Save Laurel Way v. City of Redwood City ( 2017 )

Filed 9/22/17 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAVE LAUREL WAY,
Plaintiff and Respondent,
A147942
v.
CITY OF REDWOOD CITY, (San Mateo County
Super. Ct. No. CIV526753)
Defendant and Respondent;
LAUREL WAY JOINT VENTURE, ORDER MODIFYING OPINION
AND DENYING REHEARING
Real Party in Interest and Appellant. [NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the published opinion filed herein on August 29, 2017, be
modified as follows:
1. On page 11, add a new footnote 9 at the end of the section heading III, “Issues
Under the SMA Are Not Ripe for Review.” Footnotes 9, 10, and 11 in the filed opinion
will be renumbered 10, 11, and 12, respectively.
The new footnote 9 will read:
Prior to the issuance of this opinion, and in its petition for rehearing, SLW argued
that it should be allowed to file a supplemental brief on the issue of ripeness, citing to
Government Code section 68081, which provides that “before . . . a court of appeal . . .
renders a decision . . . based upon an issue which was not proposed or briefed by any
party to the proceeding, the court shall afford the parties an opportunity to present their
views on the matter through supplemental briefing. . . .” We denied the request. Under
this statute, “[t]he parties need only have been given the opportunity to brief the issue
decided by the court, and the fact that a party does not address an issue, mode of analysis
or authority that is raised or fairly included within the issues raised does not implicate the
protections of section 68081.” (People v. Alice (2007) 41 Cal. 4th 668, 679.)
Justiciability is present in every case, and the issue of ripeness is “fairly included” within
LWJV’s argument that the PDP does not violate any provisions of the SMA.
2. On page 12, delete subheading 1, numbering and title only. The text that
follows will remain.
3. On page 13, first full paragraph, 10th line, add a short form to the cited case, so
that the citation reads Pacific Legal Foundation v. California Coastal Com. (1982)
33 Cal. 3d 158, 170 (Pacific Legal).
4. On page 13, last line, after the sentence that ends “certifying the EIR,” add a
new footnote 13. Footnotes 11 and 12 in the filed opinion will be renumbered 14 and 15,
respectively.
The new footnote 13 will read:
In Pacific Legal, the Supreme Court adopted a two-pronged ripeness analysis used
by the United States Supreme Court, requiring an evaluation of (i) “the fitness of
the issues for judicial decision” and (ii) “the hardship to the parties of withholding
court consideration.” (Pacific Legal, supra, 33 Cal.3d at p. 171, italics omitted;
see Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149.) Because we
conclude the issue is not fit for judicial decision, we need not reach the second
prong of this test: “A party seeking judicial review of an administrative decision
must establish both that the issues are sufficiently defined for appellate review and
that the party faces hardship as a consequence of court inaction.” (PG&E Corp. v.
Public Utilities Com. (2004) 118 Cal. App. 4th 1174, 1222, italics added.)
5. In newly renumbered footnote 15, previously footnote 13, the last two sentences
will be deleted and two new sentences will be added, so that the footnote reads in its
entirety:
SLW also argues that the trial court held the City failed to make a required
finding that the project will provide “ ‘an environment of physical and
functional desirability, in harmony with the character of the surrounding
neighborhood’ ” and that LWJV waived this point by not addressing it in the
opening brief. As the trial court’s statement of decision is somewhat confusing
on this point, we decline to treat the issue as waived because LWJV adequately
addresses this finding in its reply brief. We agree with LWJV that other
findings in the Resolution and the April 2013 planning commission’s
resolution explain how the Project will achieve the goal of harmony with
neighborhood character.
2
This modification does not change the judgment.
The petition for rehearing is denied.
Dated: ___________________________
Dondero, J.
3
Filed 8/29/17 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SAVE LAUREL WAY,
Plaintiff and Respondent,
A147942
v.
CITY OF REDWOOD CITY, (San Mateo County
Super. Ct. No. CIV526753)
Defendant and Respondent;
LAUREL WAY JOINT VENTURE,
Real Party in Interest and Appellant.
Real party in interest Laurel Way Joint Venture (LWJV) appeals from the trial
court’s order setting aside a planned development permit (PDP) issued by the City of
Redwood City (City). LWJV represents 14 sets of owners of 18 undeveloped lots in the
City who seek to build up to 16 homes on a street known as Laurel Way. Following the
preparation of an environmental impact report (EIR), the City issued the PDP for a
planned upgrade to Laurel Way, covering the first phase of a development project
referred to as the Laurel Way Development Project (Project). The PDP includes such
elements as a cul-de-sac for a fire truck turnaround, a fire hydrant, new streetlights,
pedestrian pathways, an open space land dedication, and other civic improvements. It
does not include any development on the individual lots. The court set aside the PDP,
concluding the City had abused its discretion by failing to evaluate the legal status of the
18 lots under the Subdivision Map Act (Gov. Code, § 66410 et seq.)1 (SMA or the Act).
Because issues regarding the legal status of the individual lots under the SMA are not
ripe for judicial review, we now reverse.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Project site along Laurel Way consists of approximately 4.75 acres. The site
is contained in a hillside canyon and is steeply sloped. Laurel Way is currently a private,
dead end street that is only partially paved. The Project includes undeveloped properties
located along the unpaved end of the street.2 The subject lots on the site range in size
from between approximately 7,200 to 24,525 square feet, which is similar to the lot sizes
found elsewhere in the general neighborhood. The average slopes on the subject lots
range from 19 percent to 41 percent.
The City has divided the Project into two phases. The first phase involves
improvements to the Project area, including paving the roadway, installing utilities and
sewer connections as well as retaining walls, landscaping, drainage infrastructure, and
planting replacement trees. The second phase involves the construction of individual
residences on the lots. The second phase is not to commence until the first phase has
been completed and approved by the City’s community development director. The PDP
at issue in this case pertains to the first phase of the Project.
On May 1, 2006, LWJV filed its first application with the City for a PDP. Seven
months later, the City commenced review for an EIR.3 Between October 2007 and June
1
All further statutory references are to the Government Code except as otherwise
indicated.
2
Two lots within the Project area on Laurel Way already contain houses.
3
The trial court concluded state law does not require preparation of an EIR under
the circumstances presented here. However, in 1988 the City adopted a policy requiring
an EIR prior to any new development on the subject portion of Laurel Way. This EIR
was intended to analyze the full build-out of the street, with a goal of establishing
guidelines for any future development. LWJV was formed in response to the policy
requiring an area-wide EIR.
2
2009, the City planning staff held several workshops and public meetings concerning the
Project.
In February 2010, the City circulated a draft EIR for public review, detailing the
Project’s potential environmental impacts and proposed mitigation measures.
On August 24, 2010, the City’s planning commission certified a final EIR,
adopting findings for mitigation measures, including a mitigation monitoring program.
The EIR concluded that the Project as then proposed would have no significant
environmental impact after mitigation.
On September 9, 2011, LWJV withdrew its original PDP application and
submitted a new application, reducing by two the proposed number of residences.
In March 2013, a revised final EIR was prepared. The EIR was approved by the
City’s planning commission.
On April 1, 2013, the City’s planning commission adopted a resolution approving
the PDP. The resolution includes 63 conditions of approval.
On January 13, 2014, the City Council passed a resolution (Resolution) upholding
the City planning commission’s decision to certify the EIR and modifying the
commission’s approval of the PDP. The Project as approved contemplates that up to 16
new houses will be built, subject to additional permits, as well as to extensive additional
conditions, and requirements.4
On February 13, 2014, respondent Save Laurel Way (SLW) filed a petition for
writ of mandate and a complaint for injunctive relief asserting four causes of action for
4
The Resolution affirmed and adopted the planning commission’s resolution
approving the project, which found that the Project as approved would not be detrimental
or injurious “because the project has been found to be consistent with the community
goals established in the City’s General Plan and Zoning Ordinance.” The Resolution also
approved the planning commission’s approval of the EIR. That approval includes a
finding that the Project “provides a high quality, single-family residential in-fill housing
project” that supports the City’s goal of meeting its regional housing need under the
housing element of its general plan.
3
(1) violation of the City’s municipal code and zoning ordinance, (2) violation of the state
Planning and Zoning Law (§ 65300 et seq.), (3) violation of the SMA, and (4) violation
of CEQA (Pub. Resources Code, § 21000 et seq.).
On August 8, 2014, the City filed its answer to the petition and complaint.5 In its
answer, it indicated its view that the “lots within the Project area are legal conforming
lots created by a tentative map in 1926, which lots do not conform with the current
requirements of the [Redwood City] Zoning Code [RZO], but which the Zoning Code
allows to nonetheless be developed.” That same day, LWJV also filed its answer to the
petition and complaint.
On October 24, 2014, a court trial was held, consisting of oral argument based on
the administrative record and trial briefs filed by the parties.
On January 23, 2015, the trial court issued a proposed statement of decision.
On February 8 and 9, 2015, petitioners and real parties filed objections to the
proposed statement of decision.
On November 20, 2015, the trial court issued the final statement of decision
setting aside the PDP and vacating the City’s certification of the EIR. Invoking the SMA
and recent cases addressing older subdivision maps, the court concluded the City had
abused its discretion in approving the Project because “[t]he facts and law do not support
a finding that there are 16 legal lots upon which 16 homes can be built, and do not
support a finding that the property owners have a vested right to develop each of the 16
alleged lots.” LWJV has appealed.
DISCUSSION
Among the arguments advanced on appeal, LWJV contends that the SMA does
not require a city to evaluate lot legality before granting development permits or
preparing an EIR under CEQA. The contention is persuasive. Because the SMA’s
5
The City is not a party to this appeal.
4
provisions were not invoked by the City’s action in approving the PDP and the EIR, we
conclude the subdivision map issues addressed by the trial court are not ripe for judicial
review.
I. Standard of Review
“Code of Civil Procedure section 1094.5, the state’s administrative mandamus
provision . . . structures the procedure for judicial review of adjudicatory decisions
rendered by administrative agencies. . . . Subdivision (b) of section 1094.5 prescribes
that when petitioned for a writ of mandamus, a court’s inquiry should extend, among
other issues, to whether ‘there was any prejudicial abuse of discretion.’ ” (Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 514–515.)
“Abuse of discretion” is defined to include instances in which the administrative agency
“has not proceeded in the manner required by law, the order or decision is not supported
by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc,
§ 1094.5, subd. (b).) Additionally, the state Planning and Zoning Law provides: “No
action . . . by any public agency . . . on any matter subject to this title shall be held invalid
or set aside by any court . . . by reason of any error, irregularity, informality, neglect, or
omission (hereafter, error) as to any matter pertaining to . . . findings . . . subject to this
title, unless the court finds that the error was prejudicial and that the party complaining or
appealing suffered substantial injury from that error and that a different result would have
been probable if the error had not occurred. There shall be no presumption that error is
prejudicial or that injury was done if the error is shown.” (§ 65010, subd. (b).)
It is presumed that an administrative agency regularly performed its duty, and the
burden is on the party challenging the agency’s actions to prove an abuse of discretion.
(Young v. Gannon (2002) 97 Cal. App. 4th 209, 225; see Kutzke v. City of San Diego
(2017) 11 Cal.App.5th 1034, 1042 [“[i]t is ‘ “not the role of the courts to micro-manage
these development decisions. Our function is simply to decide whether the city officials
considered the applicable policies and the extent to which the proposed project conforms
5
with those policies, whether the city officials made appropriate findings on this issue, and
whether those findings are supported by substantial evidence.” ’ ”].)
Our role on appeal is identical to that of the trial court. Thus, we are not bound by
the trial court’s determinations. (Lucas Valley Homeowners Assn. v. County of Marin
(1991) 233 Cal. App. 3d 130, 142; Alberstone v. California Coastal Com. (2008)
169 Cal. App. 4th 859, 863.) The only exception to this standard of review arises where
the trial court has made findings as to foundational matters of fact that could be
conclusive on appeal; such findings must be accorded deference where supported by
substantial evidence. (Mike Moore’s 24-Hour Towing v. City of San Diego (1996)
45 Cal. App. 4th 1294, 1303.)
II. The SMA
1. General Principles
The SMA is “ ‘the primary regulatory control’ ” which governs the subdivision of
real property. (Gardner v. County of Sonoma (2003) 29 Cal. 4th 990, 996 (Gardner); Hill
v. City of Clovis (2000) 80 Cal. App. 4th 438, 445 (Hill).) Under the SMA, the
“ ‘[r]egulation and control of the design and improvement of subdivisions’ ”6 is vested in
local agency legislative bodies such as a city council, which must adopt ordinances on the
subject. (See § 66411; Gardner, at pp. 996–997.) Generally, developers must design
their subdivisions in conformity with applicable general and specific plans and comply
with local ordinances. (Id. at p. 997; see Hill, at p. 445.)
6
Section 66424 defines a subdivision, in part, as follows: “ ‘Subdivision’ means
the division, by any subdivider, of any unit or units of improved or unimproved land, or
any portion thereof, shown on the latest equalized county assessment roll as a unit or as
contiguous units, for the purpose of sale, lease, or financing, whether immediate or
future. Property shall be considered as contiguous units, even if it is separated by roads,
streets, utility easement, or railroad rights-of-way.” (See Witt Home Ranch, Inc. v.
County of Sonoma (2008) 165 Cal. App. 4th 543, 559 (Witt).)
6
Under the current version of the SMA, subdivisions ordinarily “ ‘may be lawfully
accomplished only by obtaining local approval and recordation of a tentative and final
map pursuant to section 66426, when five or more parcels are involved, or a parcel map
pursuant to section 66428 when four or fewer parcels are involved. [Citation.] 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.]’ [Citation.] The [SMA] prohibits the sale, lease, financing or improvement
of any parcel or parcels of real property for which a final map or parcel map is required
under the Act unless a final map or parcel map has been recorded.” (Abernathy Valley,
Inc. v. County of Solano (2009) 173 Cal. App. 4th 42, 48 (Abernathy).)
The subject lots at issue in the present case were created as part of a residential
subdivision when the Project area was under the unincorporated San Mateo County
jurisdiction. The applicable 1926 subdivision map (1926 Map) reflected a survey,
platting into lots, and creation of hundreds of numbered parcels, for purposes of division
of land for sale. The City annexed the property along the end of Laurel Way, including
the lots that are the subject of the PDP, in 1969. The Project area is currently designated
Low Density Residential under the General Plan, and Residential-Hillside under the
Zoning Ordinance.
2. Historical Overview of the SMA
As noted above, the lots within the Project site were subdivided in 1926. To
understand the basis of the trial court’s ruling it is necessary to review the history of the
SMA.
“The Subdivision Map Act has regulated the division of land in California since
the nineteenth century. ‘The first Subdivision Map Act was enacted in 1893. Subsequent
versions of the Act were enacted in 1907, 1929, 1937 and 1943. The modern latest
7
version of the Act was enacted as part of the Government Code in 1974.’ [Citation.] ‘All
versions of the Act enacted subsequent to the first Act in 1893 contained grandfather
clauses exempting from the current Act those subdivisions established in compliance
with laws in effect when recorded.’ [Citation.]
“In the earliest twentieth-century version of the Act, ‘development was left almost
entirely to the discretion of the developer. The act provided for no governmental
regulation, and required submission of a subdivision map to local officials only to allow
them to check its accuracy in order to assure good title to the resulting parcels.’
[Citation.] ‘With the advent of zoning in the 1920s, subdivision mapping began to
assume some importance as a land use control.’ [Citation.] The 1929 version of the Act
first authorized local subdivision regulations. [Citation.] The 1937 enactment first
prohibited sellers from conveying subdivided lots without prior local approval.
[Citation.] ‘The 1937 enactment was the basis for the 1943 codification which, together
with many amendments thereto, remained in effect until the 1974 recodification.
[Citation.]’ [Citation.] But by the late 1960’s, ‘many uncoordinated amendments’ had
rendered the Act ‘so complex and disorganized that the need for recodification was
apparent. Following attempts in 1971, 1972 and 1973, the Subdivision Map Act, which
had been codified in the Business and Professions Code ([§] 11500 et seq.), was
recodified in [Government Code section] 66410 et seq.’ ” (van’t Rood v. County of Santa
Clara (2003) 113 Cal. App. 4th 549, 563.)
3. The SMA’s Grandfather Provision
The trial court focused on whether the 1926 Map is covered by the SMA’s current
grandfather provision, which provides that the prohibitions on selling, leasing, financing,
or improving parcels on maps that do not comply with the SMA do not apply to “any
parcel or parcels of a subdivision offered for sale or lease, contracted for sale or lease, or
sold or leased in compliance with or exempt from any law (including a local ordinance),
regulating the design and improvement of subdivisions in effect at the time the
8
subdivision was established.” (§ 66499.30, subd. (d), italics added; see Gardner, supra,
29 Cal.4th at p. 998.) The trial court concluded it was “highly unlikely” that the 1926
Map was “ ‘in compliance with or exempt’ ” from any law “ ‘regulating the design and
improvement’ ” of subdivisions as specified in this provision because the County of San
Mateo did not have any such laws in 1926.7
Gardner, the leading case interpreting section 66499.30, subdivision (d), stands
for the proposition that maps recorded before the effective date of the first statewide map
legislation (which was enacted in 1893), and that were not subject to other local statutes
or regulations governing the subdivision of property at the time they were recorded, are
not entitled to the protection of the grandfather provision. (Gardner, supra, 29 Cal.4th at
pp. 1001, 1002–1003.) Specifically, the Supreme Court held that the recording of a map
before 1893 did not “establish” the subdivision depicted on the map within the meaning
of section 66499.30. (Gardner, at pp. 1000–1001; see pp. 1003–1004 [recordation before
1893 also did not “create” subdivision within meaning of § 66451.10, subd. (a)];
p. 1006.) Gardner left open the question of whether maps recorded under statewide
subdivision map laws in effect between 1893 and 1929 legally created or “established”
subdivision parcels when recorded and thus were covered by the grandfather provision.
(Gardner, at p. 1001, fn. 7.)
Subsequently, in Witt, the Court of Appeal ruled that maps filed in compliance
with subdivision map laws in effect in 1915 are not covered by section 66499.30,
subdivision (d). (Witt, supra, 165 Cal.App.4th at p. 548.) The court concluded these
early laws did not purport to regulate the “improvement” of the subdivision and thus they
did not regulate the “ ‘design and improvement’ ” of subdivisions within the meaning of
the grandfather clause. (Ibid.) Nor did such laws regulate the “ ‘design’ ” of
7
The trial court noted, however, that it appeared the 1926 Map was in compliance
with state laws that were in effect at the time.
9
subdivisions since they “omitted any regulation of the primary characteristic of a
subdivision—the division of a large parcel into smaller usable lots.” (Id. at p. 562.) The
25-lot map at issue in Witt, for example, was “a planning anachronism, merely a grid laid
across a parcel of land. There is no indication that any consideration was given to the
appropriate siting of residences, lot drainage, the feasibility and construction of utility
service, or any of the many other issues that arise when development occurs. It is
difficult to imagine a plan for real estate development more at odds with modern
subdivision regulation.” (Id. at p. 563.)
In Abernathy, a property owner sought a writ of mandate to compel the county to
issue a “certificate of compliance”8 reflecting that one of 25 lots identified on a parcel
map recorded in 1909 was in compliance with the requirements of the SMA and thus
could be legally sold as a separate parcel. (Abernathy, supra, 173 Cal.App.4th at p. 45.)
In reversing the trial court’s grant of relief, the appellate court explained that “even
assuming [the lot] was ‘established’ when the [parcel map] was recorded in 1909,” the
subdivision law in effect at that time was insufficiently detailed to qualify as one which
“ ‘regulat[ed] the design and improvement of subdivisions.’ ” (Id. at p. 51.)
Consequently, the court could not certify those lots as in compliance with the Act: “To
permit maps recorded in compliance with these laws to be grandfathered under the
current Act would seriously undermine the objectives of the Act.” (Abernathy, at p. 51.)
In Hays v. Vanek (1989) 217 Cal. App. 3d 271 (Hays), the defendant asserted a
subdivision map filed in 1926 had validly subdivided his 40 acres into approximately 630
8
A developer may request a determination from the appropriate local agency as to
whether the property at issue complies with the SMA and applicable local ordinances.
(§ 66499.35, subd. (a); Gardner, supra, 29 Cal.4th at p. 998.) If the property is found in
compliance, the agency issues a certificate of compliance which is recorded in the county
where the parcel is located. (§ 66499.35, subd. (a); Gardner, at p. 998.) Conversely, if
the property is noncompliant, the local agency may issue a conditional certificate of
compliance, imposing conditions that the owner must fulfill. (§ 66499.35, subd. (b);
Gardner, at p. 998.)
10
parcels, all of which he was entitled to sell separately. (Hays, at p. 287.) The appellate
court found that a subdivision map filed in 1926, the same year as the map at issue here,
would be subject to the requirements of the 1907 version of the SMA. (Hays, at p. 288.)
Significantly, the Abernathy court’s holding that the lot at issue did not qualify for
grandfathering was also based on the laws reflected in the 1907 SMA. (Abernathy,
supra, 173 Cal.App.4th at p. 51.)
4. The Trial Court’s Ruling
The trial court reasoned that “the issue is not whether the 1926 subdivision map
here complied with the law as of 1926, but whether it complies with the law now or
otherwise fits squarely within the grandfather clause under the present language.”
Relying on Abernathy and Hays, the court concluded there was no showing in the record
that any applicable “design and improvement” laws existed when the 1926 Map was
filed. Thus, it did not appear that the parcels in the Project would fall within the SMA’s
grandfather provision. However, the trial court did not make an ultimate finding as to
whether the lots are illegal. Rather, it found that the city abused its discretion because it
expressly found all 16 Project lots were legally created without having considered their
status under the SMA. While the court’s reasoning is not inconsistent with the pertinent
authorities, its ultimate conclusion is flawed.
III. Issues Under the SMA Are Not Ripe for Review
The City concluded the subject lots are presumptively entitled to legal status based
on section 33.2 of the RZO. That section provides, in part: “A nonconforming lot or
parcel may be used for development subject to compliance with all other provisions of
this article and other applicable codes. . . .” It is true the City did not also separately
evaluate the status of the lots under the SMA.9 However, it does not necessarily follow
9
The city council found that each of the lots in the Project area are nonconforming
lots that do not comply with the current minimum lot size requirements set forth in the
RZO for such steeply sloped lots. The City noted that had LWJV proposed a new
11
that the City committed a prejudicial abuse of discretion in issuing the PDP and certifying
the EIR.
1. The SMA Was Not Implicated by the City’s Approval of the PDP
Unlike the present case, in the principal cases cited to by the trial court and relied
on by the respondents here, the issues concerned landowners seeking status or relief
under the current version of the SMA for properties subdivided under older maps. In
Abernathy, a landowner had appealed after a county denied his request to record a
certificate of compliance with the SMA for a lot that had been subdivided under a map
recorded under the 1907 SMA. (Abernathy, supra, 173 Cal.App.4th at p. 45.) In Hays, a
defendant sought declaratory relief that he need not comply with current SMA based on
the argument that his property had been validly subdivided under a 1926 subdivision
map. (Hays, supra, 217 Cal.App.3d at p. 287.) In Gardner, the plaintiff landowners
sought to establish that property subdivided under an 1865 subdivision map was entitled
to legal recognition under the SMA. (Gardner, supra, 29 Cal.4th at p. 994.)10
It is undisputed that the PDP grants authorization to proceed only with
infrastructure improvements to the Project area.11 As LWJV correctly notes, nothing in
the SMA prohibits construction of improvements such as those allowed by the PDP. The
subdivision map for the area, the RZO would not have allowed the creation of more than
four or five lots. The City observed that the lots had already been created by the 1926
Map and concluded “[n]o credible evidence has been presented to demonstrate that these
lots are unlawful.” Specifically, the City found that the owners were conditionally
entitled to develop the lots under RZO section 33.2, including obtaining a planned
development permit for lots having a slope greater than 30 percent.
10
Our decision in Save Mount Diablo v. Contra Costa County (2015)
240 Cal. App. 4th 1368, 1382 also concerned landowners who sought certificates of
compliance.
11
As stated in the Resolution, Phase I of the Project includes the new paved
private roadway, pedestrian paths, utilities, sewer connections, retaining walls,
landscaping, drainage infrastructure, and the planting of replacement trees. Phase II of
the Project is the construction of the individual residences, which cannot commence until
Phase I has been satisfactorily completed.
12
prohibitions of the SMA are found at section 66499.30, subdivisions (a) and (b): “No
person shall sell, lease, or finance any parcel or parcels of real property or commence
construction of any building for sale, lease or financing thereon” without compliance
with, or exemption from, the SMA. (Italics added.) Here, the PDP does not allow any
owner to construct any buildings on any of the subject parcels. Whether any building
will be constructed will turn on the issuance of permits during the second phase of the
Project.
“The ripeness requirement, a branch of the doctrine of justiciability, prevents
courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental
concept that the proper role of the judiciary does not extend to the resolution of abstract
differences of legal opinion. It is in part designed to regulate the workload of courts by
preventing judicial consideration of lawsuits that seek only to obtain general guidance,
rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily
bottomed on the recognition that judicial decisionmaking is best conducted in the context
of an actual set of facts so that the issues will be framed with sufficient definiteness to
enable the court to make a decree finally disposing of the controversy.” (Pacific Legal
Foundation v. California Coastal Com. (1982) 33 Cal. 3d 158, 170.) To be ripe, “ ‘[t]he
controversy must be definite and concrete, touching the legal relations of parties having
adverse legal interests. [Citation.] It must be a real and substantial controversy admitting
of specific relief through a decree of a conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.’ ” (Id. at
pp. 170–171, quoting Aetna Life Ins. Co. v. Haworth (1937) 300 U.S. 227, 240–241.)
There are no issues ripe for adjudication under the SMA in the present case
because that legislation is not squarely implicated by the City’s actions in approving the
PDP and certifying the EIR. Again, the SMA does not prohibit development permit
13
approvals. Nor does it apply to the certification of environmental studies under CEQA.12
Simply put, the City did not make any decisions invoking the SMA, much less one
subject to a writ of mandate for being in violation of that legislation. Unlike Abernathy,
Hays, and Gardner, no party here has sought a certificate of compliance or other relief
under the SMA. And while LWJV takes the position that the City’s grant of the “master”
PDP necessarily compels the issuance of certificates of compliance for all lots in the
Project area (see § 66499.35, subd. (c)), at trial the City’s counsel stated that the City had
not yet considered this issue because the first phase of the Project does not involve direct
dealings with the individual lot owners. While it appears the SMA’s provisions may
come into play as the individual members of LWJV move to construct homes on their
properties, at this juncture any judicial pronouncements as to these issues is premature.13
Our holding in this appeal is a limited one. We conclude the approval of the PDP
in Phase 1 of the Project involves only the development of an infrastructure for the land
involved. The SMA is not implicated in Phase 1. The validity of conveyance by
implication in Phase 1 is not before us. Adjudication of any issue under the SMA is not
ripe. In light of our conclusion, we need not address the parties’ remaining arguments.
12
The EIR was based on the assumption that 18 new homes would be constructed.
It was also based on the assumption that the owners had a right to reasonably develop
each property, noting that “[o]ver time, each lot could be developed on an individual
basis under current City regulations.” (Italics added.) This was seen as potentially
detrimental, as piecemeal development would not result in a comprehensive plan for
infrastructure improvements. Under the circumstances, the phased development strategy
undertaken by the City does not suggest an abuse of discretion.
13
SLW also argues that the trial court held the City failed to make a required
finding that the Project will provide “ ‘an environment of physical and functional
desirability, in harmony with the character of the surrounding neighborhood’ ” and that
LWJV waived this point by not addressing it in the opening brief. We need not evaluate
this contention as the court’s discussion on this point pertained to whether a use permit
was required. The court concluded no such permit was required at this stage, and SLW
has not appealed from that finding.
14
DISPOSITION
The judgment is reversed.
15
_________________________
Dondero, J.
We concur:
_________________________
Humes, P. J.
_________________________
Margulies, J.
A147942 Save Laurel Way v. Laurel Way Joint Venture
16
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Marie S. Weiner
Counsel:
Warhurst Law Office, William R. Warhurst, for Real Party in Interest and
Appellant Laurel Way Joint Venture.
Shute, Mihaly & Weinberger LLP, Winter King, Peter J. Broderick, for Plaintiff
and Respondent Save Laurel Way.
City Attorney of Redwood City, Pamela Alison; Jarvis, Fay, Doporto & Gibson,
LLP, Rick Jarvis; Burke, Williams & Sorensen LLP, Michelle Kenyon, for Defendant
and Respondent City of Redwood City
17
A147942 Save Laurel Way v. Laurel Way Joint Venture
18