Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN048612, Lisa Guy-Schall, Judge.
AARON, J.
I.
INTRODUCTION
Plaintiff Samber, Inc. (Samber) appeals from an order of the trial court denying its petition for a writ of mandamus against respondent City of Oceanside (Oceanside or City of Oceanside). Samber sought a writ of mandamus ordering Oceanside to vacate a decision of the Oceanside City Council (City Council) denying Samber's application for a conditional use permit (CUP).
Samber contracted with Chevron to build and maintain a facility for the testing of fuel additives in taxicabs. The facility was to be located adjacent to a taxicab repair facility that Samber owns. Samber applied to the City of Oceanside Planning Department (Planning Department) for the CUP that would be required to lawfully develop the facility at that location. Oceanside's planning director and Planning Commission both approved the permit request. After the Planning Commission issued its decision, a member of the City Council attempted to initiate a "call for review" of the decision, pursuant to a provision of Oceanside's zoning ordinance. The City Council moved forward on the call for review and conducted a hearing to consider the permit request. The City Council ultimately overruled the decision of the Planning Commission, and denied the CUP.
Samber challenges the City Council's jurisdiction to reconsider the Planning Commission's decision, arguing that the call for review was not properly initiated under the provisions of the zoning ordinance. Samber also contends that the City Council improperly considered evidence at the review hearing concerning issues that had not been identified as grounds for the call for the review, thereby violating Samber's right to due process. Finally, Samber contends that there is not substantial evidence to support the City Council's decision to deny the CUP.
We conclude that no member of the City Council properly initiated a call for review as specified in the relevant zoning ordinance. As a result, the City Council lacked jurisdiction to review the Planning Commission's decision to grant the CUP. We therefore reverse the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Samber maintains an automobile servicing facility in Oceanside and operates a taxicab service in other municipalities in North San Diego County. Samber does not operate the taxicab service in Oceanside because its taxicab service does not have a franchise agreement with Oceanside.
Samber applied to Oceanside for a CUP to build and operate a commercial vehicle fueling facility on the property where its automobile servicing facility is located. The Oceanside Zoning Ordinance (OZO) sets forth the circumstances under which a CUP may be granted. At a public hearing on March 28, 2005, Planning Department staff recommended that the Planning Commission approve Samber's application for a CUP. After debate, the Planning Commission unanimously approved the request by a 6-0 vote.
Future section references are to the OZO unless otherwise indicated.
The OZO also sets forth the process by which the City Council may review a decision by the Planning Commission to grant or deny a CUP. Any citizen may appeal a Planning Commission decision to the City Council, or a member of the City Council may call a Planning Commission decision for review before the City Council. As we discuss in greater detail below, the OZO sets forth the time limits and other requirements for filing an appeal and for initiating a call for review.
On April 5, 2005, an aide to City Council member Jack Feller sent an e-mail to Michelle Skaggs-Lawrence, an assistant to Oceanside's city manager. The text of the e-mail included only the words, "Thank you! [¶] V." The subject line of the e-mail stated, "Councilmember Item for April 20 Council Meeting. . . ." The e-mail had an attachment that was identified as "Call for Review- Samber Fueling Facility.doc." The attachment appears to be a standard Oceanside form called "Oceanside Agenda Statement." Printed on the top of the form is the following: "Items will not be placed on the City Council agenda unless this form is submitted. One agenda statement must be completed for each item requiring placement on the agenda. . . ." On the portion of the form where the requestor is to write an "AGENDA ITEM DESCRIPTION . . .," is the statement, "Request by Councilmember Feller to call for review the Development Plan (D-11-04) and Conditional Use Permit (C-22-04) for the Samber Fueling Facility to be located at 502 Via Del Monte[.]" Neither the e-mail nor the attachment states any reason for calling the Planning Commission's decision for review. The e-mail was not sent to the City Clerk. A printed copy of the e-mail bears a file stamp marking it "RECEIVED" in the City Clerk's department on April 12, 2005, at 3:32 p.m.
On April 13, 2005, Councilmember Feller sent a memorandum to the City Clerk that states, "On April 5, 2005, I submitted a request for a Call for Review of the Samber Fueling Facility. The request was made because this group is not complying with their business license agreement of no storage of vehicles on site. [¶] Should you have additional questions, please let me know."
At a meeting on April 20, the City Council considered whether to review the Planning Commission's approval of Samber's CUP. A representative of RHL Designs Group, Inc. was present and spoke in favor of the project and against a review of the CUP. After some discussion, the City Council ultimately voted three-to-one (with one vacant seat) in favor of taking the matter under review at a future public hearing.
The parties do not explain the exact nature of the relationship between RHL Designs Group, Inc. and Samber in their briefing on appeal. RHL Designs Group, Inc. is listed as the applicant on the "Application for Planning Commission Hearing" regarding the proposed facility, and is identified as "Auth. Agent" under the heading "Status." The document does not identify for whom RHL Designs Group, Inc. was acting as an agent. However, in a document that appears to have been submitted along with the "Application for Planning Commission Hearing" entitled "Project Description/Justification," "Samber, Inc" is identified as the party "proposing to construct a fueling facility . . . ." Additionally, Samber states in its reply to Oceanside's opposition filed in the trial court that "Samber, Inc. hired Robert Abbot of RHL Design Group to prepare a multitude of forms and applications necessary to obtain a CUP. [Citations.] Thus, Mr. Abbot and RHL Design Group w[ere] Samber's agent[s]." On appeal, Oceanside has not challenged Samber's status as a beneficially interested party with standing to bring the petition. In view of the fact that the City Council relied in large part on Samber's involvement in the project as the basis for denying the CUP at issue, there is no reason for this court to independently consider this issue.
At a public hearing on August 17, 2005, the City Council considered the Planning Commission's decision. At the beginning of the hearing, the planning director described the project and stated that the "[p]ermits that are being approved today follow all the rules and regulations" except that Samber would have to separately apply to the City Council for a franchise permit in order to operate a taxicab operation from the site. According to the planning director:
The public hearing was originally scheduled for May 18, 2005, but Samber and/or RHL Designs twice requested that the hearing be continued.
"With the proposed clarifications [regarding any future taxicab operation and the prohibition on storing vehicles at the site], [planning department] staff believes that the issues raised by Council have been addressed. If the applicant chooses to have a dispatch operation, they will need to go through the approval process. The fueling facility and maintenance issues have been addressed. [¶] Staff recommends that the Council affirm the Planning Commission's actions with the clarifications as identified [regarding a full taxicab operation and storage of vehicles] and added as original conditions of approval."
A representative of RHL Designs Group, Inc. was present at the hearing and was joined by attorneys for Chevron and Coach Cab. Chevron's attorney noted that the proposed project was a fuel testing facility, not a taxicab operation, and stated that if Samber wished to change the operational purpose of the facility in the future, Samber would request approval for the new proposed operation from the City Council.
Samber is identified as being "associated with Coach Cab."
During the hearing, the City Council also heard from local residents who were opposed to the proposed CUP. Among other issues, residents raised questions about the sufficiency of the environmental review of the project, and the potential for people to be harmed as a result of any toxic substances in the fuel additives. Councilmember Feller indicated a concern "with Samber and Coach Cab continuing to try to do business in Oceanside without applying for a CUP or a franchise agreement in Oceanside," and noted that he "was frustrated with the company and was not satisfied."
In response, the planning director noted that "there is a good legal basis for granting this proposal. The project requires a CUP for the fuel. It does not require it for repair or maintenance." He went on to address the Councilmember's concern, stating, "If Coach Cab or Samber wishes to operate cabs in Oceanside, they will have to apply for approval." He noted, however, that "[t]he proposed project before Council this evening is simply for the approval of the fueling facility. This is a separate issue from operating Coach Cabs in Oceanside. If the City feels that there is something going on that is inappropriate or illegal [regarding the operation of a taxicab business], then it could be enforced by Code Enforcement." He also noted that, "[C]abs have the right to come into Oceanside for repair or maintenance without regulation. Why not give Oceanside the power to regulate the fueling with the attached 100+ conditions[?]" The City Council ultimately voted four-to-one to overturn the Planning Commission's decision and deny the CUP.
On March 1, 2006—approximately four months after Samber filed his original petition for writ of mandamus—the City Council adopted a resolution concerning the denial of the CUP, and identified the findings on which the City Council based its decision. The City Council found, among other things, that the proposed fuel site (1) would be inconsistent with the land use element of the General Plan and with Oceanside's Zoning Ordinance; (2) would be inconsistent with surrounding land uses; (3) would be incompatible with the public safety policy because the proposed use would encourage violations of Chapter 35 of the Oceanside City Code; (4) would be incompatible with the goals of the airport influence area; (5) would not provide a significant benefit to the community; and (6) would be detrimental to the health and safety of the community for a number of reasons.
The OZO requires that "[a]fter the hearing, the appellate body shall affirm, modify, or reverse the original decision. When a decision is modified or reversed, the appellate body shall state the specific reasons for the modification or reversal. Decisions on appeals or review shall be rendered by adoption of a resolution. . . . [T]he City Clerk shall mail notice of a City Council decision. Such notice shall be mailed within five working days after the date of the decision to the applicant, the appellant, and any other party requesting such notice." (§ 4605, subd. E.)
Samber filed a petition for writ of mandamus in November 2005, and amended the petition in April 2006. In his petition, Samber asserted that the City Council had failed to properly initiate a valid "call for review" of the Planning Commission's decision pursuant to the OZO, and that the Council therefore lacked jurisdiction to deny the CUP. According to Samber, the e-mail from an aide to Councilmember Feller to someone in the city manager's office did not satisfy the requirements for initiating a call for review under the OZO. After the parties fully briefed the issue, the trial court issued a tentative ruling on November 22, 2006, denying the petition. The trial court held a hearing on November 27. After hearing argument from the attorneys and again considering the evidence, the court affirmed its tentative ruling to deny Samber's writ petition. Samber did not request a separate statement of decision. Judgment was entered on December 12, 2006. Samber filed a timely notice of appeal on January 11, 2007.
Samber has filed an unopposed motion to augment the record with a copy of the trial court's tentative ruling. We grant the motion and consider the tentative ruling of the trial court.
III.
DISCUSSION
Samber makes three arguments as to why the trial court should have granted its petition for a writ of mandamus to require Oceanside to approve the CUP. Samber first contends that the City Council's decision to deny the CUP is void because the "call for review" did not meet the requirements set forth in the OZO, and the City Council thus did not possess jurisdiction to review the decision of the Planning Commission. Samber next contends that the City Council improperly considered evidence at the review hearing concerning issues that were not identified as grounds for calling for the review in the first place, thereby violating Samber's right to due process. Finally, Samber claims that there is not substantial evidence to support the City Council's decision. We conclude that the City Council failed to meet the clear requirements set forth in the OZO for initiating a call for review, and that the City Council therefore lacked jurisdiction to review the Planning Commission's decision to grant the CUP. Because we conclude that the City Council did not have jurisdiction to review the decision of the Planning Commission, we need not consider Samber's alternative arguments.
A. Standards of review
Code of Civil Procedure section 1094.5 provides for judicial review of administrative orders or decisions. Subdivision (b) of that section states, "The inquiry in such a case shall extend 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." Appellate courts reviewing the administrative agency action apply the same standards that the trial court applies. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 334-335.)
Because we decide this matter on the issue of the City Council's jurisdiction under the terms of the OZO, we review the matter de novo, and give no deference to the trial court's interpretation of the OZO. (See An Independent Home Support Service, Inc. v. Superior Court (2006) 145 Cal.App.4th 1418, 1424 [when construing a statutory scheme, appellate court accords no deference to trial court's determination].)
Samber also raises questions regarding the sufficiency of the evidence to support the City Council's decision to deny the CUP, which would require a different standard of review with regard to the City Council. However, we need not apply another standard of review because we do not reach the issue of the sufficiency of the evidence to support the decision.
B. The City Council was without jurisdiction to review the Planning Commission's decision because there was no valid "call for review"
The City Council's authority to review and consider decisions regarding CUPs derives from the OZO. Samber contends that the City Council acted without jurisdiction when it rendered a decision in this matter because Samber maintains that no member of the City Council initiated a valid call for review before the Planning Commission's decision became effective. Oceanside counters that any time period set forth in the OZO within which the City Council must act is "discretionary," not "mandatory," and that the City Council thus had jurisdiction to review and overturn the Planning Commission's decision, even if the call for review was neither timely nor properly initiated. In making this assertion, Oceanside misinterprets both the unambiguous terms of its own ordinance as well as relevant case law related to this matter.
1. Principles of statutory construction
In considering the meaning of the provisions of the OZO pertaining to calls for review, we apply the ordinary rules applicable to the interpretation of statutes. (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 502 ["the rules of statutory construction applicable to statutes are also applicable to local ordinances"].) "In construing any statute, '[w]ell-established rules of statutory construction require us to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.' [Citation.] 'We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context.' [Citation.] If the statutory language is unambiguous, 'we presume the [enacting body] meant what it said, and the plain meaning of the statute governs.' [Citation.]" (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485.)
2. The relevant regulatory scheme
Article 41 of the OZO sets forth the process by which an applicant may apply for and receive a use permit or variance. "Use permits are required for use classifications typically having unusual site development features or operating characteristics requiring special consideration so that they may be designed, located, and operated compatibly with uses on adjoining properties and in the surrounding area." (§ 4101.) "Variances are intended to resolve practical difficulties or unnecessary physical hardships that may result from the size, shape, or dimensions of a site or the location of existing structures thereon; from geographic, topographic, or other physical conditions on the site or in the immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of the site." (Ibid.)
Section 4102 grants the authority for making decisions regarding use permit or variance applications to a variety of different individuals and governing bodies. The broadest authority is granted to the Planning Commission, which "shall approve, conditionally approve, or disapprove applications for use permits or variances which are consistent with the General Plan subject to the general purposes of this ordinance, the specific purposes of the base or overlay zoning district in which a development site is located, and the provisions of this article, unless authority for a decision on a use permit is specifically assigned to the planning director in the individual articles of this ordinance."
The Planning Commission is thus designated as the decision-making body for most use permits and variances. One exception to this general rule is for permits or variances that are sought in "designated redevelopment areas." These are to be granted or denied by "the Community Development Commission (acting as the Planning Commission for the designated redevelopment area). There is another exception for permits or variances that are sought "[w]ithin the Oceanside Small Craft Harbor." These are to be granted or denied by the "Harbor Board of Directors." (§ 1402.) Additionally, the "City Council shall have final decision-making authority" "[f]or use permits involving condominium conversions of five units or more, mobile home park conversions, and regulated uses not within a redevelopment area or the Harbor . . . ." (Ibid.) Article 36 of the OZO identifies "regulated uses" as "adult-oriented uses." Thus, under the regulatory scheme that Oceanside has created, unless a use permit or variance falls within one of the identified exceptions, the Planning Commission is the body that possesses jurisdiction to approve, conditionally approve, or disapprove a permit or variance.
Although Article 36 of the OZO is not included in the Administrative Record, we take judicial notice of that portion of the OZO pursuant to Evidence Code section 452, subdivision (b), which provides that judicial notice may be taken of "Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States."
Article 46 of the OZO provides the process by which a citizen or member of the City Council may seek review of a planning decision made by the planning director, the Planning Commission, or the redevelopment director. When a request for review of a planning decision is made by the applicant or by an interested party, that request is called an "appeal." When the request for review of a planning decision is made by a member of the City Council, the request is identified in the OZO as a "call for review." Section 4601, entitled "Purpose and Authorization for Appeals and Calls for Review" provides:
"A. Appeals. To avoid results inconsistent with the purposes of this ordinance, decisions of the Planning Director may be appealed to the Planning Commission, and decisions of the Planning Commission may be appealed to the City Council. Decisions of the Redevelopment Director may be appealed to the Community Development Commission.
B. Calls for Review. As an additional safeguard to avoid results inconsistent with the purposes of this ordinance, decisions of the Planning Commission may be called up for review by the City Council."
The remaining sections of article 46 outline the details as to how to bring an appeal or call for review, as well as the process the reviewing body must follow. Section 4602 establishes that the right to appeal any particular decision is to be found "in the individual articles of this ordinance authorizing each decision that is subject to appeal."
Section 4603 is entitled "Time Limits for Appeals and Calls for Review." Subdivisions A and B of section 4603 deal with appeals by applicants (subdivision A) and interested parties (subdivision B). Both subdivisions provide that proper appeals by applicants and/or interested parties "shall be initiated within 10 days of the decision," except in the case of the denial of a time extension application for a Tentative Map, which must be appealed within 15 days of the denial. (§ 4603, subds. A, B.)
Subdivision D of section 4603 specifically relates to calls for review. That subdivision provides, "Calls for review of decisions shall be initiated prior to the end of the appeal periods prescribed by Subsections (A), (B), and (C), which is the effective date of the decision to be reviewed."
Section 4604 is entitled "Initiation of Appeals and Calls for Review." Subdivision A of section 4604 outlines the processes by which an appeal is to be initiated:
"A. Filing of Appeals. An appeal of a Planning Director decision shall be filed in writing with the Planning Department and shall be accompanied by the required fees. In filing an appeal, the appellant shall specifically state the reasons or justification for an appeal.
"An appeal of a Redevelopment Director decision shall be filed in writing with the City Clerk and shall be accompanied by the required fees. In filing an appeal, the appellant shall specifically state the reasons or justification for an appeal.
"An appeal of a Planning Commission decision shall be filed in writing with the City Clerk and shall be accompanied by the required fees. In filing an appeal, the appellant shall specifically state the reasons or justification for an appeal.
"In all cases, the reasons or justifications given by the appellant shall form the basis on which the appeal hearing before the appropriate appellate body shall focus. Issues not raised by the appellant in the written appeal cannot be considered in the appeal hearing.
"The requirement of a fee for an appeal shall be waived for the following circumstances: . . . ."
Subdivision B of section 4604 provides the analogous requirements for "initiating" a call for review:
"B. Calls for Review. A call for review shall be filed by a member of the City Council with the City Clerk stating the reasons for such review, prior to the effective date of the decision to be reviewed. No fee shall be required." (Italics added.)
A combined reading of Articles 41 and 46 of the OZO makes clear that the effective date of a planning decision is 10 days after the decision is issued, and that any appeal or call for review must be initiated before the end of that 10-day period. Section 4107 of Article 41 provides:
"Effective Date. Use permits administratively approved by the Planning Director shall become effective on the date of the Planning Director's administrative decision, unless appealed to the Planning Commission, as provided for in this article. Use permits and variances approved by the Planning Commission shall become effective on the date of adoption of the Planning Commission resolution, unless appealed, as provided for in Article 46."
This provision thus establishes that a CUP that has been approved by the Planning Commission becomes effective on the date of the Planning Commission's adoption of a resolution unless the decision is appealed. Since an appeal must be filed with 10 days of the Planning Commission's decision pursuant to section 4603, if no appeal is filed within those 10 days, the Planning Commission's decision becomes effective. Thus, in order to be properly "initiated" pursuant to section 4604, subdivision B, a call for review—including a statement of reasons for the review—must be filed with the City Clerk before the end of the 10-day appeal period.
Section 4605, entitled, "Procedures for Appeals and Calls for Review," provides the specific process that must be followed when an appealable planning decision has been appealed and/or called for review:
"A. Appeal Hearing Date. An appeal shall be scheduled for a hearing before the appellate body within 30 days of the City's receipt of an appeal unless otherwise specified by State Law. [¶] Subsequent to the filing of a call for review of a Planning Commission decision, the item shall be scheduled for a City Council meeting, where the City Council shall consider whether the decision should be formally reviewed. If the City Council decides, by a majority vote, to formally review the decision, a public hearing of the City Council shall be scheduled to formally consider the Planning Commission's decision.
"B. Notice and Public Hearing. An appeal or review hearing shall be a public hearing if the decision being appealed or reviewed required a public hearing. Notice of public hearings shall be given in the manner required for the decision being appealed.
"C. Plans and Materials. At an appeal or review hearing, the appellate body shall consider only the same application, plans, and related project materials that were the subject of the original decision and only the issue(s) raised by the appeal or the call for review. Compliance with this provision shall be verified prior to or during the hearing by the Planning Director.
"D. Hearing. At the hearing, the appellate body shall review the record of the decision and hear testimony of the appellant, the applicant, and any other interested party.
"E. Decision and Notice. After the hearing, the appellate body shall affirm, modify, or reverse the original decision. When a decision is modified or reversed, the appellate body shall state the specific reasons for modification or reversal. Decisions on appeals or review shall be rendered by adoption of a resolution. The Planning Director shall mail notice of a Planning Commission decision and the City Clerk shall mail notice of a City Council decision. Such notice shall be mailed within five (5) working days after the date of the decision to the applicant, the appellant, and any other party requesting such notice."
3. The City Council did not acquire the authority to review a Planning Commission decision because no member "initiated" a call for review as required by the ordinance
Administrative agencies "have only such powers as have been conferred on them, expressly or by implication, by constitution or statute." (Ferdig v. State Personnel Bd. (1969) 71 Cal.2d 96, 103 (Ferdig); U.S. Fidelity & Guaranty Co. v. Superior Court (1931) 214 Cal. 468, 471.) "An administrative agency, therefore, must act within the powers conferred upon it by law and may not validly act in excess of such powers. [Citations.]" (Ferdig, supra, at p. 104.) Accordingly, it is well settled that "when an administrative agency acts in excess of, or in violation, of the powers conferred upon it, its action thus taken is void." (Ibid.)
A decision to grant or deny a "use" permit or "variance" permit is an administrative or quasi-judicial act, rather than a legislative action. (See Horn v. County of Ventura (1979) 24 Cal.3d 605, 614; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 73-74 [board of supervisors acts in an administrative capacity when granting a permit under a zoning ordinance], disapproved on other grounds in Bailey v. County of Los Angeles (1956) 46 Cal.2d 132, 139; Wheeler v. Gregg (1949) 90 Cal.App.2d 348, 362-363; Essick v. City of Los Angeles (1950) 34 Cal.2d 614.) Thus, when acting in an administrative or quasi-judicial manner, a City Council should have "only such powers as have been conferred" on it by statute, or as here, by ordinance.
Under the OZO, the City Council does not have final decision-making authority as a matter of right for most use permit and variance decisions. Rather, the OZO grants the City Council what can be termed "appellate review authority" when certain requirements are met. That authority is triggered when an appeal or a call for review is initiated within the required time period set forth in section 4603. If no appeal or call for review is initiated within that time period, the decision of the Planning Commission becomes effective and the City Council is thereafter without power to call that decision for review.
As the ordinance makes clear, in order for an appeal or call for review to be properly initiated, the individual seeking review must meet certain procedural requirements─requirements that are not dissimilar to those a litigant must fulfill in order to properly appeal a judicial decision. For example, in order to initiate an appeal of a Planning Commission decision, an individual must (a) file the appeal "in writing," (b) file it "with the City Clerk," (c) pay "required fees," (d) "specifically state the reasons or justification for an appeal," and (e) file within the given appeal period. (§§ 4604, subd. A, 4603, subds. A and B.) Similarly, in order to initiate a call for review, the call must (a) "be filed by a member of the City Council," (b) be filed "with the City Clerk," (c) "stat[e] the reasons for such review," and (d) be filed "prior to the effective date of the decision to be reviewed." (§ 4603, subd. B.)
Oceanside contends that although the OZO "states that a call for review must be initiated within 10 days of the Planning Commission decision," "[i]t does not state that the grounds must be stated with the 10 days and it does not provide a penalty for failure to comply." On the contrary, the OZO does require that the grounds be stated within the 10-day period. When read together, sections 4603, subdivision C and 4604, subdivision B establish that a valid call for review is to be initiated within the 10-day period, and that a call for review is initiated when the call for review ─ which is to include a statement of the reasons for calling the decision for review ─ is filed with the city clerk. Considered together, these provisions require that a statement of reasons be included in the documents that are filed with the city clerk prior to the end of the 10-day period.
Although it appears that Councilmember Feller attempted to call the Samber matter for review within the 10-day period, his initial attempt failed to meet a number of the requirements set forth in the OZO. The only document that was created and sent from Councilmember Feller's office to any other Oceanside office prior to the April 7, 2005 deadline was the April 5 e-mail sent from an aide to Councilmember Feller to an individual in the city manager's office. The e-mail was not filed with the city clerk prior to April 7. Nor did the e-mail provide any reason for calling the matter for review. Additionally, although the e-mail is identified as being from someone in Councilmember Feller's office, one cannot conclude, based on the e-mail, that Councilmember Feller initiated the call for review, because there is no indication that he approved the e-mail. It was only after the clerk received a copy of the e-mail on April 12 that Councilmember Feller created a document that appears to meet the requirements of section 4604, subdivision B.
In a memorandum dated April 13, 2005 from Councilmember Feller to the city clerk, Councilmember Feller identifies his reason for wanting to call the Samber matter for review: "The request was made because this group is not complying with their business license agreement of no storage of vehicles on site." Councilmember Feller's handwritten initials appear next to his name on the memorandum. However, this document does not bear any file stamp from the City Clerk's office establishing that it was filed with the City Clerk. If Councilmember Feller had filed this document with the City Clerk prior to the April 7, 2005 deadline, it is possible that the City Council would have acquired jurisdiction to review the Planning Commission's decision. As the record stands, however, nothing was filed with the City Clerk prior to the April 7 deadline.
At the hearing before the trial court, counsel for Oceanside acknowledged that the purported call for review was deficient:
"And I would just add, which was not in our brief, that when this issue first came up in April of 2005, because our office was asked to weigh in on this at the beginning because the council member's aide had not sent it to the clerk, I mean, that's in the record. She sent it to the City Planner's office, which those are the people that create the agenda. The City Manager puts it on the agenda. They were supposed to forward it to the clerk. The clerk came to us and said, 'If I didn't get this by April 7th, can I still accept and file it?' What we did at that time was a thoughtful Edward[s] versus Steele analysis."
Although counsel first described the e-mail as having been sent to the "City Planner's office," and then later referred to the city manager, it appears that the e-mail was sent to someone in the city manager's office. Regardless, neither office is the Office of the City Clerk, which is where the call for review is required to be filed pursuant to the OZO. (§ 4604, subd. B.)
On appeal, Oceanside again cites the Supreme Court's holding in Edwards v. Steele (1979) 25 Cal.3d 406 (Edwards), as support for its contention that the City Council somehow "maintained jurisdiction" to belatedly file an adequate call for review. In so doing, Oceanside confuses the ability to initiate a review of a planning decision with the authority to actually undertake the review of the planning decision. Edwards relates to the latter, not the former.
Relying on Edwards, Oceanside contends that this court should interpret the word "shall" as used in section 4603 (i.e., "Calls for review of decisions shall be initiated prior to the end of the appeal period . . . " [italics added]) as "directory" rather than "mandatory." We disagree.
In Edwards, the appellant sought a writ of mandate ordering the zoning administrator of San Francisco to issue a building permit in conformance with a decision of the board of permit appeals, "which had granted plaintiff a variance permit." (Edwards, supra, 25 Cal.3d at p. 408.) The zoning administrator had refused to issue the permit, challenging the board's jurisdiction to grant the variance. The Supreme Court identified the jurisdictional question as follows:
"The jurisdictional issue involves the meaning and effect of a provision of the San Francisco Municipal Code (pt. III, art. I, § 8) which (prior to an amendment in 1979) in pertinent part provided that: 'On the filing of any appeal, the Board of Permit Appeals . . . shall fix the time and place of hearing, which shall be not less than five (5) nor more than fifteen (15) days after the filing of said appeal, and shall act thereon not later than forty (40) days after such filing.' In the present case, the board failed to comply with either the 15-day or the 40-day requirements, and the Court of Appeal, concluding that these time requirements are 'mandatory and jurisdictional,' held that the board's noncompliance therewith rendered its decision void. . . . [¶] Reduced to its essentials, the issue before us is whether the 15-day and the 40-day provisions are to be deemed 'directory' or 'mandatory.'" (Edwards, supra, 25 Cal.3d at p. 409.)
In deciding the matter, the Supreme Court noted, "As we recently explained, ' . . . the "directory" or "mandatory" designation does not refer to whether a particular statutory requirement is "permissive" or "obligatory," but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates. [Citations.]' [Citation.]" (Edwards, supra, 25 Cal.3d at pp. 409-410.) "If the failure to comply with a particular procedural step does not invalidate the action ultimately taken, as determined by applying certain tests discussed below, the procedural requirement is referred to as 'directory.' If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed 'mandatory.' [Citation.]" (Id. at p. 410.)
"[T]here is no simple, mechanical test for determining whether a provision should be given 'directory' or 'mandatory' effect. 'In order to determine whether a particular statutory provision . . . is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. . . . [T]he intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]. . . .'" (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910.) "In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citations.] Other cases have suggested that a time limitation is deemed merely directory 'unless a consequence or penalty is provided for failure to do the act within the time commanded.' [Citations.]" (Edwards, supra, 25 Cal.3d at p. 410.)
In Edwards, the court determined that under application of either general test, the 15 days within which the Board was to set a hearing and the 40 days within which the Board was to act on an appeal were intended to have a directory effect. "The probable intent underlying the ordinance was to assure to the aggrieved party a reasonably timely hearing of, and decision on, his administrative appeal. To hold that the provisions are mandatory and jurisdictional under the circumstances of the present case would seemingly defeat the foregoing purpose by depriving the aggrieved party of his appeal through no fault of his own. Moreover, no 'consequence or penalty' for noncompliance with the time limitations is contained in the ordinance, and nothing in the language thereof suggests an intent to nullify a timely filed appeal solely because the board has delayed in acting thereon." (Edwards, supra, 25 Cal.3d at p. 410.)
Of particular significance in Edwards was the fact that the person who was seeking to appeal the planning decision had met all of the requirements for appealing that decision; it was the decision-making body that failed to act on the valid appeal within the time limit provided in the ordinance. The Edwards court noted, "In the present case, the record is uncontradicted that on May 7 plaintiff filed a timely administrative appeal with the board, yet the board unilaterally set the hearing date for May 26, more than 15 days from the filing date." (Edwards, supra, 25 Cal.3d at pp. 412-413, italics added.)
In describing the purported application of Edwards to the present case during argument before the trial court, counsel for Oceanside identified the very reason why the "mandatory" versus "directory" analysis in Edwards is inapplicable to the situation here. Counsel stated:
"[W]hat happened in Edwards, the court said, 'Look, the person who wanted to appeal it complied with everything they needed to do.' They – they did their appeal. It was the agency itself that didn't hold the hearing within their time limitations." (Italics added.)
Unlike the innocent party in Edwards who properly initiated an appeal, the "person who wanted to appeal," i.e., Councilmember Feller, did not properly or timely initiate a call for review in the manner required under the OZO. Specifically, Councilmember Feller failed to file a call for review "with the City Clerk stating the reasons for such review, prior to the effective date of the decision to be reviewed." Because no call for review stating the reasons for the review was filed with the City Clerk within 10 days of the Planning Commission's decision, that decision became effective upon the termination of the appeal period.
Oceanside's apparent confusion regarding the application of the principles discussed in Edwards derives from the scheme Oceanside has created for appealing land use permits and variances. Under the OZO, City Council members may have two different roles to play. On the one hand, the City Council acts as the reviewing body when the review process has been initiated. However, before the City Council may act as a reviewing body, either some individual or a City Council member must request that the City Council review the decision. The discussion in Edwards concerning "mandatory" and "directory" time limits and how they apply to an agency's jurisdiction over an appeal relates to the City Council's role as the reviewing body that has been asked to render a decision on a validly initiated appeal, not to its role as the party seeking review. (See Koehn v. State Board of Equalization (1958) 166 Cal.App.2d 109, 119, quoting 2 California Jurisprudence 2d p. 180, § 94 ["'Statutory provisions providing that a decision shall be rendered within a defined period after hearing are generally construed to be directory only, and failure to reach a final determination within the prescribed period does not deprive the agency of jurisdiction'" (italics added)].)
To further demonstrate this point, there is a provision in the OZO that is similar to the ordinance provision at issue in Edwards. Like the relevant municipal law in Edwards, the OZO provides that once a valid appeal has been initiated, the City Council is to act within a certain time period:
"Appeal Hearing Date. An appeal filed by an applicant or interested party shall be scheduled for a hearing before the appellate body within 30 days of the City's receipt of an appeal unless otherwise specified by State Law." (§ 4605, subd. A.)
This 30-ay period that begins when the Clerk receives an appeal is the same type of time limitation that was at issue in Edwards. As in Edwards, the OZO provides no consequence if the City Council—acting as a reviewing body—fails to schedule a hearing with the required 30 days. It is apparent that this time frame, like the one in Edwards, is more a matter of convenience than a jurisdictional time limitation. Thus, under this particular provision, the City Council would retain jurisdiction that it had already properly acquired by way of an appeal or call for review, even if the City Council failed to schedule or hold a hearing on the matter within 30 days of the Clerk's receipt of the review-triggering item. This is very different from permitting the City Council to acquire jurisdiction to review a decision after the express time limit for filing an appeal or a call for review has passed where, as here, the ordinance provides that the Planning Commission's decision becomes final upon passage of the time for appeal.
However, even if we were to apply the general test outlined in Edwards to the Councilmember's untimely call for review, we would be compelled to reach a different result from the one the Edwards court reached. Contrary to Oceanside's assertion in its brief, the municipal scheme in this case does provide a consequence for the failure to initiate an appeal or a call for review within the time limits provided. Specifically, the OZO provides that a decision of the Planning Commission becomes final and effective at the end of the appeal period if no appeal is taken. Thus, if no appeal or call for review is filed within the 10-day period established for appeals of permit decisions like the one at issue here, the Planning Commission's decision becomes effective and is no longer reviewable. The need to appeal or seek review within the relevant time periods is thus mandatory, and the failure to do so deprives the City Council of jurisdiction over the matter.
Holding that the 10-day time period is mandatory does not defeat the purpose of the enactment. There is no requirement in the OZO that the City Council review every Planning Commission decision concerning permits and variances. Rather, City Council members are given the opportunity to seek review of another agency's decision, if they so desire. (See § 4601, subd. B ["decisions of the Planning Commission may be called up for review by the City Council" (italics added)].) Under the OZO, the authority given to City Council members to call a matter for review is no different in scope from the right to appeal that is granted to applicants or other interested parties. All of these parties are allowed the same amount of time within which to initiate review. Unlike the situation in Edwards, where the contested action by the administrative body was one that was required of that administrative body as a result of a triggering event (i.e., the filing of an appeal), the contested action here is not required of any member of the City Council; the City Council has no duty to ask to review any particular Planning Commission decision. Therefore, it would not defeat the purpose of the ordinance to hold City Council members to the express time limits provided for in the ordinance. In fact, the failure to do so would defeat the purpose of establishing reasonable time limits for the appeals process. Such time limits provide applicants with the assurance that they can safely move forward on a permit or variance that has been granted by the Planning Commission.
It is thus clear that the failure of the Board in Edwards to timely act on the appeal in that case is not analogous to the City Council members' failure to initiate a call for review in this case. The case of Franklin v. Steel (1982) 131 Cal.App.3d 558 (Franklin) provides more apt authority for the situation before us. In Franklin, the zoning administrator for the City of San Francisco appealed from the issuance of a peremptory writ of mandate ordering that he issue the respondent a variance in accordance with a decision of the San Francisco Board of Permit Appeals. As in the present case, a local ordinance gave San Francisco's Board of Permit Appeals the authority to hear appeals from the grant or denial of variances by the zoning administrator. The ordinance at issue imposed a similar 10-day time limit for the filing of such appeals, also using the term "shall": "As to the time requirements for the filing of the appeal the section further provides: 'Notice of appeal. Any appeal under this Section shall be taken by filing written notice of appeal with the Board of Permit Appeals within ten (10) days after the date of the written variance decision or other written determination of the Zoning Administrator.'" (Franklin, supra, 131 Cal.App.3d at p. 561.)
The respondent in Franklin, who was the applicant for a variance, had designated another individual to act as her agent in the filing of the application. (Franklin, supra, 131 Cal.App.3d at p. 560.) The application was denied by letter dated June 3, 1977. (Ibid.) The board held a hearing on Franklin's appeal, during which Franklin informed the board that at some point before the variance application was denied, she had discharged the agent, and that she did not receive the letter that had been sent to her agent denying the variance. However, she had "become aware of the zoning administrator's action from affected neighbors who had received notice." (Id. at p. 561.) Franklin wrote a letter to the zoning administrator seeking a 30-day extension of her time to appeal, which the administrator received on June 13, the final day of the appeal period. On June 20, the administrator advised Franklin that the time for appeal had passed. Franklin nevertheless filed her notice of appeal with the board on June 24, 1977. (Ibid.)
At a hearing, the board "voted to assume jurisdiction." The board president stated, "'We voted that the failure to file within ten days is excusable . . . .'" (Franklin, supra, 131 Cal.App.3d at p. 561.) The appellate court in Franklin took issue with the board's assumption of jurisdiction over the appeal: "Although the board had jurisdiction to determine its jurisdiction, that is, whether the notice of appeal was timely filed, it is clear that there was no evidence before the board to support its finding that Franklin's failure to file within the 10 days was excusable. . . . In this case . . . we are concerned with a municipal ordinance provision fixing by mandatory language the time within which appeals must be filed to the board. The board simply is without any jurisdiction to extend the time for appeal. In fact the board in its assumption of jurisdiction in the instant case did not purport to extend the time, but merely found in effect that the time for appeal had not commenced to run against Franklin because of failure to notify her personally." (Franklin, supra, 131 Cal.App.3d at p. 562.)
Oceanside attempts to avoid the reach of Franklin in two ways. Oceanside first suggests that Franklin stands for something other than "the proposition that the City Council lacked jurisdiction to hear the appeal." According to Oceanside, Franklin stands only for the proposition "that a governing Board can be found to have acted in excess of its jurisdiction where it renders a decision without proper findings and evidentiary support on the record." In our view, this is not a fair reading of the holding in Franklin. The Franklin court clearly stated, "We conclude, therefore, that the board was without jurisdiction to hear Franklin's appeal and that there is no evidentiary support for the trial court's conclusion that the board had authority to accept jurisdiction over the appeal." (Franklin, supra, 131 Cal.App.3d 563.) It is thus clear that the Franklin court determined that the board was without jurisdiction to hear the late-filed appeal pursuant to an ordinance that set the appeal period in a manner virtually identical to the manner in which the OZO sets its appeal period.
Oceanside also attempts to avoid the consequences of the holding of Franklin by asserting that a provision of the Oceanside Code of Ordinances (OCO) acts as a "savings clause" to ensure that the City Council retains jurisdiction in the event of a procedural failing. This argument is disingenuous. The provision on which Oceanside relies is contained in section 2.1.59 of Article 1, Chapter 2 of the OCO. Chapter 2, Article 1 of the OCO provides for the administration of City Council meetings. The provision in question states in relevant part:
"The failure to strictly observe the procedural provisions of this article shall not affect the jurisdiction of the council or invalidate any action taken at a meeting that is otherwise held in conformity with law so long as the requisite number of council members have agreed to the particular action. To the extent that this article establishes requirements that are more restrictive than the Ralph M. Brown Act, or other provisions of state statute applicable to meetings of the city council, the provisions of this article shall prevail." (OCO, § 2.1.59, subd. (a).)
This so-called "savings clause" has no relevance to the issues before us. By its own terms, this provision is limited in its application and scope. The ordinance very clearly states that any "failure to strictly observe the procedural provisions of this article" (italics added) does not affect the City Council's jurisdiction. The words "this article" refer to article 2 of the OCO, which sets out the procedures to be followed at City Council meetings. The issue in this case does not involve the manner in which the City Council conducted any of its meetings. Rather, at issue here is the failure of a member of the City Council to properly initiate a call for review within the 10-day time period provided by the OZO. The City Council does not acquire jurisdiction to review a Planning Commission decision simply by holding a meeting in accordance with the OCO. If the City Council did not have original jurisdiction to consider the issue at a meeting in the first place, adherence to proper meeting procedure cannot confer upon the City Council the requisite jurisdiction. Oceanside's "savings clause" argument is wholly without merit.
Ultimately, our conclusion that the Oceanside City Council's denial of Samber's application for a CUP must be reversed is compelled by the language of the ordinance the City of Oceanside has enacted. Oceanside could have created a process by which the City Council would have more time within which to initiate a call for review, or a process by which an e-mail sent by a member of the City Council to any member of the city manager's office or the city clerk's office would be sufficient to initiate a call for review. However, Oceanside has not done so.
Rather, Oceanside has enacted reasonable procedural requirements for applicants, citizens, and members of its own City Council to follow if they desire a review of a decision of the Planning Commission. The requirements are very similar to those in other jurisdictions. It makes sense to set a reasonable time limit on requests for review of a decision, and it also makes sense to require that such requests be filed with the City Clerk's office ─ an office that deals with the official filing and recording of a variety of city documents. If the City of Oceanside or the City Council wishes to modify the process for handling the issuance of CUPs, or wishes to expand the City Council's ability to review a Planning Commission decision, they have the means to do so. This court will not create that process through judicial interpretation. Our role is to interpret statutes and ordinances, not amend them.
C. Oceanside's alternative argument that the petition was properly denied on the ground that Samber failed to exhaust administrative remedies is without merit
Oceanside argues that an alternative ground for denying Samber's petition for a writ of administrative mandamus is that Samber "failed to exhaust its administrative remedies" by not raising a jurisdictional objection in the proceedings before the City Council. This argument is unpersuasive, for a number of reasons.
We agree with Oceanside that, "[i]n general, a party must exhaust administrative remedies before resorting to the courts. [Citations.]" (Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Board (2005) 35 Cal.4th 1072, 1080 (Coachella).) However, what this means for Samber's petition is more complex than Oceanside acknowledges. "Under th[e] rule [of exhaustion of administrative remedies], an administrative remedy is exhausted . . . upon 'termination of all available, nonduplicative administrative review procedures.' [Citations.]" (Ibid.) In this situation, there is no question that there has been a termination of all nonduplicative administrative review procedures available to Samber. The "administrative" action is complete and there is no further review that Samber can seek. Thus, the doctrine of exhaustion of administrative remedies is inapplicable.
However, the issue Oceanside raises—i.e., Samber's failure to object to the jurisdiction of the City Council during the administrative proceedings—involves what has been described as the requirement of "'full presentation.'" (1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2003) Laying the Foundation at the Administrative Hearing, § 3.49, p. 82 (Administrative Mandamus).) "The requirement that a litigant present his or her arguments and evidence fully at the administrative hearing level is analogous to the doctrine of exhaustion of administrative remedies, though it is based on different policies." (Ibid.) Thus, the failure to raise some defenses, objections, or challenges at the time of the administrative hearing may constitute a waiver of those issues. (Administrative Mandamus, supra, §§ 3.50-3.64 at pp. 82-92.) However, just as one may raise a jurisdictional challenge at any time in the context of direct appeals in judicial matters, so too may a challenge to an administrative agency's subject matter jurisdiction be raised for the first time in an administrative mandamus action, or even in a collateral action. (See Troy Gold Industries v. Occupational Safety & Health Appeals Bd. (1986) 187 Cal.App.3d 379, 385, fn. 3 [failure of party to raise jurisdictional question during administrative hearing did not preclude court from considering the issue]; City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400-401 [permitting "collateral attack" on subject matter jurisdiction of board of permit appeals]; see generally Administrative Mandamus, supra, § 3.74, p. 97.)
Although identified in a number of cases as an issue of "waiver," it is more properly considered to be a "forfeiture." "[T]he terms 'waiver' and 'forfeiture' long have been used interchangeably. As the United States Supreme Court has explained, however, 'waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]'" (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9, quoting United States v. Olano (1993) 507 U.S. 725, 733.)
Even if we were to consider Samber's failure to raise the jurisdictional argument in the proceedings before the City Council as a failure to exhaust administrative remedies, as Oceanside suggests, there is nevertheless an exception to the exhaustion rule "when a party claims that 'the agency lacks authority, statutory or otherwise, to resolve the underlying dispute between the parties.'" (Coachella, supra, 35 Cal.4th at pp. 1081-1082.) "'[T]he doctrine of exhaustion of administrative remedies has not hardened into inflexible dogma. It contains its own exceptions, as when the subject of the controversy lies outside the administrative agency's jurisdiction . . . .'" (In re Hudson (2006) 143 Cal.App.4th 1, 7, citations omitted.)
"In deciding whether to entertain a claim that an agency lacks jurisdiction before the agency proceedings have run their course, a court considers three factors: the injury or burden that exhaustion will impose, the strength of the legal argument that the agency lacks jurisdiction, and the extent to which administrative expertise may aid in resolving the jurisdictional issue. [Citation.]" (Coachella, supra, 35 Cal.4th at p. 1082.) Here, although the first fact is irrelevant because, as we noted earlier, there are no further proceedings available to Samber, the second two factors weigh in favor of entertaining the question by way of administrative mandamus. As we have already determined, Samber has a strong argument that the City Council lacked jurisdiction to review the CUP. Further, the parties do not dispute the relevant facts, and there is no reason to believe that the City Council possesses any particularized expertise in interpreting ordinances that would aid this court in resolving the jurisdictional issue. (See id. at p. 1083 ["judicial intervention at this stage will not deny us the benefit of the PERB's administrative expertise; the issues are purely legal and of the kind within the expertise of the courts, and we have received the benefit of the PERB's view on the issues through its briefs in this court"].)
The weight of authority on these matters leads us to conclude that the exhaustion of remedies doctrine does not present an impediment to Samber's petition for writ of mandamus, and thus does not provide an alternative basis for this court to affirm the trial court's ruling.
D. Oceanside has the ability to revoke a CUP
It is important to note that our decision in this matter does not render Oceanside powerless to address important issues of public safety and welfare that may arise late in the permitting process. Article 47 of the OZO outlines the city's ability to enforce the requirements of permits, licenses, certificates and approvals granted pursuant to the OZO. Section 4704 provides for the revocation or modification of discretionary permits like the permit at issue here. Pursuant to this provision, whenever the Planning director determines "that there are reasonable grounds for considering revocation or modification of a use permit, variance, development approval, or other discretionary approval authorized by this ordinance," a revocation hearing must be set by the "Planning Director, the Planning Commission, the Historical Preservation Advisory Commission, or the City Council, whichever took final previous action on the permit, except for appeals." (§ 4704, subd. A.) The "person or body" holding the hearing "shall revoke, modify, amend, delete or add conditions to the permit" if that "person or body" makes "one or more of the following findings" after the hearing:
We take judicial notice of Article 47 of the OZO pursuant to Evidence Code section 452, subdivision (b). Prior to taking judicial notice of this part of the OZO, we requested supplemental briefing from the parties regarding the propriety of our taking judicial notice of these provisions. (See Evid. Code, § 459, subds. (a), (c) and (d), and 455, subd. (a).) We also requested that the parties address certain questions concerning the City's ability to review, revoke, and/or modify a CUP that has been issued, if the City is concerned that the project for which the CUP was granted may compromise the health, safety and welfare of the public. Both parties submitted supplemental letter briefs, and Samber questioned the relevance of Article 47 of the OZO to the case at hand, thereby suggesting a preference that this court not take judicial notice of that portion of the ordinance. Oceanside did not object to the court taking judicial notice of Article 47. We find the matter relevant to the issue of the City's ability to adequately address concerns for the public welfare that may come to light after the jurisdictional period for City Council review has closed, providing further indication that our interpretation of the OZO (a) reflects the intention of those who enacted it and (b) does not unreasonably prevent the City from protecting the public from nuisances or hazards. We therefore exercise our discretion to take judicial notice of this provision.
"1. That the permit was issued on the basis of erroneous or misleading information or misrepresentation;
"2. That the terms or conditions of approval of the permit have been violated or that other laws or regulations have been violated;
"3. That there has been a discontinuance of the exercise of the entitlement granted by the permit for six consecutive months;
"4. That the permit granted is being, or recently has been exercised contrary to the terms or conditions of such approval, or in violation of any statute, ordinance, law or regulation[;]
"5. That the use for which the approval was granted was so exercised as to be detrimental to the public health or safety, or so as to constitute a nuisance." (§ 4704, subd. D.)
In particular, numbers 4 and 5 on that list are broad enough to give Oceanside the opportunity to address any public concerns about projects for which discretionary permits have been issued, in the event that such concerns arise after the decision to grant a permit has become final. Oceanside points out that by the time such enforcement procedures may be used, the permit or other approval has been granted, and, as Oceanside puts it, "[t]he favorable presumptions and deferential standard of review applied to a public agency's prospective land use decisions are not available in a revocation proceeding." We recognize that a revocation proceeding imposes a greater burden on Oceanside, both in terms of evidentiary standards and the standards to be applied by a reviewing court. However, the fact that Oceanside bears a greater burden once a permit has been issued does not provide this court with grounds to rewrite the OZO, as Oceanside would like us to, nor does it give the City Council broader jurisdictional power than what is provided in the OZO.
The OZO provides a comprehensive regulatory process under which the City Council has been given limited review powers in all but a few circumstances. The Planning Commission's decision became final, and the Council lost jurisdiction, because none of its members properly initiated a call for review within the requisite time period. This situation cannot be remedied after the fact. To the extent that the City Council is unhappy with this particular decision of the Planning Commission, the City Council's remedy at this juncture is by means of the enforcement process. The City Council can also reexamine the relevant ordinances and amend them to suit Oceanside's needs in the future, if it determines that it wants to increase the authority of the City Council at an earlier discretionary planning stage by expanding the time and ways in which a call for review may occur.
By the time a decision is made by the Planning Commission, a proposed project has been reviewed by Oceanside's planning department staff, the planning director, and the Planning Commission, all of whom have been tasked with the specific duty to grant only discretionary permits and variances that "are consistent with the General Plan subject to the general purposes of this ordinance, the specific purposes of the base or overlay zoning district in which a development site is located, and the provisions of this article [Article 41] . . . ." (§ 4102.) "The broad purposes of the Zoning Ordinance are to protect and promote the public health, safety, and general welfare, and to implement the policies of the City of Oceanside General Plan . . . ." (§ 130.) Thus, by the time a project has been approved by the Planning Commission, that project has been determined to meet the standards Oceanside has created to protect the health, safety and welfare of the public by those to whom the City of Oceanside has delegated responsibility for recommending and/or making planning decisions—individuals who presumably have particularized expertise in city planning—at every stage of review. This, together with the enforcement provisions of the OZO, means that there is no need for this court to strain to interpret the OZO in the way Oceanside urges, out of concern that the public welfare might be placed in significant jeopardy if a City Council member mistakenly fails to meet the requirements of the statute to call a matter for review. The City of Oceanside has seen fit to limit the ability of the City Council to review planning decisions, thereby indicating that it does not view the City Council as the only protector of the public in the permitting process. It is not this court's responsibility to alter the administrative land use process Oceanside has created. That responsibility lies with the City of Oceanside.
IV.
DISPOSITION
The judgment of the trial court is reversed. The matter is remanded to the trial court with instructions to grant the petition for writ of mandamus. Appellant is entitled to costs on appeal.
WE CONCUR: McCONNELL, P. J. McDONALD, J.