Opinion
B303325
11-16-2021
INDIAN PEAK PROPERTIES, LLC, Plaintiff and Appellant, v. CITY OF RANCHO PALOS VERDES et al., Defendants and Respondents.
Bradley & Gmelich, Barry A. Bradley and Dawn Cushman for Plaintiff and Appellant. Aleshire &Wynder, William W. Wynder, June S. Ailin and Alison S. Flowers for Defendants and Respondents City of Rancho Palos Verdes and Rancho Palos Verdes Planning Commission.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 18STCP02913, Mitchell L. Beckloff and Patricia D. Nieto, Judges. Affirmed.
Bradley & Gmelich, Barry A. Bradley and Dawn Cushman for Plaintiff and Appellant. 1
Aleshire &Wynder, William W. Wynder, June S. Ailin and Alison S. Flowers for Defendants and Respondents City of Rancho Palos Verdes and Rancho Palos Verdes Planning Commission.
PERLUSS, P. J.
The City of Rancho Palos Verdes revoked Indian Peak Properties, LLC's conditional use permit (CUP 230) for the operation of commercial antennae on residential property based on Indian Peak's installation and operation of additional antennae in violation of permit conditions. The trial court denied Indian Peak's petition for a writ of mandamus pursuant to Code of Civil Procedure sections 1094.5 and 1085, rejecting its arguments the City had not provided it a fair hearing and revocation of CUP 230 was an abuse of discretion. We affirm.
Statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Issuance of CUP 230
The City has a municipal ordinance that regulates the installation and operation of commercial antennae. (Rancho Palos Verdes (RPV) Mun. Code, § 17.76.020, subd. (A).) On June 21, 2001 James Kay, Jr. (now president of Indian Peak) applied for a conditional use permit authorizing the use for commercial purposes of what he described as preexisting noncommercial amateur antennae on the roof of residential property he owned on Indian Peak Road, Rancho Palos Verdes. 2 At that time there was a horizontal antenna rack mounted on the roof with five vertical antenna masts for the reception and transmission of radio and Internet signals; each mast had four radiating elements. There were also two television antennae on the roof.
Kay purchased the property in 1994, purportedly intending to use it as a second home. He received his first notice of violation regarding antennae on the roof of the home in 1997.
Following three public hearings the City's planning commission conditionally approved the request on November 15, 2001, but limited the number and placement of the antennae. Kay appealed to the city council, which denied the appeal and formally approved CUP 230, limited to two vertical antenna masts and television antenna with a number of additional conditions (resolution no. 2002-27). Kay filed a federal lawsuit challenging the limits and conditions. On July 14, 2004 the district court ruled in Kay's favor and ordered the City to issue a new resolution allowing Kay to use the original antenna array (the five mast structure with two television aerial antennae) subject to reasonable conditions. The City adopted a new resolution as ordered, permitting operation of the original antenna array as depicted in Kay's June 21, 2001 application and amending eight conditions for approval of CUP 230 (resolution no. 2004-109).
Kay returned to federal court, arguing the conditions imposed by the new resolution were unreasonable. The district court agreed that requiring Kay to use the property as his primary residence was unreasonable, but otherwise denied Kay's challenges to the conditions imposed. The City adopted a new resolution in 2005 amending the invalidated condition to require only that the residence be maintained in a manner suitable for occupancy as a single-family residence in compliance with the City's municipal code (resolution no. 2005-75). The resolutions 3 approving and modifying CUP 230 require approval by the city council of an amendment to CUP 230 for any "future changes to the location or configuration or which increase the number or the height of any approved antennae or element" of the original antenna array.
2. Addition of Antennae and Notice of Violation of CUP 230
Indian Peak, Kay's limited liability company, apparently obtained title to the property directly from Kay or through an intermediary sometime in 2005. As acknowledged in its opening brief, "[f]rom approximately 2001 to 2014, Indian Peak owned and operated the Property and used the antenna array with modifications and changes and additions to the antenna."
The City received a complaint in August 2014 regarding the number of commercial antennae on the roof of the property. The City inspected the property and discovered there were now at least 11 vertical antennae and other equipment on the roof. On August 15, 2014 the City mailed Indian Peak a notice it was in violation of the conditions of CUP 230 and directed Indian Peak to "[r]emove all but five of the vertical antennae from the roof, and ensure the remaining five antennae meet the requirements as described" in CUP 230 or "[s]ubmit an application to the City, with the required fee, to request a revision to Conditional Use Permit No. 230 to allow the existing antennae to remain." The City's notice further stated a review of the case would be conducted on September 12, 2014, and cautioned, "If the property has not been brought into compliance with CUP No. 230, or if an application has not been submitted to the City to request a revision to the Conditional Use Permit by said deadline, further code enforcement action will occur." 4
Indian Peak apparently requested extensions of time, indicating it intended to submit an application for a revision to CUP 230. The City conducted additional inspections of the property, which determined that no changes had been made. A second notice of violation was sent on October 14, 2014 and a final notice on October 28, 2014. The final notice stated, "A reinspection of your property, and review of this case, will be conducted on November 5, 2014. If upon re-inspection of your property the violations continue to exist, and the CUP revision application has not been submitted to the City, there will be no further notices. Referral to the City Attorney's office will follow in hopes of resolving the matter before legal action ensues."
Counsel for Indian Peak (the successor law firm to the firm that had represented Kay during the initial CUP application process) responded to the notices in December 2014, asserting the proposed $5,000 fee for an application to revise CUP 230 was an unlawful special tax and proposing a $500 fee to process the application. The letter also stated, "[O]ur client contends that to the extent that there have been any changes to the antennae and structures located on the property, those changes do not require a CUP revision as they constitute no more than the sort of changes that could be expected to occur over multiple years in the ordinary course of business at a property of this sort." Finally, the letter warned, if the City did not comply with Indian Peak's requests, Indian Peak intended to pursue construction of "a commercial antenna of over enormous proportions," attaching a photograph of such a structure to emphasize its threat. 5
In 2001 Kay was represented by C.D. Michel and Trutanich Michel, LLP. In 2014 Indian Peak was represented by C.D. Michel and Michel & Associates, P.C.
3. Further Discussions and Indian Peak's Application To Revise CUP 230
Over the next three-plus years the City's attorneys and Indian Peak's counsel engaged in a sometimes-contentious exchange of letters regarding the additional antennae, Indian Peak's obligation to comply with CUP 230 and the terms for an application to revise CUP 230. On October 21, 2015 the City again wrote that Indian Peak must remove all but five of the vertical antennae and ensure the remaining antennae met the requirements of CUP 230 or submit an application to revise CUP 230 with the required application fee or request for a fee waiver. Counsel for Indian Peak responded on November 6, 2015 noting no additions to the roof antenna array had been made in the past five years and asserting, whatever modifications had been made in the past, no revision or amendment to CUP 230 was necessary "because all of the antennas are compliant with CUP No. 230 and with all applicable federal laws and municipal code sections." The letter asserted that a large dish drum antenna on the roof, which the City had indicated was not authorized by CUP 230 and needed to be removed, was exempt from local regulation under federal law. Counsel also stated the fee proposed for an application to modify CUP 230 was unreasonable.
The city attorney wrote in March 2016 that modifications to Indian Peak's antenna array had, in fact, been made in 2014 and 2015 and requested citation to federal authority exempting the satellite dish drum from local regulation. In April 2016 Indian 6 Peak appeared to acknowledge it was not strictly complying with CUP 230 and requested the City "approve the additional antenna as a director's approval under Municipal Code § 17.76.020[, subdivision] A12b and to charge my client fees that are commensurate with a simple modification for a Commercial Antenna." Counsel also wrote, "We do not believe that the additional antennas that were installed necessitate a Revision to the entire CUP and do not justify fees for a CUP Revision." The city attorney responded that removal of the additional antennae or modification of CUP 230 was necessary and reminded Indian Peak that CUP 230 required City approval of additional antennae before they were installed, not after-the-fact. The letter set a deadline of May 2, 2016 for submission of an application to modify CUP 230. 7
Indian Peak finally provided its authority for the argument local regulation of the satellite dish drum was preempted by federal law in June 2019 in its opening brief in support of its petition for writ of administrative mandamus.
RPV Municipal Code section 17.76.020 governs antennas generally; subdivision (A) relates to commercial antennas and provides, "The installation and/or operation of a commercial antenna shall require the submittal and approval of a conditional use permit by the planning commission." Subdivision (A)(11) reiterates that the installation and/or operation of a commercial antenna requires submission of an application for a conditional use permit and details the requirements for the application package. It does not distinguish between installation of antennae and the addition of antennae to an existing tower. Subdivision (A)(12)(a) specifies the review procedures for new towers, related structures and tower sites. Subdivision (A)(12)(b) provides, "New antennas mounted on existing towers or structures that would not require substantial modifications may be approved by the director [of community development] with the following required information ...."
On May 5, 2016 Indian Peak's counsel proposed, as a compromise, applying for a modification of CUP 230 under the expedited, "over-the-counter" review procedure provided in RPV Municipal Code section 17.76.020, subdivision (A)(12)(b), for new antennae on existing towers (with a $500 filing fee), with approval required only from the City's director of community development, rather than the full process for modification of a residential conditional use permit. Counsel also stated the application could not be submitted by the City's deadline.
In a July 26, 2016 response the City explained that CUP 230 expressly required any additions to the antenna array be approved by the city council or through a formal modification of the conditional use permit, so the expedited process identified in RPV Municipal Code section 17.76.020, subdivision (A)(12)(b), could not be used. However, the City agreed to a fee of $1,311 for the application and authorized Indian Peak to submit with its application only the information required under the expedited process in RPV Municipal Code section 17.76.020, subdivision (A)(12)(b) (except for a frequency compatibility study), rather than the more extensive information required under RPV Municipal Code section 17.76.020, subdivision (A)(11). The new deadline for removal of the additional antennae or submission of the application for modification was August 26, 2016.
After several extensions of the deadline, Indian Peak submitted an application for revision of CUP 230 on October 28, 2016. On November 23, 2016 City staff notified Indian Peak it had reviewed the application and "due to missing information and/or inconsistencies between the project plans and submitted application, it has been determined that the application is 8 incomplete." City staff provided a detailed summary of the items that needed clarification or amplification and listed the additional information required. Counsel for Indian Peak objected to the request for additional information, insisting it had provided all the information required under RPV Municipal Code section 17.76.020, subdivision (A)(12)(b), as required by the City's July 26, 2016 letter, and that the additional information was unnecessary to process the application.
On March 21, 2017, having been advised the matter would be discussed at a closed session of the city council, counsel for Indian Peak wrote a five-page status letter to council members, describing the on-going discussions with the City regarding Indian Peak's modifications to the antenna array and its belief that only minor revisions, if any, might be needed to CUP 230. The city attorney responded on April 14, 2017, and the parties exchanged several more letters and met in person on two occasions (in June and December) during 2017.
Although Indian Peak agreed to provide additional information to the City at the parties' December 2017 meeting and the City, in turn, suspended any enforcement action, no further information was provided by Indian Peak by the February 28, 2018 extended deadline. Indian Peak continued to be represented in its communications and meetings with the City by the same law firm.
4. Notice and Hearing To Consider Revoking CUP 230
On August 2, 2018 the City issued its notice of public hearing to consider revocation of CUP 230 "because of the Installation of unpermitted antennas exceeding the maximum of 9 5 Council-approved, roof-mounted antennae and support pole masts." The hearing was scheduled for August 21, 2018.
RPV Municipal Code section 17.86.060 provides, "The officer or body taking final action granting any permit pursuant to the provision of this title may, after following the same procedures utilized for approving such a permit, revoke or suspend the permit if: [¶] . . . [¶] D. The permit is being or recently has been, exercised contrary to the terms or conditions of such permit. [¶] No permit shall be revoked prior to providing a ten calendar day written notice to the holder of the permit and an opportunity to be heard before the officer or body considering revocation or suspension of the permit."
Indian Peak retained new counsel on August 8, 2018, who requested via email on August 9, 2018 an extension of time to respond to the notice and a continuance of the hearing. Counsel explained that "Mr. Kay had retained a permit expediter to assist in this matter who has basically walked off the job. We are in the process of retaining another permit expediter/architect to work on this project but we were just retained to handle this matter late yesterday afternoon."
In a letter dated August 10, 2018 Indian Peak's new counsel stated the request for an extension had been denied by counsel for the City. Accordingly, the nine-page letter constituted Indian Peak's "comments and concerns about the proposed project" in response to the City's August 2, 2018 notice. In addition to reviewing the history of the dispute and once again asserting only approval by the director of community development, not the city council, was required for any necessary minor modifications in CUP 230, counsel stated the client "was more than willing to work with the City to present alternatives to modify and update the presentation and appearance of the 10 telecommunications antennae on the subject property to be less conspicuous" and asked for "a 60 day extension in which to supply the required documentation in order to complete the Application for Revision of Conditional Use Permit No. 230 and to provide representations and appropriate plans and specifications for updating and replacing the structures with less conspicuous antennae."
The hearing went forward on August 21, 2018. Each party was given 10 minutes for its presentation with additional time for questions by members of the city council, followed by comments from the public. During her presentation counsel for Indian Peak stated her goal was "to secure yet another extension for Mr. Kay and Indian Peak Properties to work with my office, his new counsel, on addressing these issues and working cooperatively with the City to come to some kind of a resolution." During an exchange with members of the council, Indian Peak's attorney was asked what type of proposal would be made if a continuance was granted. She responded, "My expectation is that Mr. Kay is willing to work with the City as far as removing some of the antennas but not all of the antennas that have been placed on 11 here since the issuance of the original conditional use permit, but if-if the City is pleased and will agree to, you know, the installation of some kind of a covering on the structures of all the antennas, then that would be Mr. Kay's preference, of course. But-but I will represent to City staff and City Council that Mr. Kay is willing to work with the City in order to come to some kind of a resolution even if that involves removing some of the antennas."
The city attorney explained at the outset of the hearing that, as the advisor to the city council, he could not present the evidence in support of the staff recommendation to revoke CUP 230 and that outside counsel, who had been representing the City in negotiations with Indian Peak during the past several years, would perform that function.
Counsel added, "For whatever reason, and I can't comment on it, Mr. Kay's prior counsel just did not engage in the cooperative process with City staff and that's why there was delay. But I can assure the City that now that my office is on board, we will work diligently to address these issues."
Following the staff presentation, the comments from Indian Peak's counsel and public testimony from four neighbors, the city council voted to adopt resolution no. 2018-61 revoking CUP 230 in its entirety, effective immediately. During their deliberations before voting on the resolution, several members of the council expressed displeasure with, as one member phrased it, Indian Peak and Kay's "clear pattern and lack of cooperation with the City in this process." 12
The Agenda Report stated, as an option available to the city council rather than adopting the staff recommendation to revoke CUP 230, "Continue the public hearing, as requested by the property owner's new legal counsel, to a date certain to allow the property owner additional time to respond to the revocation notice." In addition, immediately prior to the start of the city council's deliberations, the city attorney advised the members, "Included in the evidence tonight is a request for a continuance. While that's not an evidentiary basis to oppose revocation of the conditional use permit, it is a request that in the Council's sound discretion it can elect to grant or deny. Once it's weighed all of the evidence, considered and determined to grant or deny a continuance, then it deliberates and it has to adopt findings consistent with its deliberations. Staff has prepared a resolution of denial upon which it believes there is evidence to support that denial and the Council can review that, agree with it, modify it, add to it, subtract from it and then ultimately take an action."
5. Indian Peak's Petition for Writ of Mandate
Indian Peak filed a complaint for damages and petition for writ of administrative mandamus pursuant to section 1094.5 and for writ of mandate pursuant to section 1085 on November 19, 2018. In addition to its writ causes of action, which sought to compel the City to set aside its resolution revoking CUP 230 and either hold a new public hearing providing Indian Peak with an adequate opportunity to present a defense or determine Indian Peak's application for a revision to CUP 230 on the merits, Indian Peak alleged causes of action for inverse condemnation, intentional interference with contractual relations and intentional interference with prospective economic advantage. After the City answered, the court stayed the three damage claims pending decision on the petition for writ of administrative mandamus and related causes of action.
In its opening brief in support of the writ petition, Indian Peak argued it had been denied due process and deprived of a fair hearing because its counsel was not provided a reasonable opportunity to prepare and present a defense. Indian Peak additionally argued the City's action in revoking CUP 230 was arbitrary and capricious because the restrictions imposed were prohibited (or preempted) by federal law and the City had failed to consider the merits of its application for a revision to CUP 230. In its opposition memorandum the City argued, in part, Indian Peak had failed to exhaust available administrative remedies to challenge staff's assessment the application for revision of CUP 230 was incomplete. The City conceded federal law 13 restricted its right to regulate the satellite dish drum antenna but contended its insistence Indian Peak remove or receive authorization for all other antennae beyond those approved in CUP 230 was not limited by federal law. In its reply Indian Peak argued any failure to exhaust administrative remedies was excused as futile.
Following the hearing the court denied Indian Peak's petition for writ of administrative mandamus and related causes of action, issuing a 10-page order explaining the ruling. The court initially ruled the City provided Indian Peak a fair hearing. The court noted Indian Peak did not contend the City had not complied with its own policies and procedures-the applicable ordinance required 10 days' notice for the hearing; Indian Peak had 19 days' notice-or that 10 (or 19) days' notice was insufficient as a matter of law. Rather, its claim was that denial of its newly retained counsel's request for a continuance was a prejudicial abuse of discretion. The court rejected that argument for several reasons, viewing it "[t]hrough the prism of independent judgment." First, Indian Peak's noncompliance with CUP 230 had been the subject of discussion and negotiation between the City and Indian Peak for four years prior to issuance of the notice of revocation during which time Indian Peak had been represented by counsel; the issues raised by the notice of revocation were not new. Second, Indian Peak did not present any evidence its decision to change counsel after issuance of the notice was due to circumstances outside its control. Third, counsel in her letter and oral presentation did not state the continuance was needed to defend against the City's allegations Indian Peak was in violation of CUP 230 (in fact, counsel had effectively conceded that point, although disputing the extent of 14 the violation). Rather, the additional time was for Indian Peak to prepare an additional proposal to the City to resolve the dispute that would allow Indian Peak to continue to have at least some (or perhaps all) of the additional antennae added since issuance of CUP 230. The court also pointed out that, while the city council did not expressly discuss the request for a continuance before voting to revoke CUP 230, the city attorney had advised the members the request was before it and could be granted in its discretion.
The court then rejected Indian Peak's argument revocation of CUP 230 violated federal law or was otherwise arbitrary or an abuse of discretion. The City had conceded federal law preempted local land use regulations that impaired the installation, maintenance or use of certain types of antennae for direct broadcast satellite service and related signals, which would include Indian Peak's satellite dish drum. But the court agreed the weight of the evidence established Indian Peak had failed to comply with conditions associated with CUP 230 without regard to the satellite dish drum, as Indian Peak's counsel had conceded at the hearing: "The evidence in the record demonstrates Petitioner was in violation of the conditions association with CUP No. 230, even though the court recognizes it may not consider the satellite dish drum as a 'violation' of conditions. Thus, the decision to revoke CUP No. 230 does not violate federal law." The court expressly noted that any future enforcement actions by the City based on its revocation of CUP 230 "are not before this court."
As to Indian Peak's argument concerning the staff determination its revision application was incomplete, the court agreed with the City's position Indian Peak had failed to exhaust 15 its administrative remedies by seeking review of that decision as permitted by the RVP Municipal Code. Although Indian Peak cited a statement in the record that staff would recommend denying Indian Peak's request to modify CUP 230, that failed to establish the futility exception to exhaustion, the court reasoned, because the city council had full authority to approve a modification notwithstanding staff's recommendation.
After the trial court denied the writ-related causes of action, Indian Peak's request to dismiss its damage claims without prejudice was granted. Judgment was entered on December 9, 2019. Indian Peak filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
a. Administrative mandamus
Code of Civil Procedure section 1094.5, the administrative mandamus statute, provides for judicial review of administrative orders or decisions. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.) The question presented by a petition for writ of administrative mandate is whether the agency or tribunal that issued the decision being challenged "proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (§ 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.)
The nature of the trial court's review of the agency's decision depends on the right at issue. If a fundamental vested right is involved, the trial court reviews the sufficiency of the 16 evidence supporting the administrative decision under the independent judgment standard. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 811 (Fukuda) ["when a court reviews an administrative determination [affecting a vested fundamental right, ] the court must 'exercise its independent judgment on the facts, as well as on the law'"]; Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 484 (Schmid); Young v. City of Coronado (2017) 10 Cal.App.5th 408, 418.) In such cases, "'abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence.'" (Fukuda, at p. 811; Young, at p. 418.) If no such right is involved, the trial court applies the substantial evidence standard of review. (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 850.) In either situation the petitioner has "'"the burden of proving that the agency's decision was invalid and should be set aside, because it is presumed that the agency regularly performed its official duty."'" (Schmid, at p. 484.)
In Fukuda, supra, 20 Cal.4th at page 817 the Supreme Court explained, "In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence."
"[T]he grant of a CUP with subsequent reliance by the permittee creates a fundamental vested right that subjects a revocation to judicial review under the independent judgment test." (Malibu Mountains Recreation, Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 368.) On appeal from the judgment in such a case, we review the trial court's factual 17 findings for substantial evidence. (Paratransit, Inc. v. Unemployment Ins. Appeals Bd. (2014) 59 Cal.4th 551, 562; Fukuda, supra, 20 Cal.4th at p. 823.) "However, the appellate court may disregard the superior court's conclusions when the probative facts are undisputed and clearly require different conclusions. [Citations.] '"Appellate review in such a case is based not upon the substantial evidence rule, but upon the independent judgment rule."'" (Paratransit, at p. 562.)
On appeal from the judgment on a petition for writ of administrative mandate in a case not involving fundamental vested rights, we review the agency's findings, not the superior court's decision, for substantial evidence. (Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 34; Benetatos v. City of Los Angeles (2015) 235 Cal.App.4th 1270, 1281.)
The trial court's legal determinations are reviewed de novo. (Schmid, supra, 60 Cal.App.5th at p. 485; Valero Refining Co.- California v. Bay Area Air Quality Management Dist. Hearing Bd. (2020) 49 Cal.App.5th 618, 637; Department of Health Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 140; see Flethez v. San Bernardino County Employees Retirement Assn. (2017) 2 Cal.5th 630, 639.) Similarly, "'[a] challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.'" (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 96; accord, Malaga County Water Dist. v. State Water Resources Control Bd. (2020) 58 Cal.App.5th 447, 461; Doe v. University of Southern California (2018) 28 Cal.App.5th 26, 34; see Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1443 ["foundational factual 18 findings must be sustained if supported by substantial evidence; however, the ultimate determination of whether the administrative proceedings were fundamentally fair is a question of law to be decided on appeal"].)
b. Traditional mandamus
A traditional writ of mandate under section 1085 "'is used to compel a public entity to perform a legal and usually ministerial duty. [Citation.] The trial court reviews the challenged administrative action to determine whether it was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. [Citation.] On appeal, the trial court's factual findings must be upheld if they are supported by substantial evidence. However, legal issues present a question of law that this court reviews de novo on appeal.'" (Schmid, supra, 60 Cal.App.5th at pp. 484-485.)
2. Indian Peak Was Not Denied a Fair Hearing
Applying the correct independent judgment standard of review, the trial court found the weight of the evidence supported the City's findings Indian Peak had violated the conditions associated with CUP 230 (separate from any purported violation based on the satellite dish drum antenna). Substantial evidence supports the trial court's finding, which is not challenged by Indian Peak on appeal. Significantly, the fact of violation- although disputed for years by its former counsel-was not contested by Indian Peak at the public hearing before the city council, and newly retained counsel's request for a continuance was to allow further settlement discussions with a goal of 19 modifying or revising CUP 230, not to prepare a defense. After years of unproductive discussions, the City's decision not to engage yet again in negotiations with Indian Peak was entirely reasonable.
Indian Peak's complaint and petition for writ of administrative mandamus confirm that its counsel at the revocation hearing "then requested an extension of time to provide plans and specifications for updating and replacing the structures with less conspicuous antennas and structures, including covering."
"'[T]he "fair trial" requirement [of section 1094.5] is equivalent to a prescription that there be a fair administrative hearing.'" (Mountainlands Conservancy, LLC v. California Coastal Com. (2020) 47 Cal.App.5th 214, 235.) "The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it. The opportunity to be heard must be afforded at a meaningful time and in a meaningful manner." (Lent v. California Coastal Com. (2020) 62 Cal.App.5th 812, 842 [cleaned up]; accord, Alpha Nu Assn. of Theta XI v. University of Southern California (2021) 62 Cal.App.5th 383, 418 ["'[g]enerally, a fair procedure requires "notice reasonably calculated to apprise interested parties of the pendency of the action . . . and an opportunity to present their objections"'"]; Cardinal Care Management, LLC v. Afable (2020) 47 Cal.App.5th 1011, 1022 [procedural due process principles require reasonable notice and opportunity to be heard before governmental deprivation of a significant property interest].) Indian Peak had both notice and an opportunity to defend its conduct and fully exercised its right to be heard by submitting a written response prepared by counsel 20 and making an oral presentation and responding to questions at the revocation hearing.
The City's denial of Indian Peak's request for a continuance of the revocation hearing after it selected new counsel to represent it did not transform an otherwise fair procedure into one that was unfair. While Indian Peak was certainly permitted to change counsel and was not obligated to explain its reason for doing so, the presence of a new lawyer after four years of debate between the City and Indian Peak's former counsel whether additional antennae on the roof of the residence on Indian Peak Road violated CUP 230-the precise issue to be addressed at the revocation hearing-did not automatically entitle Indian Peak to yet more time to research possible defenses to a charge first 21 made in August 2014. (See Ring v. Smith (1970) 5 Cal.App.3d 197, 202 ["there is no absolute right, even in a criminal trial, to be represented by a particular attorney, when this is made the basis of a motion for a continuance"].) Whether to grant a continuance, in this case as in general, was a matter of discretion for the hearing officer. (See Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342-343 ["In exercising the power to grant continuances an administrative law judge must be guided by the same principles applicable to continuances generally in adjudicative settings. . . . But' [t]he factors which influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion'"]; accord, Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 864.)
In an attempt to minimize the significance of the four years of negotiations between its counsel and the City concerning the unauthorized expansion of its antenna array, Indian Peak points out that, prior to the August 2, 2018 notice, the City had never warned it a continued violation of CUP 230 would result in revocation of the permit. Putting aside that the City's lawyer informed Indian Peak enforcement action would be initiated if it did not remove the additional antennae or obtain a modification of CUP 230 and that revocation as the consequence of a violation of the conditions imposed with a conditional use permit was clearly stated in the City's Municipal Code (RPV Mun. Code, § 17.60.080) and presumably known to Indian Peak's experienced land use attorney, if not to Kay, Indian Peak's argument misses the point. The issue at the revocation hearing was whether Indian Peak was in violation of the conditions of CUP 230. That was precisely the issue discussed from mid-2014 through early 2018 by its former counsel and the City. The trial court's finding that Indian Peak had more than 19 days to prepare a defense was thus supported by substantial evidence.
Here, as discussed, Indian Peak's counsel did not seek a continuance in order to develop a defense to the charge of violating the conditions imposed with CUP 230, nor was there any showing why former counsel, who had argued there were no violations of CUP 230, was not available to assist new counsel in presenting any colorable defense that might exist, if that was Indian Peak's intention. Indeed, before proceeding to vote on the resolution revoking CUP 230, one of the council members asked Indian Peak's counsel what could be expected if a continuance were granted, and the response was a proposal for revisions to the conditional use permit that would allow Indian Peak to continue to maintain and operate more antennae than previously authorized. Against a backdrop of years of fruitless discussion, it 22 was not an abuse of discretion to deny a continuance requested only for that purpose.
In briefing in this court Indian Peak argues a continuance would have permitted it to retain expert witnesses to develop the argument federal law precluded local land use regulation of its antennae in addition to the satellite dish drum antenna (a contention previously made by counsel for Indian Peak during the multi-year negotiation process). This purported basis for a continuance was not articulated in counsel's August 10, 2018 letter to the City or her presentation at the August 21, 2018 revocation hearing, nor was it raised in the trial court in support of Indian Peak's petition for writ of administrative mandamus. Even were the argument not forfeited (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587 [issue not raised in administrative proceedings or in the trial court deemed forfeited]; Owen v. Sands (2009) 176 Cal.App.4th 985, 995 [same]), Indian Peak fails to explain how the city council's failure to consider granting a continuance for a reason never mentioned by its lawyer could constitute an abuse of discretion.
Nor did that denial prejudice Indian Peak's right to a fair hearing. Indian Peak's counsel admitted new antennae had been added to the rooftop array in violation of CUP 230, only seeking additional time to try to work out a settlement. Absent a showing of prejudice, the petition for writ of administrative mandamus was properly denied. (See Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 ["'A writ of administrative mandamus will not be issued unless the court is persuaded that an abuse of discretion was prejudicial. [Citation.] In other words, the reviewing court will deny the writ, despite abuse of discretion, if the agency's error did not prejudicially affect the petitioner's substantial rights'"]; see generally Brue v. Al Shabaab (2020) 54 Cal.App.5th 578, 589 23 [procedural due process errors, even if proved, are subject to harmless error analysis]; Doe v. University of Southern California, supra, 28 Cal.App.5th at p. 40 [rejecting fair hearing claim when petitioner failed to show how alleged procedural error prejudiced his case].)
3. Revocation of CUP 230 Was Neither Unlawful Nor Arbitrary
Indian Peak contends the City's action in revoking CUP 230 was arbitrary because it violated its July 2016 agreement to consider Indian Peak's revision application based on limited information and did not consider whether aspects of the antenna array were protected from local land use regulation by federal law. Neither argument has merit.
With respect to Indian Peak's revision application, as the trial court found, Indian Peak failed to utilize available administrative remedies to challenge staff s November 2016 assessment the application was incomplete, an essential prerequisite to challenging that decision in court as arbitrary. To the contrary, as discussed, at their December 2017 in-person meeting Indian Peak's counsel agreed to provide additional information to the City's staff. 24
Responding to the substance of Indian Peak's contention it had breached its purported agreement to consider the revision application on limited information, the City emphasizes the July 26, 2016 letter, while authorizing Indian Peak to submit the application with the more limited information required for the expedited review process, expressly stated that process could not be used for Indian Peak's application under the terms of CUP 230. Staff requests for additional information when reviewing an application for an amendment to a conditional use permit, it explained, are a normal part of the review process. Indian Peak implicitly recognized this when it agreed to provide additional information in December 2017.
"[T]he rule of exhaustion of administrative remedies is well established in California jurisprudence . . . . 'In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' [Citation.] The rule 'is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding upon all courts.'" (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321; accord, Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 505.) "The exhaustion doctrine operates as a defense to litigation commenced by persons who have been aggrieved by action but who have failed to exhaust the administrative remedy available to them." (Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 633.)
Indian Peak contends, as it did in the trial court, its argument the City breached its agreement to consider the revision application is not barred by the rule requiring exhaustion of administrative remedies because exhaustion would have been futile. But "'" [futility is a narrow exception to the general rule"' requiring exhaustion of remedies. [Citation.] The exception applies only if the party invoking it can positively state that the administrative agency has declared what its ruling will be in a particular case." (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1313; accord, Jonathan Neil &Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936.) Rather than point to anything in the administrative record indicating the City's planning commission or city council had clearly indicated its view on the documentation necessary to consider a revision 25 application, Indian Peak offers a tautology: The entire process was futile, it asserts, because the City refused to process the revision application in accordance with the terms of the agreement reached and then (two years later) revoked CUP 230. Far more is required to establish futility. (See Upshaw v. Superior Court, supra, 22 Cal.App.5th at p. 507 ["[b]ecause there is no evidence the Sheriff had taken any position, let alone declared what its ruling would be, Upshaw cannot establish futility in pursuing the required administrative procedures"]; see also Bennett v. Borden, Inc. (1976) 56 Cal.App.3d 706, 710 [" [p]laintiff s preconception of the futility of administrative action did not permit him to bypass the administrative remedy"].)
As to Indian Peak's federal law argument, in its opening and reply memoranda in support of the petition for writ of administrative mandamus in the trial court, Indian Peak asserted the federal Telecommunications Act of 1996 (Pub.L. No. 104-104 (Feb. 8, 1996) 110 Stat. 56) prohibited restrictions on "over-the-air reception devices." Specifically, it explained state and local governments are prohibited from restricting a property owner's installation, maintenance or use of antennae used to receive direct broadcast satellite service, video programming service or television broadcast signals, citing 47 Code of Federal Regulations part 1.4000(a)(1). Indian Peak identified only the satellite dish drum antenna as protected by this federal regulation and argued, because the City's notices of violation sought removal of that device, its subsequent notice of revocation, predicated on those earlier notices, was arbitrary and invalid. 26
As discussed, the City conceded it could not regulate the satellite dish drum, and the trial court acknowledged, "[I]f the satellite dish drum was the sole basis for the City's finding Petitioner was not in compliance with the conditions of CUP No. 230, the writ petition would be granted." The court, however, found the weight of the evidence supported the City's finding Indian Peak was in violation of conditions associated with CUP 230 apart from the installation and maintenance of the satellite dish drum.
In fact, certain satellite dish antennae-those one meter or less in diameter-are exempted from regulation by RPV Municipal Code section 17.76.20, subdivision (B)(2). The federal regulation cited by Indian Peak, 47 Code of Federal Regulations part 1.4000(a)(1)(i)(B), contains the same size limitation. Indian Peak does not direct us to any information in the record on appeal indicating the size of the satellite dish drum at issue in the case.
In this court Indian Peak again argues the City's attempt to have it remove the satellite dish antennae in contravention of federal law invalidated the revocation proceeding, but it does not address the trial court's ruling that revocation was justified based on its installation and operation of other antennae in violation of the conditions of CUP 230. Rather, Indian Peak now contends revocation of CUP 230 was arbitrary (or unlawful) because the City proceeded without first obtaining expert testimony concerning the scope of federal preemption of land use regulations potentially impacting Indian Peak's extensive antenna array, suggesting that "perhaps more" than the single satellite dish was protected. Because this argument was not presented in the administrative proceedings or the trial court, it is forfeited. 27 (See Doe v. University of Southern California, supra, 28 Cal.App.5th at p. 37; Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587.)
In any event, Indian Peak misapprehends the significance of federal preemption. F ederal law precludes local restrictions that impair (unreasonably interfere with) certain types of communications-related activities. It does not mandate local approval of them-that is, the City is not obligated to issue (or continue in effect) a conditional use permit affirmatively authorizing installation and operation of antennae that come within the scope of federal preemption, whatever that may be. Thus, federal law might, in theory, protect Indian Peak from (or preempt) an enforcement action based on operating covered antennae without a conditional use permit, which the trial court recognized, noting the City's future enforcement actions, "if any, are not before this court," and which Indian Peak argued in defense of the nuisance lawsuit subsequently filed by the City. But Indian Peak has provided no legal authority, as was its obligation, for its contention the City acted arbitrarily when it revoked CUP 230 without first considering the issue of potential federal preemption. (See Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 512 ["[b]ecause judgments of the trial court are presumed to be correct, the appellant bears the burden to affirmatively demonstrate error, and must show that the error was prejudicial"]; Kuperman v. San Diego County Assessment AppealsBd. No. 1 (2006) 137 Cal.App.4th 918, 931 ["as appellant, Kuperman is obligated to support his assertion of error with relevant legal authority and analysis; he has the burden of showing error occurred"].) 28
DISPOSITION
The judgment is affirmed. The City is to recover its costs on appeal.
We concur: SEGAL, J., IBARRA, J. [*] 29
[*] Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.