Opinion
B227843 Los Angeles County Super. Ct. No. BS127408
08-30-2011
BRENT ZADOROZNY, Plaintiff and Appellant, v. THE MIRACLE MILE NORTH HISTORIC PRESERVATION OVERLAY BOARD et al., Defendants and Respondents; CITY OF LOS ANGELES, Real Party in Interest
Brent Zadorozny, in pro. persona, for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Terry Kaufmann Macias and Michael L. Bostrom, Deputy City Attorneys, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County. David P. Yaffe, Judge. Affirmed.
Brent Zadorozny, in pro. persona, for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Terry Kaufmann Macias and Michael L. Bostrom, Deputy City Attorneys, for Defendants and Respondents.
The issue is whether the City of Los Angeles (City) has a mandatory duty under its ordinance regulating Historic Preservation Overlay Zones to issue Brent Zadorozny a permit allowing him to widen the driveway and alter the front yard landscaping of his residence in the Miracle Mile section of the City. We conclude the City has no such duty. Therefore, we affirm the trial court's judgment denying Zadorozny's petition for a writ of mandate.
REGULATORY BACKGROUND
We first discuss the relevant portions of the regulations governing property located in areas of the City designated as Historic Preservation Overlay Zones or HPOZ's.
The ordinance that created these historical zones is based on the City Council's finding that "the recognition, preservation, enhancement, and use of buildings, structures, [l]andscaping, [n]atural [f]eatures, and areas within the City of Los Angeles having [h]istoric, architectural, cultural or aesthetic significance are required in the interest of the health, economic prosperity, cultural enrichment and general welfare of the people." (L.A. Mun. Code, § 12.20.3, subd. A.)
Under the ordinance, the Historic Preservation Board of an HPOZ is required to prepare a Preservation Plan which must include an Historic Resources Survey. (L.A. Mun. Code, § 12.20.3, subds E.1.(a), E.3.(d)).
The ordinance defines an Historic Resources Survey as "a document which identifies all contributing and non-contributing buildings, structures and all contributing [l]andscaping, [n]atural [f]eatures and lots, individually or collectively, including street features, furniture or fixtures, and which is certified as to its accuracy and completeness by the Cultural Heritage Commission." (L.A. Mun. Code, § 12.20.3, subd. B.10.) The Survey "shall also include a context statement supporting a finding establishing the relation between the physical environment of the [p]reservation [z]one and its history, thereby allowing the identification of [h]istoric [f]eatures in the area as contributing or non-contributing." (L.A. Mun. Code, § 12.20.3, subd. F.(3)(b).) "[N]o building, structure, [l]andscaping, or [n]atural [f]eature shall be considered a [c]ontributing [e]lement unless it is identified as a [c]ontributing [e]lement in the Historic Resource Survey for the applicable Preservation Zone." (L.A. Mun. Code, § 12.20.3, subd. F.3.(c).)
At the hearing in the trial court and in his brief on appeal, Zadorozny argued that the Cultural Heritage Commission had not certified the Historic Resources Survey for the Miracle Mile North preservation area. The trial court refused to consider that argument because it was not raised in Zadorozny's petition and he offered no evidence to support it. We concur in the trial court's ruling and do not address that argument here. In any event, with our permission the City augmented the record with minutes of the Cultural Heritage Commission certifying the Miracle Mile North preservation area.
A "Contributing Element" is defined by the ordinance as "any building, structure, [l]andscaping, [or] [n]atural [f]eature identified on the Historic Resources Survey as contributing to the [h]istoric significance of the Historic Preservation Overlay Zone." (L.A. Mun. Code, § 12.20.3, subd. B.6.)
A "Non-contributing Element" is defined as "any building, structure, [n]atural [f]eature, lot, or [l]andscaping, that is identified in the Historic Resources Survey as a non-contributing element, or not listed in the Historic Resources Survey." (L.A. Mun. Code, § 12.20.3, subd. B.15.)
The ordinance states that no "[a]ddition, [a]lteration, construction, demolition, [r]econstruction, [r]ehabilitation, relocation, removal or [r]estoration of the exterior of any building, structure, [l]andscaping, [n]atural [f]eature or lot" can be lawfully undertaken in a preservation zone without City approval. (L.A. Mun. Code, § 12.20.3, subds. B.18., G.) An application for a project must be submitted to the Department of City Planning. The Director of that department "shall review a request and find whether the project requires a Certificate of Appropriateness, . . . a Certificate of Compatibility, . . . or is eligible for review under Conforming Work on Contributing Elements, . . . or Conforming Work on Non-Contributing Elements . . . ." (Id., subd. G.)
A "Certificate of Appropriateness" is required to "construct, add to, alter, demolish, relocate or remove any building, structure, [l]andscaping, or [n]atural [f]eature designated as contributing in the Historic Resources Survey for a [HPOZ] . . . with the exception of Conforming Work on Contributing Elements, which shall not require a Certificate of Appropriateness." (L.A. Mun. Code, § 12.20.3, subd, K.2.)
A "Certificate of Compatibility" is required for the "construction of a new building or structure on a lot designated as a [n]on-[c]ontributing [e]lement, the replacement of existing [n]on-[c]ontributing [e]lements, . . . and the demolition of any building or structure on a lot designated as a [n]on-[c]ontributing [e]lement." (L.A. Mun. Code, § 12.20.3, subd. L.1.)
"Conforming Work on Contributing Elements" includes "[r]estoration work, [m]aintenance and [r]epair, [a]dditions of less than 250 square feet with no increase in height and which are not located within the front yard or street-side yard, and demolition taken in response to natural disaster." Conforming work as defined in the ordinance does not require a Certificate of Appropriateness. A request for "Conforming Work on Contributing Elements" is submitted to the Director of Planning who forwards it to the applicable HPOZ Board for conformance review and sign off. (L.A. Mun. Code, § 12.20.3, subds. I.,
"Conforming Work on Non-Contributing Elements" includes "work undertaken on any building, structure, [n]atural [f]eature, lot or [l]andscaping, that is not listed as a [c]ontributing [e]lement in the Historic Resources Survey, or that is not listed in the Historic Resources Survey; except that, the construction of a new building or building replacement, or the demolition of buildings or structures not listed as [c]ontributing [e]lements shall not qualify as Conforming Work on Non-Contributing Elements." Applications for "Conforming Work on Non-Contributing Elements" are also submitted to the Director of Planning who forwards them to the applicable HPOZ Board for review and sign off. (L.A. Mun. Code, § 12.20.3, subds. J., J.1.) "A request for Conforming Work on Non-Contributing Elements shall be signed off by the Board if they find: . . . the work is undertaken solely on a feature within the [HPOZ] that is identified as [n]on-[c]ontributing in the Historic Resources Survey, or not listed in the Historic Resources Survey, and the work does not involve the construction of a new building, building replacement or demolition." (L.A. Mun. Code, § 12.20.3, subd. J.2.)
FACTS AND PROCEEDINGS BELOW
The facts are not in dispute.
Zadorozny owns a single family residence in an historic section of Los Angeles known as the Miracle Mile North Historic Preservation Overlay Zone. Without seeking approval from the City, Zadorozny removed the grass from his front yard intending to replace it with "a more environmentally friendly low-water environment" consisting of shrubs, bushes, flowers, tree bark and white gravel stones. He also excavated the front yard in order to widen his driveway by ten feet. As Zadorozny was about to pour the concrete for the driveway, a City inspector served him with an order to stop work until he obtained approval from the zone's Historic Preservation Board.
Zadorozny contacted a City representative, Steven Wechsler, to find out how to obtain the Board's permission for his project. Wechsler told Zadorozny that he would put the matter on the agenda for the Board's next meeting. Wechsler put the project on the Board's May 11 2010 agenda characterizing it as a request involving "Conforming Work on Contributing Elements." In a letter to Wechsler and the Board, Zadorozny objected to this characterization. He claimed that as a matter of law his project constituted "Conforming Work on Non-Contributing Elements" which the Board had a mandatory duty to approve. Neither Wechsler nor any member of the Board responded directly to Zadorozny's claim.
The Board continued Zadorozny's matter several times in May 2010 and eventually transferred it to the Planning Director for a decision. The Planning Director delegated the decision to Wechsler. When Wechsler failed to issue a decision by mid-July 2010, Zadorozny brought this action against the City for a writ of mandate ordering it "to immediately grant permission for Petitioner to finish his driveway and landscaping." The court issued an alternative writ commanding the City to permit Zadorozny to complete his project or show cause in August 2010 why a peremptory writ should not issue.
In late-July 2010, Wechsler issued a written decision finding Zadorozny's project did "not . . . meet the criteria for Conforming Work on a Contributing Element" and, therefore, could not be approved on that basis. Wechsler advised Zadorozny, however, "Should you wish to pursue the project further you must submit an application for a Certificate of Appropriateness which is the appropriate level of review for projects that will involve a substantial change to a Contributing Element in an HPOZ." Zadorozny did not file an application for a Certificate of Appropriateness. Instead, he pursued his writ petition.
The trial court denied the petition and Zadorozny filed a timely appeal. Zadorozny does not contend that the proposed changes to his property are not substantial or that landscaping and a driveway are not proper matters for historical preservation. Rather, he claims that the issue before the court is whether the City prepared and properly certified an Historic Resources Survey which defines his landscaping, and assumedly also his driveway, as "contributing elements."
DISCUSSION
I. ZADOROZNY WAS NOT REQUIRED TO EXHAUST THE CITY'S ADMINISTRATIVE REMEDIES BEFORE FILING SUIT
The City contends the order of the trial court should be affirmed because Zadorozny failed to exhaust required administrative remedies. It maintains that Zadorozny must apply for a Certificate of Appropriateness and exhaust the administrative procedures involved in that application before he can ask a court to rule whether his project requires such a certificate. As authority for this argument the City cites Igna v. City of Baldwin Park (1970) 9 Cal.App.3d 909, 914, a decision of this Division, which held that before a plaintiff could challenge the constitutionality of a zoning ordinance as applied to her, requiring her to obtain a conditional use permit, she must first seek the permit.
A "Certificate of Appropriateness," as discussed is required to "construct, add to, alter, demolish, relocate or remove any building, structure, [l]andscaping, or [n]atural [f]eature designated as contributing in the Historic Resources Survey for a [HPOZ] . . . ." (L.A. Mun. Code, § 12.20.3, subd. K.2., italics added.)
Igna is not applicable to this case because Zadorozny is not challenging the legality of the Certificate of Appropriateness as applied to him based on "constitutional objections or other special considerations." (Igna v. City of Baldwin Park, supra, 9 Cal.App.3d at p. 914.) Rather, Zadorozny maintains that because driveways and landscaping are not specifically identified as "contributing elements" in the Historic Resources Survey for the Miracle Mile North preservation zone, they are, by definition, "non-contributing elements" and the Board has no authority to prevent work undertaken on non-contributing elements. (See L.A. Mun. Code, § 12.20.3, subds. J. and J.1., discussed at page 4, above.) Therefore, he argues, the Board has a ministerial duty to issue a permit to complete the work on the driveway and landscaping.
We agree that Zadorozny is not required to exhaust the very remedy he is trying to avoid because, as in Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1567, he seeks only "review of the City's overarching policies in implementing the requirements" of the preservation ordinance with respect to the Historical Resources Survey and "to correct the City's interpretation of its responsibilities" under that ordinance. Where the action sought is purely ministerial— issuance of a permit the City has no discretion to deny—it may be compelled by traditional mandamus without resort to the administrative process. (Id. at p. 1563.)
II. ZADOROZNY DID NOT SHOW THAT HE IS ENTITLED TO APPROVAL OF HIS PROJECT AS "CONFORMING WORK ON NON-CONTRIBUTING ELEMENTS"
Properties in a preservation zone may have two elements: "contributing elements" and "non-contributing elements." A contributing element is defined as a feature of the property that contributes to the historical significance of the area. (L.A. Mun. Code, § 12.20.3, subd. B.6.) A non-contributing element is defined as a feature of the property that is identified in the Historic Resources Survey as not contributing to the historical significance of the area or a feature that is not listed in the Historic Resources Survey.(L.A. Mun. Code, § 12.20.3, subd. B.15.)
A "contributing element" is "any building, structure, [l]andscaping, [or] [n]atural [f]eature identified on the Historic Resources Survey as contributing to the [h]istoric significance of the [HPOZ.]" (L.A. Mun. Code, § 12.20.3, subd. B.6.)
A "non-contributing element" is "any building, structure, [n]atural feature, lot, or [l]andscaping, that is identified in the Historic Resources Survey as a [n]on-[c]ontributing [e]lement, or not listed in the Historic Resources Survey." (L.A. Mun. Code, § 12.20.3, subd. B.15.) Zadorozny does not contend his house, driveway and landscaping are identified in the Survey as non-contributing elements.
An application for "Conforming Work on Non-Contributing Elements" may be submitted for work solely on an element "that is not listed as a [c]ontributing [e]lement in the Historic Resources Survey . . . ," subject to some exceptions not relevant here. (L.A. Mun. Code, § 12.20.3, subd. J.) If the Board determines that the work is not found within the Survey the application "shall be signed off by the Board." (L.A. Mun. Code, § 12.20.3, subds. J.2., J.4.; italics added.) "The Board does not have the authority to impose conditions" on Conforming Work on Non-Contributing Elements. (Id. at subd. J.4.) We interpret subdivision J. to mean that if the proposed work is solely on a feature of the property that is not identified as a contributing element in the Historic Resources Survey, and other exceptions do not apply, then the Board has a mandatory duty to approve the work. The City does not contend otherwise.
Zadorozny contends that the Historic Resources Survey for the Miracle Mile North preservation zone does not list landscaping in general or his landscaping in particular as a "contributing element" and therefore the Board has no authority to regulate changes to his landscaping. (Presumably he believes this same argument applies to his driveway.) Zadorozny further contends the Survey is invalid and confers no authority on the Board to regulate changes to property in the zone because it does not contain the "context statement" required by Municipal Code section 12.20.3, subdivision F.(3)(b) (see p. 3, above).
We first address the argument that the Survey does not identify landscaping as a contributing element and does not contain the context statement required by the Ordinance. This argument fails because the record contains no evidence to support it. Zadorozny's petition claims the City has admitted that the Survey doesn't mention landscaping but the City's answer to the petition denies making this admission and Zadorozny did not introduce the Survey into evidence to show that landscaping and a context statement are not included in it.
Zadorozny's assertion that the City does not identify landscaping as a contributing element in its Historic Resources Surveys appears to be based on the declaration by a City representative who stated that since an amendment to the Ordinance in 2002 the City has not specifically identified landscaping in Historical Resources Surveys. The Survey for the Miracle Mile North preservation zone, however, was prepared in 1986 and certified by the Cultural Heritage Commission in 1988. Because the Miracle Mile North survey was prepared before the ordinance was amended and because we presume that an official duty has been regularly performed (Evid. Code, § 664) we can reasonably infer that if the Ordinance in effect at the time the Survey was prepared required that landscaping be specifically identified then the City complied with that requirement. In any case, Zadorozny has not shown otherwise.
We also reject Zadorozny's argument that because the Survey does not specifically list his driveway and landscaping as contributing elements they are excluded from the Board's control. Section 12.20.3, subdivision F.3.(a) states in relevant part that "[e]ach [p]reservation [z]one shall have an Historic Resources Survey which identifies all [c]ontributing and [n]on-[c]ontributing elements . . . ." (Italics added.) Likewise, section 12.20.3, subdivision B.10. states that an Historic Resources Survey "is a document which identifies all contributing and non-contributing buildings, structures, and all contributing [ l]andscaping, [n]atural [f]eatures and lots, individually or collectively . . . ." (Italics added.) Thus, the Ordinance does not require that the Survey specifically list his driveway and landscaping as contributing elements. It allows driveways and landscaping in the zone to be identified collectively as contributing elements.
In any case, the undisputed evidence shows that the Survey includes a photograph of Zadorozny's property depicting his house, driveway and front landscaping, along with notations stating, among other things, when the house was constructed (1927), the names of the architect, builder and original owner, the architectural style and the statement: "Is listed or is eligible for listing as a contributor to a locally designated historic district or preservation area" We conclude that the photograph of Zadorozny's property and the accompanying notations are sufficient to identify the house, driveway and landscaping as contributing elements to the historic significance of the Miracle Mile North zone and to provide adequate notice to Zadorozny, the Board and the public of the property's "contributing elements." Zadorozny contends that informing a property owner that the property is "eligible" for listing as a contributor to an historic preservation area does not give the owner constitutionally adequate notice that the property or some feature of it is a contributing element to the area. First, it is his burden to present a record with facts supporting his position. This he has not done because the record does not include the entire Survey. Second, he did not present this argument to the trial court where the City would have had the opportunity to show that some part of the Survey or other evidence shows that "eligible" property is included in the preservation zone.
DISPOSITION
The judgment denying the petition for writ of mandate is affirmed. The City is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, J. We concur:
MALLANO, P. J.
CHANEY, J.