Opinion
B321899
05-22-2024
FIX THE CITY, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents; ELLIOT NAYSSAN et al., Real Parties in Interest.
Strumwasser & Woocher and Beverly Grossman Palmer for Plaintiff and Appellant. Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief Deputy City Attorney, John W. Heath and Terry P. Kaufmann Macias, Assistant City Attorneys, Donna Wong, Deputy City Attorney; Meyers Nave, Amrit S. Kulkarni, Julia L. Bond, Shaye Diveley and Kiana Amiri-Davani for Defendants and Respondents. Cox, Castle & Nicholson, Andrew K. Fogg and Alexander M. DeGood for Real Parties in Interest.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. 19STCP03740 Mitchell L. Beckloff, Judge. Affirmed.
Strumwasser & Woocher and Beverly Grossman Palmer for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief Deputy City Attorney, John W. Heath and Terry P. Kaufmann Macias, Assistant City Attorneys, Donna Wong, Deputy City Attorney; Meyers Nave, Amrit S. Kulkarni, Julia L. Bond, Shaye Diveley and Kiana Amiri-Davani for Defendants and Respondents.
Cox, Castle & Nicholson, Andrew K. Fogg and Alexander M. DeGood for Real Parties in Interest.
CHAVEZ, J.
Appellant Fix the City, Inc. (appellant), brought a verified petition for writ of mandate and complaint for injunctive and declaratory relief challenging the approval of a seven-story, 120-unit market-rate residential building with 12 units set aside for extremely low-income households located at 10400 Santa Monica Boulevard in Los Angeles (the project). The named respondents were the City of Los Angeles, Los Angeles City Planning Commission (CPC), and Vincent P. Bertoni in his capacity as Director of City Planning for the City of Los Angeles (collectively the city), with Elliot Nayssan, Robhana, Inc., and NHD Terrace, LLC, named as real parties in interest. Appellant sought a writ of mandate setting aside the approval, challenging the applicable "Transit Oriented Communities Affordable Housing Incentive Program" (TOC) guidelines, enjoining the city from taking any action to further the construction of the project and prohibiting the city from relying on the TOC guidelines to approve other projects. Appellant sought an injunction that the city "rescind, revoke, and invalidate all approvals issued in support of the [p]roject until such time as the approvals comply with Measure JJJ, the General Plan, and the Alquist-Priolo Act."
The Alquist-Priolo Act (AP act) is a state law governing development for human occupancy in specifically designated areas of the state known as Alquist-Priolo Earthquake Fault Zones (APEFZ). These zones reflect areas in which earthquake faults are "sufficiently active and well-defined as to constitute a potential hazard to structures from surface faulting or fault creep." (Pub. Resources Code, § 2622, subd. (a).) The law requires specific studies prior to the approval of nearly any development for human occupancy in such zones. (Cal. Code Regs., tit. 14, § 3603, subd. (a).)
The trial court rejected appellant's challenges based on the TOC guidelines, but found the city failed to comply with the AP act and Los Angeles Department of Building and Safety (Building and Safety) guidelines implementing the AP Act. The court issued an order granting the petition for writ of mandate based on the city's failure to comply with the AP act and Building and Safety guidelines and entered a judgment granting the petition in part. The judgment required the city to set aside and vacate all approvals until the project complies with Building and Safety Information Bulletin Public-Building Code No. 2017-129 (bulletin 2017-129) or any successor to that bulletin.
Appellant appeals from the judgment, arguing the trial court erred in resolving appellant's challenges regarding the TOC guidelines in favor of the city. Appellant further argues the trial court erred in resolving the challenge involving the AP act in two respects: first, in determining the city violated the Building and Safety bulletin but did not violate the AP act itself; and second, in failing to require the city to set aside project entitlements that were premised on an inadequate study.
We affirm the judgment in full.
FACTUAL BACKGROUND
Measure JJJ and the TOC guidelines
Measure JJJ, also known as the "Build Better LA Initiative," was approved by voters on November 8, 2016, and became effective on December 13, 2016, adding article 2 to chapter XVIII of the Los Angeles Municipal Code. Section 6 of Measure JJJ established the TOC program, which is an affordable housing program near transit stops. Measure JJJ directed the Department of City Planning (City Planning) to create TOC guidelines to implement the program.
The ballot question for Measure JJJ read: "Shall an ordinance: 1) requiring that certain residential development projects provide for affordable housing and comply with prevailing wage, local hiring and other labor standards; 2) requiring the City to assess the impacts of community plan changes on affordable housing and local jobs; 3) creating an affordable housing incentive program for developments near major transit stops; and 4) making other changes; be adopted?" The initiative thus addressed affordable housing, local hiring and labor standards.
Measure JJJ contains different sections. Section 5 provides the eligibility requirements for discretionary general plan amendments for certain building projects. This section also adds Los Angeles Municipal Code section 11.5.11, which requires housing projects of 10 or more units that seek zone changes or increased density to utilize specified labor standards and provide specific amounts of affordable housing.
Section 6 of Measure JJJ added the TOC program to the Los Angeles Municipal Code. (L.A. Muni. Code, § 12.22.A.31.) Under the TOC program, a development is considered an eligible housing development if it is located within 1/2 mile of a major transit stop and provides on-site affordable housing units at specified percentages for identified income levels, among other things. An eligible housing development is eligible for various incentives, including a density increase, parking reductions, incentives for adhering to the labor standards set forth in section 5.A., and various other incentives and concessions.
Measure JJJ provided, "Within 90 days of enactment of this Ordinance, the Director of Planning shall prepare TOC Affordable Housing Incentive Program Guidelines ('TOC Guidelines') that provide the eligibility standards, incentives, and other necessary components of this TOC Incentive Program described herein." Following the preparation of the guidelines, the CPC was required "by vote [to] make a recommendation to adopt or reject the TOC Guidelines."
The director of City Planning (director), through staff at City Planning, prepared the TOC guidelines. The CPC recommended adoption of the guidelines on May 25, 2017, and they were released on September 22, 2017. City Planning released technical clarifications to the guidelines on February 26, 2018.
The director's May 25, 2017 recommendation report explained that City Planning developed a tier-based program to award TOC incentives that allow greater density and building intensity at increasing levels based on proximity to transit and transit type.
The TOC guidelines identified the base incentives in section 6 as density, floor area ratio (FAR) and parking. The guidelines also incorporate state and city density bonus law in order to provide additional incentives and concessions beyond the base incentives. (L.A. Muni. Code, §§ 12.22.A.31. (b), (e); Gov. Code, § 65915, subds. (d)(2) & (k).) Section VII refers to these as "Additional Incentives." Eligible housing developments may be granted up to three additional incentives based upon specified affordability requirements. The additional incentives include adjustments for yard or setback, open space, lot coverage, lot width, averaging of FAR, density, parking or open space, density calculation, and height.
The project
The project is a seven-story, 120-unit, 97,011-square-foot residential building with 12 units set aside for extremely low-income households. The project's planned location is on property in a state-designated APEFZ. The project is located on five vacant lots with a general plan designation of general commercial and C2-1VL zoning. The project location is less than 750 feet from existing Metro bus and Rapid bus lines and will be within 2,640 feet of the future Century City/Constellation rail station for the Purple Line. Based on the site's zoning, base development intensity is 71 units and the FAR ratio is limited to 1.5 to 1. Height is limited to 45 feet, but under Los Angeles Municipal Code section 12.21.1.B.2, due to the property's slope, it is generally entitled to an extra 12 feet in height. The project will provide a mix of 25 studio apartments, 70 one-bedroom units, 23 two-bedroom units, and 3 three-bedroom units. The project will set aside 12 units for affordable housing, which qualifies it for increased density and incentives under the TOC guidelines.
"VL" is a designation for a limited height district imposing both density and height limitations.
The project qualified at a "Tier 3" level under the TOC guidelines. Based on this tier level, the project received the base incentives for increased density from 71 to 120 units, FAR of 3.75 to 1, and a parking ratio of 0.5 parking spaces per unit. Due to its qualification at Tier 3, the project received three additional incentives under the TOC guidelines. The three additional incentives were reduced side yards from 10 feet to five feet; a height increase to 22 feet, for a maximum project height of 79 feet; and reduced open space from 12,725 square feet to 9,948 square feet.
The project, with incentives, was approved by City Planning on January 17, 2019.
Seismic issues
On May 6, 2019, Michael Eveloff, an individual associated with appellant, submitted comments asserting the project is inconsistent with the AP act. The area in which the project is to be located is a mapped APEFZ. Under the AP act, a structure for human habitation may not be placed over or within 50 feet of an active trace fault. (Pub. Res. Code, § 2621.5, subd. (a); Cal. Code Regs., tit. 14, § 3603, subd. (a).) It requires physical geologic investigation prior to the approval of a project for human occupancy to rule out a seismic hazard. (Pub. Resources Code, § 2623; Cal. Code Regs. tit. 14, § 3603.)
The fault and fault traces in the general area were documented by Metro in connection with the construction of the Purple Line in Century City.
Real party in interest Nayssan submitted a "Geologic Fault Study" report to Building and Safety in December 2016. All of the testing was done within the bounds of the property, roughly along a nearly central axis. There was no study beyond the site boundaries. The report acknowledged this omission, stating:
"Because of space constraints, our fault investigation did not extend 50 feet north of the northern property boundary and 50 feet south of the southern property boundary, as is requested by the city and CGS for fault investigations in general. Beyond the northern boundary of the subject site, the 'local access' south Santa Monica Boulevard is roughly thirty feet wide and drilling in the alley was complicated by the presence of several utilities, including gas and sewer. Moreover, the alley south of the site is only 20' wide, making drilling 50 feet directly south of the site impossible.
"Due to these practical limitations of conducting the fault study offsite, our exploration was confined to the subject property limits. Since we were not able to distinguish or refute the existing evidence of faulting within 50 feet of the property boundaries, as is required by the city, we must recognize the possibility of the existence of the fault or fault splay within less than 50 feet of either property boundary, or just beyond the explored areas."
On January 6, 2017, the grading division of Building and Safety issued an initial soils report approval letter, but required "submittal of an addendum to the report" showing "the proposed buildable area on the geologic map and site plan, which should extend between the terminations of the exploratory transect perpendicular to the fault of faulting [sic]." Alternatively, "additional exploration that extends to the approximate property lines could be conducted, which would enlarge the buildable area."
On January 17, 2017, a supplemental report was presented, including new testing. The real parties in interest conceded that "the exploration has not extended 50 feet north and south of the project area," and proposed utilizing "a mat foundation as a form of engineered mitigation against fault rupture hazard within close proximity of the proposed building." The report noted the "proximity of the site to an active earthquake fault."
On February 2, 2017, Building and Safety issued a "Geology and Soils Report Approval Letter," stating the applicant's report was acceptable, but required a supplemental report to be submitted after excavation for the project was complete, and a design-level geotechnical/soils report be submitted to the grading division for recommendations for the proposed development. An April 2017 "Soils Report Approval Letter" reiterated the mat foundation requirement due to potential off-site faults in the unexplored area.
On February 13, 2019, and February 26, 2019, appellant submitted letters generally objecting to "each and every TOC application . . . that relies upon or incorporates the TOC Guidelines."
In May 2019, appellant submitted comments on earthquake fault zone issues, raising concerns regarding the lack of a study within 50 feet of the site's boundaries. The comments observed that studies mapped in connection with the nearby Metro line located several faults, which, if extended, could closely approach or traverse the site.
At a May 9, 2019 hearing, the city stated, "The potential for fault rupture has been tested for and analyzed in conformance with regulatory requirements." On June 3, 2019, the CPC issued its "Letter of Determination," containing modified conditions of approval for the project.
PROCEDURAL HISTORY
Appellant filed the verified petition for writ of mandate and complaint for injunctive and declaratory relief on August 30, 2019, under Code of Civil Procedure sections 1085 and 1094.5. The first cause of action alleged violations of the Los Angeles Municipal Code, Measure JJJ, and the Los Angeles General Plan (Code Civ. Proc., § 1085). The second cause of action alleged a violation of the AP act (Pub. Res. Code, § 2621.5, Code Civ. Proc., § 1085). The third cause of action alleged inconsistency between zoning and general plan requirements (Code Civ. Proc., § 1085; Gov. Code, § 65860; L.A. City Charter, §§ 556 & 558). The fourth cause of action sought declaratory relief under Code of Civil Procedure section 1060, seeking a judicial declaration that the "TOC Guidelines are ultra vires for the reasons outlined above, including specifically that these Guidelines far exceeded the authority of the City and the [CPC] under Measure JJJ, and were outside the power of the [CPC] to adopt," as well as a judicial declaration that the city approved the project in violation of the AP act.
In the prayer for relief, appellant sought a peremptory writ of mandate requiring the city to set aside approval for the project and enjoining the city from taking any action to further construction of the project or from relying on the TOC guidelines to approve other projects. Among other things, appellant also sought a revocation of all approvals issued in support of the project and a declaratory finding that the TOC guidelines are ultra vires because they exceed what the voters authorized in approving Measure JJJ and were not adopted as an ordinance by the city council.
On March 16, 2020, the city moved to strike the petition's facial challenges to the TOC guidelines, asserting such challenges were time-barred under the 90-day limitations period found in Government Code section 65009. The superior court found Government Code section 65009, subdivision (c) applies to facial challenges to the TOC guidelines, but denied the motion to strike based on the discussion of as-applied challenges set forth in Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis).
The writ of mandate was heard on July 14, 2021, and the parties presented arguments with respect to appellant's challenges to the project's entitlements, including failure to conduct off-site investigation in the APEFZ and the project's purported inconsistency with city ordinances. The parties also addressed the timeliness of appellant's challenges to the TOC guidelines.
On August 9, 2021, the trial court issued an interlocutory order remanding due to failure to comply with bulletin 2017-129, which implements the AP act, and denying all other claims in appellant's petition for writ of mandate.
The trial court found the TOC guidelines do not exceed the scope of Measure JJJ and further concluded appellant's claims were time-barred facial challenges under Government Code section 65009, subdivision (c)(1). The court found appellant's "project specific challenge" to the project "merely reiterate[d] its general claims concerning the TOC guidelines and Measure JJJ." It therefore denied the specific challenge to the project based on the TOC guidelines.
On issues relating to the AP act, the court questioned whether the city's actions complied with bulletin 2017-129. Because the city's decisions did not require a hearing or findings, the court could not properly evaluate appellant's challenge without further explanation. The court remanded the matter to the city to explain how approval of the project complied with bulletin 2017-129's mandatory setback requirements.
On October 21, 2021, the city filed its response to the remand including the declaration of Daniel C. Scheidereit. After receiving briefing from the parties, the court held a hearing on January 12, 2022.
On February 28, 2022, the court issued an order on remand, granting the petition for writ of mandate after concluding the city had not complied with bulletin 2017-129 in approving the project. The court noted that when a seismic study does not extend 50 feet beyond a property line, an active fault trace must be assumed at the property line. Bulletin 2017-129 allows for reduced setbacks based on data from adjacent sites, but the city did not rely on any data from nearby or adjacent sites to eliminate the project's required setback. The court concluded that "[u]nder the AP Act, as well as Bulletin 2017-129, 'an active trace at the property line must be considered and require a setback.'"
Appellant prepared a proposed writ and judgment and circulated them to the parties for review. The city filed its own proposed writ and judgment. The primary dispute between the parties was whether the project's planning entitlements should be preserved or vacated as a result of the judgment.
On May 27, 2022, the court signed the proposed judgment and writ provided by appellant, with handwritten interlineations. The judgment, as modified by the court, required the issuance of a peremptory writ of mandate "requiring Respondents to set aside and vacate all approvals . . . until the project complies with [bulletin] 2017-129 or any successor to that [b]ulletin." The court mandated the city "shall refrain from taking any action to further the construction of [the project] until it has complied with the court's order of 2/28/22."
Appellant filed a notice of appeal on June 30, 2022.
The city filed an initial return to writ of mandate on October 4, 2022, stating it had "refrain[ed] from issuing any permits or approvals, or taking any other action, to further construction of [the project]." The city filed a second return to writ of mandate on January 5, 2023, making the same assertions and stated it would file a further return.
DISCUSSION
I. Standards of review
Various standards of review are applicable. Generally, an administrative decision pursuant to Code of Civil Procedure section 1094.5 is reviewed under an abuse of discretion standard. (Code Civ. Proc., § 1094.5, subd. (b).) "Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.) On appeal, we apply the same standard of review as the trial court. (Ryan v. California Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1077.)
The city's approval of the geologic studies was reviewed under Code of Civil Procedure section 1085. A writ of mandate under Code of Civil Procedure section 1085 "is available to correct a public agency's abuse of discretion and to compel the agency's performance of a clear, present, and ministerial duty where a petitioner has a beneficial right to performance of that duty." (California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 247.) "'"In general . . . the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support . . . ."'" (Ibid.) "Where a petitioner's challenge in a mandamus action rests on the sufficiency of the evidence, 'the court does not have the power to judge the intrinsic value of the evidence or to weigh it.'" (Ibid.) Because we perform the same function as the trial court, we review the agency's action directly. (Ibid.)
We review the statute of limitations issue de novo, as the facts relevant to this issue are not in dispute. (County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1322-1323 (County of Sonoma).) Appellant's challenge to the TOC guidelines is also reviewed de novo, under the rules applicable to statutory interpretation. (Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 851.) The TOC guidelines serve as the city's formal interpretation of the TOC ordinance codified at Los Angeles Municipal Code section 12.22.A.31 and, therefore, are "'"entitled to great weight unless . . . clearly erroneous or unauthorized."'" (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 896.)
Appellant's challenge to the scope of the writ is reviewed for abuse of discretion. (Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 368.) When an appellant makes a challenge to a limited writ, the appellant must demonstrate "'"in light of applicable law and considering all relevant circumstances, the court's ruling exceeds the bounds of reason."'" (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 289 (Preserve Wild Santee).)
II. TOC guidelines
Appellant argues the TOC guidelines represent a significant departure from the provisions of Measure JJJ. Such departures include the system of "tiers" upon which the TOC guidelines are premised, the additional incentives based on tier level, and the failure to require that projects satisfy the section 5 labor standards. Appellant frames its position as an as-applied challenge, rather than a facial challenge, arguing the departures from the generally applicable standards of the municipal code granted to the project were improper because the incentives awarded to this project exceeded the authority granted to the planning department by Measure JJJ for inclusion in the TOC guidelines. Because we disagree with appellant's characterization of this action as an as-applied challenge, and determine the 90-day statute of limitation bars it, we limit our discussion to the statute of limitations issue.
A. Statute of limitations
Government Code section 65009, subdivision (c) provides a 90-day statute of limitations for actions brought to challenge a broad range of local zoning and planning decisions. (Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1491.) "For the actions described in [Government Code] section 65009, subdivision (c)(1), the 90-day limitations period begins to run from the date on which the challenged decision is made." (County of Sonoma, supra, 190 Cal.App.4th at p. 1324.) Under Government Code section 65009, subdivision (c)(1)(B), the 90-day statute of limitations applies to any action to "attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance." "Thus, where a party brings a facial challenge to a zoning ordinance, the limitations period begins to run on the date the ordinance becomes effective." (County of Sonoma, supra, at p. 1324.)
The 90-day statute of limitations also applies to any action "[t]o attack, review, set aside, void, or annul any decision on the matters listed in [Government Code] Sections 65901 and 65903." (Gov. Code, § 65009, subd. (c)(1)(E).) The CPC in this matter acted pursuant to Government Code section 65901 in adopting the TOC guidelines. Thus, to the extent appellant challenges the CPC's adoption and release of the TOC guidelines or the CPC's authority to do so, the challenge must have been made within 90 days of the city's release of the guidelines in September 2017.
Government Code section 65901 provides: "(a) The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters, and applications for variances from the terms of the zoning ordinance. The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance, and may adopt all rules and procedures necessary or convenient for the conduct of the board's or administrator's business. "(b) In accordance with the requirements for variances specified in Section 65906, the legislative body of the city or county may, by ordinance, authorize the board of zoning adjustment or zoning administrator to decide applications for variance from the terms of the zoning ordinance without a public hearing on the application. That ordinance shall specify the kinds of variances which may be granted by the board of zoning adjustment or zoning administrator, and the extent of variation which the board of zoning adjustment or zoning administrator may allow." The city does not have a board of zoning adjustment. Instead, it has its CPC, Area Planning Commissions, a Director of Planning and an Office of Zoning Administration who exercise planning and zoning authority. (See L.A. City Charter, §§ 550-553 & 561.) Under such circumstances, the CPC exercises the duties of the board of zoning adjustment and zoning administrator. (Gov. Code, § 65902.)
Appellant acknowledges that the 90-day statute of limitations found in Government Code section 65009 applies to facial challenges to the TOC guidelines in this matter. However, appellant argues that Travis, supra, 33 Cal.4th 757 permits a facial challenge to the validity of an ordinance that comes within Government Code section 65009's statute of limitations when filed in conjunction with a timely filed challenge to the conditions of approval of a project. As explained in Travis, if a property owner challenges conditions attached to a conditional use permit, the 90-day limitations period runs from the date of final administrative action on the permit. (Travis, supra, at p. 767.)
Appellant filed this action within 90 days of the city's approval of the project. Appellant argues this is an as-applied challenge to this particular project, which includes a challenge to the legality of components of the underlying administrative document upon which the approval was based. The city disagrees, arguing appellant's challenges are facial and therefore time-barred.
B. Applicable case law
The parties focus their arguments on two relevant cases.
The first, Travis, supra, 33 Cal.4th 757, involved a property owner who brought a challenge within 90 days of obtaining a permit to construct a second dwelling unit on his property. The permit was subject to conditions imposed by an ordinance adopted in December 1981. (Id. at pp. 763-764.) The property owner argued continuing enforcement of the ordinance was preempted by certain later-enacted state laws, as well as federal laws, and that the conditions imposed amounted to a taking under the Fifth Amendment to the United States Constitution. (Travis, at p. 764.) The Supreme Court determined Travis's claims were timely to the extent he challenged "the County's enforcement of the Ordinance against plaintiffs' own property." (Id. at p. 767.) The court explained, "Travis complains of injury arising from, and seeks relief from, not simply the Ordinance's enactment or continued presence in the County Code, but the County's imposition on his second unit permit of conditions required by the Ordinance. Having brought his action in a timely way after application of the Ordinance to him, Travis may raise in that action a facial attack on the Ordinance's validity." (Id. at p. 769.) Significantly, the Travis court emphasized a property owner's rights, stating "[i]f a preempted or unconstitutional zoning ordinance could not be challenged by a property owner in an action to prevent its enforcement within 90 days of its application [citation], but instead could be challenged only in an action to void or annul the ordinance within 90 days of its enactment [citation], a property owner subjected to a regulatory taking through application of the ordinance against his or her property would be without remedy unless the owner had had the foresight to challenge the ordinance when it was enacted, possibly years or decades before it was used against the property." (Id. at p. 770.) This "would allow the government, 'in effect, to put an expiration date on the Takings Clause.'" (Ibid.) The high court concluded, "The Legislature intended [Government Code] section 65009 to provide certainty to local governments (§ 65009, subd. (a)(3)), but not, we think, at the expense of a fair and reasonable opportunity to challenge an invalid ordinance when it is enforced against one's property." (Id. at pp. 770-771.) In permitting the plaintiffs' as-applied action in Travis, the high court made it clear "in the adjudicatory situation, the validity of the legislation cannot be the only issue at stake-there must be a challenged enforcement or application of the legislation against the plaintiff's property." (Id. at p. 769, fn. 4.)
However, the Supreme Court rejected Travis's claim the ordinance at issue was preempted by various state and federal laws. The court agreed the preemption argument did not concern the local government's decision to "'adopt or amend'" the ordinance, therefore Government Code section 65009 was inapplicable. (Travis, supra, 33 Cal.4th at pp. 771-772.) Instead, the challenge to the ordinance was based on "its conflict with state laws passed in 1984 and 1995." (Id. at p. 773.) However, the claims were still untimely under the relevant statute of limitations.
Because the statute of limitations began to run as of the date of the enactment of the later-enacted statutes, the applicable statute of limitations was Code of Civil Procedure section 338, which sets a three-year statute of limitations for an action "upon a liability created by statute, other than a penalty or forfeiture." (See Travis, supra, 33 Cal.4th at pp. 771-772.)
The high court concluded, "To the extent it challenges the validity of conditions the County imposed on Travis's development permit and seeks removal of those conditions, the action was timely brought" under Government Code section 65009, subdivision (c)(1)(E). (Travis, supra, 33 Cal.4th at p. 776.) However, insofar as Travis sought "relief beyond removal of their permit conditions, such as an order requiring [the county] to amend or cease enforcing the ordinance," it was untimely under the applicable statute of limitations. (Id. at pp. 762-763.)
The second significant case is County of Sonoma, supra, 190 Cal.App.4th 1312. In County of Sonoma, a medical cannabis dispensary cooperative sued the county challenging the validity of an ordinance requiring permits to operate such dispensaries. (Id. at p. 1314.) An issue on appeal was whether the cooperative's action was untimely under Government Code section 65009, subdivision (c)(1)(B). (County of Sonoma, at p. 1315.) The Court of Appeal agreed the action was untimely under Government Code section 65009 because the relevant ordinance was adopted in 2007 and the cooperative's writ of mandate was not filed until 2009. (County of Sonoma, at pp. 1316-1317.)
The cooperative's petition alleged the county's actions in requiring a permit violated the equal protection clause of the California Constitution and various statutory provisions. (County of Sonoma, supra, 190 Cal.App.4th at p. 1317.) It asked the trial court to issue a writ or temporary restraining order requiring the county to allow the cooperative to operate within state law without requiring it to apply for a special use permit. It also asked for injunctive relief to enjoin the county's zoning ordinance to the extent it unfairly discriminated against the cooperative. In addition, it sought a declaration that the ordinance's requirement that the cooperative obtain a permit was void on its face and as applied. (Ibid.) The county raised the statute of limitations defense.
The County of Sonoma court discussed the potentially applicable limitations periods. It noted, "where a party brings a facial challenge to a zoning ordinance, the limitations period begins to run on the date the ordinance becomes effective." (County of Sonoma, supra, 190 Cal.App.4th at p. 1324.) However, if a party "challenges conditions attached to a conditional use permit or other permit, the limitations period runs from the date of final administrative action on the permit." (Ibid., citing Travis, supra, 33 Cal.4th at p. 767.) Thus, the court concluded, to determine when the statute of limitations begins to run on the claim at issue, "one must determine what specific governmental act or acts" the petitioner seeks to challenge. (Ibid.) "The true nature of those claims may be found by looking to the allegations of the pleadings and to the relief requested in the court below." (Ibid.)
As the trial court recognized, the cooperative had not applied for a permit in the County of Sonoma matter. (County of Sonoma, supra, 190 Cal.App.4th at p. 1324.) Thus, the cooperative had not made an as-applied challenge. The court concluded that Travis "does not hold that a party may escape the limitations period imposed by the statute merely by claiming that its challenge to a zoning ordinance is an as-applied one." (Id. at p. 1325.) After analyzing the cooperative's petition and prayers for relief, the court concluded the cooperative's challenge was facial in nature because "'the alleged defect is in the [O]rdinance itself, not in the manner or circumstances in which it is being applied.'" (Id. at p. 1326.) Consequently, the 90-day statute of limitations found in Government Code section 65009, subdivision (c)(1)(B) began to run in April 2007, and the cooperative's action was time-barred. (County of Sonoma, at p. 1326.)
The County of Sonoma court distinguished Travis, pointing out that Travis's action was timely "as to his challenges to the validity of conditions imposed on his permit, since it had been brought within 90 days of 'final administrative action' on that permit." (County of Sonoma, supra, 190 Cal.App.4th at p. 1328.) Travis was not complaining of an injury arising solely from the ordinance's enactment, but was "seeking relief from the county's imposition of permit conditions required by the ordinance." (Ibid.) The action brought by the cooperative was factually dissimilar, as there was no application for a permit, thus the cooperative was not challenging any "'final administrative action'" at issue in the case. (Id. at p. 1329.)
C. Application of law to this case
Appellant in this matter brought its action within 90 days of the CPC issuing its letter of determination containing conditions of approval for the project. Therefore, if the governmental action at issue is the issuance of the approval letter, the action is timely. (County of Sonoma, supra, 190 Cal.App.4th at p. 1324.) However, if the governmental action at issue is the enactment of the ordinance itself, or adoption of the TOC guidelines, it is untimely. (Ibid.; see 616 Croft Ave., LLC v. City of West Hollywood (2016) 3 Cal.App.5th 621, 628 [developer's challenge to ordinance and attendant fee schedule untimely because developer brought the action more than 90 days after the city enacted the ordinance and adopted the fee schedule].)
To determine whether appellant's action was timely filed, we "must determine what specific governmental act or acts" the petitioner seeks to challenge. (County of Sonoma, supra, 190 Cal.App.4th at p. 1324 .) "The true nature of those claims may be found by looking to the allegations of the pleadings and to the relief requested in the court below." (Ibid.) We therefore look to the allegations of appellant's petition to determine whether it was timely filed.
Because we are only determining the timeliness of appellant's challenges to the TOC incentives, we do not include in this analysis appellant's allegations regarding the AP act.
1. Allegations of the petition
Appellant asserted the petition was brought to "challenge the June 3, 2019 approval by the [city]" of the project. Appellant alleged the approval was contrary to state and local laws and was awarded pursuant to "ultra vires, non-legislatively and improperly approved . . . guidelines." In addition to challenging the approval, appellant challenged "the policy and practice of the [city] of relying upon these improper guidelines, known as the [TOC guidelines]."
Appellant further alleged "[t]he June 3, 2019 approval of the [p]roject is also inconsistent with the General Plan . . . because the [p]roject, and other projects approved in reliance on the TOC Guidelines, are approved without any finding and substantial evidence that the [c]ity's infrastructure, especially first-responder response-times, is adequate and capable of supporting the level of development in the [p]roject [a]rea and all other similar projects being approved in reliance on the ultra vires TOC Guidelines throughout the [c]ity."
Appellant alleged it exhausted administrative remedies by commenting on the approval of the project. Appellant specifically requested notice about determinations regarding the project from the city, although such notice was not provided.
Like the plaintiff in County of Sonoma, appellant did not apply for a permit in this matter.
In the first cause of action for violation of the Los Angeles Municipal Code, Measure JJJ, and the Los Angeles General Plan, appellant alleged by "approving the [p]roject and granting the incentives under the TOC Guidelines," the city "violated both the directive of voters in enacting Measure JJJ and the requirements of state law and [Los Angeles] [M]unicipal [C]ode." Appellant alleged, among other things, "[t]he [p]roject . . . is just one instance of the City's violating its own laws by application of the TOC Guidelines. [T]he City has a practice of awarding incentives pursuant to the TOC Guidelines that far exceed the requirements of the zoning code and the general plan for the properties on which the projects are sited." Appellant alleged "[i]n adopting the TOC Guidelines in conflict with JJJ, the Planning Department and [CPC] abused their discretion, and promulgated TOC Guidelines in an arbitrary and capricious manner that is not consistent with the requirements of Measure JJJ nor consistent with the requirements of state and local law for the adoption of zoning ordinances and maintaining general plan consistency." Appellant alleged the city's "actions in approving the [p]roject and others like it on the basis of the ultra vires TOC Guidelines threaten to cause [appellant] irreparable and substantial harm."
In the third cause of action, appellant alleged inconsistency between the zoning and general plan requirements. In this cause of action, appellant alleged generally the city wrongfully adopted the TOC guidelines in spite of requirements in the General Plan "Framework Element" and applicable community plans. Appellant alleged "[t]he [c]ity abused its discretion by adopting the TOC Guidelines and approving projects like the [project] in reliance upon them." Appellant asked that a writ of mandate issue to correct this abuse of discretion by "requiring the [CPC] to rescind its approval of the TOC Guidelines and projects like the [project] that rely upon those guidelines."
In the fourth cause of action for declaratory relief, appellant contended "the TOC Guidelines are ultra vires for the reasons outlined above, including specifically that these Guidelines far exceeded the authority of the [city] and the [CPC] under Measure JJJ, and were outside the power of the [CPC] to adopt." Appellant further alleged that the project's approval and adoption of the TOC Guidelines violated the law. Appellant sought a judicial declaration as to the legality of the city's actions set forth in the petition.
In the prayer for relief, appellant sought a peremptory writ of mandate requiring the city to set aside its approval of the project, "and to cease any future reliance on the TOC Guidelines until and unless guidelines consistent with Measure JJJ are adopted by [the city], and until the approval for the . . . project is designed with setbacks consistent with the requirements of the [AP act]." Appellant also asked the court to enjoin the city "from taking any action to further the construction of the . . . project and from relying upon the TOC Guidelines to approve other projects." Appellant sought declaratory relief that "the TOC Guidelines are ultra vires, . . . [¶] [the project] is inconsistent with the municipal code, General Plan, and Measure JJJ, and [¶] . . . the TOC Guidelines and the [p]roject are inconsistent with the requirements of General Plan policy 3.3.2."
2. Analysis
The petition purports to allege a mix of project-specific challenges and general challenges to the TOC guidelines. Under Travis, supra, 33 Cal.4th 757, 774, a "property owner" has a "full opportunity to challenge the validity of a zoning ordinance, as pertinent to the validity of permit conditions, when it is applied to him or her-the earliest time such conditions can be challenged." Thus, Travis addressed the specific situation where a property owner challenged conditions imposed on a permit issued in connection with his own property. The Travis court made it clear that "there must be a challenged enforcement or application of the legislation against the plaintiff's property." (Id. at p. 769, fn. 4.) However, Travis does not address the situation where, as here, a third party that does not own property affected by the relevant permit purports to challenge that permit. Where the challenger to the conditions imposed on a permit is a third party, such as appellant in this matter, the rationale for allowing a property owner to challenge the validity of conditions applied to a permit affecting his or her own property does not apply.
The Travis court acknowledged the legislative purpose behind Government Code section 65009: "The express and manifest intent of section 65009 is to provide local governments with certainty, after a short 90-day period for facial challenges, in the validity of their zoning enactments and decisions." (Travis, supra, 33 Cal.4th at p. 774.) However, allowing a property owner the opportunity to challenge the validity of a zoning ordinance when it is applied to him or her prohibits the unfair situation where a "property owner subjected to a regulatory taking through application of the ordinance against his or her property would be without remedy unless the owner had had the foresight to challenge the ordinance when it was enacted, possibly years or even decades before it was used against the property." (Id. at p. 770.)
The same cannot be said for appellant in this matter. Appellant is not a property owner subjected to a regulatory taking by the specific permit approved in this matter. Instead, appellant is a "nonprofit public benefit corporation" whose "mission is to improve neighborhoods and advocate for sufficient critical infrastructure and public services throughout the City of Los Angeles." Appellant does not claim a taking of property by this specific project approval. In short, there is no reason appellant could not have challenged the adoption of the TOC guidelines at the time they were adopted in 2017. Allowing appellant to do so now would thwart the purpose of Government Code section 65009, which is to "'provide certainty for property owners and local governments regarding decisions made pursuant to this division'" and thus to alleviate the "'chilling effect on the confidence with which property owners and local governments can proceed with projects.'" (Travis, supra, 33 Cal.4th at p. 765.) Allowing a third party to make a facial challenge to the adoption of the TOC guidelines any time the city approves a project pursuant to those guidelines undermines Government Code section 65009.
The parties acknowledged the existence of numerous other projects in the city similar to the one at issue here.
Appellant is not the property owner on whom the conditions were imposed in this matter. However, appellant argues the holding in Travis should be expanded to include "for instance, a neighbor who might not be aware of the rights granted to a neighboring property owner under a land use ordinance until long after that ordinance was enacted." We decline to comment on the situation proposed by appellant as it is not before us. Appellant does not purport to be a neighbor unaware of the rights granted to a neighboring property owner. Appellant sets forth no specific connection to this project nor any specific harm caused by this project as opposed to any other project implementing the TOC guidelines. The administrative action to which appellant objects was the enactment of the TOC guidelines, which took place in September 2017. Therefore appellant's challenge had to be made within 90 days of September 2017.
Appellant further complains it was not a participant in the proceedings regarding the adoption of the TOC guidelines and notes that, of 16 comment letters during that process, only one was from a neighborhood group. Appellant provides no authority that a party's lack of participation in the proceedings adopting the specific rules at issue is a factor in determining whether an action is timely under Government Code section 65009, subdivision (c). We therefore decline to consider appellant's lack of participation in the process.
Appellant may not "evade the statute of limitations for facial challenges" simply by "filing something it terms an 'as-applied' challenge." (County of Sonoma, supra, 190 Cal.App.4th at pp. 1329-1330.) The gravamen of appellant's action is a facial challenge to the adoption of the TOC guidelines, not an as- applied challenge "'in the manner or circumstances in which [the TOC guidelines are] being applied.'" (Id. at p. 1321.) Therefore, it is barred by the 90-day statute of limitations found in Government Code section 65009, subdivision (c).
III. AP act
It is undisputed that the project is located within an APEFZ and is subject to the AP act. On February 28, 2022, the trial court issued an order on remand, granting the petition for writ of mandate after concluding that the city had not complied with the AP act and bulletin 2017-129 in approving the project. The trial court concluded that "[u]nder the AP Act, as well as Bulletin 2017-129, 'an active trace at the property line must be considered and require a setback.' "
We decline to address appellant's argument that the trial court erred in that it did not find a violation of the AP act as well as a violation of bulletin 2017-129. The court's order showed that it found such a violation. In addition, appellant has failed to articulate harm from this purported error, therefore we find any such error is harmless. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
On May 27, 2022, the court signed a judgment issuing a peremptory writ of mandate "requiring Respondents to set aside and vacate all approvals . . . until the project complies with [bulletin] 2017-129 or any successor to that [b]ulletin." The court mandated that the city "shall refrain from taking any action to further the construction of [the project] until it has complied with the court's order of 2/28/22."
Appellant argues the superior court erred when it permitted the project's entitlements to be paused during the required off-site geologic study. As a result of this error, appellant argues, the project could be constructed on the same footprint, regardless of the findings of any off-site study. Appellant argues this result makes the court's order meaningless and inconsistent with the AP act as well as bulletin 2017-129. Appellant points out that the site plan review and the project's conditions of approval could be impacted by the results of the off-site study if a setback from an active fault is required. Appellant asserts it was therefore error not to invalidate the entitlements entirely.
Appellant has submitted, and we have granted, a supplemental motion for judicial notice showing an updated fault study, as well as a supplemental opening brief making further arguments on this issue. The updated fault study reveals that a fault "extends through the southwest portion of the site and extends northeasterly at roughly along/subparallel to the southern property boundary." Appellant argues that due to this discovery, "both the substructure and superstructure must be redesigned by the architect and engineer." Thus, appellant asserts, the project's approval is no longer valid and the entitlements process should reopen. Appellant contends this provides further evidence for its argument that the writ should have vacated the entitlements to require the process to begin again. The results show the need for open and public processes that include all relevant information about active faults on the site.
The city asserts that it is improper to rely on documents and evidence that postdate the trial court's judgment in arguing that the writ is too narrow and encourages this court to disregard this subsequent material. The city argues that, even if the project approvals need to be invalidated, it is up to the trial court to make project changes necessary. The city cites City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 971 (City of Carmel) for the proposition that "[i]t is well settled that the court which issues a writ of mandate retains continuing jurisdiction to make any order necessary to its enforcement."
A. Relevant law and standard of review
We review appellant's challenge to the trial court's writ remedy for abuse of discretion. (Golden Gate Land Holdings LLC v. East Bay Regional Park Dist., supra, 215 Cal.App.4th at p. 368.) Thus, our role is to determine whether, "'"in light of applicable law and considering all relevant circumstances, the court's ruling exceeds the bounds of reason."'" (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 289.)
Generally, we review the correctness of a judgment "as of the time of its rendition, upon a record of matters which were before the trial court for its consideration." (In re James V. (1979) 90 Cal.App.3d 300, 304.) Thus, any trial court error cannot be based on matters "occurring subsequent to its rendition of the judgment." (In re Francisco W. (2006) 139 Cal.App.4th 695, 706.)
B. Appellant has failed to show an abuse of discretion
The trial court in this matter issued an order "requiring Respondents to set aside and vacate all approvals . . . until the project complies with [bulletin] 2017-129 or any successor to that [b]ulletin." The court further mandated that the city "shall refrain from taking any action to further the construction of [the project] until it has complied with the court's order of 2/28/22." The court's order thus halted the project and set aside all project approvals until such time as it carried out geological testing to bring the project within the requirements of bulletin 2017-129. Appellant cites no legal authority supporting its position that the court's decision to set aside all project approvals and halt further action on the project was an abuse of its discretion.
Appellant's arguments in support of its position that the trial court abused its discretion are largely speculative. Appellant argues that the site plan review and conditions of approval could be impacted by the results of the city's off-site studies. Appellant speculates that because the conditions of approval could become invalid, they should not have survived entry of judgment. Appellant cites no legal authority suggesting that a hypothetical future change in plans demands a complete invalidation of the project's entitlements, as opposed to an order setting aside and vacating the approvals. We find the court's action in setting aside the project approvals and ordering the parties to refrain from further action on the project did not exceed the bounds of reason and was within the court's discretion. (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 289.)
Appellant's supplemental brief asks this court to take on the role of the superior court in the first instance. Appellant argues to this court that the updated fault study-completed after the trial court issued the writ that is the subject of this appeal-reveals a fault requiring both the substructure and superstructure to be redesigned. Appellant argues that given the most recent evidence, the project's approval is no longer valid.
Such arguments should be made to the trial court in the first instance for evaluation of the new evidence and the city's compliance with the AP act and bulletin 2017-129. The superior court retains jurisdiction over the city's compliance with the writ. (City of Carmel, supra, 137 Cal.App.3d at p. 971.) Such jurisdiction includes the power to, "on its own motion or on that of the petitioner, either oral or written, order" the city to take further action. (Ibid.) No abuse of discretion occurred, and we decline to interfere in the trial court's evaluation of the most recent studies.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs of appeal.
We concur: LUI, P. J., ASHMANN-GERST, J.