In response to the City Council's ruling, the Bottinis filed a petition for a writ of administrative mandamus seeking to compel the City Council to set aside its decision, as well as a complaint for damages against the City, based on alleged violations of the takings, due process, and equal protection clauses of the California Constitution. The City moved for summary judgment on the Bottinis' constitutional causes of action.
The court granted the Bottinis' petition for a writ of administrative mandamus and ordered the City Council to set aside its determination that the Bottinis' proposed construction project requires environmental review. Specifically, the court concluded that the demolition of the cottage is not a component of the Bottinis' construction project and, as a result, the City Council's determination that the project is not categorically exempt from CEQA review lacked substantial evidentiary support. The court also granted the City's motion for summary judgment on the Bottinis' constitutional claims.
I.
CEQA OVERVIEW
CEQA and its implementing regulations "embody California's strong public policy of protecting the environment." ( Tomlinson v. County of Alameda (2012)
In furtherance of these goals, CEQA establishes a three-tier environmental review process. The first step is jurisdictional and requires a public agency to determine whether a proposed activity is a "project." Under CEQA, a project is defined as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and ... [¶] ... [¶] ... that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (§ 21065.) A project may encompass "several discretionary approvals by governmental agencies" and does not mean "each separate governmental approval." (Guidelines, § 15378, subd. (c).)
At the second step, the agency must "decide whether the project is exempt from the CEQA review process under either a statutory exemption [citation] or a categorical exemption set forth in the CEQA Guidelines [citations]." ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015)
Unlike statutory exceptions, categorical exemptions are subject to exceptions. For instance, the Class 3 categorical exemption that is at issue in this appeal does not apply-or, stated differently, CEQA review may apply-if a project "may cause a substantial adverse change in the significance of a historical resource." (Guidelines, § 15300.2, subd. (f); Pub. Resources Code, § 21084, subd. (e).) For purposes of this decision, we will refer to this as the "historical resource" exception. The Class 3 categorical exemption also does not apply if "there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances." (Guidelines, § 15300.2, subd. (c).) This exception is commonly referred to as the "unusual circumstances" exception.
If a project is categorically exempt and does not fall within an exception, " 'it is not subject to CEQA requirements
Finally, if the project may have a significant effect on the environment, the agency must proceed to the third step of the process and prepare an environmental impact report (EIR). (§§ 21080, subd. (d), 21082.2, subd. (d), 21100, subd. (a), 21151, subd. (a).)
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Windemere and historical designation efforts
The Windemere Cottage (Windemere) was a late Victorian-era beach bungalow in La Jolla designed by architects Joseph Falkenhan and Irving Gill. In 1927, the Windemere was moved from its original beachside location to Virginia Way. The Windemere exhibited features that were representative of early architecture in La Jolla, including a hipped roofline, eaves with exposed rafters, vertical board and batten redwood walls, and leaded, diamond-paned windows.
In 2010, the then-owner of the Windemere (the Prior Owner) nominated the Windemere for designation as a historical resource with the Historical Resources Board (the Board). The Board is the appointed body with authority over historical resources in San Diego, including the designation of historical sites, the establishment of historical districts, and the review of development projects that may affect historical resources. At the time, the Prior Owner intended "to restore the building to its 1894 Period of Significance." However, in February 2011-before the Board ruled on the Windemere's nomination-the Prior Owner sold the Windemere and the lot on which it was located to the Bottinis for $1.22 million. The Prior Owner also assigned the Bottinis her rights to the Windemere's historical designation application and a property report that Legacy 106,
After the sale, the Bottinis withdrew the pending nomination and submitted a single discipline preliminary review application to the Board to verify
In September 2011, the Board held a public hearing to determine whether to grant the Windemere historical status. More than a dozen speakers, including members of the Save Our Heritage Organization (SOHO) and the La Jolla Historical Society (LJHS), spoke in favor of historical designation. Nevertheless, a divided Board narrowly declined to grant historical status to the Windemere. SOHO and LJHS requested reconsideration of the decision, but the Board denied the organizations' request as untimely.
Shortly after the Board's vote, a preservation officer from the State Office of Historic Preservation (the State) notified the Board that the State had received photographs and context statements about the Windemere and, based on these submissions, believed that the Windemere "appear[ed] eligible" for the California Register of Historical Resources (Register).
B. The demolition of the Windemere
In November 2011, the Bottinis requested that the City's Neighborhood Code Compliance Division (Code Compliance) determine whether the Windemere constituted a public nuisance. Together with their request, the Bottinis included a report from a structural engineering firm, which stated that the Windemere was "uninhabitable and no persons [should] be allowed to occupy" it. According to the report, the Windemere's roof, framing, and single wall construction were incapable of supporting gravity and seismic/wind loads, the rear porch was rotted, portions of the residence were
The San Diego Municipal Code sets forth the criteria by which a structure may be categorized as "unsafe, dangerous, or substandard" and therefore, deemed a public nuisance. (Mun. Code, §§ 121.0402-121.0405.) If a property is found to be a public nuisance, Code Compliance must issue a notice of abatement to the property owner describing, among other things, the basis of the determination and actions that must be undertaken to abate the public
After reviewing the Bottinis' request and conducting an on-site visit, Code Compliance sent the Bottinis a notice that declared the Windemere a public nuisance for six independent reasons, including the structure's dilapidated state, unfitness for habitation, and susceptibility to fire, earthquake, and wind. The notice further stated as follows: "In order to comply with City regulations, you are required to obtain a Demolition Permit .... [¶] In order to avoid abatement action, the Demolition Permit must be obtained and a Final Inspection Approval secured no later than February 15, 2012 ."
In August 2012, the Bottinis-now the owners of a vacant lot-applied to the Department for a CDP to construct a single-family home on their lot. As part of the permitting process, the La Jolla Community Planning Association (Planning Association) reviewed the proposed construction project. During two public meetings, Planning Association members voiced concerns that the Bottinis may have engaged in improper project splitting under CEQA. Nevertheless, the Department's environmental staff ultimately determined that the construction of the Bottinis' home was categorically exempt from CEQA review as new residential construction on a vacant lot.
The Planning Association and LJHS appealed the Department's decision to the City Council, claiming that the Department had failed to consider the "whole of the project" and alleging that the proper project baseline should have been set at a time before the Bottinis demolished the Windemere. Over the course of two meetings, the City Council heard testimony from supporters and opponents of the
As a result, the City Council issued a resolution granting the CEQA appeals and remanding the project to the Department to reevaluate its environmental determination with a baseline of January 2010 a date that preceded the Bottinis' purchase of the property. In its resolution, the City Council concluded that the Windemere's "demolition should be included in the environmental analysis" of the Bottinis' residential construction project. The City Council further concluded that the project was "not categorically exempt from environmental analysis" because two CEQA exceptions took precedence over the categorical exemption that governs the construction of single-family homes. Specifically, the City Council concluded that the redefined project (which now included the demolition of the Windemere), with its new baseline of January 2010 (when the Windemere still existed), would "have a significant effect on the environment due to unusual circumstances and may cause a substantial adverse change in the significance of a historic resource" pursuant to section 15300.2, subdivisions (c) and (f) of the CEQA Guidelines.
The Bottinis filed an action in the superior court, requesting issuance of a peremptory writ of mandamus directing the City to set aside its decision. In an amended petition, the Bottinis asserted causes of action against the City for inverse condemnation, equal protection, and due process violations. In their inverse condemnation cause of action, the Bottinis alleged that the City's CEQA determination constituted a regulatory taking of their property because it delayed their plans to construct a home on their property and, as a result, required them to pay a mortgage for both their existing home and an empty lot. In their due process and equal protection causes of action, the Bottinis contended that the City acted without any rational basis and intentionally targeted the Bottinis for disfavored treatment because they had demolished the Windemere.
After briefing and argument, the trial court granted the Bottinis' petition for a peremptory writ of mandamus. According to the court, the Bottinis' project is "a separate project distinct from the demolition of the [Windemere]." The court determined that the project baseline should be set at the point at which the property was "an empty lot" because the "[Windemere] had been razed pursuant to [the] demolition permit eight months before the Bottinis submitted their project application." On that basis, the court found that the City had abused its discretion in concluding that the project is not categorically exempt from CEQA review.
After further briefing and argument, the trial court granted summary judgment for the City on the Bottinis' constitutional
III.
ANALYSIS
A. CEQA
1. Standard of review
" ' "In considering a petition for a writ of mandate in a CEQA case, '[o]ur task on appeal is "the same as the trial court's." [Citation.]' .... Accordingly, we examine the [agency's] decision, not the trial court's [decision]." [Citation.]' [Citations.]" ( World Business Academy v. Cal. State Lands Com. (2018)
" '[O]ur inquiry extends only to whether there was a prejudicial abuse of discretion' by the agency. [Citation.] ' "Such an abuse is established 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations.]" [Citation.]' [Citation.] To the extent the question presented turns on an interpretation of CEQA, the Guidelines, or the scope of a particular exemption, it is one of law that we review de novo. [Citation.]" ( World Business, supra ,
2. Application
This case turns largely on the propriety of the parties' dueling definitions of the project that is the subject of this dispute. The City, on the one hand, contends that the City Council correctly defined the project to include the demolition of the Windemere and properly set a baseline of January 2010, before the Windemere was demolished. Framed as such, the City claims that the City Council accurately determined that the project would result in a substantial adverse change in the significance of an historical resource (the Windemere) and that the project is therefore not categorically exempt from CEQA review. The Bottinis, on the other hand, contend that the project should be defined to include only the construction of their residence and claim that the baseline should be set in August 2012, when they applied for a CDP. According to the Bottinis, the City Council erred by considering the Windemere's demolition as part of the project because the City itself had
Based on our review of the administrative record, we agree with the Bottinis and conclude that the City Council abused its discretion by determining that the project encompassed the demolition of the Windemere-an event that took place before the Bottinis filed their application to construct a residence. We also conclude that the City Council abused its discretion by setting a baseline in January 2010, a full year before the Bottinis acquired the property on which they planned to construct their residence. As we will discuss post , the City's issuance of a permit authorizing the demolition of the Windemere served a public safety objective untethered to the construction of the Bottinis' residence and, in any event, fell outside of the CEQA review process altogether because it was ministerial. Further, at the time the Bottinis filed their request for a CDP, the Bottinis' property was a vacant lot. Under CEQA, that environmental condition accurately reflects the baseline for the Bottinis' construction project, not an environmental condition that presumes the continued existence of a cottage that, in reality, no longer existed at the time the Bottinis filed their application.
In short, the only project that remained for purposes of CEQA after the City's Code Compliance Division authorized the Bottinis to demolish the Windemere was the construction of a single-family residence on a vacant lot-a categorically exempt act under CEQA.
a. Applicable project definition and baseline
As noted, the San Diego Municipal Code establishes procedures that Code Compliance must follow to identify unsafe, dangerous, or substandard structures, and to order their abatement "to protect and preserve the safety of the citizens and communities where these structures are located." (Mun. Code, § 121.0401, subd. (a).) These procedures require Code Compliance to determine whether a given structure is unsafe, dangerous, or substandard, according to a detailed set of criteria. (Id. , §§ 121.0403-121.0405). In this case, Code Compliance concluded that the Windemere constituted a public nuisance for six independent reasons under those criteria and, on that basis, authorized the Bottinis to obtain a ministerial permit to demolish the Windemere.
The City contends that we should treat the Windemere's demolition as part of the project under review because, in the City's view, the public nuisance determination that resulted in the issuance of a demolition permit was a "faux 'emergency' " that the Bottinis "cajoled," "pressur[ed]," and "coerc[ed] Code Compliance" into making. We reject the City's characterizations of the public nuisance determination, for a number of reasons.
Even if this were the appropriate forum to rehash the merits of the public nuisance determination, the City has directed us to no evidence-let alone substantial evidence-that calls into question Code Compliance's conclusion that the Windemere was a bona fide public nuisance. In fact,
The City also has not directed us to any evidence to support its claim that the Bottinis "strong-armed" Code Compliance into making an unfounded public nuisance determination. On the contrary, when questioned at a City Council meeting, the deputy city attorney agreed with the Department's assessment that the Bottinis had followed the Municipal Code "to the letter" by asking the Board to determine whether the Windemere was historical, notifying Code Compliance that the Board had concluded that the Windemere was not historical, and requesting that Code Compliance make a public nuisance determination. Under these circumstances, we conclude that there is no substantial evidence that undercuts Code Compliance's public nuisance determination or the legitimacy of the actions that the Bottinis undertook in connection with that determination.
We recognize, of course, that the public nuisance determination and the Windemere's subsequent demolition necessarily affected the conditions of the property on which the Bottinis later requested permission to construct their residence. However, the ministerial demolition permit furthered a goal unrelated to the construction of the Bottinis' residence-the protection and safety of the City's citizens. (Mun. Code, § 121.0401, subd. (a).) Indeed,
Notwithstanding the public safety goals that the demolition permit advanced, the City contends that we still must treat the Windemere's demolition and the construction of the Bottinis' residence as a single cohesive project because the Bottinis purportedly knew before the demolition that they intended to construct a residence on the lot after the demolition. The City argues, for instance, that the construction of the Bottinis' residence was not a mere "afterthought," but rather, the Bottinis' goal when they purchased the property. According to the City, we would permit the Bottinis to violate the rule against
Assuming that the Bottinis intended to construct a residence on the lot when they purchased it, that fact does not change the result of this case. That is because the demolition permit that Code Compliance authorized the Bottinis to obtain was, as all parties agree, ministerial. Whereas CEQA applies to certain nonexempt discretionary acts, it specifically excludes ministerial acts from its reach. (§ 21080, subd. (b) [excluding "[m]inisterial projects proposed to be carried out or approved by public agencies"].) This exclusion of ministerial acts "recognizes that unless a public agency can shape the project in a way that would respond to concerns raised in an EIR, or its functional equivalent, environmental review would be a meaningless exercise." ( Mountain Lion Foundation v. Fish & Game Com. (1997)
Our decision in CREED-21 is particularly analogous to the case at hand. In CREED-21 , the City of San Diego planned to replace storm drain pipes, construct storm drain infrastructure, and revegetate the affected area. ( CREED-21, supra ,
The same is true here. The Bottinis very well may have purchased the Windemere and the lot on which it was located with the intention of constructing a new residence on that lot. Indeed, the Bottinis acknowledge that they filed a single discipline preliminary review application with the Board shortly after purchasing the property with the express purpose of "determin[ing] the constraints on future development" of the property. However, the City's own historical designation and nuisance abatement provisions enabled the Bottinis to obtain a ministerial permit to demolish the existing structure on their property and pave the way for future construction-provisions that the Bottinis followed "to the letter," according to the deputy city attorney. It is because of these Municipal Code provisions, as well as the City's sanctioning of the Bottinis' conduct at each step of the process, that an intervening
California courts have applied this principle in a variety of circumstances, even when a project applicant's past conduct may have violated the law or escaped environmental review. ( Riverwatch, supra , 76 Cal.App.4th at pp. 1451-1453,
Reasonable minds may differ as to whether the Board should have granted historical designation to the Windemere. But the Board did not do so. Reasonable minds may also differ as to whether the Bottinis should have attempted to repair the Windemere, rather than asking Code Compliance to declare it a public nuisance.
b. Class 3 categorical exemption
Because the City Council improperly defined the project and baseline, the City Council also erred in concluding that the project is not categorically exempt from environmental analysis under CEQA. The CEQA Guidelines categorically exempt the construction of a single-family residence from review under CEQA. (§ 15303, subd. (a); Association for Protection etc. Values v. City of Ukiah (1991)
From our review of the administrative record, we discern no exception that would take precedence over the Class 3 categorical exemption. In the proceedings before the City Council, the Council concluded that the historical resource exception applies. That exception provides as follows: "A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource." (Guidelines, § 15300.2.) However, with a properly defined project and baseline, substantial evidence does not support the City Council's conclusion.
Assuming that the Windemere did in fact constitute a historic resource under CEQA,
The City Council also concluded that the "unusual circumstances" exception applied. That exception precludes the application of a categorical exemption when a project will "have a significant effect on the environment due to unusual circumstances." (Guidelines, § 15300.2, subd. (c).) The "unusual circumstances" exception typically requires a showing that: (1) the project has some feature that distinguishes it from others in the exempt class, such as its size or location and (2) there is a reasonable possibility of a significant effect on the environment due to that unusual circumstance.
Neither the City Council's resolution nor the City's appellate briefing has identified any distinguishing or unusual feature presented by the Bottinis' construction project. The City points to the demolition of the Windemere as a distinguishing or unusual feature warranting application of the "unusual circumstances" exception. However, for the reasons just discussed, the demolition of the Windemere is not part of the project at issue. Accordingly, the Bottinis' project-the construction of a single-family home-has no features that distinguish it from others in the exempt class, and substantial evidence does not support the City Council's application of the "unusual circumstances" exception. ( Ukiah, supra ,
c. Conclusion
For the foregoing reasons, we conclude that the "historical resources" and "unusual circumstances" exceptions do not apply to the Bottinis' residential
B. The Bottinis' constitutional causes of action
Based on the City's decision to grant the CEQA appeals and the residential construction delays resulting from that decision, the Bottinis also alleged three causes of action against the City for violations of the California Constitution's takings, equal protection, and due process clauses. The trial court granted summary judgment in favor of the City on all three causes of action. For the reasons discussed post , we agree that no triable issue of material fact exists as to the Bottinis' constitutional causes of action. We therefore affirm the trial court's summary judgment ruling.
1. Standard of review
Summary judgment may be granted only if there is no triable issue of material
We review de novo the trial court's grant of summary judgment. ( Hughes v. Pair (2009)
2. Inverse condemnation
a. Legal standard
Both the United States and California Constitutions guarantee real property owners "just compensation" when their land is taken for a public use. ( Cal. Const., art. I, § 19 ; U.S. Const., 5th Amend.) These constitutional guarantees do "not prohibit the taking of private property, but instead place[ ] a condition on the exercise of that power." ( First English Evangelical Lutheran Church v. County of Los Angeles (1987)
"The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property." ( Lingle v. Chevron U.S.A., Inc. (2005)
"Two categories of regulatory action are generally 'deemed per se takings for Fifth Amendment purposes. First, where government requires an owner to suffer a permanent physical invasion of her property-however minor-it must provide just compensation. [Citation.] A
In addition to these "relatively narrow" categories of regulatory takings, the United States Supreme Court recognized a third "essentially ad hoc" category of regulatory takings in Penn Cent. Transp. Co. v. New York City (1978)
In this case, the trial court concluded that the City was entitled to judgment as a matter of law on the Bottinis' inverse condemnation cause of action, which alleged that the delay arising from the City Council's order granting the CEQA appeals violated the takings clause of the California Constitution. In granting summary judgment for the City, the court did not apply the Penn Central factors discussed ante . Instead, it applied the "substantially advances" standard that the California Supreme Court articulated in Landgate, supra ,
On appeal, the City urges us to apply the "substantially advances" formula in evaluating the trial court's summary judgment ruling. The Bottinis, on the other hand, contend that the "substantially advances" test is no longer good law and insist that we must apply the Penn Central test-a test that the Bottinis claim they have satisfied. Therefore, before we rule on the merits of the trial court's summary judgment ruling, we must resolve the proper legal standard that governs when a plaintiff alleges a regulatory taking under the California Constitution-a task that we turn to now.
In Landgate , the California Coastal Commission denied a landowner's request for a coastal development permit to build a residence on its property for several reasons, including the landowner's failure to obtain a necessary lot line adjustment
The Supreme Court cited Penn Central and its factors with approval, but did not in fact apply the Penn Central factors to the case before it. Instead, the Court-reciting language from a different United States Supreme Court case, Agins v. City of Tiburon (1980)
However, in Lingle , the United States Supreme Court subsequently held that the "substantially advances" formula that it had set forth in Agins -the formula that the California Supreme Court had cited in Landgate -was "regrettably imprecise" and is "not a valid method of discerning whether private property has been 'taken' for purposes of the Fifth Amendment." ( Lingle, supra ,
The Lingle Court further found that the "substantially advances" test "asks, in essence, whether a regulation of private property is effective in achieving some legitimate
In the wake of Lingle , state and federal courts alike have recognized that the "substantially advances" formula that the United States Supreme Court articulated in Agins and the California Supreme Court applied in Landgate no longer constitutes a valid test by which to determine whether there has been a regulatory taking under the Fifth Amendment; instead, the Penn Central factors govern. ( Lockaway Storage v. County of Alameda (2013)
To date, no published authority of which we are aware has expressly analyzed whether, in light of Lingle , the "substantially advances" formula remains a valid test by which to determine whether a regulatory taking has occurred under the takings clause of the California Constitution, as opposed to the Fifth Amendment to the United States Constitution. ( Allegretti, supra , 138 Cal.App.4th at pp. 1281-1284,
Second, the rationale underpinning the Lingle decision applies with equal force to the California takings clause as to the federal takings clause. "Indeed, it has long been recognized that the purpose of section 19 [of article I of the California Constitution], as well as the purpose of the takings clause of the Fifth Amendment to the United States Constitution, is to ensure that individual property owners are not compelled to bear burdens or incur costs that, in fairness and justice, should be borne by the public at large." ( Williams v. Moulton Niguel Water Dist. (2018)
Finally, no published California Supreme Court or Court of Appeal decision of which we are aware has applied the "substantially advances" formula to regulatory takings claims-whether based on the United States or California Constitution-since the United States Supreme Court issued Lingle thirteen years ago. On the contrary, it appears that California courts have implicitly assumed that the Penn Central formula-not the "substantially advances" test-applies to ad hoc regulatory takings claims under both the state and federal takings clauses. ( Los Altos El Granada Investors v. City of Capitola (2006)
Accordingly, and based on our Supreme Court's instruction that we are to interpret the California Constitution's takings clause congruently with the federal takings clause, we make explicit the conclusion that past decisions have impliedly reached and hold that the Penn Central test-not the "substantially advances" formula-applies to regulatory takings causes of action arising under the California Constitution.
b. Application
In the following section, we apply the Penn Central standard to the facts of the present appeal. As noted, the Penn Central test requires us to examine three factors to determine whether a regulatory taking has occurred: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with the claimant's reasonable, distinct investment-backed expectations; and (3) the character of the government action. ( Penn Central, supra ,
For the first factor, "we ask whether the regulation 'unreasonably impair[s] the value or use of [the] property' in view of the owners' general use of their property." ( Allegretti, supra ,
However, the second factor-the extent to which the City Council's decision interferes with a reasonable investment-backed expectation-weighs strongly against the Bottinis. "A 'reasonable investment-backed expectation' must be more than a 'unilateral expectation or an abstract need.' " ( Ruckelshaus v. Monsanto Co. (1984)
The only evidence relevant to the second factor that the Bottinis have submitted is a three-page declaration from Francis Bottini, which states in pertinent part as follows: "When we purchased the home, the [Prior Owner] represented in the listing that the existing residence could either be renovated or demolished and replaced .... We relied on this representation in purchasing the property for $1.22 million because the existing residence appeared abandoned and not in good repair." This does not establish that the Bottinis had a distinct investment-backed expectation.
As an initial matter, Mr. Bottini's declaration does not state that, at the time the Bottinis purchased the property at issue, they intended to demolish the Windemere and construct a residence on the lot. Thus, the Bottinis' expectations are not distinct and concrete, but are instead vague and abstract. ( Allegretti, supra ,
Even if the Bottinis had articulated that they had a distinct expectation to demolish the Windemere and build a residence at the time they purchased the property, there is no basis for us to conclude that the Bottinis had a reasonable expectation that they would be permitted to engage in such conduct without undertaking any form of environmental review . Indeed, Mr. Bottinis' declaration claims merely that the Prior Owner stated that the Windemere could "be renovated or demolished and replaced"-a representation that says nothing about whether environmental review would or would not be necessary.
In fact, at the time the Bottinis purchased the property, the Prior Owner's nomination for the Windemere's designation as a historical resource was still pending before the Board. Thus, when the Bottinis purchased the property, it was still possible that the Board would grant historical designation to the Windemere-and indeed, it nearly did. If that had happened, the Bottinis very likely would not have been able to demolish the Windemere and construct a new residence without satisfying the Municipal Code nuisance abatement procedures applicable to structures that have been designated as historical resources (Mun. Code, § 121.0419) and/or undergoing a full CEQA review ( §§ 21060.5, 21084, subd. (e), 21084.1 ; Guidelines, § 15300.2, subd. (f)). In addition, Mr. Bottini himself testified during one of the City Council hearings that he "knew when [they] bought [the] house ... it would be well over a year before [they would] be able to do anything to that house" because of the historical review nomination that was pending at the time. For all of these reasons, we conclude that the Bottinis lacked a reasonable and distinct investment-backed expectation.
Finally, the third Penn Central factor requires us to examine the "character" of the City's action. ( Penn Central, supra ,
"We may dispose of a takings claim on the basis of one or two of [the Penn Central ] factors." ( Allegretti,
3. Due process
Under the California Constitution, a person may not be deprived of life, liberty, or property without due process of law. ( Cal. Const., art. I, § 7, subd. (a).) "The concept of 'due process of law' guarantees both procedural and substantive rights." ( Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011)
"Substantive due process protects against 'arbitrary legislative action, even though the person whom it is sought to deprive of his right to life, liberty or property is afforded the fairest of procedural safeguards.' [Citation.] To satisfy substantive due process concerns, 'the law must not be unreasonable, arbitrary or capricious but must have a real and substantial relation to the object sought to be attained. [Citations.]' " ( Hayward, supra ,
We have no need to analyze whether a reasonable jury could reach these conclusions because, as the City correctly argues, the Bottinis have not identified any property interest or statutorily conferred benefit with which the City has interfered. (
The Bottinis raised this argument both in the trial court and on appeal; however, the Bottinis have not attempted to identify any interest or benefit of which the City has deprived them. Instead, relying on Galland v. City of Clovis (2001)
Under Galland , a government entity may be found liable for a due process violation for conduct that deliberately flouts the law, but such conduct still must "obstruct the [plaintiff's] constitutionally based property rights ." ( Galland, supra ,
Nor is it apparent that the Bottinis could identify such a right or interest. The Bottinis have no right or statutorily conferred interest that entitles them to bypass CEQA review. ( Las Lomas, supra , 177 Cal.App.4th at pp. 848-852,
On these facts, we conclude that the trial court properly granted the City's motion for summary judgment on the Bottinis' substantive due process cause of action.
4. Equal Protection
The California Constitution, like its federal counterpart, guarantees the right to equal protection of the laws. ( Cal. Const., art. I, § 7, subd. (a).) "Equal protection of the laws means that similarly situated persons shall be treated similarly unless there is a sufficiently good reason to treat them differently." ( People v. Castel (2017)
The Bottinis alleged a "class of one" violation, claiming that the City treated them differently from every other person seeking to build a single-family home insofar as the City required a full environmental review
Where the defendant is "the party moving for summary judgment[,] it has the burden of negating a necessary element of the plaintiff's case or establishing an affirmative defense. [Citation.] In the area of economic regulation, a legislative classification does not deny equal protection if the 'distinctions drawn by a challenged [act] bear some rational relationship to a conceivable legitimate state purpose.' [Citation.] Thus, in a case where the state moves for summary judgment, the state meets its burden by demonstrating some conceivably rational basis for its classification. 'A distinction ... is not arbitrary if any set of facts reasonably can be conceived that would sustain it.' [Citation.] The state need not prove such facts exist; the existence of facts supporting the ... [classification] is presumed. [Citations.] Once the state posits a rational basis for its classification, the burden shifts to the plaintiff to demonstrate the classification bears no rational relationship to any conceivable legitimate state interest as a matter of law [citation] or to demonstrate there are triable issues of fact which, if resolved in favor of the plaintiff, would negate any rational basis for the classification." (
In its motion for summary judgment and its appellate briefing, the City articulated just one basis for the City Council's conduct, i.e., that the City Council rationally could have granted the CEQA appeals and required the Bottinis' project to undergo environmental review because the City purportedly believed that "a potential statewide historic resource had been destroyed and the loss of a 100 year old beach cottage had evaded environmental review."
There can be no dispute that the state has a legitimate interest in protecting California's environmental resources and ensuring that statutorily mandated
However, the parties dispute whether the City's decision was rationally related to achieving that interest. We conclude that it was. Although the Windemere no longer existed at the time the City Council issued its decision, thereby precluding any possibility that the Windemere could be preserved or relocated, the City could have reasonably believed that an "environmental review" of the Bottinis' project would result in other forms of mitigation. ( Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990)
Because the City satisfied its burden of articulating a rational basis for its decision, the burden shifted to the Bottinis to show that the City's decision bore no rational relationship to a conceivable legitimate state interest as a matter of law, or to demonstrate that there were triable issues
First, the Bottinis contend that a triable issue of fact exists because the City patently misapplied CEQA, namely, by requiring an environmental assessment of a CEQA-exempt project. As discussed ante , we agree that the City misconstrued CEQA and, on that basis, we have affirmed the trial court's order granting their petition for a peremptory writ of mandamus. However, we disagree that the City Council's mere misinterpretation of CEQA establishes a triable issue of fact as to whether the City Council violated the Bottinis' equal protection rights. The City Council articulated a rational basis for its decision, even though we have concluded that the expressed basis is erroneous. ( Clark v. City of Hermosa Beach (1996)
Second, the Bottinis argue that a reasonable jury could conclude that the City Council required an environmental assessment in order to punish the Bottinis for demolishing the Windemere. However, in making this argument, the Bottinis rely entirely on inference and have produced no evidence that the City Council ordered an environmental review in order to punish them. The Bottinis contend that an intent to punish can be inferred from one City Council member's statement that an environmental assessment was needed to "do the right thing." We disagree. A City Council member's request that the City Council "do the right thing" in no way implies that the City Council member, let alone the entire City Council, sought to punish the Bottinis.
For all of these reasons, we conclude that the trial court did not err in granting summary judgment for the City on the Bottinis' equal protection cause of action.
The judgment is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
Notes
All further statutory references are to the Public Resources Code, unless otherwise noted.
All future references to Guidelines are to the Guidelines for Implementation of CEQA (Cal. Code Regs., tit. 14, § 15000 et seq. ).
The City requested judicial notice of the State's official website, but does not discuss the basis or purpose for its request. Accordingly, we deny the City's request.
The parties dispute whether Code Compliance ordered the Bottinis to obtain a demolition permit as the sole means by which to abate the public nuisance or whether the Bottinis, in the alternative, could have repaired the Windemere. Ultimately, we need not resolve this factual disagreement because it is undisputed that, at minimum, Code Compliance authorized the Bottinis to obtain a demolition permit and the City's Development Services Department (Department) issued the Bottinis a demolition permit.
The City requested judicial notice of a video showing the Windemere's demolition. We deny the request, as the City appears to be using the request as a guise to supplement the administrative record. (Jefferson Street Ventures, LLC v. City of Indio (2015)
The City immediately appealed the trial court's order granting the Bottinis' petition for a peremptory writ of mandamus. In an unpublished decision, we dismissed the City's appeal for lack of jurisdiction. (Bottini v. City of San Diego (Jan. 26, 2016, No. D067510,
The City tries to distinguish this case from CREED-21 on the basis that the intervening event in CREED-21 was "a sudden, unexpected occurrence," whereas the nuisance determination here purportedly was not. But in CREED-21 we did not base our holding on the "sudden" and "unexpected" nature of the intervening event. Rather, we based our decision on the fact that the intervening event was exempt from CEQA. So, too, is the ministerial permit at issue in this case. (§ 21080, subd. (b).) Accordingly, the City's attempt to distinguish CREED-21 is unavailing.
CEQA establishes three types of historical resources-(1) mandatory historical resources, which include resources listed in, or determined to be eligible for listing in, the Register; (2) presumptive historical resources, which include resources in a local register of historical resources or identified as significant in surveys of historical resources; and (3) discretionary historical resources, which include resources that lead agencies in their discretion consider to be historical, even if the resources have been denied listing or have not yet been listed on a local register. (Valley Advocates v. City of Fresno (2008)
The City takes contradictory and confusing positions in its appellate briefing regarding the City Council's reliance on the "unusual circumstances" exception. In its opening brief, the City argues that the "City Council was justified in its conclusion [that the] Bottinis' self-serving actions present an 'unusual circumstances' [sic ] barring the use of a categorical exemption." But the City claims in its reply brief that the "City Council did not rely on the 'unusual circumstance' exemption to grant the appeals." We have reviewed the administrative record and can confirm that the City Council did in fact conclude that the "unusual circumstances" exception applies to the Bottinis' project.
A special regulatory takings test also applies to land-use exactions, i.e., demands that governments make on landowners to dedicate a portion of their property to the public as a condition for securing development permits. In land-use exaction cases, there must be an "essential nexus" between a "legitimate state interest" that the government asserts will be furthered by the condition of a development permit and the exaction, as well as "rough proportionality" between the development restriction and the impact that the state-imposed development condition is intended to mitigate. (Dolan v. City of Tigard (1994)
The Bottinis briefly argue that one of the City Council members who voted to grant the CEQA appeals formerly served as an officer of LJHS and therefore, had "biased views" that detract from the "legitimacy" of the City Council's votes. However, the Bottinis relegated this undeveloped argument to a footnote. We therefore decline to consider it. (California School Bds. Assn. v. State of California (2011)
We note that the Bottinis' prayer for relief requests only monetary damages for the due process cause of action, coupled with a general request for attorney fees and costs. However, "[i]t is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution." (Javor v. Taggart (2002)
In relating the mitigation measures proposed by the Bottinis, we are not suggesting that these measures would constitute sufficient mitigation if a lead agency were to conclude that a project may cause a substantial adverse change in the significance of an historical resource. On the contrary, "preservation in place" is the preferred method of addressing environmental impacts affecting historical resources, unless the lead agency "determines that another form of mitigation is available and provides superior mitigation of the impacts." (Madera Oversight Coalition, Inc. v. County of Madera (2011)
As with their due process cause of action, the Bottinis seek only monetary damages, which cannot be recovered for alleged violations of the equal protection clause of the California Constitution. (Javor, supra ,