TOWER LANE PROPERTIES, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant; BRUCE KARSH et al., Interveners and Appellants.
No. B244092
Second Dist., Div. One.
Feb. 28, 2014.
224 Cal. App. 4th 262
COUNSEL
Latham & Watkins, James L. Arnone, Jeffrey P. Carlin and Benjamin J. Hanelin for Interveners and Appellants.
Jeffer, Mangels, Butler & Mitchell, Robert E. Mangels, Benjamin M. Reznik and Matthew D. Hinks for Plaintiff and Respondent.
OPINION
CHANEY, Acting P. J.—Respondent Tower Lane Properties (Tower Lane) sought a grading permit from the City of Los Angeles (the City) for construction of a three-residence family compound over three contiguous hillside lots totaling 85,000 square feet. The City‘s engineers conditioned the permit upon compliance with
We agree with the trial court that a tentative tract map is required only when land is subdivided. Because Tower Lane proposed no subdivision, we affirm.
Factual Background
Tower Lane seeks to build a single-family residential compound on property located in the Benedict Canyon neighborhood of Los Angeles. The property consists of three separate but contiguous lots located in an area designated as hillside under the
During its review process the planning department notified Tower Lane that to obtain a grading permit it must comply with
The City conditioned issuance of any waiver upon preparation of an environmental impact assessment under the California Environmental Quality Act,
The trial court found
Discussion
1. Standard of Review
This appeal requires us to determine whether
2. Rules of Statutory Construction
“The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.” (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) The construction of a county ordinance is subject to the same standard. (Department of Health Services v. Civil Service Com. (1993) 17 Cal.App.4th 487, 494.) To ascertain such intent, we consider the words of the ordinance itself, as they are the most reliable indicators of the drafter‘s purpose. (Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90 Cal.App.4th 64, 69-70; People v. Gardeley (1996) 14 Cal.4th 605, 621.) We may not speculate that the enacting
3. Subdivision Map Act
The Subdivision Map Act,
“As used in the Act, ‘subdivision’ means ‘the division, by any subdivider, of any unit or units of improved or unimproved land . . . .’ ([
A tentative map is a map showing the design and improvement of a proposed subdivision of five or more parcels and the existing conditions in and around it. (
“A local agency will approve a tentative and final map or a parcel map only after extensive review of the proposed subdivision and consideration of such matters as the property‘s suitability for development, the adequacy of roads, sewer, drainage, and other services, the preservation of agricultural lands and sensitive natural resources, and dedication issues. [Citations.] [] By generally requiring local review and approval of all proposed subdivisions, the Act aims to ‘control the design of subdivisions for the benefit of adjacent landowners, prospective purchasers and the public in general.’ [Citation.] More specifically, the Act seeks ‘to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer.’ [Citations.]” (Gardner, supra, 29 Cal.4th at pp. 997-998; see Sixells, LLC v. Cannery Business Park (2008) 170 Cal.App.4th 648, 652.)
The Subdivision Map Act delegates “[r]egulation and control of the design and improvement of subdivisions” to local agencies, “which must promulgate ordinances on the subject.” (
The stated purpose of Article 7 “is to regulate and control the division of land, within the City of Los Angeles . . . , [and] to supplement the provisions of the Subdivision Map Act concerning the design, improvement and survey data of subdivisions, the form and content of Tentative Maps and Final Maps, and the procedure to be followed in securing the official approval of the City of Los Angeles on such maps, consistent with the applicable general and specific plans as well as the public health, safety and welfare.” (
The LAMC defines a tentative map as: “a map made for the purpose of showing the design of a proposed subdivision creating five or more parcels, . . . and showing the existing conditions in and around it . . . .” (
The Division of Land Regulations also requires that subdivision of land be “done in accordance with the grading regulations of the City” contained in the City Building Code, in the LAMC. (See
4. The Ordinance Applies to Subdivisions Only.
The language of the Ordinance is subdivision specific.
The Ordinance by its plain language applies to subdivisions only. The Ordinance states: “No permit shall be issued for the import or export of earth materials to or from and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m2) unless a tentative tract map has been approved therefor by the advisory agency. The advisory agency may waive this requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.”7 (
The terms “tentative tract map” and “advisory agency” are defined solely in, and operate exclusively under, the auspices of the Division of Land Regulations. A tentative map depicts “the design of a proposed subdivision creating five or more parcels.” (
The Division of Land Regulations is the City‘s response to requirements set forth in the Subdivision Map Act, which defines “advisory agency” as “a designated official . . . charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property” and “tentative map” as “a map made for the purpose of showing the design and improvement of a proposed subdivision.” (
Appellants argue the “tentative tract map procedure” used by the advisory agency is “important to the City” and “well suited for analyzing the potential
It is not our place to decide whether the City should make these inquiries, only whether
Appellants argue the Ordinance should properly be read to require approval of a grading plan because the word “therefor” means no permit shall be issued unless a tentative tract map has been approved “for the grading” by the advisory agency. We disagree. The Ordinance provides: “No permit shall be issued for the import or export of earth materials to or from and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m) unless a tentative tract map has been approved therefor by the advisory agency.” (
The statutory framework surrounding the Ordinance supports our conclusion that the City intended the Ordinance to apply to subdivisions only. The LAMC is organized as a numbered outline list with several nested levels, each level reflected by a corresponding digit. For example,
Subdivision 91.7006.8.1, entitled Subdivision Map Act, conditions “any grading or import or export of earth materials to or from any grading site” on “compliance with the zoning, private street and division of land regulations contained in Chapter I of the Los Angeles Municipal Code, the Subdivision Map Act of the State of California and the approved master plan for the area in which the grading is to be done.” (
Moreover, the fee provision, set forth in section 19.02, subdivision F, which provides for “review of grading plans in large hillside areas . . . to determine whether a tract map is required to be filed,” also supports the subdivision-only interpretation. Use of the term “tract map,” a subdivision-specific term, indicates the application fee operates when the City reviews grading plans for hillside subdivision sites.
Applying the Ordinance only to subdivisions is also consistent with the purpose of the statutory scheme, specifically section 91.7006.8, the City‘s grading regulations, and the Subdivision Map Act, which harmonize subdivision approval and grading regulations. (See
The purpose of the Ordinance is to ensure that grading on large hillside subdivision sites is done in accordance with the purpose and goals of
The waiver provision does not compel an alternative interpretation.
Appellants contend that applying the Ordinance only to subdivisions renders the second sentence of the Ordinance surplusage because the advisory agency would never have discretion to waive a tract map when a tentative tract map is not required in the first place. The second sentence of the Ordinance states, “The advisory agency may waive [the tentative tract map] requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.” (
Although appellants argue that the subdivision-specific interpretation renders this waiver provision superfluous, we fail to find a more compelling interpretation that gives the waiver provision meaning. Although a construction rendering some words surplusage should be avoided if possible, the rule is not absolute. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 234-235; People v. De Porceri (2003) 106 Cal.App.4th 60, 69 [the principle “is merely a guide and should not be employed to defeat legislative intent“].) We agree with the trial court that drafters often “say in 10,000 words what they can say in 1,000.” Because the language of the Ordinance makes apparent that the drafters intended it to apply to subdivisions only, the redundant nature of the waiver provision does not overcome that intent. The plain meaning of the Ordinance is clear and unambiguous, and therefore the language of the Ordinance controls.
5. Judicial Deference to the City Agencies’ Interpretation Is Unwarranted
Appellants urge us to defer to the City‘s interpretation of the Ordinance.8 In October 2011 and January 2012, the City issued two memoranda detailing
While recognizing that an agency‘s interpretation must be given great weight, the interpretation is not binding, and ultimate responsibility for interpretation of an ordinance rests with the court. (See Brown v. Fair Political Practices Com. (2000) 84 Cal.App.4th 137, 150.) The level of deference we accord to an agency‘s interpretation turns on “whether the agency has a comparative interpretive advantage over the courts, and also whether its interpretation is likely to be correct.” (Ibid.) Factors to consider in determining if an agency has a comparative advantage include whether “the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12.) Here, interpretation of the Ordinance requires no technical expertise that would give the City agencies a comparative interpretative advantage.
Further, we consider whether an agency has consistently followed its putative interpretation, and how long it has done so. (Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974; see Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at p. 13 [an interpretation is more likely to be correct where there is evidence “that the agency ‘has consistently maintained the interpretation in question, especially if [it] is longstanding’ “; ” ’ [a] vacillating position . . . is entitled to no deference’ [citation].“] )
Here, the City‘s historical position on the Ordinance has been unclear and inconsistent. Appellants offer city attorney opinions from 1990 and 1999 as evidence of the City‘s purported long-standing interpretation. The first opinion provides advice to the advisory agency regarding waiver of a tentative tract map to obtain a grading permit for hillside development of 13 single family lots on a site subdivided in the 1920‘s. The city attorney stated that the advisory agency‘s waiver determination under the Ordinance required environmental review. The second opinion, a letter to a councilman who requested a determination of whether a tract map was required prior to issuance of a grading permit “for the development of 93 single family homes, on an existing tract approved in 1902 prior to modern environmental procedures
City attorney opinions construing a local ordinance are entitled to consideration, just as Attorney General opinions construing a state statute are entitled to consideration. (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 19 [overruled on other grounds by Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th 1].) However, the opinions proffered by appellants discussed the Ordinance only in the context of subdivision of land. The opinions do not establish that the Ordinance has been applied to nonsubdivision projects.10
Appellants advance only three nonsubdivision projects since 1964 to which the Ordinance has been applied.11 These projects include (1) construction of two buildings consisting of warehouse and office space with associated parking; (2) construction of an 86-bed addition to an existing 117-bed nursing home; and (3) construction of two single-family homes in a large hillside area.
Although the Ordinance was applied to these projects, no evidence indicates they were required to undergo discretionary review to obtain a grading permit waiver.12 Instead, the evidence suggests these projects underwent a routine clearance that involved no environmental assessment. Moreover, the only example involving a single-family residence was merely a request by the permit applicant for a determination that a tract map was not required.
Substantial evidence indicates City agencies have not followed any consistent and long-standing interpretation of the Ordinance. Of 11 permits issued between 2000 and 2011 for grading on large hillside areas, only two
Moreover, City officials themselves offer inconsistent interpretations of the Ordinance. Ifa Kashefi, the current deputy superintendent of building and an employee of the City‘s Department of Building and Safety since 1985, stated in a declaration, “As long as I have been at the Department, the Department‘s interpretation of Section 91.7006.8.2 has been that the Section does apply to projects that propose no subdivision.” But Hamid Behdad, a Department of Building and Safety plan check and grading engineer for 18 years, declared, “I understood the Ordinance to be applicable only in the case of grading in connection with subdivision projects.”
The only clear evidence of the City‘s application of the Ordinance to all large hillside grading projects are the two recent City memoranda discussed above. But these memoranda were not released until after Tower Lane applied for permits. No evidence suggests the detailed procedure now required by the planning department existed prior to the January 2012 memorandum. An agency‘s undisclosed unilateral interpretation is not entitled to deference. Because the City cannot point to a consistent and long-standing interpretation, its current interpretation is entitled to no deference. (See also Southern Cal. Edison Co. v. Public Utilities Com. (2000) 85 Cal.App.4th 1086, 1105 [” [A]n agency‘s interpretation of a regulation or statute does not control if an alternative reading is compelled by the plain language of the provision.“].)
Appellants argue that Tower Lane‘s project should be subject to discretionary review under the Ordinance because the project will have significant environmental impacts. Environmental review of large hillside grading projects like Tower Lane‘s residential compound may be desirable public policy, but ” ’ [c]ourts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority.’ ” (Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. 1697.) The trial court properly interpreted the Ordinance to apply to subdivisions only.
The judgment is affirmed. Respondent is to recover costs on appeal.
Johnson, J., and Miller, J.,* concurred.
The petition of interveners and appellants for review by the Supreme Court was denied May 21, 2014, S217687.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.