Opinion
E031900.
7-10-2003
NICK KANIAN, Plaintiff and Appellant, v. CITY OF FONTANA, Defendant and Respondent.
Banks and Strathman, James Banks, Jr., and Matthew O. Strathman; Covington & Crowe and Robert E. Dougherty, for Plaintiff and Appellant. Best Best & Krieger, P.H.W.F. Pearce and Jeffrey S. Ballinger, for Defendant and Respondent.
Plaintiff Kanian appeals a judgment of dismissal entered after an order granting defendant City of Fontanas (City) motion for summary judgment. The motion for summary judgment was based on the theory that the Citys conditional use permit for Mr. Kanians project had expired during the pendency of administrative proceedings, and that Mr. Kanians lawsuit, which attacked one of the conditions of approval, was therefore moot. The trial court agreed and granted the summary judgment motion.
FACTS
In 1998, Mr. Kanian sought City approval to construct a 77,259-square-foot warehouse on property he owns in the City. The Citys planning department staff recommended approval of the project subject to Mr. Kanians acceptance of 61 conditions of approval. Mr. Kanian agreed with all the conditions of approval except condition number 6. Condition 6 required Mr. Kanian to enter into a common area maintenance agreement with the City, in a prescribed form. Mr. Kanian objected to certain substantive provisions of the proposed agreement but the planning ccommission adopted the staffs recommendation, including condition 6, on January 25, 1999.
Mr. Kanians objections were that "this Agreement would give Fontana the ability to enter Kanians property at any time if Fontana decided that Kanian had not maintained his landscaping, parking lot, drainage, lighting and paved areas in a first-class condition. If Fontana felt that Kanian had not maintained his property in a first-class condition, the Agreement further authorized Fontana to clean up Kanians property and to thereafter to [sic] record a lien against the property to recover the costs of the [cleanup]." These substantive objections are not in issue on this appeal.
Mr. Kanian appealed the planning commissions action to the city council. The appeal was eventually heard by the city council on January 18, 2000. The city council denied the appeal.
Mr. Kanian then filed his petition for writ of mandate on February 9, 2000. After other proceedings, the City filed its motion for summary judgment on February 20, 2002. The motion was based on the theory that "the challenged land use approval has, by the expiration of time and operation of law, become null and void." The City cited Fontana City Code section 30-106. That section provides: "Each design approval granted under this article shall become null and void two years after the date of approval, unless: (1) The appropriate permits have been obtained and construction . . . has commenced within this period." The City argued that the city council gave the project design approval on January 18, 2000, that no permits had been obtained or construction had begun within the two-year period stated in Fontana City Code section 30-106, and that the design approval had therefore expired.
Mr. Kanian disagreed, citing the stay provisions of Fontana City Code section 30-33A. That section states: "Any action taken by the planning commission . . . in the administration and/or enforcement of the provisions of this chapter may be appealed as indicated in Table 30-29A by the applicant . . . . An appeal stays proceedings until a determination of the appeal has been made." Table 30-29A provides for appeals of the planning commissions conditional use decisions to the city council. Mr. Kanian argued that section 30-33A provides an automatic stay of proceedings until its appeal is finally decided in court proceedings.
The trial court agreed with the City. It found that section 30-33A only provides for a stay during the administrative proceedings, not court proceedings. It also rejected an estoppel argument, based on the Citys alleged delaying tactics.
Mr. Kanian appeals. The issue presented for decision is whether the section 33-33A stay ends when the city council determines the appeal or when a court challenge to the condition of approval becomes final.
Since there are no factual issues, the parties agree that our review of the trial courts decision granting the motion for summary judgment is a de novo review.
THE ALLEGED STAY PENDING DECISION
Mr. Kanian first argues that a land use decision, here the granting of a conditional use permit, cannot expire while a petition for administrative mandamus is pending.
He cites Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405. In that case, a developer brought an administrative mandamus action to overturn the City of Seal Beachs decision to disapprove a vesting tentative map. The developer voluntarily dismissed the action on the eve of trial. Subsequently, the developer argued that there had been a regulatory taking of his property. The appellate court said: "There is an obvious and fundamental distinction between initiating mandamus and obtaining a judgment. The Supreme Court tells us [a] final administrative decision includes exhaustion of any available review mechanism. [Citation.] By dropping mandamus, Mola allowed the administrative decision to achieve finality and issue preclusive effect. It cannot now seek damages for a regulatory taking." (Id. at p. 407.)
Mr. Mola also complained that his option on the property expired during the pendency of the proceedings. Our colleagues said: "We are not impressed with Molas claim to be exempt from the mandamus requirement because its option to develop the property expired during the pendency of the mandamus action. Hensler[ ] itself holds that private parties cannot unilaterally shorten the time for reasonable administrative and judicial review by terminating their property interests in the subject development." (Mola Development Corp. v. City of Seal Beach, supra, 57 Cal.App.4th 405, 407.)
Hensler v. City of Glendale (1994) 8 Cal.4th 1, 876 P.2d 1043.
Mr. Kanian argues that the City likewise could not prevent him from attacking the merits of its administrative decision by applying the code provision that requires a building permit to be obtained within two years of the city councils decision. (Font. City Code, § 30-106.) He points out that development can be delayed by causes beyond the control of the developer, such as challenges under the California Environmental Quality Act. He thus relies on our Supreme Courts statement in Hensler, which is quoted in Mola, that "A final administrative decision includes exhaustion of any available review mechanism." (Hensler v. City of Glendale, supra, 8 Cal.4th 1, 12.)
We agree with Mr. Kanian that administrative mandamus was the proper vehicle for him to use to obtain a review of the city councils decision rejecting his attack on condition 6. Under Code of Civil Procedure section 1094.5, subdivision (a), the writ procedure may be used "for the purpose of inquiring into the validity of any final administrative order or decision made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . ."
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
Subdivision (b) provides that the reviewing court decides whether the administrative tribunal "has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [administrative tribunal] 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."
Section 1094.5 thus provides for trial court review of final administrative decisions. The city councils decision, which denied Mr. Kanians appeal of the planning commissions decision, was clearly a final administrative decision. Mr. Kanian could then file his section 1094.5 petition to obtain judicial review of the Citys decision. He did so, but he failed to seek a stay of the administrative decision pending the trial courts judgment pursuant to section 1094.5, subdivision (g). That subdivision allows the petitioner to seek a stay of the operation of the administrative order or decision pending the trial courts decision. The subdivision also allows the appellate court to grant a stay.
We agree with the trial court that Fontana City Code section 30-33A only provides for a stay of the planning commissions decision until the appeal is heard by the city council. As noted above, the section provides for appeals as indicated in Table 30-29A. The table provides for the review of various decisions by the planning commission and the city council. It does not purport to state rules for the appeal of final city council decisions to the courts. Nor could it. The section clearly establishes a procedure for internal review of various city decisions by various departments. That review is completed when the city council acts on the matter, and the stay provided by section 30-33A ends at that time. Under section 30-106, the developer must obtain a building permit and commence construction within two years of the city council action or the design approval expires. Since the city council rejected Mr. Kanians appeal on January 18, 2000, the design approval expired on January 18, 2002. The summary judgment motion was filed a month later, on February 20, 2002.
In other words, Mr. Kanian confuses the requirement for a final administrative decision, which is necessary before a petition may be filed under section 1094.5, with a final decision, in court proceedings, of the challenge to the city councils action. Obviously, a final administrative decision is prior to judicial review, while a final decision is after judicial review. A final administrative decision is stayed until the city council acts. After judicial review begins, a stay may be obtained under section 1094.5, subdivision (g), subject to the courts exercise of its discretion.
For example, in Georgia-Pacific Corp. v. California Coastal Com. (1982) 132 Cal. App. 3d 678, 183 Cal. Rptr. 395, the Coastal Commission issued permits authorizing Georgia-Pacific to construct four proposed facilities on its property. (Id. at p. 683.) The permits were conditioned on the granting of coastal access. (Ibid.) Georgia-Pacific petitioned for a writ of mandamus to force the commission to delete the condition. The trial court found in favor of Georgia-Pacific and the commission appealed. Since the permits provided that they would expire in two years, and the time would expire while the appeal was pending, the commission acknowledged that its appeal was moot as to some issues, but urged the court to decide at least one other issue because it was allegedly of great public interest. (Id. at p. 690.) Georgia-Pacific argued that the two-year expiration provision was tolled by the pendency of the judicial proceedings challenging the permit conditions. (Id. at p. 691.) The appellate court held that the time was tolled because the commissions appeal from the granting of the petition stayed the decision unless the appellate court ordered otherwise. (Id. at p. 691.) The court relied on section 1094.5, subdivision (h)(3): "If an appeal is taken from the granting of the writ, the order or decision of the . . . agency is stayed pending the determination of the appeal unless the court to which the appeal is taken shall otherwise order."
But when, as here, no state agency is involved and the time would expire during the trial court proceedings, subdivision (g) is applicable, and the granting of a stay is discretionary, although "no such stay shall be imposed or continued if the court is satisfied that it is against the public interest." (§ 1094.5, subd. (g); Sterling v. Santa Monica Rent Control Bd. (1985) 168 Cal. App. 3d 176, 187, 214 Cal. Rptr. 71.) In the present case, the trial court was never asked to exercise its discretion to grant a stay, and the two-year period in which Mr. Kanian could proceed on the prior design approval simply expired. We therefore agree with the trial court that the expiration mooted the action.
THE GRANTING OF DESIGN APPROVAL
Mr. Kanian contends that section 30-106 is inapplicable because design approval was never granted for the warehouse project. He argues that a local regulatory agency may approve, conditionally approve, or disapprove a project, citing Building Industry Legal Defense Foundation v. Superior Court (1999) 72 Cal.App.4th 1410, 1417.
In making this argument, Mr. Kanian seeks to distinguish between approval and conditional approval, and he argues that section 30-106 only applies to an approval. He fails to note that Fontana City Code section 30-105 gives the planning commission authority to approve or deny applications for design review, and to impose conditions on an approval.
Mr. Kanian also cites Malibu Committee for Incorporation v. Board of Supervisors (1990) 222 Cal. App. 3d 397, 406, 271 Cal. Rptr. 505, a case decided under the Cortese-Knox Local Government Reorganization Act of 1985 (Gov. Code, § 56000 et seq., § 57202.) He argues that a conditional approval "occurs when terms and conditions are imposed by the local authority which must be satisfied before the project can proceed." We find nothing to support his contention on the cited page, but agree that the City could impose conditions upon approval under Fontana City Code section 30-105.
Based on this foundation, Mr. Kanian argues that the City never granted design approval for his project, and the two-year period never became effective. In other words, he argues that the word "approval," as used in Fontana City Code section 30-106 does not include a "conditional approval" in any case in which a condition of approval is being challenged in court. Since he finds that the Fontana City Code never applied to his project, he argues the trial court should not have dismissed his petition on this ground.
We agree with the City that the planning commission approved the project with the 61 conditions of approval. Mr. Kanian appealed that decision to the city council, thus challenging one of the conditions of approval. The city council had the power to affirm, reverse or modify the planning commissions decision, and Mr. Kanian obviously sought to have the objectionable condition eliminated. (Font. City Code, § 30-37.) His failure to obtain a city council decision eliminating the condition of approval does not mean there was no design approval. We agree with the City: "The legal effect of the City Councils denial of Kanians appeal of the Planning Commissions decision imposing Condition Number Six, had the effect of affirming the Planning Commissions decision."
The city councils decision merely means that the City decided to conditionally approve the project with the 61 conditions of approval recommended by the planning department staff. Since design approval was granted, we conclude that the two-year period for relying on that approval began to run when the city council acted. Since no action was taken within the two-year period, and no stay was obtained, the trial court correctly found that the action was moot. (Stanton v. Dumke (1966) 64 Cal.2d 199, 207, 49 Cal. Rptr. 380, 411 P.2d 108.) The trial court therefore properly granted the Citys motion for summary judgment on that ground.
DISPOSITION
The judgment is affirmed.
We concur: 15 RICHLI, J., and KING, J.