Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 06CC13352 of Orange County, David T. McEachen, Judge. Affirmed.
Law Offices of Randall S. Waier and Randall S. Waier for Plaintiffs and Appellants.
Rutan & Tucker and Philip D. Kohn for Defendants and Respondents.
Law Offices of Eugene C. Gratz and Eugene C. Gratz for Real Parties in Interest and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiffs Kathleen and Craig Miller and Sid and Lesley Danenhauer appeal from a judgment denying their petition for administrative mandamus that sought to set aside a decision by the city council of defendant City of Laguna Beach modifying rather than revoking the design review approval for the construction of a home by real parties in interest Charles and Valerie Griswold (real parties). Since plaintiffs failed to preserve their appellate claims and, in any event, the city council had the authority to rule and properly exercised its discretion in doing so, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are residents of Laguna Beach. Real parties own an unimproved lot across the street from plaintiffs’ homes on which they want to build a multi-level single family residence.
In July 1998, real parties obtained approval from the city’s design review board (board) for the construction of a 5,200 square foot three-story, four-level home with variances for the residence’s height, floor area, limited setback, and its proximity to an oceanfront bluff. By ordinance, these approvals were valid for only two years, but an applicant could seek extensions for an additional three years. (Laguna Beach Mun. Code, §§ 25.05.025, subd. (H)(2)(b) & 25.05.040, subd. (J)(3).)
The Danenhauers threatened to appeal the board’s decision to the city council (council). In a letter to defendant’s zoning administrator, they complained about certain aspects of the project, including the home’s height. They withdrew the appeal threat when real parties agreed to make certain changes to the proposed residence.
Because the project was within the coastal zone, real parties also needed to obtain a coastal development permit from the California Coastal Commission. In October, the commission approved a permit for a 5,078 square foot, five-level home subject to conditions which needed to be satisfied before it would issue the permit.
Without objection, real parties sought and obtained three years of extensions from both the board and the coastal commission. In June 2003, defendant issued real parties a building permit.
Plaintiffs appealed the building permit’s approval to the council. It continued the hearing on the matter when city staff notified real parties to cease work after discovering the coastal commission had not yet issued the coastal development permit, thereby invalidating the building permit’s approval. Subsequently, city staff sent real parties a letter stating that “[a]n additional consequence” of the failure to obtain the coastal development permit was that “the Design Review approval expired [i]n July . . . .”
At real parties request, the coastal commission granted an extension to October 2004 to comply with the conditions for issuance of the coastal development permit. They also appealed the city’s decision to revoke their building permit and the finding their design review approval had expired. The council heard their appeal in June 2004. It granted the appeal, overturning the building permit’s revocation and reinstating the design review approval for the project on certain conditions, which included a restriction on further building activity until the coastal development permit was issued.
In October 2004, the coastal commission issued the coastal development permit to real parties. To comply with the requirements of that permit and to obtain some personally desired architectural changes, real parties applied to the board for modifications to the original design approval. After a public hearing conducted on January 27, 2005, the board approved only the modifications required by the coastal commission.
Plaintiffs again appealed seeking to “[r]evoke all the Design Review Approvals and associated permits . . . issued on July 9, 1998, June 30, 2003[,] and January 27, 2005 . . . .” Their appeal notice claimed “[t]he design review process was compromised and subverted” by real parties’ and their architect’s misrepresentations to the council concerning the lot’s grade change, the building height standards, project plans, and staking of the project.
After a hearing on March 1, 2005, the council remanded the design review application to the board, with directions “to recognize that [apparently due to a landslide and subsequent bluff stabilization work] the topography of the lot had changed since the original approval . . . and to consider the proposed design under the pre-mansionization guidelines.” It did not act on plaintiffs’ revocation request, and in a subsequent letter to real parties, the city attorney stated “the City Council acknowledges that its . . . action was not intended and should not be construed as a revocation of any approvals previously obtained . . . .” But he also noted “the possibility of future revocation proceedings under proper circumstances cannot be foreclosed.”
Real parties did not submit the revised plans to the board. Instead, they responded by filing a lawsuit. (Griswold v. City of Laguna Beach (Super. Ct. Orange County, 2005, No. 05CC11606).)
According to plaintiffs’ verified petition in this case, on September 5, 2006, the “Council, acting upon its own initiative, and [plaintiffs’] prior requests, held a noticed hearing to determine whether there were sufficient facts and circumstances to warrant . . . consideration of revoking the original and amended design review approval[s].” Plaintiffs appeared at the hearing and testified in support of a revocation hearing, generally contending the original design review approval was obtained with erroneous information. At the completion of the hearing, a majority of the council voted to “conduct a properly noticed public hearing . . . on the neighbors’ request to revoke the design review approval for the project.”
Defendant then issued notice of a public hearing “[p]ursuant to Municipal Code Section 25.05.075” to consider “[t]he possible revocation of Design Review approval” for real parties’ proposed development. (Bold omitted.) The notice further provided if anyone wished to subsequently challenge the council’s decision in court “you may be limited to raising only those issues you (or someone else) raised at the Public Hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to the Public Hearing.”
The five-member council conducted the revocation hearing over two dates, October 17 and December 5. During the hearing, it received evidence both written and oral, from plaintiffs, real parties, and others, and also listened to extensive argument.
At the December 5 hearing, one councilmember concluded the evidence failed to support revocation and stated she believed the board knew what it was approving. Two other councilmembers disagreed, citing changes in the lot’s grading and misstatements by real parties’ architect concerning issuance of the coastal development permit. They expressed a desire to remand the project to the board. After further discussion, and at the suggestion of a fourth councilmember, the council unanimously agreed to the following resolution of the matter: (1) Modify the project by reducing the width of an elevator structure and removing both the chimney and a portion of the roof above a line drawn on elevation plans that had been introduced at the hearing; (2) direct city staff to review the revised plans to ensure compliance; and (3) appoint a subcommittee of two councilmembers to review the revised plans and verify the changes were made before issuance of a building permit. In addition, it the acknowledged its action superseded its March 2005 remand of the project to the board.
Plaintiffs filed a verified petition for administrative writ of mandate to set aside the December 5 modification alleging the “decision is without jurisdiction, in excess of the Laguna Beach City Council’s authority, and violative of existing law.” After briefing and argument, the trial court granted defendant’s motion to deny the petition. It concluded the council “had the authority to modify design decisions”; plaintiffs were afforded “proper notice and an opportunity . . . to present their position at several meetings before the . . . Council”; both “[t]he transcript . . ., plus the minutes from the . . . Council [hearing] on December 5, 2006 provide[] sufficient evidence setting forth the council’s reasoning”; “[t]he decision rendered by the . . . Council had sufficient evidentiary support”; and finally, “[g]iven the extended opportunities provided by the . . . Council to all of the interested parties in this case, [plaintiffs] have not established any prejudicial error.”
DISCUSSION
1. Standard of Review
Plaintiffs filed this action under Code of Civil Procedure section 1094.5 which allows a court to “inquir[e] into the validity of any final administrative order or decision made as the 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 . . . .” (Code Civ. Proc., § 1094.5, subd. (a).) The scope of judicial inquiry in such proceedings “extend[s] to the questions whether the respondent 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 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.” (Code Civ. Proc., § 1094.5, subd. (b).)
On appeal, the primary contentions mentioned in plaintiffs’ opening brief are that the council exceeded its authority by modifying the pending building plans, failed to proceed in the manner required by the city’s design review process, and failed to give notice of its decision to supersede the prior remand of the project to the board. Intertwined with these arguments plaintiffs suggest the city council also failed to make findings supporting its decision or provide them with the opportunity to respond to the council’s own proposed modification of real parties’ proposed residence. Different standards of review apply to these contentions.
2. The Council’s Jurisdiction to Modify the Design Approval
The trial court cited section 25.05.070 of the Laguna Beach Municipal Code in finding the council had the authority to modify the design of real parties’ proposed residence. Plaintiffs note that ordinance governs “decisions . . . of the . . . board” that are “appealed to the city council” (Laguna Beach Mun. Code, § 25.05.070, subd. (B)(1)), while the council’s December 5, 2006 decision resulted from a revocation hearing conducted under section 25.05.075 of the municipal code. The latter ordinance declares a “design review approval may be revoked or modified” only “by the authority which granted the approval . . . .” (Laguna Beach Mun. Code § 25.05.075, subd. (B)(1).)
Plaintiffs further contend that since “[t]he prior design review approval . . . acted upon by the City Council at the revocation hearing was ‘granted’ by the” city’s board, “the City Council acted outside the scope of its delegated authority,” “without jurisdiction, and in excess of [its] authority.” Alternatively, they argue the December 5 decision was “in essence, . . . the enactment of a special ordinance allowing the City Council to make its own design review decisions apart from the [board].”
Defendant responds, asserting plaintiffs failed to exhaust their administrative remedies by not raising the foregoing arguments during the revocation hearing. In addition, citing the council’s June 2004 reinstatement of real parties’ original design review approval and building permit, plus its ruling on plaintiffs’ February 2005 appeal that sought to revoke these approvals on the basis of real parties’ alleged misrepresentations, defendant argues “the City Council was the correct body to hear the revocation request.” (Bold and italics omitted.) These contentions have merit.
To promote both administrative autonomy and judicial efficiency, “In general, a party must exhaust administrative remedies before resorting to the courts. [Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080; see also Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197 [“doctrine of exhaustion of administrative remedies . . . precludes judicial review of issues, legal and factual, which were not first presented at the administrative agency level”].) Here, both parties presented arguments to the council that questioned some aspect of its jurisdictional authority. Plaintiffs claimed that, in June 2004, “the City Council, without jurisdiction, ‘reinstated’ the [original] design review . . . approval . . . .” Real parties argued they had a “‘vested right’” in the earlier approvals, and even if that were not so, “a municipality does not have ‘unlimited discretion’ in the matter of revoking permits . . . .”
However, it was never asserted the board needed to rule on the revocation request before the council could consider the issue. Moreover, plaintiffs’ petition admitted the council chose to investigate the possibility of revoking the design review and building permit approvals, in part, at their request. Since “[t]he essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review” (Coalition for Student Action v. City of Fullerton, supra, 153 Cal.App.3d at p. 1198), “[t]he purposes of the doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them. [Citation.]” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138.)
Plaintiffs seek to avoid the exhaustion doctrine, arguing the council lacked subject matter jurisdiction to make its December 5, 2006, decision and “such a fundamental defect . . . is not waived by delay or failure to object.” “[A]dministrative agencies have only such powers as have been conferred on them, expressly or by implication, by constitution or statute,” and “therefore, must act within the powers conferred . . . by law and may not validly act in excess of such powers. [Citations.]” (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103-104.) Consequently, “when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void. [Citations.]” (Id. at p. 104; City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400.) Thus, the requirement of an “exhaustion of administrative remedies may be excused when a party claims that ‘the agency lacks authority, statutory or otherwise, to resolve the underlying dispute between the parties.’ [Citations.]” (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., supra, 35 Cal.4th at pp. 1081-1082.)
Since the question of whether defendant acted without or in excess of its jurisdiction involves an interpretation of the city’s municipal code, it presents a question of law which we review de novo. (Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1354-1355; City and County of San Francisco v. Padilla, supra, 23 Cal.App.3d at p. 399.) We conclude plaintiffs’ argument is unpersuasive for two reasons.
First, the sections of the municipal code cited by the parties reflect the council, as the ultimate arbiter of land use decisions in the city, had jurisdiction over this matter in the fundamental sense. The mere fact it may have acted in excess of its jurisdiction would not preclude plaintiffs from compliance with the exhaustion requirement. “‘[I]n its ordinary usage the phrase “lack of jurisdiction”’” applies “more broadly ‘to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.]” (People v. National Auto. & Casualty Ins. Co. (2000) 82 Cal.App.4th 120, 125.) Because of this, while “subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel,” if “‘the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.’ [Citation.] ‘A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when “To hold otherwise would permit the parties to trifle with the courts.”’ [Citations.]” (Id. at pp. 125-126.)
Given plaintiffs’ requests the council invoke its statutorily authorized revocation authority and their active participation in both the initial hearing that led to that proceeding and in the revocation hearing itself, we conclude they are now estopped to contend the council lacked the power to act under that ordinance. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166 [“an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal”].)
Second, the council was “the authority which granted the approval[s]” at issue in this case (Laguna Beach Mun. Code, § 25.05.075, subd. (B)(1)). In June 2004, the council reinstated the original design review approval and building permit which had been previously invalidated by the city’s staff. The council also exercised jurisdiction over the modified design review approval by ordering it remanded to the board for further consideration on March 1, 2005 in response to plaintiffs’ appeal which sought revocation of all prior approvals for the project. As a consequence, the council had jurisdiction to conduct the revocation hearing.
Because of the foregoing, plaintiffs’ alternative claim that the council’s December 5, 2006 decision was tantamount to the enactment of an unauthorized new ordinance also lacks merit.
3. Plaintiffs’ Remaining Claims Concerning the December 5, 2006 Ruling
As noted, plaintiffs’ opening briefs suggest the council committed procedural errors by failing to afford them notice of its intent to modify the design plans for real parties’ proposed residence, usurping the authority of the board, not providing them with an opportunity to respond to the modified design, and failing to prepare findings supporting its decision.
Generally, a claim that an administrative agency failed to provide a fair hearing presents a question of law subject to de novo review. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169; Rosenblit v. Superior Court (1991) 231 Cal.App.3d 1434, 1444.) Issues concerning whether an agency proceeded in the manner provided by law, whether it made findings supporting the decision, and whether those findings are supported by the evidence are governed by an abuse of discretion standard. (Zuniga v. Los Angeles County Civil Service Com. (2006) 137 Cal.App.4th 1255, 1258; Harris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1364.)
Nonetheless, we conclude all of these contentions lack merit. The notice for the hearing that resulted in the modified design plans, cited Laguna Beach Municipal Code section 25.05.075 as the basis for the council’s action. As noted, that ordinance authorizes the council to either “revoke[] or modif[y]” “design review approval” or a “permit” where certain “findings can be made.” (Laguna Beach Mun. Code, § 25.05.075, subd. (B)(1).)
Plaintiffs’ claim they have not been afforded an adequate opportunity to present their contentions is also unavailing. The elevation plans on which the council made the modifications had already been through the design review process that included full participation by plaintiffs and others. Real parties’ attorney and their architect made comments on the record during the council’s discussion of the modification proposal and nothing suggests plaintiffs could not have spoke to this issue had they wanted to do so. Contrary to plaintiffs’ assertion, the December 5, 2006 decision requires defendant’s community development staff to review the modified plans for compliance in addition to the council’s subcommittee. The effect of the council’s modifications was to reduce its size, thereby benefitting plaintiffs’ equity claims about the view.
As for the lack of formal findings, the administrative record reflects the basis for the council’s exercise of its authority under municipal code section 24.05.075 and its decision to modify the design review approval rather than revoke it. “[W]e require the findings to ‘bridge the analytic gap between the raw evidence and ultimate decision or order.’ [Citation.] The findings need not be stated with the precision required in judicial proceedings. [Citation.] They may properly incorporate matters by reference and even omissions may sometimes be filled by such relevant references as are available in the record. [Citation.] ‘Thus, where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision it has long been recognized that the decision should be upheld if the agency “in truth found those facts which as a matter of law are essential to sustain its . . . [decision].” [Citations.]’ [Citation.] [¶] ‘In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.’ [Citation.]” (Craik v. County of Santa Cruz (2000) 81 Cal.App.4th 880, 884-885.) Such is the case here.
4. The Effect of the Council’s Decision on its Prior March 1, 2005 Ruling
Plaintiffs also attack the council’s finding at the December 2006 hearing that its decision to modify real parties’ project superseded its earlier March 1, 2005 decision remanding the design review application to the city’s board. They argue “[t]he propriety of the City Council’s March 1, 2005” ruling “was not one of the noticed issues to be decided . . . .” (Underscoring omitted.)
This argument lacks merit as well. As explained above, defendant’s revocation hearing notice declared the council would be considering “[t]he possible revocation of Design Review approval” for real parties’ project “[p]ursuant to Municipal Code Section 25.05.075 . . . .” (Bold omitted.) The council having decided to consider the question of whether to exercise its authority under section 25.05.075, and thereafter conducting a noticed hearing pursuant to that ordinance, all parties were on notice that if it found grounds to support revocation or modification of real parties’ design review approval, a necessary consequence of this decision would be the elimination of the prior rulings on this project, including its March 1, 2005 remand of the matter to the board.
5. Real Parties’ Appellate Arguments
In their brief, real parties assert two procedural claims. First, they argue the trial court erred in denying their claim the petition should be dismissed for failure to timely and properly serve them. Second, they contend plaintiffs’ efforts to have the council revoke the design review approval and building permit should have been denied on the ground it was barred by the applicable statute of limitations. In light of our conclusion plaintiffs have failed to establish any basis for relief on the merits, we decline to reach these questions.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: O’LEARY, J., FYBEL, J.