Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. CIV245658, Glen M. Reiser, Judge.
Angel Law, Frank P. Angel, Erin Ganahl and September Hopper for Petitioner.
Amy Albano, City Attorney, Tracy M. Noonan, Assistant City Attorney, for Respondents.
Weston, Benshoof, Rochefort, Rubalcava & MacCuish; Alston + Bird, Charles W. Cohen and Barbara J. Higgins for Real Parties in Interest.
PERREN, J.
Petitioner Save Our Ring of Green (SORG) appeals from a judgment denying its petition for writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) SORG asserts that respondents City of Thousand Oaks and City Council of the City of Thousand Oaks (City) violated the density and grading provisions of the City's Hillside Ordinance by approving a development permit for a single family residence on 6.8 acres in the City's Mountclef Ridge area. We affirm.
Facts and Procedural History
In 2002, real parties in interest Michael and Sharlene Dubin applied to the City for a permit to develop four single-family residences on 25.53 acres of land. The property had been subdivided into four parcels in 1974. The property is located in the City's hillside planned development zone (H-P-D Zone) in an area known as Mountclef Ridge. Mountclef Ridge is identified in the City's general plan open space element as an area "with important open space resources." The property contains a wildlife corridor identified in the City's general plan conservation element.
The City prepared a draft environmental impact report (EIR) for public review in 2003. In 2004, a committee of the City council investigated the purchase of the four parcels with funds from the City's open space acquisition and maintenance endowment fund. During this time, the Dubins revised their application to decrease grading and project impacts on the wildlife corridor in response to public comments on the draft EIR.
In 2005, the City prepared a second draft EIR to consider the revised application. The new draft considered a project alternative involving purchase of parcels 1 and 2 by the City and development of parcels 3 and 4 with a single family residence on each lot. Following public review and comment on the second draft EIR, the Dubins again modified their development application. In response, the City prepared a third draft EIR. The new draft EIR added an additional project alternative involving purchase of three parcels by the City and an increase in the width of the wildlife corridor.
In June 2006, the City approved the purchase of parcels 1, 2 and 3 for $2,485,000. In October 2006, the City's planning commission held a public hearing on the Dubins' proposal to build a residence on parcel 4. At the conclusion of the public hearing, the planning commission certified the third draft EIR, approved permit 2002-80, made findings, and imposed 110 permit conditions. In January 2007, after a lengthy public hearing, the City council by a vote of 4-1 denied SORG's appeal of the planning commission's approval and adopted a resolution approving the project.
SORG filed a petition for writ of administrative mandamus challenging the approval on the grounds that it violated the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq.) and the City's general plan and Hillside Ordinance. SORG also contended the City violated section 3.5 of article III of the California Constitution by declining "to enforce a statute, on the basis of it being unconstitutional." On August 26, 2007, the trial court, in a detailed 16-page statement of decision, found in favor of the City on all claims and entered judgment denying the petition.
In this appeal SORG does not pursue its CEQA or constitutional claims, contending only that the project violates the density and grading requirements of the City's Hillside Ordinance.
Discussion
The Hillside Density Regulations
SORG asserts the City and the trial court misinterpreted the density regulations of the Hillside Ordinance. "'The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.'" (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8; see Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 928 [applying Yamaha in reviewing zoning administrator's interpretation of city charter and municipal code].)
The Hillside Ordinance states that for parcels with an average slope of 35 percent and greater, 0.1 dwelling unit per acre is permitted. In other words, a parcel having an average slope of 35 percent or greater must have at least 10 acres to be buildable. There is no dispute that parcel 4 has an average slope of greater than 40 percent. The parties also do not dispute that parcel 4, having 6.8 acres, is not a buildable parcel under this criteria.
The parties' dispute involves interpretation of a portion of section 9-4.3105 of the Hillside Ordinance which states: "All parcels of record which have been recorded prior to September 9, 1971, and which subsequently are placed in the H-P-D Zone, shall be subject to all the provisions of this article except, when such parcels are located in natural slope areas of twenty-four and nine-tenths (24.9%) percent and above, all parcels shall be permitted at least one dwelling unit."
SORG asserts that the one-dwelling-unit exception does not apply to parcel 4 because it was not recorded prior to September 9, 1971. The City contends that the regulation's plain language states that the exception applies to all parcels with a slope of greater than 24.9 percent regardless of their date of recordation.
The trial court agreed with the City and construed the provision as follows: "[T]he City has always interpreted and apparently intended the second clause 'and all parcels which are subsequently placed in the H-P-D zone,' to be a stand-alone exemption not to be read in the conjunctive with the first clause. . . . And here, where the City deems that an alternative reading would violate real parties' constitutional right to some economic use of their land, the City's interpretation is all the more compelling."
We agree with the trial court that this regulation is "not a model of drafting clarity." As the regulation is ambiguous, we apply "'[w]ell-established rules of statutory construction . . . to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law.'" (Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 484-485.)
SORG argues that the City's and trial court's interpretation violates certain canons of statutory construction and only its interpretation conforms with those principles. We disagree. In construing a statute, courts employ the fundamental rule that a statute must be given a reasonable and common sense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. (Welch v. Oakland Unified School Dist. (2001) 91 Cal.App.4th 1421, 1428.) "'[I]f a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed.'" (Greening v. Johnson (1997) 53 Cal.App.4th 1223, 1229.) Courts may disregard even plain language that leads to absurd results or contravenes clear evidence of a contrary legislative intent. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105.)
Under SORG's interpretation, the hillside regulations would deprive the Dubins of their ability to develop their property and constitute a regulatory taking under the United States and California Constitutions. (See, e.g., Palazzolo v. Rhode Island (2001) 533 U.S. 606, 629-630 [a property owner who acquires title after enactment of a regulation depriving the owner of all economically viable use of his property is not precluded for asserting a categorical takings claim]; Hensler v. City of Glendale (1994) 8 Cal.4th 1, 9, fn. 4 [article I, section 19 of the California Constitution protects a broader range of property values than the Fifth Amendment takings clause].) We cannot conceive that the City officials who enacted this regulation intended to violate the Constitution. Not only does such construction lead to an absurd result but also renders the statute unconstitutional contrary to the principle that we must interpret statutes to preserve their constitutionality, if possible. (Martinez v. County of Tulare (1987) 190 Cal.App.3d 1430, 1435.)
The regulation is susceptible to two alternative interpretations. We agree with the City and trial court that the more reasonable interpretation of the regulation and one that preserves its constitutionality is to construe it to permit at least one single family residence on legal lots in the area subject to the Hillside Ordinance regardless of the size of the lot.
The Hillside Grading Regulations
SORG contends City violated the grading regulations of the Hillside Ordinance as the project does not provide for "minimum" grading. SORG contends that at one time during the review process a smaller residence was considered for parcel 4 and therefore a downsized development with a smaller grading footprint is feasible.
SORG's challenge in this regard does not require us to construe the language of the regulation. We instead are called upon to determine whether the City abused its discretion in applying the regulations. As such, our review is deferential. It is presumed that an administrative agency regularly performs its duty, and the burden is on the appellant to prove an abuse of discretion. (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) Reasonable doubts must be resolved in favor of the City's findings and decision. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514.)
Section 9-4.3106 of the Hillside Ordinance states: "(a) Land with twenty-five (25%) percent or greater slope shall not be graded except pursuant to an H-P-D permit only where it can be shown that a minimum amount of development is in the spirit of, and compatible with, the purposes and policies set forth in this article.
"(b) The following table is the minimum percentages of the site's ground surface which shall remain in a natural state (no cut or fill) or be developed solely for recreational purposes based on the average percent slope of a parcel."
The table provides that parcels with an average slope of 35 percent and above shall remain 100 percent in their natural state "except minimum grading for dwelling and driveway areas."
Before approving the project, the City reviewed the project at least five times over a period of more than four years. At the time of approving the project, they made numerous findings, including that the project, as conditioned (1) complies with the land use element of the City's general plan; (2) complies with the City's development criteria due to its location on the north side of Mountclef Ridge; (3) complies with the open space and conservation elements of the City's general plan due to its conservation of natural resources and the wildlife corridor; (4) complies with applicable design guidelines as it is comparable to existing homes in the surrounding area; (5) construction of a single-family home on the site is not possible without encroaching into a gradient of 25 percent or more, and issuance of the permit will grant the applicant reasonable use of the property; (6) the size of the parcel is physically suitable for a single family residence; (7) project design, improvements and conditions will avoid or substantially lessen potentially significant environmental impacts; and (8) the project is consistent with surrounding development and preserves as much natural terrain as possible. In addition, the record shows that a 50 percent reduction in the size of the proposed residence would not result in a proportionate reduction in grading, the grading pad, the building footprint, or the driveway.
On this record, we cannot say the City abused the broad discretion it is given in zoning matters. (See, e.g., Committee to Save Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1182 [reviewing court may not interfere with city's discretionary judgments or substitute its judgment for the city's and reverse because it believes a contrary finding would have been equally or more reasonable]; Dore v. County of Ventura (1994) 23 Cal.App.4th 320, 326-327 [same].)
The judgment is affirmed. Respondents and real parties in interest shall recover costs.
We concur: YEGAN, Acting P.J., COFFEE, J.