Appellants Venice Coalition to Preserve Unique Community Character and Celia R. Williams alleged in a complaint filed in Los Angeles County Superior Court that the City of Los Angeles engaged in a pattern and practice of illegally exempting certain development projects in Venice from permitting requirements in the Venice Land Use Plan and in the California Coastal Act. The trial court granted summary judgment as to all causes of action, and Venice Coalition, et al., appeal. As we find that the City is entitled to judgment as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, appellants Venice Coalition to Preserve Unique Community Character and Celia R. Williams (Venice Coalition) filed a complaint for declaratory and injunctive relief against respondents the City of Los Angeles and Department of City Planning for the City of Los Angeles (City). The complaint alleged violations of due process under the California Constitution, and violations of the California Coastal Act (Coastal Act), the Venice Land Use Plan (LUP), and the California Code of Civil Procedure. The first cause of action alleged the City engaged in a pattern and practice of approving development projects without affording the community an opportunity for notice and a hearing. The second cause of action alleged the City failed to ensure all development projects complied with the requirements of the LUP. The third cause of action alleged the City acted in excess of its authority by issuing exemptions from the California Coastal Act's requirement that development projects obtain Coastal Development Permits (CDP's). The fourth cause of action alleged the exemptions granted by the City were unauthorized under Public Resources Code section 30610
The City filed a motion for judgment on the pleadings, which the trial court denied. The City then filed a motion for summary judgment, which the trial court granted.
Venice Coalition timely appealed the court's grant of summary judgment as to the first, second, fourth, and fifth causes of action. Venice Coalition is not challenging the grant of summary judgment as to the third cause of action.
A. Standard of review
We review a trial court's grant of summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." ( Guz v. Bechtel National, Inc. (2000)
Summary judgment is warranted if all the papers submitted show that there is no triable issue as to any material fact such that the moving party is entitled to judgment as a matter of law. ( Code Civ. Proc., § 437c, subd. (c).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Id. , subd. (f)(1).)
The moving party "bears the burden of showing the court that the plaintiff 'has not established, and cannot reasonably expect to establish, a prima facie case.' " ( Miller v. Department of Corrections, supra,
B. Regulatory Background
The City employs two different, but parallel, processes to approve or deny all development projects in the Venice community. One involves the Venice specific plan which governs all development in Venice. The other process is pursuant to the Coastal Act, with which all development in Venice must also comply. To comply with the specific plan, all development projects in Venice must either undergo a project permit compliance review, or a determination that a review is not required. To comply with the Coastal Act, all development projects in Venice must obtain a CDP or an exemption from the CDP requirement.
1. The Coastal Act
The California Coastal Act of 1976 is a comprehensive scheme governing land use planning for the entire coastal zone of California. (
The Coastal Act requires local governments to develop local coastal programs, which consist of a land use plan and a local implementation plan. ( Pacific Palisades, supra,
In 1978, the Coastal Commission granted to the City the authority to issue both CDP's for development within the Coastal Zone and exemptions for development projects that do not require a CDP under the Coastal Act. The City's CDP program is codified in section 12.20.2 of the Los Angeles Municipal Code. In 2001, the Coastal Commission certified the Venice LUP. The City submitted a Venice local implementation plan to the Coastal Commission in 2004; as of yet, the implementation plan has not been certified.
2. The Venice Land Use and Specific Plans
The certified Venice LUP is a part of the City's general plan, which guides the City's use of land and the design and character of buildings and open space. One of the goals of the LUP is to control building heights and bulks to "preserve the nature and character of existing residential neighborhoods."
In 2003, the City Planning Commission approved the amended Venice specific plan at a public hearing. The specific plan is an ordinance developed
C. First Cause of Action: The VSO Process is Ministerial
The first cause of action alleged the City denied Venice residents due process
Local governments take three types of actions in land use matters: legislative, adjudicative, and ministerial. ( Calvert v. County of Yuba (2006)
The federal and state Constitutions prohibit the government from depriving persons of property without due process of law. ( U.S. Const., 5th Amend.; Cal. Const., art. I, § 7, subd. (a).) Adjudicative governmental actions that implicate significant or substantial property deprivation generally require the procedural due process protections of reasonable notice and an opportunity to be heard. ( Calvert v. County of Yuba , supra ,
Here, section 8A of the Venice specific plan provides that the Director of Planning may issue a VSO to certain projects upon a determination that they are exempt from project permit compliance review. Section 8A lists several types of projects eligible for VSO's, including improvements to existing single- or multiple-family structures not located on a walk street; new construction of one single-family unit and not more than two condominium units not located on a walk street; new construction of four or fewer rental units, not located on a walk street; and demolition of four or fewer units. Once the Director of Planning determines that a project is eligible under one of these categories, he or she must then determine whether it meets certain fixed development requirements applicable to the neighborhood in which the proposed project lies. These requirements include maximum height, maximum density, and minimum yard setback measurements. The Director of Planning uses forms that are essentially checklists requiring only a determination that the proposed project does or does not meet objective measurement criteria.
Sections 8B and 8C of the Venice specific plan, however, govern development projects not subject to VSO approval and therefore subject to project permit compliance review. Under section 8C, the Director of Planning must make certain findings, including that the project "is compatible in scale and character with the existing neighborhood, and ... not be materially
We agree with the City and the trial court that the VSO process is ministerial. The Director of Planning is not required to exercise independent judgment; he or she only reviews a set of fixed, objective construction measurements. In contrast, the project permit compliance review in section 8C requires the Director of Planning to exercise independent, subjective judgment as to whether the project is generally compatible with the character of the existing neighborhood.
Venice Coalition also argues that, by its nature, the VSO process cannot be ministerial because each project must be reviewed for compliance with the LUP. As discussed in the next section, Venice Coalition contends that the LUP mandates that all projects, including those granted a VSO, must
D. Second Cause of Action: The Director of Planning is Not Required to Review VSO Projects for Compliance with the LUP
Venice Coalition argues that the Director of Planning must conduct a discretionary analysis of every VSO to ensure it is compliant with the LUP. Venice Coalition points to language on the cover of the Venice specific plan stating "[p]lease refer to the certified Venice Coastal Land Use Plan for other development standards that may apply to your project" and language in the LUP stating new development must respect the "scale and character of community development," the "massing and landscape of existing residential neighborhoods," and must identify, protect, and restore the "historical, architectural and cultural character of structures and landmarks."
Venice Coalition has not identified any ordinance, municipal code provision, or statute requiring the Director of Planning to independently review small-scale VSO projects for compatibility with the LUP. Moreover, in
Accordingly, we agree with the City that VSO projects that are consistent with specific plan standards are necessarily consistent with LUP policies.
Furthermore, any challenge to the VSO process as embodied in the specific plan is time-barred. Section 65009(c)(1)(A) of the Government Code sets a 90-day statute of limitations to "attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a general or specific plan." Venice Coalition claims it is not attacking the Venice specific plan itself, its adoption, or the City's determination that the specific plan is consistent with the LUP. Rather, Venice Coalition claims it is only challenging the City's ongoing failure to ensure that VSO projects "respect the scale, massing, character,
This argument, however, is an attempt to recast what is essentially a challenge to the specific plan itself as being inconsistent with the LUP. In 2003, the City previously determined that the ministerial process outlined in the specific plan was consistent with the LUP. Thus, as set out above, compliance with the specific plan is compliance with the LUP. Consistent with that 2003 determination, the specific plan contains no language requiring the Director of Planning to independently review specific plan projects for compliance with the LUP. Arguing that the Director of Planning must nonetheless conduct such an independent review is tantamount to arguing that the City was wrong. This argument should have been brought to the attention of the City within the statutory time limitation.
Moreover, besides being unnecessary, it would not be feasible to impose a duty on the City to review VSO projects for compliance with the LUP without altering the specific plan itself. Venice Coalition is essentially aiming to convert the ministerial VSO process, which the City already authorized as compliant with the LUP, into a discretionary one by imposing an additional duty on the Director of Planning that the City did not contemplate. In other words, the remedy Venice Coalition urges would require an alteration of the specific plan, which is tantamount to an attack on the specific plan itself. Again, any attempt to do so should have been presented within the statutory time limitation.
Finally, if a project receives VSO approval, it still must get a CDP. Venice Coalition does not dispute that the City applies LUP policies as part of the CDP process, which is discretionary. The Municipal Code requires the City to find that development projects conform to Chapter Three of the Coastal Act. (L.A. Mun. Code, § 12.20.2(G)(1)(a).) Among the requirements in Chapter Three is the mandate that development be "sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. (§ 30251.) Therefore, the City ultimately does end up evaluating specific plan projects for compliance with the LUP. We see no reason why the City should be compelled to undergo this process again and again.
E. Fourth Cause of Action: Additions to Existing Structures are Eligible for Exemptions Under the Coastal Act
Venice Coalition alleged in the fourth cause of action that, in violation of the Coastal Act, the City was issuing exemptions from the CDP process for additions to existing buildings and demolitions ordered as part of a nuisance abatement order. Venice Coalition argued that section 30610 only allows for "improvements" to existing structures, not additions. On appeal, Venice Coalition argues not that all additions are disallowed by the Coastal Act, but
Venice Coalition points to sections 13250, subdivision (b)(4) and 13253, subdivision (b)(4) of title 14 of the California Code of Regulations for the proposition that no improvements to existing structures that increase floor area or height by more than 10 percent are allowed in the entire coastal zone. The language of these regulations, however, is as follows: "[o]n property not included in subsection (b)(1)
Furthermore, the language of these regulations, which were enacted to carry out the provisions of section 30610, subdivision (a), confirms that the Coastal Act contemplates that improvements to existing structures would include additions. Were it otherwise, the regulations would disallow all improvements that increase the size of an existing structure rather than limiting those in certain specified coastal areas to less than 10 percent. Finally, Charles Posner, Supervisor of Planning for the Coastal Commission, stated in a sworn declaration that Commission staff approves the City's issuance of exemptions for additions to existing structures.
With respect to demolitions ordered as part of a nuisance abatement order, Venice Coalition does not argue this issue on appeal. Nonetheless, we
Venice Coalition also argues on appeal that the City fails to provide notice of many of the exemptions in violation of the Coastal Act. Venice Coalition did not, however, raise this issue in the trial court, nor did they include the underlying facts to support this allegation in their separate statement of facts opposing summary judgment. We therefore decline to address the issue here. ( City of San Diego v. Rider (1996)
F. Fifth Cause of Action: Venice Coalition is Not Entitled to Injunctive Relief
The trial court granted summary judgment as to the fifth cause of action for
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur:
GRIMES, Acting P. J.
RUBIN, J.
Notes
Presiding Justice of the Court of Appeal, Second Appellate. District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
All further statutory references are to the Public Resources Code unless otherwise indicated.
A "walk street" is a "public street in the Coastal Zone and/or beach area that has been improved for public pedestrian use over part of its width and is landscaped ... over the remainder, but which has not been improved for vehicular access."
Subdivision (b)(1) of sections 13250 and 13253 of title 14 of the California Code of Regulations provides that CDP's are required for all improvements to a single-family structure located on a beach, wetland, seaward of the mean high tide line, on environmentally sensitive habitat area, an area designated as highly scenic in a LUP, or within 50 feet of the edge of a coastal bluff.