, 2003 [sic 2002]. Along with my letter, I included a copy of a memorandum written by Tom Leland[,] the City Engineer[,] detailing additional deficiencies with a preliminary layout plan for the proposed apartment complex. . . . I also sent an additional letter on or around October 17, 2002 in which I reminded Mr. Ryan that the Project Review requirement explained by Section VIII[,] Page 33 of the . . . City[s] Plan applied. . . . [¶] . . . [¶] After I sent the October 3, 2002 letter to Mr. Ryan detailing the many deficiencies in the `plans he submitted on or about September 13, 2002, Mr. Ryan did not resubmit any revised set of building plans for an apartment complex to the City of Wheatland Building Department. Thus, Mr. Ryan never submitted any plans that were sufficient for review by the Building Department. In addition, Mr. Ryan never made an application for a building permit to the City of Wheatland Building Department. He also never paid a fee for a plan check to the . . . Department." Ryan failed to produce documentary evidence that he ever submitted revised plans to the City (or an application and a plan check fee).
Although Ryan disputed the Citys position that he needed to satisfy the Plans guidelines for a residential subdivision, he did not dispute that he needed to produce three sets of his final plans, of which two sets had to be properly signed by a licensed architect or engineer. Nor did he dispute that he was required to obtain approval for his proposed sewer hookups from the City Engineer.
As mentioned above, Ryan declared that he had satisfied all the Citys requirements in response to Thompsons notification and left completed plans with the City on or around November 1, 2002. However, if he had truly done so, he could easily have documented it by attaching copies of the completed plans (plus the permit application and evidence of payment of the plan check fee) as exhibits to his declaration. The trial court could reasonably have inferred that Ryans failure to provide such documentation undermined the credibility of his claims and rendered Thompsons declaration the more credible. We cannot disturb that implied credibility finding, which is supported by substantial evidence.
Thus, even on the questionable assumption that Ryan submitted an "application for a building permit" in the first place, the City proved it complied with the statutory timelines by giving Ryan written notice of what was needed to complete the application within 30 days of his submission of plans. Ryan failed to prove that he completed the application. Therefore, his "deemed approved" argument must be rejected.
The trial court correctly found Ryan had not shown he was entitled to a building permit.
II
Ryan contends the trial court erred in dismissing his challenge to the fee increases as to parcel 6 on summary adjudication. Renewing the contention first raised in opposing summary adjudication, he asserts that this cause of action (unlike his other challenges to the fee increases) was subject to Government Code section 66020, which supposedly does not require service of summons by publication. On appeal, he fails to mention, let alone refute, the trial courts ruling that he is estopped to raise this claim because he had judicially admitted the contrary position before the City moved for summary adjudication.
A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d. 557, 564.) It is the appellants burden to affirmatively demonstrate error. (Ibid.; Marina County Water Dist. v. State Water Resources Control Bd. (1984) 163 Cal.App.3d 132, 139.) "It is not the province of an appellate court to act as counsel for either party to an appeal by prosecuting a search of the record for the purpose of discovering errors not pointed out in the briefs." (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal.App.2d 205, 223.)
In meeting its burden of establishing error, the appellant must present argument and authority on each point made, otherwise the appellants contention generally will not receive consideration. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278; Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)
Because Ryan has not addressed the trial courts finding of judicial estoppel, he has not met his burden of demonstrating that finding was erroneous. Therefore, he has shown no ground for reversal on this issue.
DISPOSITION
The judgment is affirmed. The City of Wheatland shall receive its costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)
We concur:
BLEASE, Acting P.J.
BUTZ, J.