On appeal, plaintiffs characterize the City's action as a final decision limiting them to 3,300 cubic yards of grading-a grading limitation that plaintiffs contend will foreclose any development of the property. The record does not bear out these characterizations. While the City denied plaintiffs' request for almost 80,000 cubic yards of grading, it neither definitively limited plaintiffs to 3,300 cubic yards nor precluded plaintiffs from submitting another, more modest, development proposal. Moreover, nothing to which plaintiffs have directed our attention supports plaintiffs' contention that building a home of any size on the property will require all, or nearly all, of the grading requested. Accordingly, we find no error in the trial court's determinations, and thus we affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL HISTORY
A. Plaintiffs' Development Proposal
Plaintiffs own a 40-acre parcel located at 6459 Innsdale Drive, Los Angeles (the
On November 15, 2011, plaintiffs applied to the Los Angeles Planning Department for approval to build an 8,000 square foot home, a 1,300 square foot guest house, a driveway, swimming pool, tennis court, storage sheds, retaining walls, and "wine caves" on the property. In connection with the proposed project, plaintiffs requested approval for 79,700 cubic yards of grading: 39,850 cubic yards of cut (excavated earth materials) and 39,850 cubic yards of fill (deposit of excavated materials on-site).
The Baseline Hillside Ordinance (BHO), which is codified at Los Angeles Municipal Code (LAMC)
A party may obtain relief from the BHO's grading limitations by applying to the Planning Department for a deviation. A zoning administrator may grant a deviation from "by-right" grading limitations to allow additional grading up to an amount no greater than 500 cubic yards plus five percent of the total lot size. (Former § 12.21(C)(10)(f)(4)(i).) It is undisputed that plaintiffs' property is approximately 40 acres, or 1,742,400 square feet, and thus that the zoning administrator had discretion to grant up to 87,620 cubic yards of grading.
In order to grant a deviation from the by-right grading limitations, a zoning administrator must hold a public hearing and make the following findings required by section 12.24(E):
"(1) ... the project will enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region;
"(2) ... the project's location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety; and
"(3) ... the project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan."
The zoning administrator must also make the following additional findings required by section 12.24(X)(28)(b)(5)(ii): "[A]pproval ... is in conformity with the public necessity, convenience, general welfare and good zoning practice[;] ... the action will be in substantial conformance with the various elements and objectives of the General Plan[;] ... [¶] ... [¶] ... the increase in the maximum quantity of earth import or export will not lead to the significant alteration of the existing natural terrain[;
C. The Zoning Administrator's Determination
On November 19, 2013, Associate Zoning Administrator Charles Rausch (the zoning administrator) conducted a public hearing on plaintiffs' proposed project. Approximately 30 to 40 local residents attended the hearing, the majority of whom opposed the project.
On about August 8, 2014, the zoning administrator issued a written determination approving the construction of the requested single-family home and most of the accessory buildings and retaining walls. However, the zoning administrator denied the request for 79,700 cubic yards of grading. In connection with the denial, the zoning administrator made a number of specific findings, including the following:
The project will not enhance the built environment in the surrounding neighborhood or will not perform a function or provide a service that is essential or beneficial to the community, city, or region (§ 12.24(E)(1) ) : "One of the intents of the [BHO] was to control the mass of individual single-family homes in hillside areas of the city. Along with controls on the size of homes, an important section of the ordinance controlled grading which would occur on individual lots. The intent of the grading restrictions was to control the amount of flat areas on lots that could be graded in order to include private recreational facilities such as swimming pools, tennis courts, lawn areas and guest houses. The construction of such uses often resulted in excessive grading as well as the construction of retaining walls of excessive heights in order to manufacture flat areas on hillsides which could accommodate such uses.
"The plan for the subject property included an extensive auxiliary 12-foot wide driveway which extended from the main 20-foot wide driveway to the proposed house up the hillside to a proposed tennis court. The driveway itself would cause extensive grading in order to flatten the slope to the maximum of a 15% grade required by the Fire Department for emergency vehicle access. It would also require extensive grading of the easterly and westerly slopes adjacent to the tennis court. It was explained at the hearing that this extensive grading of up to 79,700 cubic yards of earth was needed in order to balance all of the graded material on the site and avoid the need to haul dirt off the site on the often narrow streets which surround the site.
The project's size, height, operations and other significant features will not be compatible with or will adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, or safety (§ 12.24(E)(2) ) : "The request to grade 79,700 cubic yards of dirt on the site would not be compatible with adjacent properties or the surrounding neighborhood. Surrounding lots on Innsdale Drive range in size from a quarter to one half acre in size. The subject RE40 lot is to the north of Innsdale Drive and is 40+ acres in size. The current development on Innsdale Drive is well concealed from view from adjacent areas by ridgelines and the low height of the structures so they do not dominate views from surrounding areas. The subject development will result in a graded road extending up a hillside to a private recreation area .... Though the Code requires these graded slopes to be landscaped to cover the grading scars in the hillside, the
The project does not substantially conform with the purpose, intent and provisions of the General Plan, the applicable neighborhood Community Plan and any applicable specific plan (§ 12.24(E)(3) ) : "The Hollywood Community Plan includes the following objective in the Plan text: Objective 3a[,] 'In hillside residential areas to ... [m]inimize grading so as to retain the natural terrain and ecological balance'; and Objective 7[,] 'To encourage the preservation of open space consistent with property rights when privately owned and to promote the preservation of views, natural character and topography of mountainous parts of the Community for the enjoyment of both local residents and persons throughout the Los Angeles region.' The proposed grading of 79,700 cubic yards of dirt on the site will occur on a prominent ridge which is viewable from not only Hollywood proper below the site but from throughout the Los Angeles Basin in areas with a view of the Hollywood Sign.
"The prominence of the site requires care in the development of it. The existing
The requested grading in excess of the 3,300 cubic yards permitted by the Municipal Code is not in conformity with the public necessity, convenience,
D. Administrative Appeal to the Area Planning Commission
The Municipal Code provides that a zoning administrator's decision and findings are appealable to an Area Planning Commission, which is required to hold a public hearing. (§§ 12.21(A)(2), 12.24(C) & (I)(3).) In reviewing the zoning administrator's decision, the APC "shall make its decision, based on the record, as to whether the initial decision-maker erred or abused his or her discretion." (§ 12.24(I)(3).)
On about August 20, 2014, plaintiffs appealed the zoning administrator's determination to the Planning Department's Central Area Planning Commission (APC).
At the hearing, the zoning administrator testified, among other things, that when he issued his decision, he misunderstood the scope of his discretion under the LAMC. However, he said, even had he correctly understood the scope of his discretion, he would have made the same decision. He explained that plaintiffs' proposal called for keeping the fill on-site, which would require a secondary 12-foot-wide road to transport the fill to a new location. The proposed road was on a prominent ridgeline that was visible from the public land surrounding Lake Hollywood, Mulholland Dam, and the flats of Hollywood. The zoning administrator did not believe the ridge should be marred to avoid having to remove fill from the
Plaintiffs' attorney told the APC that her clients had made several changes to their proposal by eliminating the proposed tennis court and sheds. Notwithstanding these changes, plaintiffs did not reduce their grading request. To the contrary, their counsel stated that the fire road and house pad required approximately 35,000 cubic yards of cut (21,262 cubic yards for the fire road and 14,277 cubic yards for the house pad), and plaintiffs wished to keep all the grading material on site, which would require an additional 42,239 cubic yards of grading (3,444 cubic yards for the fill road and 38,795 cubic yards for the fill site).
After further discussion, the Commissioners voted to deny the appeal and sustain the decision of the zoning administrator.
E. Trial Court Proceedings
1. Complaint and Petition
Plaintiffs filed a complaint and petition for writ of mandate in January 2015. The first cause of action alleged that the City's action was arbitrary and capricious, and it sought a writ of mandate directing the City to set aside its action and approve the application "in a manner that will permit the construction of a single-family home on the Property in a feasible and timely fashion." The second cause of action, for inverse condemnation, alleged that the City had taken plaintiffs' property by depriving them of substantially all economically viable or beneficial uses of the Property. The third cause of action, for violation of civil rights, alleged that the City had arbitrarily and unlawfully imposed restrictions on plaintiffs' use of their property and treated plaintiffs differently than other similarly-situated homeowners.
2. Mandate Proceedings
Following proceedings before the trial court, the court denied plaintiffs' mandate petition, concluding that the City's findings and decision were supported by substantial evidence. Among other things, the trial court found that substantial evidence supported the City's finding that the project was inconsistent with Hollywood's Community Plan; plaintiffs never reduced their
3. Judgment on the Pleadings
The City subsequently moved for judgment on the pleadings, urging that plaintiffs' inverse condemnation and civil rights claims were not ripe because the City had denied a single grading request, but had not made a final determination limiting any potential grading on the property to 3,300 cubic yards. The City urged that the extent of grading it would approve on the property was uncertain because plaintiffs never presented the City with an alternative grading proposal or asked the City to consider any proposal for less than 79,700 cubic yards. In support, the City sought judicial notice of various portions of the LAMC, the APC's determination letter, and the zoning administrator's determination and findings.
The court granted the request for judicial notice and the motion for judgment on the pleadings, concluding, among other things, that "the matter [is] not ripe as plaintiffs have not proposed plans of reduced scope that would nonetheless allow the proposed project. Plaintiffs, for instance, could propose plans that would export all or some of the excavated soil from the site or propose its deposit elsewhere on the site."
The trial court entered judgment on August 16, 2016. Plaintiffs timely appealed.
DISCUSSION
Plaintiffs challenge both the denial of the petition for writ of administrative mandate and the grant of judgment on the pleadings. As we now discuss, we find no error, and thus we affirm.
The Trial Court Did Not Err in Denying the Petition for Writ of Mandate
A. Standard of Review
Under Code of Civil Procedure section 1094.5, administrative mandamus is available for review of "any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer."
" 'In reviewing an agency's decision under Code of Civil Procedure section 1094.5, the trial court determines whether (1) the agency proceeded without, or in excess of, jurisdiction; (2) there was a fair hearing; and (3) the agency abused its discretion. [Citation.]' [Citations.] 'Abuse of discretion is established if the respondent has not proceeded in the manner required
B. The City Did Not Abuse Its Discretion by Denying Plaintiffs' Request for a Deviation from the BHO's Grading Requirements
Plaintiffs contend that the City abused its discretion by denying their request for relief from the BHO's grading requirements. Specifically, plaintiffs urge the denial (1) was based on the zoning administrator's erroneous understanding of the scope of his discretion, (2) precludes any development of the parcel, and (3) was unsupported by the evidence. For the reasons that follow, these contentions are without merit.
1. The Zoning Administrator's Alleged Misunderstanding of the Scope of His Discretion Was Not Prejudicially Erroneous
Plaintiffs contend that the City's determination must be reversed because the zoning administrator mistakenly believed he had only two choices before
There are many problems with plaintiffs' contention, among them that an abuse of discretion results in reversible error only if it is prejudicial . (E.g., Freeman v. Sullivant (2011)
2. The City Did Not Preclude Plaintiffs from Building a Home on the Property
Plaintiffs contend that the City's outright denial of their request for a deviation was an abuse of discretion because it precludes them from building a home of
Plaintiffs appear to suggest that the City was required to approve their project in the absence of evidence that the amount of grading required to build a house on the property could be reduced by building a smaller house or placing it elsewhere on the property. But as the trial court correctly noted, the reason there is no evidence concerning the necessary grading for a smaller home, a different home location, or a different driveway, is that plaintiffs failed to present it. Stated simply, the City had no duty to present evidence concerning the amount of grading necessary to build a home on plaintiffs' property, and neither the zoning administrator nor the APC had a duty to consider any project other than the one plaintiffs presented to them. Instead, as the applicants for the land use adjustment, plaintiffs bore the burden of demonstrating their entitlement to the adjustment. (See Hauser v. Ventura County Bd. of Supervisors (2018)
Plaintiffs contend that the City's denial of their grading request is unsupported by
First, plaintiffs suggest a fatal inconsistency between the evidence that the project would replace a dead end on Innsdale Drive with a turnaround for Fire Department emergency equipment, and the zoning administrator's conclusion that the proposed project would not "enhance the built environment in the surrounding neighborhood and perform a function or provide a service that is essential or beneficial to the community." We do not agree. The evidence that some of the project's features benefitted the community did not require the conclusion that the project, taken as a whole, was beneficial. Nor does the fact that some of the City's findings favor plaintiffs suggest, as plaintiffs do, that the zoning administrator's findings were incompatible with the denial.
Second, plaintiffs suggest that the denial "reflected a misconception that all grading in excess of 3,300 cubic yard[s] related to the tennis court and associated improvements on and leading to the Fill Area." Not so. The zoning administrator stated-on the very same pages to which plaintiffs direct our attention-that extensive grading would be needed to create a driveway from the house to a proposed tennis court, as well as to accommodate a 20-foot driveway from the property line to the house and to "balance all of the graded material on the site."
Finally, plaintiffs suggest that the zoning administrator's rejection of "balanced grading" (placing the fill on-site) was unsupported by the evidence because "there was no evidence to support a finding that a haul route with thousands of truck trips running up and down substandard residential streets for months with dust, noise and vehicle pollution ... would be preferable to balanced grading." This assertion misapprehends the burden of proof. As the applicants, it was plaintiffs' burden to demonstrate that balanced grading was superior to removing the "cut" from the project site-not the City's burden to demonstrate to the contrary. ( Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
Motion for Judgment on the Pleadings
A. Standard of Review
" ' "A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review." [Citation.]' " ( Travelers Property Casualty Company of America v. Engel Insulation, Inc. (2018)
"Under the governing legal principles, 'we take as true the well-pleaded factual allegations of the complaint.' ( Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002)
B. Governing Law
The second and third causes of action (for inverse condemnation and violation of civil rights) both are premised on an alleged regulatory taking. A regulatory taking occurs when government regulation of private property is so onerous that it is "tantamount to a direct appropriation or ouster." ( Lingle v. Chevron U.S.A. Inc. (2005)
The County demurred, asserting that the complaint failed to plead facts amounting to a regulatory taking. ( MacDonald , supra
After briefing and oral argument, the United States Supreme Court concluded that it was without jurisdiction to address the merits of the plaintiffs' regulatory takings claim. ( MacDonald , supra ,
In the case before it, the plaintiffs had "submitted one subdivision proposal" and "ha[d] yet to receive the Board's 'final, definitive position
Applying MacDonald , California courts have held that property owners " 'bear[ ] a heavy burden of showing that a regulation as applied to a particular parcel is ripe for a taking claim.' [Citation.] The property owner can show that a final decision has been made for ripeness purposes only when it can set forth facts that are ' "clear, complete, and unambiguous showing that the agency has drawn the line, clearly and emphatically, as to the sole use to which [the property] may ever be put." ' " ( County of Alameda v. Superior Court (2005)
C. The Trial Court Properly Granted the City's Motion for Judgment on the Pleadings Because Plaintiffs' Claims Are Not Ripe
Having independently reviewed the City's findings, of which plaintiffs sought judicial notice, we conclude that the City has neither rendered a final decision nor precluded all development of the property. Instead, the City granted plaintiffs permission to build a single-family home, accessory buildings, and retaining walls; and while it denied plaintiffs' request "to
Similarly, plaintiffs' due process and equal protection claims are also not ripe, because the contention that the BHO is being improperly, inconsistently, or discriminatorily applied, cannot be evaluated until it is known how the City will apply them to appellants' property. Only a final determination by the responsible agency enables a reviewing court to determine the constitutional questions plaintiffs purport to raise in this action. ( Long Beach Equities, Inc. v. County of Ventura , supra , 231 Cal.App.3d at pp. 1040-1041,
Plaintiffs assert on appeal, as they did in the trial court, that a determination of this kind cannot properly be made on a motion for judgment on the pleadings because "it is not for the trial court to argue with the facts alleged in the complaint." But as we have said, although on a motion for judgment on the pleadings we generally take as true the well-pleaded factual allegations of the complaint, we may not accept as true any allegations "that conflict with judicially noticed documents." ( McAllister v. County of Monterey (2007)
Plaintiffs contend they could amend their complaint by "plead[ing] more facts that would support their claim that additional applications would have been futile" and that the City's actions "were arbitrary, capricious, and irrational." Plaintiffs have not articulated what those alleged facts are, which is, alone, a sufficient reason for us to find no abuse of discretion. (E.g., Fuller v. First Franklin Financial Corp . (2013)
The judgment is affirmed. The City is awarded its appellate costs.
We concur:
EGERTON, J.
DHANIDINA, J.
Notes
All subsequent undesignated section references are to the LAMC.
In March 2017, section 12.21(C)(10)(f)(1) was amended to allow maximum grading of 1,000 cubic yards, plus 10 percent of the lot size, not to exceed 6,600 cubic yards.
The trial court's findings variously refer to plaintiffs' grading request as for 78,500 and 79,700 cubic yards of cut and fill. The discrepancy is not material for our purposes.
In their opening brief, plaintiffs assert that they will not repeat the arguments they made in the trial court because the "[t]he documents in the record contain in detail the arguments Appellants made below and the factual and legal basis for each argument." To the extent plaintiffs purport to incorporate by reference the arguments they made below but have not included in their appellate briefs, we decline to consider them because "[i]t is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court. (Colores v. Board of Trustees (2003)
As the City correctly notes, the subject of a petition for writ of administrative mandate is a final decision by the City-in this case the decision of the APC. (Code Civ. Proc., § 1094.5 [writ may issue for the purpose of inquiring into the validity of "any final administrative order or decision"].) Nonetheless, an abuse of discretion by the zoning administrator could be relevant to our review if such abuse should have compelled the APC to reverse the decision of the zoning administrator.
In a "balanced grading" plan, earth excavated from one section of the property is deposited elsewhere on the property.
At oral argument, plaintiffs' counsel urged the court to consider a declaration submitted by plaintiffs' civil engineer, Stephen Smith, as evidence that no house could be built on the property with less grading than plaintiffs requested. We decline to consider it. The declaration was submitted for the first time in opposition to the City's motion for judgment on the pleadings, and thus it was not before either of the City's decision makers (the zoning administrator or APC) or the trial court reviewing the petition for writ of mandate. It therefore is not properly before us in connection with our review of the trial court's order denying the mandate petition.
The cases that plaintiffs cite for the proposition that a landowner need not resubmit an application if it would be futile to do so are factually distinguishable and, therefore, not persuasive. In Palazzolo v. Rhode Island (2001)
Plaintiffs assert that they could have stated a claim had they been permitted to conduct discovery. Because plaintiffs do not contend the trial court abused its discretion by denying permission to conduct discovery, we do not reach this issue.