Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BS111496 of Los Angeles County, John P. Shook, Judge.
Gaines & Stacey, Fred Gaines and Alicia B. Bartley for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Jeri L. Burge, Assistant City Attorney and Michael J. Bostrom, Deputy City Attorney, for Defendant and Respondent.
JOHNSON, J.
Michael Goodrich appeals from the trial court’s grant of summary judgment in favor of the City of Los Angeles (City) on Goodrich’s complaint, which alleged that the City was not entitled to collect park and recreation fees (fees) for all 20 residential units in an apartment project for which Goodrich obtained a zoning change on his property. We affirm.
BACKGROUND
The following facts are undisputed.
In 2001, Goodrich purchased real property at 4915–4917 N. Whitsett Avenue in the City, within the North Hollywood Community Plan (Plan) area. At the time, the property had two distinct zoning designations. The front 60 percent, which was undeveloped, was zoned R3-1, a multiple dwelling zone. The rear 40 percent was zoned R1-1, a single-family zone, and was developed with a duplex.
Shortly thereafter, in May 2001, Goodrich submitted a master land use permit application to the City requesting (1) a Plan Amendment changing the Plan’s designation of the property from low density to medium density residential, and (2) a zone change for the rear section from R1-1 to R3-1. The permit application also requested an adjustment of the required side yard and the removal of a 35-foot building line, which prohibited any building or structure from encroaching on the front 35 feet of the lot. Goodrich planned to build a 21-unit apartment complex.
On September 3, 2002, the City approved the Plan amendment, changed the zoning to (T)(Q)R3-1, and approved the adjustments to the side yard and the removal of the building line. The City also adopted a California Environmental Quality Act (CEQA) Mitigated Negative Declaration as part of its review of the potential environmental effects of the project, which concluded in part “Environmental impacts may result from project implementation due to insufficient parks and/or recreational facilities. However, the potential impact will be mitigated by the following measure: [¶] Per section 17.12-A of the LA Municipal Code, the applicant shall pay the applicable Recreation and Park fees for construction of apartment buildings.” The City adopted Ordinance 174821 effecting the change in zones and zone boundaries, placing the entire property in the (T)(Q)R3-1 zone, and providing in the (Q) conditions attached to the ordinance: “Per Section 17.21-A of the Los Angeles Municipal Code, the applicant shall pay the applicable Recreation and Park fees for construction of apartment buildings.”
Goodrich does not challenge the (T) condition placed on the property, which is imposed to ensure the completion of required dedications, payments and improvements. (L.A. Mun. Code, § 12.32, subd. G 1(b), (e), (h).)
Goodrich then recorded a covenant and agreement, agreeing to comply with the ordinance and all (Q) conditions attached thereto, including the condition that he pay the park and recreation fees. He later recorded another covenant and agreement limiting the development to no more than 20 units.
The City sent Goodrich a letter on April 18, 2007, calculating the fees by multiplying the $4,462 fee per unit by 20 units, for a total of $89,240. Goodrich paid the fees, noting on his check dated April 25, 2007 (pursuant to Gov. Code § 66020) that he was paying under protest. On June 25, 2007, Goodrich sent a claim for a refund of $62,468, claiming that he should only have been assessed fees for the units to be built on the part of the property that was formerly zoned R1-1, because there had been no zone change for the part of the property formerly zoned R3-1. The refund amount was calculated as follows: approximately 40 percent of the property was formerly zoned R1-1; the number of units requested was 20; 40 percent of the 20 units is eight; a duplex previously existed on the R1-1 portion, so the zone change allowed six additional units; six times the $4,462 fee per unit is $26,772; and the difference between the $89,240 assessed and the calculated amount due is the refund amount requested, $62,468. The City did not issue a refund.
Government Code section 66020, subdivision (a) provides “[a]ny party may protest the imposition of any fees... imposed on a development project... by a local agency by meeting both of the following requirements: [¶] (1) Tendering any required payment in full.... [¶] (2) Serving written notice on the governing body of the entity.... ” Government Code section 66020 subdivision (d)(1) requires that a protest be filed within 90 days after the imposition of the fees, and subdivision (d)(2)(a) provides that a party who files a protest may file an action to attack the imposition of the fees within 180 days after the delivery of the notice. The City makes no argument that Goodrich did not comply with the protest procedures in a timely manner. (See Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 929.)
On October 15, 2007, Goodrich filed a petition for writ of mandate and a complaint for declaratory relief and injunctive relief under Code of Civil Procedure section 1085 and Government Code section 66020, requesting (1) that the City’s fee determination be set aside and (2) a judicial determination of the validity of the City’s imposition of the $62,468 in fees. The trial court dismissed the petition on the grounds that Goodrich had an adequate remedy at law within Code of Civil Procedure section 1086, and ordered Goodrich to file a complaint for a refund.
On July 3, 2008, Goodrich filed a complaint for a refund and for declaratory and injunctive relief, alleging that Los Angeles Municipal Code section 12.33 did not authorize the City to charge a fee for each of the project’s 20 units, and requesting the $62,468 refund. After the City answered the complaint, the parties filed cross-motions for summary judgment on January 30, 2009, and the court held a hearing on March 13, 2009. After the hearing, the trial court issued an order granting the City’s motion and denying Goodrich’s motion. The court concluded “Defendant’s imposition of $89,240.00 in recreation and parks fees is proper pursuant to Los Angeles Municipal Code § 12.33. Under § 12.33’s alternative bases for calculating the amount of the required dedication or payment, defendant properly charged recreation and parks fees for the entire project (as opposed to the proportional number of units attributable to the part of the property previously zoned R3-1 less the number of units in existence, which is the interpretation advanced by plaintiff).”
Unless otherwise indicated, all subsequent code references are to the Los Angeles Municipal Code.
Judgment was entered in the City’s favor on March 23, 2009, and Goodrich filed a timely notice of appeal.
DISCUSSION
We review de novo the trial court’s grant of summary judgment. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) “Issues of law, including the interpretation of the Los Angeles Municipal Code, were before the trial court for de novo review, subject to the well-established rule that the [Building and Safety] Department’s interpretation of the City’s Municipal Code is entitled to respect unless that interpretation is clearly erroneous—and the same is true with regard to our review of the trial court’s decision. [Citations.]” (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1354–1355.) “We recognize that the interpretation of the [planning commission] resolution by the administrative agency charged with enforcing it is entitled to great weight and should be followed unless clearly wrong. [Citations.] Nevertheless, the ultimate interpretation of the resolution is a question of law. We are bound neither by the interpretation of the lower court nor by the construction given the resolution by the City.” (Terminal Plaza Corp. v. City and County of San Francisco (1986) 186 Cal.App.3d 814, 825–826.) The rules of statutory construction apply equally to local ordinances. (Ibid. at p. 825, fn. 7.) We exercise our “‘independent judgment... giving deference to the determination of the agency appropriate to the circumstances of the agency action.’” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8, [original italics].)
We grant Goodrich’s request for judicial notice of the relevant sections of the Los Angeles Municipal Code. (Evid. Code §§ 452, 459, subd. (a).)
I. Statutory interpretation of section 12.33.
Section 12.33, subdivision A provides: “No zoning ordinance which permits a multiple residential use shall immediately and finally rezone any property in any multiple residential or commercial zone, no building permit shall issue for a development permitting such a use and no such use may be made of property pursuant to such a change of zone until a dedication of land has been made or assured or a payment in lieu thereof made or guaranteed. The land dedicated or the payment received shall be used for park or recreational purposes and shall be subject to the restrictions, conditions, exemptions and credits of... Section 17.12 of this chapter for 5 or more dwelling units.... Such required dedication or payment shall be in an amount calculated in the same manner as provided in Section 17.12, and shall be based upon the maximum number of dwelling units permitted by the requested zone.... ” (Italics added.) Section 12.33, subdivision A allows an exception when the property owner executes a covenant proposing to develop the land with “less than the maximum number of dwelling units permitted for the zone,” in which case the payment shall be based on the specific number of dwelling units proposed rather than the maximum. Pursuant to this exception, although it had approved the maximum of 21 dwelling units, the City charged Goodrich the fees for 20 dwelling units, the number of apartments Goodrich planned to construct.
Section 12.33 also provides a second calculation method, under which the fee payment “shall be in an amount calculated in the same manner as provided in Section 17.12, and shall be based... upon the number of dwelling units which may be constructed under restrictions imposed pursuant to Section 12.32G2.” Section 12.32, subdivision G, entitled “Special Zoning Classifications,” provides in subdivision G2 for “Q Qualified Classification,” allowing limitations on zoning where necessary to “(3) Prevent or mitigate potential adverse environmental effects of the zone change.” The City concluded that Goodrich’s proposed apartment complex had a potentially adverse environmental effect (on the need for park space), placed the entire property in a (Q) classification, and based the fees on “the number of dwelling units which may be constructed” subject to the (Q) condition.
Section 17.12, subdivision A1, in turn, provides: “No final subdivision map shall be approved nor shall it be recorded unless in connection therewith land within the subdivision has been dedicated to the City of Los Angeles for park or recreational purposes... or a fee in lieu thereof has been paid,” and in subdivision D provides the method for calculating the fees.
We reject Goodrich’s argument that section 17.12 cannot be applied to his property because his apartment project is not a “subdivision.” Section 12.33, subdivision A explicitly provides that fees are to be calculated “in the same manner as provided in Section 17.12,” thus adopting Section 17.12’s methodology to apply to property which is not to be subdivided. At any rate, the City advised Goodrich of all conditions before final approval, including the imposition of the (Q) condition on the entire property, and Goodrich concurred in writing with the conditions of approval without disputing the imposition of fees on the basis that Section 17.12 did not apply.
Goodrich does not argue that the City may not charge fees under section 12.33 under either calculation method. Goodrich argues, as he did in the trial court, that because 60 percent of his property was zoned R3-1 before he filed the zone change, the placing of the R3-1(T)(Q) zone on the entire property did not “rezone,” or constitute a “change of zone,” as to that portion of the property. Section 12.33 therefore did not authorize the City to impose fees on 60 percent of the property. Goodrich argues that 60 percent of the apartment units to be constructed in his project are therefore exempt from the fees. Goodrich calculates that the 40 percent of the property formerly zoned R1-1 represents eight units, for which fees are due. From those eight units, Goodrich further subtracts two units for the preexisting duplex, and argues that the zone change on the formerly R1-1 portion allows a total of only six new units, the only units for which park and recreation fees are due.
Goodrich’s argument requires the City to slice his property into two portions based upon the preexisting zoning, and then to dice it by separating out a preexisting duplex, before fees can be assessed for the environmental impact of the entire apartment project. This approach conflicts with a common sense interpretation of the language of section 12.33, and like the trial court, we decline to adopt it.
What happened to Goodrich’s property? 4915-4917 N. Whitsett Avenue was zoned R3-1 in front (where it was undeveloped) and R1-1 in back, where a duplex stood. Desiring to construct an apartment complex on the property, Goodrich submitted what a letter from his counsel described as a “zone change and planning amendment application.” As the letter explained, “[t]he requested approval will result in my client’s property having a single consistent zoning designation as opposed to one current split zoning on his single lot.” When the process was complete, 4915-4917 Whitsett Avenue was no longer split into R3-1 and R1-1 zones, but was rezoned into a single R3-1 zone with (T) and (Q) classifications, the latter of which required the fees payment in question. The “single lot” now had a “single consistent zoning designation as opposed to one current split zoning.” The lot was rezoned to a uniform designation. Section 12.33 requires the payment of fees when a “rezone” or “change of zone” occurs, based upon the specific number of dwelling units proposed (if, as here, that number is below the maximum number). Goodrich proposed to build 20 apartments on the rezoned lot, the rezoning allowed Goodrich to build the 20 units, and the City assessed fees for 20 units.
The City’s interpretation of section 12.33 is “entitled to respect unless that interpretation is clearly erroneous.” (Horwitz v. City of Los Angeles, supra, 124 Cal.App.4th at p. 1354). Although we are not bound by the City’s construction, we agree with the City that the action taken on Goodrich’s property was a “rezone” or “zone change” under section 12.33. The single property, formerly split into two separate zones, was rezoned into a uniform R3-1 zone, and the zone change required payment of (Q) fees for each of the 20 apartments in the proposed project. Section 12.33 does not include any provision reducing fees where part of the rezoned property had a zoning designation consistent with the new zone for the entire property, and “‘if the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute....’” (Terminal Plaza Corp. v. City and County of San Francisco, supra, 186 Cal.App.3d at p. 826.)
Just as Section 12.33 does not include a provision for partial fees if the zone change is consistent with an earlier zoning on part of a rezoned property, neither does it provide any guidance regarding how the City would calculate the partial fees. Goodrich’s alternative calculation of fees assumes that exactly 40 percent of the 20 units, or eight units, would be built on the 40 percent of the property formerly zoned R1-1. Nothing in the record on summary judgment supports the premise that the apartments would be, or even could be, so precisely situated.
Further, Goodrich argues that he is due a two-unit credit for the preexisting duplex on the formerly R1-1 portion of the property, but Section 12.33 does not contain an exception from fees for preexisting units. And as the City points out, if either Goodrich or a prior owner had paid park fees for the duplex, he would have a better argument. For example, section 17.12, subdivision F7 allows a park fees credit “whenever a dwelling unit construction tax previously has been paid....” The record before us, however, does not allege that any construction tax or fees have ever been paid in connection with the property.
The City properly assessed fees under section 12.33 for all 20 units in the proposed apartment complex.
II. Fees in proportion to project impact.
Goodrich argues that the City failed to demonstrate that the amount of the fees it charged was justified by the actual costs of mitigating the impact of his project, so that the fees violate the Mitigation Fee Act, Government Code sections 66000–66003, and constitute a taking under the Fifth Amendment. As the City points out, Goodrich’s complaint did not raise either his statutory challenge or the takings issue or allege facts to support those arguments, requesting only a refund of a portion of the fees based on the prior zoning of part of the property. “‘The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.’” (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225; see Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [summary judgment cannot be granted or denied on a ground not raised by the pleadings].) Goodrich’s taking theory therefore was not properly before the trial court and is not before this court on appeal, as issues framed by the pleadings “‘are the only issues a motion for summary judgment must address.’” (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387.) Although Goodrich raised the issue of a reasonable relationship between the fees imposed and the public impact of the development in his cross-motion for summary judgment, and the parties argued the issue at the hearing on the cross-motions for summary judgment, Goodrich did not raise this issue in the complaint and the trial court did not make any ruling on this theory, which was separate and apart from the claim for a partial refund. Goodrich remains bound by his complaint, and was precluded from avoiding summary judgment on this theory. (Id. at 1386–1387.) The trial court properly did not address this issue in its order, and we decline Goodrich’s invitation to imply findings on this issue.
Further, Government Code section 66001 and the cases cited by Goodrich in support of this theory do not invalidate the fees in this case. The Mitigation Fee Act, Government Code sections 66000–66003, sets out procedures for protesting fees or other monetary exactions imposed by a local agency on a development. Government Code section 66001, subdivision (a)(3) and (4), requires the local agency to determine “how there is a reasonable relationship” between the fees’ intended use and both “the type of development project” and “the need for the public facility and the type of development project on which the fee is imposed.” The statute, however, does not require that “some nexus must be found between the fee and a particular project on which it is imposed.” (Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 335–336, [original italics].) “The fee at issue here is a general one applied to all new residential development and valid if supported by a reasonable relationship between the amount of the fee and estimated cost of services. Site-specific review is neither available nor needed.” (Id. at pp. 333–334.)
Goodrich acknowledges that Government Code section 66000 subdivision (b) creates an exception from the application of the Mitigation Fee Act (“‘Fee’ means a monetary exaction other than a tax or special assessment..., but does not include fees specified in Section 66477”) for so-called “Quimby” fees (Q fees). Government Code section 66477, the Quimby Act, allows a city’s legislative body to “impose a requirement of the payment of fees... for park or recreational purposes as a condition to the approval of a tentative map or parcel map.... ” Goodrich argues that because his project was not a subdivision, and did not require a tentative map or parcel map, the City’s fees are not exempt from section 66000. Again, Goodrich did not raise this issue in his complaint, and so it is not before us on review from summary judgment. Further, as we state above, the Mitigation Fee Act does not require the site-specific review Goodrich requests.
The Fifth Amendment takings cases do not apply in this context, as the government has the burden to show rough proportionality between a condition imposed on land use and the impact caused by the proposed use, only when the government makes an individual adjudicative decision to condition approval of a building permit on a dedication of land or on a fee. (Dolan v. City of Tigard (1994) 512 U.S. 374, 391 fn. 8 [114 S.Ct. 2309] [in evaluating generally applicable zoning regulations, “burden properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights”]; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 880–881 [heightened scrutiny of factually sustainable proportionality between an individual exaction and the effects of a proposed land use is applicable to “special, discretionary permit conditions on development by individual property owners” rather than “a generally applicable development fee and or assessment”]; San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 667 [fees imposed pursuant to legislative mandate or formula generally not subject to heightened scrutiny].) As the fees imposed on Goodrich’s project were pursuant to section 12.33, they were legislatively imposed and generally applicable fees, and the City did not have the burden to demonstrate proportionality in Goodrich’s individual case.
III. Dismissal of writ petition.
Goodrich argues that the trial court erred in dismissing his petition for writ of mandate and requiring him to file a complaint. We conclude that Goodrich was not entitled to a refund; thus, we need not determine whether a writ of mandate is the appropriate remedy when a refund is due.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
We concur: MALLANO, P. J.ROTHSCHILD, J.