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Babcock v. City of Laguna Beach

California Court of Appeals, Fourth District, Third Division
Feb 3, 2012
No. G044988 (Cal. Ct. App. Feb. 3, 2012)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 06CC11494, Andrew P. Banks, Judge.

Rutan & Tucker and Philip D. Kohn for Defendant and Appellant.

Brenton R. Babcock, in pro. per.; Sheppard, Mullin, Richter & Hampton, Sean P. O’Connor and Brain B. Farrell for Plaintiffs and Respondents.


OPINION

RYLAARSDAM, ACTING P. J.

This is the second appeal in this case. In the first opinion we reversed a judgment in favor of plaintiffs Brenton R. and Diane L. Babcock that invalidated the application of a zoning ordinance enacted by defendant City of Laguna Beach to plaintiffs’ real property. (Babcock v. City of Laguna Beach (Mar. 11, 2010, G041235) [nonpub. opn.] p. 2.) On remand we directed the trial court to modify the judgment as consistent with the opinion. (Id. at p. 11.)

Defendant asserts the language of the revised judgment does not comport with our first opinion because it still allows for a facial challenge to the open space zoning ordinance. We affirm.

FACTS AND PROCEDURAL HISTORY

We take some of the facts from the original opinion:

“In 2002 plaintiffs purchased vacant land in Laguna Beach with the intent to build a home. As part of the purchase plaintiffs also obtained an access easement. In 2004 plaintiffs purchased the adjacent real property over which the easement ran, referred to as the Cerritos Parcel, which is part of a larger parcel referred to as the Cerritos Property.

“In 1977 as part of approval of a parcel map in connection with a development project by a third party, defendant required the Cerritos Property to be dedicated as ‘permanent open space.’ That dedication included a road easement over the Cerritos Parcel. In 1993 defendant adopted an ordinance (zoning ordinance) changing the zoning on several properties, including the Cerritos Property, from R-1 residential to open space/conservation.

“In 2005 plaintiffs submitted an application for a lot line adjustment to change the boundaries of their two properties to combine them into one parcel.... [¶]... [D]efendant’s planning commission recommended to the city council that the lot line adjustment be approved, subject to certain conditions, declarations, and findings. Declaration number 14 referred to the dedication of the Cerritos Property, reiterating... that the Cerritos Parcel, as part of that larger Cerritos Property, was required to be open space. It also stated defendant ‘question[ed] the existence or usability of a road easement, ’ noting there had been no resolution [by] the parties to that effect. It further set out that the lot line adjustment was not an admission of the superiority of the easement over the open space dedication.

“Declaration number 16 echoed this sentiment, stating defendant ‘expressly does not accept, adopt or acknowledge the existence, validity, nature or scope of... easements’ shown in drawings accompanying the lot line adjustment application. Plaintiffs objected to both declarations. The city council ultimately adopted an ordinance (lot line ordinance) approving the lot line adjustment to include the planning commission’s declarations, including numbers 14 and 16.

“Plaintiffs then filed a petition for writ of mandate seeking, among other things, to void declarations number 14 and 16 of the lot line ordinance. They also challenged defendant’s zoning of the Cerritos Parcel as open space/conservation, seeking to have the parcel rezoned to residential. Plaintiffs alleged that the zoning ordinance was invalid, both because it conflicted with the designation of the property as residential in defendant’s general plan and because there had been no properly noticed public hearing or official action changing the zoning. The petition also included a cause of action for declaratory relief seeking a determination as to the validity of the open space zoning and the easement. [¶]...

“[T]he court denied the petition, finding the challenge to declarations number 14 and 16 in the lot line ordinance was not appropriate for a writ. In so doing, it ruled that the two paragraphs were not necessary for approval of the lot line adjustment and had no effect on the outcome of the application. Rather, they were only statements of the existence of a dispute between the parties. The court also found that plaintiffs had established the existence of a controversy sufficient to justify a hearing on the declaratory relief claim. The court allowed plaintiffs to amend their petition to challenge the zoning ordinance as applied to the Cerritos Parcel.

“After trial on the declaratory relief claim, the court ruled in favor of plaintiffs. The judgment declares that the easement is valid and ‘may be used by [plaintiffs] (or their successors) for its intended purpose, namely providing road... and utility access across the Cerritos Parcel... to [plaintiffs’] adjacent... [p]roperty, subject to obtaining development entitlements and any other legally required permits, approvals or authorizations... [.]’ The judgment also states ‘[t]he Cerritos Parcel underlying the... [e]asement is not subject to [defendant’s] claimed Open Space/Conservation zoning, but instead retains its... [r]esidential... zoning[.]’” (Babcock v. City of Laguna Beach, supra, G041235, pp. 2-4.)

On defendant’s appeal from the judgment based on several grounds, we reversed, ruling that the statute of limitations barred plaintiffs’ challenge to the zoning ordinance dedicating the Cerritos Parcel as open space/conservation. (Babcock v. City of Laguna Beach, supra, G041235, p. 8.) We also held plaintiff’s challenge to the zoning ordinance as applied to their property was not ripe because plaintiffs had not yet applied for a permit. (Id. at pp. 8-9.) We directed the trial court to revise the applicable paragraph in the judgment, paragraph 2) c, so that it would be consistent with the opinion. (Id. at p. 11.)

The parties could not agree about the language of revised paragraph 2) c, and after proposals and objections the court adopted a new paragraph 2) c based primarily on language proposed by plaintiffs.

Paragraph 2) c of the original judgment stated: “The Cerritos Parcel underlying the Road & Utility Easement is not subject to [defendant’s] claimed Open Space/Conservation zoning, but instead retains its pre-1993 R-1 Residential Low-Density zoning.”

The same paragraph in the amended judgment reads: “In view of [defendant’s] specific representations and admissions that (i) the preamble recitals in declarations numbers 14 and 16 of Resolution No. 06.068 have no legal effect at all, and (ii) [defendant’s] claimed Open Space/Conservation zoning has not been applied to the Cerritos Parcel, [plaintiffs’] purely facial challenge (as distinguished from a challenge arising under Travis v. County of Santa Cruz, 33 Cal.4th 757, 769 (2004)) to the claimed Open Space/Conservation zoning of the Cerritos Parcel is barred; but a zoning challenge arising under Travis may be timely raised when and if [defendant] applies the claimed Open Space/Conservation zoning to that [p]arcel.”

DISCUSSION

Defendant’s opposition to the language of the amended judgment is based on the extent to which plaintiffs may challenge the zoning ordinance when and if it is applied to the Cerritos Parcel. It argues that plaintiffs may attack the “specific application of the... zoning ordinance” to their property but may not renew their claims the ordinance was invalid because it conflicted with the general plan and was not properly adopted. The latter challenges, it claims, are barred by the 90-day statute of limitations set out in Government Code section 65009, subdivision (c)(1)(B) (all further statutory references are to this code unless otherwise stated), which bars an action “[t]o attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance” if not brought within that time period. Defendant asserts our original opinion prohibited such a challenge and it cannot be renewed once defendant applies the zoning ordinance to plaintiffs’ property.

Defendant maintains the trial court erroneously relied on Travis v. County of Santa Cruz, supra, 33 Cal.4th 757 in approving the revised language. But defendant misinterprets Travis, which supports the amended judgment. There, two property owners filed an action for writ of mandate seeking to prevent enforcement of an ordinance and eliminate conditions attached to a building permit. Although the ordinance had been enacted 18 years before, the court found the action was “timely as to Travis’s claim the conditions imposed on his permit are invalid. [Citation.]” (Id. at p. 767.) The court relied on section 65009, subdivision (c)(1)(E), which provides a 90-statute of limitations for actions “[t]o attack, review, set aside, void, or annul any decision [under specified sections dealing with hearings on applications for permits], or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.” Travis had filed his action “within 90 days of final administrative action on [his] permit.” (Ibid.)

The county in that case made an argument similar to the one defendant advances. It “insist[ed section 65009, ] subdivision [(c)(1)(E)] [was] inapplicable to Travis’s claims because Travis... challenged the permit conditions generally, as imposed pursuant to a preempted or unconstitutional ordinance, ‘rather than challenging the application of the ordinance to a particular permit.’” (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 767.) It asserted, as does defendant here, that section 65009, subdivision (c)(1)(B) barred all of Travis’s claims.

The court rejected the claim, even though it acknowledged Travis’s attack on the ordinance was “properly characterized as facial in that it ‘considers only the text of the measure itself, not its application to the particular circumstances of an individual.’ [Citation.] Yet plaintiffs object not only to the [o]rdinance’s enactment and continued existence, but also to its application to their... permits.... Plaintiffs’ preemption arguments, to be sure, go solely to the [o]rdinance’s facial validity, but their complaint... is aimed not only at the [o]dinance’s enactment or existence but also at the County’s enforcement of the [o]rdinance against plaintiffs’ own property.” (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 767.)

The court noted the language of section 65009, subdivision (c)(1)(E) did “not purport to restrict the legal theories or claims that may be made” and it declined to “read[] such a substantive limitation into the clear procedural language....” (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 767.) “Having brought his action in a timely way after application of the [o]rdinance to him, Travis may raise in that action a facial attack on the [o]rdinance’s validity. [Citation.]” (Id. at p. 769.)

Thus, Travis makes clear that plaintiffs may make a facial attack on the zoning ordinance if and when it is applied to their property, including their claims the ordinance conflicts with the general plan and there were procedural flaws in its adoption.

Defendant’s attempt to distinguish Travis by limiting its scope to the court’s discussion of a three-year statute of limitations under Code of Civil Procedure section 338 is unavailing. The court applied that statute only to a claim of preemption arising from statutes enacted after the challenged ordinance was passed, not the case here. (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 772.) Further, the language from Travis defendant quotes deals with an argument of continuous accrual (ibid.), which has not been made here.

In its opening brief, defendant also appears to challenge language in a separate paragraph of the judgment. But, as plaintiffs point out, defendant did not appeal that portion of the judgment in the original appeal, and it is too late to do so now. In any event, defendant appears to have abandoned that claim in its reply brief.

Our affirmance of the language of the revised judgment on the ground set out in this opinion renders any other arguments irrelevant or unnecessary and we do not address them.

In conclusion, revised paragraph 2) c of the judgment comports with the decision in the original appeal.

DISPOSITION

The judgment is affirmed. Respondents are entitled to costs on appeal.

WE CONCUR: ARONSON, J. FYBEL, J.


Summaries of

Babcock v. City of Laguna Beach

California Court of Appeals, Fourth District, Third Division
Feb 3, 2012
No. G044988 (Cal. Ct. App. Feb. 3, 2012)
Case details for

Babcock v. City of Laguna Beach

Case Details

Full title:BRENTON R. BABCOCK et al., Plaintiffs and Respondents, v. CITY OF LAGUNA…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Feb 3, 2012

Citations

No. G044988 (Cal. Ct. App. Feb. 3, 2012)