Surfer's Point v. City of Encinitas CA4/1 ( 2022 )

Filed 9/20/22 Surfer’s Point v. City of Encinitas CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SURFER’S POINT, LLC, D079271
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00039124-CU-WM-NC)
CITY OF ENCINITAS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy M. Casserly, Blaine K. Bowman, Judges. Affirmed as modified.
Smaha Law Group and Kristen Marquis Fritz for Plaintiff and
Appellant.
Devaney Pate Morris & Cameron, Jeffery A. Morris and Wendy L.
House for Defendants and Respondents.
Years after the original development permits for its project issued by
the City of Encinitas (City) had expired by operation of law, Surfer’s Point,
LLC (SP), the developer in this case, attempted to resume its development
project by applying for modifications to the original permits. The City’s
Planning Commission (PC) denied SP’s application for modifications of its
original development permits. After the Encinitas City Council (CC) denied
SP’s appeal of the PC’s decision, SP filed a petition for writ of mandate and
complaint for declaratory relief in the superior court. The court denied the
writ petition to the extent that SP sought an order requiring the City to
approve its application, but granted in part SP’s request for declaratory
relief.
On appeal, SP contends that the trial court erred by denying its request
for writ relief, arguing that: (1) substantial evidence does not support the
findings that the CC made in support of its denial of SP’s appeal of the PC’s
decision denying its application; (2) equitable estoppel and/or promissory
estoppel applied to bar the CC from denying its appeal and instead required
that the CC approve SP’s application; and (3) SP’s modification application
was “deemed approved” pursuant to Government Code section 65956,
subdivision (b)1 (§ 65956(b)) based on the PC’s failure to timely approve or
disapprove SP’s application. We conclude that there is substantial, and
undisputed, evidence to support the CC’s finding that SP’s original
development permits had expired by operation of law years before SP
attempted to resume the project, and were thus null and void. As a result,
SP did not have valid development permits that could be modified. We also
conclude that the trial court erred by granting in part SP’s request for
declaratory relief. We therefore modify the judgment to delete the award of
declaratory relief. Accordingly, we affirm the judgment as so modified.
1 All statutory references are to the Government Code unless otherwise
specified.
2
FACTUAL AND PROCEDURAL BACKGROUND
SP purchased a vacant 1.81-acre property located in the City’s coastal
zone at the northeast corner of the intersection of Highway 101 and La Costa
Avenue (Property) in or about 1999. In 2005, SP filed an application with the
City for permits to develop the Property and adjacent property to be leased
from the North County Transit District (NCTD), with a 26-unit
timeshare/hotel building (Project).2 The PC approved a major use permit
(MUP), design review permit (DRP), coastal development permit (CDP), and
environmental impact report (EIR) for the Project in or about 2005. The PC’s
approvals were not appealed to the CC. After the City issued its notice of
final action on the Project’s CDP, the California Coastal Commission (CCC)
appealed the City’s approval of the CDP for the Project. The CCC later
approved the CDP for the Project, but with special conditions addressing its
concerns on November 16, 2007. On January 10, 2008, the CCC issued a
draft notice of intent to issue the CDP. However, SP’s efforts to develop the
Project thereafter became dormant and no construction began.
SP resumed its efforts to develop the Project and met with City staff
toward that goal in or about 2013. In a September 6, 2013 letter to SP, SP’s
land use counsel noted, based on information provided by SP, that City staff
had apparently advised SP that staff believed the original MUP, DRP, and
CDP remained valid, even though the CDP had expired in 2009. SP’s counsel
further noted that because of the expiration of the CDP, CCC staff had
indicated that the Project would have to be reapproved by the City with
notice to the public and the CCC before the Project could move forward.
2 In March 2007, SP and the NCTD entered into a lease agreement
giving SP contractual rights to develop the adjacent parcel as part of the
Project.
3
Because SP apparently planned to proceed to reactivate the Project without
further assistance of its counsel, SP’s counsel advised SP regarding its two
alternatives for proceeding with the Project: (1) seek a substantial
conformance finding by City staff; or (2) if City staff found that the revised
Project was not in substantial conformance with the original permits, SP
would “need to file (i) an application for a coastal development permit issued
by the City, and (ii) a major use permit and a design review permit, should
the revised conditions of approval necessitate changes to the latter two
permits. These will require a [PC] public hearing and, if appealed, a [CC]
public hearing.”
SP subsequently asked the City’s planning department to confirm
whether SP’s proposed changes to the Project were in substantial
conformance with the original permits. In a March 26, 2015 letter to SP, the
director of the City’s planning department stated his tentative finding that
SP’s changes to the Project could not be found to be in substantial
conformance with the Project, as originally approved, and therefore, the PC
would have to approve an application to modify SP’s original permits for the
Project. SP modified the design of the Project and submitted those changes
to the CCC for its approval. In a June 19, 2015 letter to the City’s planning
department, a CCC analyst stated that the CCC’s original approval of the
Project had expired on November 16, 2009, which was two years after the
date of its issuance, and that SP was therefore required to apply for a new
CDP for the Project. The CCC analyst then set forth the special conditions
required by the CCC for the original CDP, SP’s response to those conditions,
and issues that remained to be addressed.
4
In July 2017, SP and the NCTD entered into an amended and restated
lease agreement, which authorized the City to proceed with the entitlement
process for SP’s leased property that was part of the Project.
SP filed an application with the City for modification of its original
permits for development of the Project on August 29, 2017. In its application,
SP stated: “This application is requesting a modification to the conditionally
approved project Case No. 00-201 MUP/DR/CDP for a 26 unit timeshare/hotel
development on vacant land. The project modification[s] are as a result of the
CCC appeal of 2007 and recent project phasing due to NCTD double tracking
project. Signage is added to this application.” In particular, whereas the
original Project was to be completed in a single phase, SP’s proposed
modifications provided that development of the Project would now be
completed in two phases due to NCTD’s double tracking project. After
reviewing SP’s application, City staff sent a letter to SP on December 21,
2017, informing it that its application was incomplete because of certain
issues that might require redesign of the Project. After reviewing SP’s
revisions to the Project, City staff sent a letter to SP on August 20, 2018,
informing it that its application was still incomplete. After receiving this
letter, SP made further revisions to the Project.
SP submitted revised plans for the Project in April 2019, which City
staff apparently deemed complete and submitted to the PC for its
consideration. On May 30, the City gave notice of a PC public hearing to be
held on June 6 pertaining to its consideration of SP’s application. 3 In its
agenda report, City staff recommended that the PC approve the application.
3 The City initially gave notice of a PC public hearing to be held on May
2, 2019, but subsequently gave notice of the June 6 public hearing because its
May 2 notice was apparently inadequate.
5
The report described SP’s application as requesting a major use permit
modification (MUPMOD), a design review permit modification (DRPMOD), a
coastal development permit (CDP), and a parcel map waiver (PMW) to
consolidate three parcels into a single lot for construction of “a 25-unit
timeshare hotel in two phases (Phase I with 14 units & Phase II with 11
units) and associated site improvements.” At the June 6 hearing, the PC and
members of the public discussed various issues related to the Project. At the
conclusion of the hearing, the PC “CONTINUED OFF CALENDAR” (per the
minutes of the June 6 PC meeting) its hearing on SP’s application,
apparently to allow SP and City staff to address issues that remained
unresolved.
The City gave notice on June 4, 2020 of a PC public hearing to be held
on June 18 on SP’s application, based on SP’s revisions to the Project. In its
995-page agenda report, City staff again recommended that the PC approve
the application. In that report, City staff stated that SP’s application asked
that the PC consider “modifications to a [MUP] and [DRP] as well as the
renewal of a [CDP].” SP’s application also sought a PMW to consolidate three
parcels into a single lot.
At the June 18, 2020 public hearing, the PC denied SP’s application
based on the following findings set forth in its minutes:
“A.) Expiration of Design Review Permit
“Based on Encinitas Municipal Code [(EMC)] Section
23.08.160 the [PC] finds that [DRP] 002888-2017 is expired
as more than two years has [e]lapsed since the effective
date of an approval of an application.
“B.) Findings Based Upon [EMC] Section 23.08.080
“The project is inconsistent with the North 101 Corridor
Specific Plan Design Recommendations as it relates to the
following:
6
“[descriptions of items (a) through (k)].
“The above environmental determination and findings are
supported by the minutes, maps, and exhibits, and entire
record of the hearing, including testimony, public
comments, and commission discussion all of which are
herein incorporated by reference.”
Based on those findings, the PC denied all four permits (i.e., case No. 17-205
MUPMOD/DRMOD/PMW/CDP). On July 6, 2020, SP timely appealed to the
CC, challenging the PC’s denial of its application.
After giving notice of its public hearing, the CC heard SP’s appeal of
the PC’s decision denying SP’s application on August 19, 2020. SP requested
that the CC vacate the PC’s finding that the original DRP had expired and
grant its requests for modification of the DRP, modification of the MUP, a
CDP, and a PMW. In its agenda report for the August 19 hearing, City staff
recommended that the CC approve SP’s appeal, set aside the PC’s decision
denying SP’s application, and instead approve that application. After
hearing SP’s argument and public comments, the CC issued Resolution 2020-
78 in which it denied SP’s appeal and upheld the PC’s decision denying SP’s
application, stating:
“The findings required for approval of a [CDP] (EMC
30.080.090), a [MUP] (EMC 30.74.070) and a [DRP] (EMC
23.08.080) cannot be made. This conclusion is based on the
following:
“[sets forth 10 specific findings].”
The eighth finding listed by the CC for denying SP’s appeal states:
“8. Pursuant to [EMC] Sections 23.08.160 (Design Review Permit) and
30.74.120 (Use Permit), there is substantial evidence in the record the [DRP]
and [MUP] are null and void because two years passed after the effective
date, construction had not started, and the [P]roject was not pursued
diligently. An extension of the permit was not requested 15 days prior to the
7
date of expiration. The [P]roject was dormant between 2009 to 2013 with no
activity completed.”
SP filed the instant petition for writ of mandate and complaint for
declaratory relief against the City and the CC on October 27, 2020. SP
sought the following relief, among other things: (1) issuance of a writ of
mandate ordering the City and CC to vacate the denial of SP’s application for
modification of its DRP, modification of its MUP, a new CDP, and a PMW
and an order that those permits be issued; (2) declarations that (a) neither
the PC nor the CC was permitted to evaluate whether SP’s original DRP had
expired because proper notice had not been given that the issue of expiration
of the DRP would be raised at the public hearings, (b) its MUPMOD, CDP,
and PMW were deemed approved pursuant to section 65956(b), (c) the CC
was estopped from making a decision contrary to the PC’s findings in 2005
approving the MUP and DRP, and (d) the CC’s denials of the MUPMOD,
DRPMOD, CDP, and PMW were not supported by its findings or the
evidence; and (3) an award of reasonable attorney fees and costs.
The trial court issued a detailed 18-page minute order confirming its
tentative ruling granting in part and denying in part SP’s requested relief on
April 6, 2021. The court concluded that although SP’s 2005 permits appeared
to have expired in 2007 by operation of law pursuant to provisions of the
EMC, the CC could not adopt a formal resolution so concluding because it had
not given public notice that the issue of the expiration of the permits would
be considered at its August 19, 2020 hearing. Nevertheless, the court stated:
“[T]he City was not required to hold a noticed public
hearing in order for the original [p]ermits to actually
expire. . . . [I]t is possible for a previously-valid permit to
have expired by operation of law, but for no formal follow-
up action to be taken on it. In other words, it is entirely
possible that even if a matter is not properly noticed (such
8
that the City Council may have been without power to issue
a formal resolution on the issue of expiration) the truth of
the underlying facts may still be that the permit has
expired by operation of law – there simply has not been a
formal ruling to that effect.”
The court proceeded to reject SP’s argument that the City should be equitably
estopped from denying the continued validity of its original 2005 permits
because City staff had led SP to believe that those permits remained valid.
Finally, the court summarily concluded that there was substantial evidence
to support the remaining nine findings by the CC on which its denial of SP’s
appeal was based. Accordingly, the court concluded: “Ultimately, the
impropriety of issuing an improperly-noticed formal ruling concluding that
the original [p]ermits (or at least one of them) have expired does not
materially amount to the relief that [SP] is seeking by way of the instant writ
and declaratory judgment action.”4
The trial court entered judgment on May 19, 2021, incorporating its
April 6, 2021 minute order, directing the City to modify the CC’s Resolution
2020-78 to remove its finding that there was substantial evidence that the
original DRP and MUP permits were null and void because two years had
passed since their effective dates without construction starting, and denying
the remainder of the relief sought by SP. The court found that the nine other
findings cited in the CC’s Resolution 2020-78 were supported by substantial
evidence. The court therefore denied SP’s request for an order directing the
City to reverse its decision to deny its application for a modification of the
MUP, modification of the DRP, a new CDP, and a PMW.
4 As SP notes, the trial court did not address its argument that its
application for the MUPMOD, CDP, and PMW was deemed approved
pursuant to section 65956(b) based on the PC’s failure to timely approve or
disapprove its application.
9
SP timely filed a notice of appeal challenging the judgment. This court
issued an order on June 20, 2022, requesting that the parties submit
supplemental letter briefs addressing certain issues not previously briefed,
and proposing to take judicial notice of certain EMC ordinances. We have
received, and considered, the parties’ supplemental briefs.
DISCUSSION
I
Land Use Regulation Generally
To establish a general framework before addressing the specific
circumstances in this case, we begin with a brief discussion of the regulation
of land use in California. A municipality “has broad authority, under its
general police power, to regulate the development and use of real property
within its jurisdiction to promote the public welfare.” (California Building
Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 455.) “Land use
regulation in California has been a function of local government under the
grant of police power contained in article XI, section 7 of the California
Constitution.” (Big Creek Lumber Co. v. County of Santa Cruz (2006)
38 Cal.4th 1139, 1151, fn. omitted (Big Creek Lumber Co.).) Accordingly,
cities and counties are empowered to adopt general plans, specific plans,
zoning ordinances, and other ordinances regulating the development of
property within their jurisdictions. (Id. at pp. 1151-1152; Friends of Davis v.
City of Davis (2000) 83 Cal.App.4th 1004, 1010; Land Waste Management v.
Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 957
(Land Waste Management).)
In enacting general plans and zoning ordinances, local agencies
perform a legislative function. (Big Creek Lumber Co., supra, 38 Cal.4th at
p. 1152; Land Waste Management, supra, 222 Cal.App.3d at p. 957.) In
10
contrast, “the grant of a land-use permit or variance is an adjudicatory act,
rather than a legislative one. [Citation.] Adjudicatory decisions must be
consistent with applicable land-use legislation. [Citations.]” (Land Waste
Management, at p. 957.) “[A]dministrative decisions, such as variances and
use permits, are adjudicative.” (Arnel Development Co. v. City of Costa Mesa
(1980) 28 Cal.3d 511, 518; see also, Saad v. City of Berkeley (1994)
24 Cal.App.4th 1206, 1211 (Saad); Landi v. County of Monterey (1983)
139 Cal.App.3d 934, 936.) “The permit process clearly involves the
application of existing rules to a specific set of existing facts.” (Patterson v.
Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 841.) The issuance of
use permits and other land use decisions are inherently discretionary
decisions. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1182-
1183; Guinnane v. San Francisco City Planning Com. (1989) 209 Cal.App.3d
732, 736, 740.) Local agencies often adopt ordinances requiring special
permits for development of property, such as a design review permit, for
which their approval is largely dependent on the provisions of the ordinance.
(7 Miller & Starr, Cal. Real Estate (4th ed. 2021) § 21:10, p. 21-92.)
II
Standards of Review
Code of Civil Procedure section 1094.5 sets forth the procedure for
judicial review of adjudicatory decisions made by administrative agencies.
(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)
11 Cal.3d 506, 514 (Topanga).) Code of Civil Procedure section 1094.5,
subdivision (b) provides:
“The inquiry in such a case shall extend to the questions
whether the respondent has proceeded without, or in excess
of, jurisdiction; whether there was a fair trial; and whether
there was any prejudicial abuse of discretion. Abuse of
discretion is established if the respondent has not
11
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.”
In Topanga, the California Supreme Court stated: “[Code of Civil Procedure]
[s]ection 1094.5 clearly contemplates that at minimum, the reviewing court
must determine both whether substantial evidence supports the
administrative agency’s findings and whether the findings support the
agency’s decision.” (Topanga, supra, 11 Cal.3d at pp. 514-515.) In Young v.
City of Coronado (2017) 10 Cal.App.5th 408 (Young), this court stated:
“The scope of review of supporting evidence for abuse of
discretion depends on whether the decision substantially
affects a fundamental vested right. (Code Civ. Proc.,
§ 1094.5, subd. (c).) Where the public agency’s decision
affects a fundamental vested right, the trial court exercises
independent judgment in assessing whether the evidence is
sufficient to support the agency’s findings. [Citation.] In
such cases, the court conducts a limited trial de novo and
‘abuse of discretion is established if the court determines
that the findings are not supported by the weight of the
evidence.’ [Citations.] ‘In all other cases, abuse of
discretion is established if the court determines that the
findings are not supported by substantial evidence in the
light of the whole record.’ (Code Civ. Proc., § 1094.5, subd.
(c).)
“Where . . . the underlying administrative mandamus case
does not involve a fundamental vested right, on appeal
‘ “we review the administrative decision, not the superior
court’s decision.” ’ [Citations.]
“ ‘[T]he petitioner in an administrative mandamus
proceeding has the burden of proving that the agency’s
decision was invalid and should be set aside, because it is
presumed that the agency regularly performed its official
duty. When the standard of review is the substantial
evidence test . . . it is presumed that the findings and
actions of the administrative agency were supported by
substantial evidence. [Citations.] Thus, since the same
12
standard of review applies now on appeal as it did in the
trial court, the burden is on appellant to show there is no
substantial evidence whatsoever to support the findings of
the Board.’ [Citation.]” (Id. at pp. 418-419.)
To uphold an agency’s decision, substantial evidence to support only
one of the findings cited by the agency is sufficient. (Breneric Associates v.
City of Del Mar (1998) 69 Cal.App.4th 166, 176 (Breneric) [“If [any] finding is
supported by substantial evidence, the agency’s rejection of the proposed
development must be upheld”]; Saad, supra, 24 Cal.App.4th at pp. 1213-
1215.) Accordingly, in applying the substantial evidence standard in
reviewing the CC’s decision, “[w]e examine the administrative record to
determine whether there is substantial evidence to support [any] of the
findings and conclusions upon which [the CC] relied to deny a design review
permit [and major use permit] for [SP’s] proposed project.” (Breneric, at
p. 176, fn. omitted.)
Under the substantial evidence standard of review, “the appellate court
is not bound by the trial court’s determinations but instead conducts a de
novo examination of the administrative record to assess whether there is
substantial evidence to support the administrative agency’s findings and
whether the findings support the agency’s decision. The burden is on the
petitioner to show there is insufficient evidence to support the agency’s
findings. [Citation.] Under this standard of review, we resolve all reasonable
doubts in favor of the administrative findings and decision and reverse the
administrative determination only if, based on the evidence before the
agency, a reasonable person could not have reached the conclusion reached by
the agency. [Citation.]” (Breneric, supra, 69 Cal.App.4th at pp. 174-175.)
However, in conducting our review for substantial evidence to support
an agency’s findings and decision, we decide de novo, or independently, any
13
questions of law based on undisputed facts. (Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 912-913; Bostean v. Los Angeles Unified
School Dist. (1998) 63 Cal.App.4th 95, 107-108.) Likewise, “to the extent we
are called upon to interpret statutes or [ordinances] . . . , such issues involve
pure questions of law which we resolve de novo. [Citation.]” (Bostean, at
p. 108; see also, International Engine Parts, Inc. v. Feddersen & Co. (1995)
9 Cal.4th 606, 611; Carmel Development Co., Inc. v. Anderson (2020)
48 Cal.App.5th 492, 503; Usher v. County of Monterey (1998) 65 Cal.App.4th
210, 216 [“On review in this court, questions of statutory interpretation are
questions of law warranting independent review”].) Accordingly, the
application of an interpreted statute or ordinance to undisputed facts
presents a question of law subject to our independent review. (International
Engine Parts, Inc., at p. 611.)
III
Relevant Provisions of the Encinitas Municipal Code
The EMC sets forth provisions regulating design review permits, major
use permits, and coastal development permits for the development of
property within the City’s jurisdiction. On June 20, 2022, we issued an order
proposing to take judicial notice of certain EMC ordinances that may be
relevant to our disposition of this case and requesting that the parties submit
letter briefs addressing whether we should take judicial notice of those
ordinances. After considering the parties’ briefs and oral arguments on
appeal, we take judicial notice sua sponte of those ordinances.5 (Evid. Code,
5 Specifically, we take judicial notice of the following EMC ordinances:
EMC sections 23.08.020, 23.08.060, 23.08.070, 23.08.150, 23.08.160,
30.01.070, 30.74.020, 30.74.060, 30.74.070, 30.74.110, 30.74.120, 30.80.010,
30.80.020, 30.80.162, and 30.80.164.
14
§§ 451, subd. (a), 452, subd. (a), 459, subd. (a); Tanimura & Antle Fresh
Foods, Inc. v. Salinas Union High School Dist. (2019) 34 Cal.App.5th 775,
797, fn. 13 [mandatory judicial notice of ordinances per Evid. Code, §§ 451,
subd. (a), 459, subd. (a)]; The Kennedy Com. v. City of Huntington Beach
(2017) 16 Cal.App.5th 841, 852-853 [discretionary judicial notice of
ordinances per Evid. Code, §§ 452, 459]; Reid v. City of San Diego (2018)
24 Cal.App.5th 343, 368, fn. 12; Madain v. City of Stanton (2010)
185 Cal.App.4th 1277, 1280, fn. 1.)
EMC design review permit ordinances. EMC section 23.08.020 sets
forth the necessity of issuance of a design review permit as a prerequisite to
the issuance of other development permits, providing:
“A. Without first having obtained a design review permit,
it shall be unlawful for any person to construct . . . any
structure, when such activity is required by this chapter to
have a design review permit.
“B. No building permit, grading permit or other
development permits shall be issued relating to a structure
or site development for which a design review permit is
required until the design review permit is obtained.”
(Italics added.)
EMC section 23.08.070 sets forth the requirement for final determination by
the PC or CC on a design review permit application, providing:
“A. A final determination by the [PC] or the [CC] on the
application for a design review permit shall be made by
written resolution, setting forth the facts which support the
action. . . .
“B. An application for a design review permit shall be
approved unless findings of fact are made based upon the
information presented in the application or during the
deliberations which support one or more of the regulatory
conclusions contained in this chapter. The decision maker
shall elaborate on each of the regulatory conclusions made
15
in support of a denial in sufficient detail to explain as
clearly as possible the reasons for the denial.”
There are two EMC ordinances that, when considered together and
applied to the undisputed facts in this case, precluded, as a matter of law, the
approval of SP’s application for a modification of its original 2005 design
review permit. First, EMC section 23.08.150 sets forth the requirements for a
modification of a design review permit, providing:
“A proponent may apply for a modification of a valid design
review permit. The application procedures, hearings and
notifications for any modification shall be the same as for a
new application. . . .” (Italics added.)
Second, EMC section 23.08.160 sets forth a two-year period during which a
validly issued design review permit remains effective and declares the
conditions under which that the design review permit may thereafter become
“null and void,” providing:
“A. The design review permit approval shall be valid for
two years after the effective date of the permit. A building
permit and any other permit required for the construction
of the project shall be obtained within the two-year period.
If construction has not started within the time period
specified in the City’s adopted building code, and is not
diligently pursued thereafter, the design review permit shall
be deemed null and void.
“B. The Director may, upon written request by the
proponent, grant reasonable extensions of up to a total of
two years for the design review permit; provided no change
in City policies has occurred which would be in conflict with
the project. A request for such an extension shall be filed
with the Director at least 15 days prior to the expiration of
the design review permit, together with the required
application fee. Upon proper filing of an application of
extension, public notice shall be made according to the
provision of Chapter 30.01 as modified by this chapter.
A public hearing is not required.” (Italics added.)
16
EMC major use permit ordinances. EMC section 30.74.020 sets forth
the necessity of issuance of a use permit as a prerequisite to the issuance of
other development permits, providing:
“A. Without first having obtained a use permit, it shall be
unlawful for any person to construct a project when such
project is required by the provisions of this Code to obtain a
use permit.
“B. No building permit or other development permits shall
be issued relating to a project for which a use permit is
required by this Code until the use permit is obtained.”
(Italics added.)
EMC section 30.74.070 sets forth the requirement for a final determination
by the PC on an application for a use permit, providing:
“A. A final determination on the application for a use
permit shall be made by written resolution if by the [PC] or
by notice of determination if by the Director setting forth
the facts which support the action.
“B. An application for use permit shall be approved unless
findings of fact are made based upon the information
presented in the application or during the hearings which
support one or more of the following conclusions:
“1. The location, size, design or operating characteristics of
the proposed project will be incompatible with or will
adversely affect or will be materially detrimental to
adjacent uses, residences, buildings, structures or natural
resources . . . .
“2. The impacts of the proposed project will adversely
affect the policies of the Encinitas General Plan or the
provisions of this Code; or
“3. The project fails to comply with any other regulations,
conditions or policies imposed by this Code. . . .” (Italics
added.)
As was the case with respect to the DRP, there are two EMC
ordinances that, when considered together and applied to the undisputed
17
facts in this case, precluded, as a matter of law, the approval of SP’s
application for a modification of its original 2005 major use permit. First,
EMC section 30.74.110 sets forth the requirements for a modification of a use
permit, providing:
“A proponent may apply for a modification of a valid use
permit. The application procedures, hearings and
notifications for any modification shall be the same as for a
new application. . . .” (Italics added.)
Second, EMC section 30.74.120 sets forth a two-year period during which a
validly issued use permit remains effective and declares the conditions under
which the use permit may thereafter become “null and void,” providing:
“A. The use permit approval shall be valid for two years
after the effective date of the permit. A building permit and
any other permit required for the construction of the project
shall be obtained within the two-year period. If
construction has not started within the time period
specified in the City’s adopted building code, and is not
diligently pursued thereafter, the use permit shall be
deemed null and void.
“B. The Director may, upon written request by the
proponent, grant reasonable extensions of up to a total of
two years for the use permit; provided no change in City
policies has occurred which would be in conflict with the
project. A request for such an extension shall be filed with
the Director and at least 15 days prior to the expiration of
the use permit, together with the required application fee.
Upon proper filing of an application for extension, public
notice shall be made according to the provision of Chapter
30.01 as modified by this chapter. A public hearing is not
required.” (Italics added.)
EMC coastal development permit ordinances. EMC section 30.80.010
provides in part that, unless exempted, “[a] coastal development permit is
required for all development within the Coastal Zone of the City.” EMC
section 30.80.020(B) provides that the PC “is authorized to render a final
18
determination for Coastal Development Permits” on applications for design
review permits and major use permits.
Also, there are two EMC ordinances that set forth the period during
which a validly issued coastal development permit remains effective. First,
EMC section 30.80.162 provides: “If substantial construction has not been
completed in reliance upon a granted coastal development permit within a
minimum of two years of the grant or a longer period as otherwise approved,
then upon notice to the property owner and an opportunity to present
information to the Director, the Director may declare the coastal development
permit to have expired with the privileges granted thereby canceled.” (Italics
added.) Second, EMC section 30.80.164 provides that the director of the
City’s planning department “may, on one or more occasions, extend the
expiration period on the coastal development permit if [he or she] finds that
there are no changed circumstances . . . . However, the total of all extensions
shall not exceed a period of two years. . . .” (Italics added.)
IV
Substantial Evidence Supports the CC’s Finding
That SP’s 2005 Permits Were Null and Void
SP contends that the trial court erred by denying its requested relief
because substantial evidence did not support the findings that the CC made
in support of its denial of SP’s appeal from the PC’s decision denying SP’s
development application for the Project. However, the undisputed evidence
shows that the 2005 DRP and MUP expired by operation of law. We
therefore conclude that there is substantial evidence to support the CC’s
finding that those permits were null and void. Because an application for
modification requires existing valid permits, neither the CC nor the PC could
approve SP’s application for modification of those permits.
19
A
As discussed above, in its June 18, 2020 resolution, the PC made
specific findings in support of its decision to deny SP’s application, stating in
part:
“A.) Expiration of Design Review Permit
“Based on [EMC] Section 23.08.160 the [PC] finds that
[DRP] 002888-2017 is expired as more than two years has
[e]lapsed since the effective date of an approval of an
application.”
Based on this and other findings, the PC denied all four permits (i.e., case No.
17-205 MUPMOD/DRMOD/PMW/CDP). On July 6, 2020, SP timely appealed
to the CC, challenging the PC’s decision denying its application. In
particular, SP appealed the PC’s finding that its original 2005 DRP had
expired due to lapse of time pursuant to EMC section 23.08.160.
After giving notice of its public hearing, on August 19, 2020, the CC
heard SP’s appeal of the PC’s decision and issued Resolution 2020-78 denying
SP’s appeal and upholding the PC’s decision denying SP’s application, stating
in part:
“The findings required for approval of a [CDP] (EMC
30.080.090) [sic], a [MUP] (EMC 30.74.070) and a [DRP]
(EMC 23.08.080) cannot be made. This conclusion is based
on the following:
“[¶] . . . [¶]
“8. Pursuant to [EMC] Sections 23.08.160 (Design Review
Permit) and 30.74.120 (Use Permit), there is substantial
evidence in the record the [DRP] and [MUP] are null and
void because two years passed after the effective date,
construction had not started, and the [P]roject was not
pursued diligently. An extension of the permit was not
requested 15 days prior to the date of expiration. The
[P]roject was dormant between 2009 to 2013 with no
activity completed.” (Italics added.)
20
B
Based on our review of the administrative record, we conclude that
there is substantial evidence to support the CC’s decision to deny SP’s appeal
of the PC’s denial of its application for modification of the DRP, modification
of the MUP, a CDP, and a PMW. As discussed above, to affirm the CC’s
decision, we need find substantial evidence to support only one of the CC’s
10 findings cited in support of its decision. (Breneric, supra, 69 Cal.App.4th
at p. 176; Saad, supra, 24 Cal.App.4th at pp. 1213-1215.) Further, as we
discuss below, the undisputed evidence shows that SP did not, either at the
time of the June 18, 2020 PC public hearing or the August 19, 2020 CC public
hearing, have any existing, valid development permit for the Project. Absent
such an existing permit, SP did not have any fundamental vested right that
could be affected at those hearings. We therefore apply the ordinary
substantial evidence standard in reviewing the CC’s findings and decision.
(Young, supra, 10 Cal.App.5th at pp. 418-419; Breneric, at pp. 174-175; Saad,
at p. 1213.) Contrary to SP’s apparent assertion, the fact that its 2017
application sought modifications of its 2005 DRP and MUP, which were valid
on their issuance in 2005, does not mean that SP’s fundamental vested rights
were affected such that it is entitled to de novo review. As discussed below,
those 2005 permits had long expired by operation of law because construction
had not started within the required two-year period and there was no request
to renew those permits within the time period prescribed by ordinance. As a
result, the permits had become null and void. (Cf. Amerco Real Estate Co. v.
City of West Sacramento (2014) 224 Cal.App.4th 778, 783-784 [“Courts rarely
uphold the application of the independent judgment test to land use
decisions. [Citation.] Cases upholding such application typically involve
‘classic vested rights’– i.e., a vested right to develop property in a particular
21
way”]; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519,
1527.)
Applying that standard to the evidence in the administrative record in
reviewing the CC’s findings and its decision to deny SP’s appeal, we first
address the question whether there is substantial evidence to support the
CC’s finding number 8, which requires merely the application of EMC
ordinances to the undisputed evidence in this case. Again, finding number 8
states:
“Pursuant to [EMC] Sections 23.08.160 (Design Review
Permit) and 30.74.120 (Use Permit), there is substantial
evidence in the record that the [DRP] and [MUP] are null
and void because two years passed after the effective date,
construction had not started, and the [P]roject was not
pursued diligently. An extension of the permit was not
requested 15 days prior to the date of expiration. The
[P]roject was dormant between 2009 to 2013 with no
activity completed.”
Interpretation of EMC section 23.08.160. In determining whether there
is substantial evidence to support the CC’s finding number 8, we first review
the express language of the relevant ordinances cited by the CC. EMC
section 23.08.160, as quoted above, provides: “The design review permit
approval shall be valid for two years after the effective date of the permit. . . .
If construction has not started within the time period specified in the City’s
adopted building code, and is not diligently pursued thereafter, the design
review permit shall be deemed null and void.” (Italics added.) Before
applying EMC section 23.08.160 to the evidence in the record, we must
initially interpret its language so as to effectuate the ordinance’s purpose.
(Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012)
55 Cal.4th 783, 803.) Because the language of a statute or ordinance is
generally the most reliable indicator of its legislative intent, we first examine
22
the words themselves, giving them their usual and ordinary meaning and
construing them in context. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) “If
the language of the statute [or ordinance] is not ambiguous, the plain
meaning controls and resort to extrinsic sources to determine the
Legislature’s intent is unnecessary.” (Kavanaugh v. West Sonoma County
Union High School Dist. (2003) 29 Cal.4th 911, 919.) Applying those
standards of statutory construction to the language of EMC section
23.08.160, we conclude that the usual and ordinary meaning of its language
is unambiguous and that there is only one reasonable interpretation of that
language. We therefore construe EMC section 23.08.160 as providing that if
construction of a project for which a DRP has been issued has not started and
been diligently pursued thereafter within two years after issuance of the
DRP, the DRP expires by operation of law, becomes null and void, and is thus
no longer valid.
Expiration of the 2005 DRP. Given our interpretation of EMC section
23.08.160, we conclude that the CC correctly interpreted that ordinance,
properly applied it to the evidence in this record, and properly found that the
2005 DRP had expired by operation of law and was thus null and void. The
PC approved SP’s original application for a MUP, DRP, and CDP for the
Project on September 1, 2005. Pursuant to EMC section 23.08.160, the 2005
DRP was “valid” for two years after that date (i.e., until September 1, 2007)
and would be deemed “null and void” if construction had not started within
the time period specified in the City’s building code. The undisputed
evidence in the record shows that construction of the Project did not start and
was not diligently pursued thereafter during any relevant time period; as of
this date, construction of the Project still has not begun—17 years after the
issuance of the DRP in 2005. The undisputed evidence in the record further
23
shows that SP never timely filed a written request for an extension of the
2005 DRP for up to an additional two years (i.e., up to and through
September 1, 2009), which it could have done pursuant to EMC section
23.08.160(B). There is thus substantial evidence to support the CC’s findings
that construction of the Project had not started and was not diligently
pursued, that SP did not request an extension of the DRP, and that the
Project “was dormant between 2009 to 2013 with no activity completed.”
Accordingly, under the express provisions of EMC section 23.080.160, there is
substantial evidence to support the CC’s finding that the 2005 DRP was thus
null and void.
SP’s SC2 argument. SP argued in the trial court, and argues again on
appeal, that Specific Condition 2 (SC2), which was attached to the PC’s 2005
resolution approving its DRP, and not EMC section 23.08.160, controls the
expiration of its 2005 DRP, and maintains that SC2 extended the effective
period of its development permits or at least required that the CC hold a
public hearing pursuant to that specific condition. SC2 provided: “At any
time after two years from the date of this approval, September 1, 2007 at
5:00 p.m., or the expiration date of any extension granted in accordance with
the [EMC], the City may require a noticed public hearing to be scheduled
before the authorized agency to determine if there has been demonstrated
good faith intent to proceed in reliance on this approval. If the authorized
agency finds that good-faith intent to proceed has not been demonstrated, the
application shall be deemed expired as of the above date (or the expiration
date of any extension).” (Italics added.) SP suggests that the language of
SC2 should be interpreted as precluding the “automatic expiration” of the
2005 DRP by operation of law under EMC section 23.08.160 and to instead
require that a hearing on that issue similar to the hearing that Community
24
Development Com. v. City of Fort Bragg (1988) 204 Cal.App.3d 1124 (Fort
Bragg) suggested, in dicta, would be required for revocation of a conditional
use permit. We disagree and decline to adopt SP’s suggested interpretation
of SC2. First, the express language of SC2 is permissive, not mandatory,
using the word “may” instead of “shall.” Accordingly, the City had the option
to hold a public hearing on the issue of whether SP had shown a good faith
intent to proceed in reliance on the City’s approval of the 2005 DRP. The fact
that SC2 gave the City that option did not preclude the 2005 DRP from
expiring by operation of law under EMC section 23.08.160 because
construction had not started on the Project. Further, based on the
undisputed evidence in the record, it is clear that construction did not start
within the two-year period after issuance of the DRP in 2005 and still has not
started 17 years later. Accordingly, there could be no reasonable argument
that SP, in fact, had a “good faith intent” to proceed in reliance on the City’s
approval of the 2005 DRP that would have precluded expiration of the DRP
within the meaning of SC2 even if the City had elected to hold a public
hearing on that issue, rather than simply allowing the 2005 DRP to expire by
operation of law pursuant to EMC section 23.08.160. Finally, to the extent
that SC2 was included as part of the PC’s approval of SP’s 2005 DRP because
of the holding in Fort Bragg, we conclude, as discussed in Section VII(B)
below, that the language in Fort Bragg regarding the public agency’s possible
consideration of revocation, rather than expiration, of the conditional use
permit was dicta and, in any event, is inapposite to this case because the PC
and CC did not consider revocation of any valid DRP. Instead, both the PC
and the CC simply found that the 2005 DRP had expired by operation of law.
Contrary to SP’s assertion, SC2 did not have the effect of superseding EMC
25
section 23.08.160’s provisions regarding the expiration by operation of law of
the 2005 DRP.
Interpretation of EMC section 30.74.120. We next address the question
whether there is substantial evidence to support the CC’s parallel finding
that SP’s 2005 MUP expired by operation of law pursuant to EMC section
30.74.120 and was thus null and void. EMC section 30.74.120, as quoted
above, provides: “The use permit approval shall be valid for two years after
the effective date of the permit. . . . If construction has not started within the
time period specified in the City’s adopted building code, and is not diligently
pursued thereafter, the use permit shall be deemed null and void.” Because
the language of EMC section 30.74.120 is identical to the language of EMC
section 23.08.160, with the exception of the name of the development permit
(i.e., DRP versus MUP), we incorporate our reasoning above in interpreting
EMC section 23.08.160. Applying that reasoning in interpreting EMC
section 30.74.120, we construe EMC section 30.74.120 as providing that if
construction of a project for which a MUP has been issued has not started
and been diligently pursued within two years after issuance of the MUP, the
MUP expires by operation of law, becomes null and void, and is no longer
valid.
Expiration of the 2005 MUP. Given our interpretation of EMC section
30.74.120, we conclude that the CC correctly interpreted that ordinance,
properly applied it to the evidence in this record, and properly found that the
2005 MUP expired by operation of law and was thus null and void. Pursuant
to EMC section 30.74.120, the original 2005 MUP was “valid” for two years
after September 1, 2005 (i.e., until September 1, 2007) and was deemed “null
and void” if construction had not started within the time period specified in
the City’s building code. As discussed above, the undisputed evidence in the
26
record shows that construction of the Project did not start and was not
diligently pursued thereafter during any relevant time period; as of this date,
construction of the Project still has not begun. The undisputed evidence in
the record also shows that SP never timely filed a written request for an
extension of its MUP for up to an additional two years (i.e., up to and through
September 1, 2009), which SP could have done pursuant to EMC section
30.74.120(B). There is therefore substantial evidence to support the CC’s
findings that construction of the Project had not started and was not pursued
diligently, that SP did not request an extension of the MUP, and that the
Project “was dormant between 2009 to 2013 with no activity completed.”
Accordingly, under the express provisions of EMC section 30.74.120, there is
substantial evidence to support the CC’s finding that the 2005 MUP was null
and void.
Effect of expiration of 2005 DRP and MUP. In its Resolution 2020-78,
the CC stated in part: “The [CC] hereby denies the appeal filed by [SP] and
upholds the [PC’s] decision to DENY [SP’s application for the modification of
the original 2005 DRP, modification of the original 2005 MUP, a CDP, and a
PMW] based on the following findings: [¶] The findings required for approval
of a [CDP], [MUP] and [DRP] cannot be made . . . based on the following: [¶]
[setting forth its 10 findings].” As discussed above, the CC’s finding number
8 states that there was substantial evidence in the record showing that both
the 2005 DRP and MUP were null and void because two years had passed
after their effective dates and construction on the Project had not started. In
reaching this conclusion, the CC expressly found that the expirations of the
2005 DRP and MUP rendered those development permits “null and void”
under the ordinances discussed above (i.e., EMC § 23.08.160 and EMC
§ 30.74.120). In denying SP’s appeal, the CC necessarily found, albeit
27
impliedly, that the fact that the 2005 DRP and MUP had expired by
operation of law and were null and void meant that the 2005 DRP and MUP
were no longer “valid.” The import of that finding is shown when the EMC
ordinances authorizing applications for modifications of DRPs and MUPs are
considered.
First, EMC section 23.08.150, of which we have taken judicial notice,
provides in relevant part: “A proponent may apply for a modification of a
valid design review permit.” (Italics added.) Applying the standards of
statutory construction discussed above to the language of EMC section
23.08.150, we conclude that the usual and ordinary meaning of the language
of the ordinance is unambiguous and that there is only one reasonable
interpretation of this language. We therefore construe EMC section
23.08.150 as providing that a design review permit may be modified only if
there is an existing “valid” design review permit to modify. Alternatively
stated, if there is no existing “valid” design review permit, there can be no
modification of a design review permit. The legal effect of EMC section
23.08.150 is that any application to modify an “invalid,” or expired, design
review permit must be denied. Neither the PC nor the CC has the authority
under EMC section 23.08.150 to approve an application for modification of a
design review permit that has expired by operation of law, become null and
void, and is thus invalid. Applying EMC section 23.08.150’s requirements for
modification of a design review permit to SP’s application for modification of
its 2005 DRP, which the CC properly found had expired by operation of law
and become null and void pursuant to EMC section 23.08.160, we conclude
that the CC properly denied SP’s appeal of the PC’s denial of its application
for a modified DRP. We further conclude that, based on finding number 8,
the CC had no authority to grant SP’s appeal and approve its application for
28
modification of its 2005 DRP because such a decision would have been in
contravention of EMC section 23.08.150.
Second, EMC section 30.74.110, of which we have also taken judicial
notice, similarly provides in relevant part: “A proponent may apply for a
modification of a valid use permit.” (Italics added.) Applying the standards
of statutory construction discussed above to the language of EMC section
30.74.110, we conclude that there is similarly only one reasonable
interpretation of that language. We therefore construe EMC section
30.74.110 as providing that a use permit may be modified only if there is an
existing “valid” use permit to modify. The legal effect of EMC section
30.74.110 is that any application to modify an “invalid,” or expired, use
permit must be denied. Applying EMC section 30.74.110’s requirements for
modification of a use permit to SP’s application for modification of its 2005
MUP, which the CC properly found had expired by operation of law and was
thus null and void pursuant to EMC section 30.74.120, we conclude that the
CC properly denied SP’s appeal of the PC’s denial of its application for a
modified MUP. We further conclude that, based on finding number 8, the CC
had no authority to grant SP’s appeal and approve its application for
modification of its 2005 MUP because such a decision would have been in
contravention of EMC section 30.74.110.
Substantial evidence to support the CC’s denial of a CDP and PMW.
SP appears to contend that even though there may be substantial
evidence to support the CC’s denial of its appeal of the PC’s decision to deny
SP’s application to modify the 2005 DRP and MUP, there was no substantial
evidence to support the CC’s denial of its appeal as to the PC’s denial of its
application for a CDP and PMW. We disagree. First, SP’s application for a
modification of its 2005 DRP, a modification of its 2005 MUP, a CDP, and a
29
PMW appears to be a “joint” application for which the requested development
permits are interdependent. Therefore, the proper denial of one permit
would implicitly require the denial of the other permits. Second, and more
importantly, as noted above, there are EMC ordinances that expressly make
the issuance of a valid DRP and/or MUP a precondition to the issuance of
other development permits. In particular, EMC section 23.08.020(B)
provides: “No building permit, grading permit or other development permits
shall be issued relating to a structure or site development for which a design
review permit is required until the design review permit is obtained.” (Italics
added.) Applying the standards of statutory construction discussed above to
the language of EMC section 23.08.020(B), we conclude that the usual and
ordinary meaning of the language of the ordinance is unambiguous and that
there is only one reasonable interpretation of this language. We therefore
construe EMC section 23.08.020 as providing that until the PC or CC issues a
valid design review permit, no other development permits (e.g., MUP, CDP,
or PMW) may be issued. In effect, that ordinance makes the issuance of a
valid DRP a precondition to the issuance of any other development permit.
EMC section 30.74.020(B) similarly provides: “No building permit or
other development permits shall be issued relating to a project for which a use
permit is required by this Code until the use permit is obtained.” (Italics
added.) Applying the standards of statutory construction discussed above to
the language of EMC section 30.74.020(B), we again conclude that the usual
and ordinary meaning of the language of the ordinance is unambiguous and
there is only one reasonable interpretation of this language. We therefore
construe EMC section 30.74.020 as providing that until the PC or CC issues a
valid use permit, no other development permits (e.g., DRP, CDP, or PMW)
30
may be issued. In effect, that ordinance makes the issuance of a valid MUP a
precondition to the issuance of any other development permit.6
Accordingly, we conclude that, in implicitly applying the provisions of
EMC sections 23.08.020 and 30.74.020, the CC properly denied SP’s appeal of
the PC’s denial of its application for a CDP and a PMW based on its denial of
SP’s appeal of the PC’s decision to deny SP’s application for modifications of
its 2005 DRP and MUP. In effect, the CC impliedly found that the
preconditions for the issuance of the CDP and PMW related to the Project
were not satisfied because the existence of a valid DRP and valid MUP were
required under EMC sections 23.08.020 and 30.74.020 before the CC had the
authority to grant SP’s appeal and approve its application for a CDP and
PMW.7 We therefore conclude that there is substantial evidence to support
the CC’s finding number 8, which, in turn, supports its denial of SP’s appeal
of the PC’s decision to deny SP’s application for a modification of the 2005
DRP, a modification of its 2005 MUP, a CDP, and a PMW. Because there is
substantial evidence to support one of its findings, and this finding in turn
supports the CC’s administrative decision to deny SP’s appeal, we need not,
6 Based on our reading of EMC sections 23.08.020(B) and 30.74.020(B), it
appears that a DRP and MUP must be issued concurrently and that the
issuance of both is a prerequisite to the issuance of any other development
permit for a project.
7 In its briefing, SP does not make any specific argument regarding the
PMW that it requested in connection with the Project, which would allow
consolidation of three parcels into a single parcel. Based on our review of the
record, it appears that SP’s application for consolidation of those parcels was
conditioned on approval of the other development permits for the Project. In
any event, we conclude that SP has not carried its burden on appeal to show
that there is not substantial evidence to support the CC’s denial of its appeal
of the PC’s decision to deny SP’s application for the PMW.
31
and do not, address whether there is also substantial evidence to support the
other nine findings that the CC made in support of its decision. (Breneric,
supra, 69 Cal.App.4th at p. 176; Saad, supra, 24 Cal.App.4th at pp. 1213-
1215.)
V
Declaratory Relief8
A
Equitable estoppel and promissory estoppel
SP contends that even if there was substantial evidence to support the
CC’s denial of its appeal of the PC’s decision to deny SP’s application for the
development permits for the Project, the trial court erred by not finding that
the doctrine of equitable estoppel and/or promissory estoppel applied to
preclude the City from denying SP’s application for those development
8 SP’s combined petition for writ of mandate and complaint for
declaratory relief included several requests for declaratory relief. There is
case law holding that the trial court should not issue declaratory relief in a
writ proceeding. (See, e.g., State of California v. Superior Court (1974)
12 Cal.3d 237, 249 [“It is settled that an action for declaratory relief is not
appropriate to review an administrative decision”]; Selby Realty Co. v. City of
San Buenaventura (1973) 10 Cal.3d 110, 127 [same]; City of Pasadena v.
Cohen (2014) 228 Cal.App.4th 1461, 1467, fn. omitted (Cohen) [“Declaratory
relief . . . cannot be joined with a writ of mandate reviewing an
administrative determination”]; Tejon Real Estate, LLC v. City of Los Angeles
(2014) 223 Cal.App.4th 149, 154-155; Guilbert v. Regents of University of
California (1979) 93 Cal.App.3d 233, 244 [request for declaratory relief
cannot be joined with petition for writ of mandate reviewing administrative
decision].) Accordingly, it appears that the trial court may have lacked the
authority to consider the ancillary declaratory relief that SP requested. (Cf.
Cohen, at p. 1467.) Because the requests for declaratory relief were raised
without objection in the trial court, we assume for purposes of this opinion
that the court had the authority to consider the requests and we exercise our
discretion to address the merits of the issues as to which SP requested
declaratory relief.
32
permits and/or from finding that the 2005 permits had expired by operation
of law. In particular, SP cites evidence showing that City staff represented to
SP that the 2005 DRP and MUP remained valid and that SP was therefore
required to apply only for modifications of those permits in order for it to be
able to resume development of the Project. We conclude that the trial court’s
findings that the doctrines of equitable estoppel and promissory estoppel did
not apply in the circumstances of this case are supported by substantial
evidence.
1. Procedural background. The record includes evidence showing that
certain City planning department staff members advised SP that its 2005
DRP and MUP remained valid and recommended that SP file an application
for modifications of the 2005 DRP and MUP in order to resume its efforts to
develop the Project. In particular, in his declaration, Daniel Reedy, SP’s
principal, stated that in 2008, a City senior planner advised him that the City
had a moratorium on permit expirations due to the recession. In 2012 and
2013, when SP resumed discussions with City staff, no one mentioned that
the moratorium had terminated or that SP’s 2005 permits had expired. In
2015, the planning department director informed SP that the 2005 DRP and
MUP remained valid, but that SP would have to apply for modification of
those permits because there were additional changes that would have to be
made to the Project. Reedy stated in his declaration that at all times until
2020, City staff assured SP that its 2005 permits remained valid and that
only modifications to those permits would be required.
On August 29, 2017, SP filed its application requesting modifications of
the 2005 DRP and MUP and for approval of a new CDP. In its agenda report
for the PC’s June 18, 2020 public hearing on SP’s application, City staff
33
stated that the 2005 DRP and MUP remained valid and recommended that
the PC approve the application. At its June 18, 2020 public hearing,
however, the PC found that SP’s 2005 DRP had expired by operation of law
and proceeded to deny SP’s application.
In its agenda report for the CC’s August 19, 2020 public hearing on
SP’s appeal of the PC’s decision, City staff again stated that the DRP and
MUP remained valid and recommended that the CC grant SP’s appeal. At its
August 19, 2020 public hearing, the CC, found that both SP’s 2005 DRP and
2005 MUP had expired by operation of law and denied SP’s appeal.
In its petition for writ of mandate, SP alleged that it would be
inequitable for the City to deny its application and preclude it from
developing the Project. In addition to requested writ relief, SP requested
declaratory relief stating that the CC was estopped from making a decision
contrary to the CC’s findings in its 2005 resolution approving SP’s 2005 DRP
and MUP because the City’s planning department had led SP to believe that
its 2005 permits remained valid and SP had reasonably relied on those
representations.
In its April 6, 2021 minute order, the trial court rejected SP’s request
for equitable relief, citing Toigo v. Town of Ross (1998) 70 Cal.App.4th 309(Toigo), in which the court stated:
“The principle of estoppel . . . prohibits a governmental
entity from exercising its regulatory power to prohibit a
proposed land use when a developer incurs substantial
expense in reasonable and good faith reliance on some
governmental act or omission so that it would be highly
inequitable to deprive the developer of the right to complete
the development as proposed. . . . [¶] We note at the outset
that [the developer] faces daunting odds in establishing
estoppel against a governmental entity in a land use
case. . . . [¶] . . .[T]here is no meaningful distinction
between an estoppel claim and a vested right claim where
34
land use is at issue. [Citations.] In California, the
developer’s right to complete a project as proposed does not
vest until a valid building permit, or its functional
equivalent, has been issued and the developer has
performed substantial work and incurred substantial
liabilities in good faith reliance on the permit. [Citations.]
Courts have yet to extend the vested rights or estoppel
theory to instances where a developer lacks a building
permit or the functional equivalent, regardless of the
property owner’s detrimental reliance on local government
actions and regardless of how many other land use and
other preliminary approvals have been granted. To the
contrary, it has been stated that ‘ “[w]here no such permit
has been issued, it is difficult to conceive of any basis for
such estoppel.” [Citations.]’ [Citation.] California courts
apply this rule most strictly . . . .” (Toigo, supra,
70 Cal.App.4th at pp. 321-322, fn. omitted.)
Applying Toigo, the trial court questioned whether SP had shown that
a failure to apply equitable estoppel in this case would deprive SP of the right
to complete its development as proposed, noting that further changes to the
Project might have been required such that the Project would no longer
match the Project as proposed at the time the 2005 permits were approved.
The court also noted that SP did not have a valid building permit, or its
functional equivalent, that would allow it to commence construction, as was
required in order for equitable estoppel to apply under Toigo. The court
stated: “[E]ven if the approved Permits can accurately be described as
‘vested’ (at least for a two-year time frame), it is not ‘highly inequitable’ (a
standard emphasized by the Toigo court) to deprive [SP] of the opportunity to
complete the Project as it existed in those original Permits because those
Permits were never solid enough to build upon as-is until a [CDP] was
approved.” Finally, the court considered the doctrine of laches, and noted
that SP had waited until 2013 to resume efforts to develop the Project and
had not filed a complete application until 2019—long after its 2005 permits
35
had expired under the applicable EMC ordinances. The court stated: “It
would be particularly improper in this case for equity to interpose to override
the public policy behind the ‘normal planning and review process’ given this
very significant passage of time (roughly 15 years) and how that passage of
time may have altered the circumstances surrounding the Project.”
Accordingly, the court denied SP’s request for equitable relief, stating: “For
these many reasons, and in light of the general indication that a developer
who seeks to invoke equitable estoppel ‘faces daunting odds,’ this Court
concludes that this is not a proper case for the imposition of the doctrine of
equitable estoppel.” The court entered its judgment on May 19, 2021 denying
SP’s requested equitable relief.
2. Legal principles. Equitable principles originated “in the necessity
for exceptions to the application of rules of law in those cases where the law,
by reason of its universality, would create injustice in the affairs of men.”
(In re Estate of Lankershim (1936) 6 Cal.2d 568, 572-573.) “[T]he granting or
withholding of equitable relief involves the exercise of judicial discretion.”
(Fairchild v. Raines (1944) 24 Cal.2d 818, 826.)
“ ‘The elements of the doctrine [of equitable estoppel] are that (1) the
party to be estopped must be apprised of the facts; (2) he must intend that his
conduct shall be acted upon, or must so act that the party asserting the
estoppel has a right to believe it was so intended; (3) the other party must be
ignorant of the true state of facts; and (4) he must rely upon the conduct to
his injury.’ ” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)
Further, “[t]he [plaintiff’s] detrimental reliance must be reasonable.”
(Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261 (Schafer);
see also, Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 35 (Waller).)
36
“Equitable estoppel against the government . . . is the exception, not the
rule.” (Attard v. Board of Supervisors of Contra Costa County (2017)
14 Cal.App.5th 1066, 1079.) In cases against the government, an additional
requirement applies in land use cases: the court must expressly balance the
injustice done to the private person with the public policy that would be
supervened by invoking estoppel to grant development rights outside of the
normal planning and review process. (Id. at pp. 1079-1080; Toigo, supra,
70 Cal.App.4th at p. 321.)
“The existence of equitable estoppel generally is a factual question for
the trier of fact to decide, unless the facts are undisputed and can support
only one reasonable conclusion as a matter of law. [Citation.] We review
factual findings regarding the existence of equitable estoppel under the
substantial evidence test. [Citation.] In a case involving equitable estoppel
against the government, however, the existence of estoppel is in part a legal
question to the extent it involves weighing policy concerns to determine
whether the avoidance of injustice in the particular case justifies any adverse
impact on public policy or the public interest. [Citations.] . . . [W]e review
questions of law de novo.” (Schafer, supra, 237 Cal.App.4th at pp. 1263-
1264.)
3. Analysis. Based on our review of the record, we conclude that there
is substantial evidence supporting the trial court’s finding that the doctrine of
equitable estoppel does not apply in the circumstances of this case to warrant
the equitable relief that SP sought in its writ petition. The trial court relied,
as do we, on the principles discussed in Toigo, supra, 70 Cal.App.4th 309,
regarding the application of equitable estoppel in land use cases. In
particular, there is substantial evidence supporting the trial court’s finding
37
that SP did not have a building permit, or its functional equivalent, which
would have allowed it to commence construction of the Project in its current
or modified version at the time of the CC’s decision. SP therefore did not
have a vested interest that could be protected by the application of equitable
estoppel. There is also substantial evidence to support the court’s finding
that SP had waited 15 years after the issuance of its permits in 2005 to seek
equitable relief against the City, which weighed against the application of
equitable estoppel.
Further, case law holds that developers generally may not reasonably
rely on statements of public agency employees who are not authorized to
make land use decisions, such as the approval of modifications of the DRP
and MUP, a CDP, and PMW in this case. Those decisions were solely for the
PC and CC to make under applicable EMC ordinances. In Benson v.
California Coastal Com. (2006) 139 Cal.App.4th 348 (Benson), the court
stated: “Everyone is presumed to know the law. [Citation.] Indeed, [the
appellant] does not claim he was unaware that the Commission, not its staff,
had the power to decide what action to take at the hearing. Under the
circumstances, he could not reasonably rely on staff comments predicting
what action the Commission would take.” (Id. at p. 355.)
In this case, SP cannot reasonably claim that it was unaware of the
relevant EMC ordinances authorizing the PC and CC, and not City staff, to
make decisions on its application. Those EMC ordinances are publicly
available. Further, in 2013, SP’s counsel advised SP that if City staff
determined that its revised Project was not in substantial conformance with
its 2005 permits, then SP would “need to file (i) an application for a coastal
development permit issued by the City, and (ii) a major use permit and a
design review permit, should the revised conditions of approval necessitate
38
changes to the latter two permits. These will require a [PC] public hearing
and, if appealed, a [CC] public hearing.” While that advice is arguably
ambiguous, SP’s counsel did not advise SP to obtain modifications of its 2005
permits; rather, counsel advised SP to file applications for development
permits. Further, regardless of SP’s counsel’s advice, SP cannot rely on any
purported ignorance of relevant EMC ordinances regarding modification of
development permits. Given the express provisions of the EMC ordinances
and the legal advice that SP received from its own land use counsel, there is
substantial evidence to support an implied finding by the trial court that SP
could not demonstrate that it reasonably relied on any contrary
representations or other statements by City staff. (Schafer, supra,
237 Cal.App.4th at p. 1261 [equitable estoppel requires that detrimental
reliance be reasonable]; Waller, supra, 11 Cal.4th at p. 35 [same].) Finally,
the trial court properly considered and weighed the relevant public policy
considerations and concluded that equitable estoppel should not be applied in
this land use case because of the public policy against interference with the
City’s normal planning and review process for issuance of land use permits.
Accordingly, we conclude that substantial evidence supports the trial court’s
finding that the doctrine of equitable estoppel does not apply in the
circumstances of this case.
Incorporating our reasoning above, we similarly conclude that there is
substantial evidence to support the trial court’s implied finding that the
doctrine of promissory estoppel also did not apply. Accordingly, we conclude
that the court did not err by denying SP’s request for equitable relief under
either the doctrine of equitable estoppel or the doctrine of promissory
estoppel.
39
B
Section 65956(b)
SP contends that even if its 2005 development permits expired by
operation of law, its application for modifications of those permits must be
“deemed approved” pursuant to section 65956(b) because the PC did not
timely approve or disapprove its application. We disagree.
1. Section 65956(b). Section 65956(b) is part of the Permit
Streamlining Act (§ 65920 et seq.) (PSA), which was enacted in 1977 with the
legislative purpose of expediting the processing of land use permits by public
agencies. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1046-1047,
abrogated by statute on other grounds as noted in DeBerard Properties, Ltd.
v. Lim (1999) 20 Cal.4th 659, 668.) Section 65956(b) provides:
“In the event that a lead agency or a responsible agency
fails to act to approve or to disapprove a development
project within the time limits required by this article, the
failure to act shall be deemed approval of the permit
application for the development project. However, the
permit shall be deemed approved only if the public notice
required by law has occurred. . . .” (Italics added.)
2. Doctrine of implied findings. As SP notes, in its April 6, 2021
minute order, the trial court did not expressly address SP’s argument that its
application should be deemed approved pursuant to section 65956(b) because
the PC failed to timely approve or disapprove the application. However, SP
does not discuss the import of that omission on our standard of review.
“To this appeal . . . , we apply basic tenets prescribing the scope and
limits of appellate review, starting with the most fundamental--the
presumption of correctness. An appealed judgment is presumed to be correct.
40
We will indulge all intendments and presumptions to support the judgment
on matters as to which the record is silent and prejudicial error must be
affirmatively shown. [Citation.] [¶] Particularly pertinent here, and not
addressed by either side, is the doctrine of implied findings. This doctrine
requires that in the absence of a statement of decision, an appellate court will
presume that the trial court made all factual findings necessary to support
the judgment for which substantial evidence exists in the record. In other
words, the necessary findings will be implied and the only issue on appeal is
whether the implied findings are supported by substantial evidence.
[Citations.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267,
fn. omitted (Shaw).) The doctrine of implied findings “is a natural and logical
corollary to three fundamental principles of appellate review: (1) a judgment
is presumed correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of providing an
adequate record affirmatively proving error. [Citations.]” (Fladeboe v.
American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).)
“Failure to provide an adequate record on an issue requires that the issue be
resolved against appellant. [Citations.]” (Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 8:17, p. 8-6.)
3. Analysis. SP’s section 65956(b) argument is premised on the
assumption that the PC did not timely approve or disapprove its application
at its June 6, 2019 public hearing or at any time thereafter within 90 days of
the date its application was deemed complete under the PSA. However, in so
arguing, SP disregards what apparently occurred at the June 6, 2019 hearing
and fails to provide an adequate record on that issue. The only concurrent
statement in the administrative record showing what occurred at the June 6,
41
2019 PC hearing is a copy of the PC’s minutes for that hearing, which states
that its consideration of SP’s application “was CONTINUED OFF
CALENDAR.” Those minutes do not contain any description of the
discussions that occurred at the June 6, 2019 hearing on SP’s application,
and the record on appeal does not contain a transcript of that hearing.
However, the parties agree that the record shows that at the June 6, 2019
hearing, members of the PC, as well as members of the public, raised a
number of significant issues relating to the Project as proposed in SP’s
application. In particular, the City staff’s subsequent agenda report for the
CC’s August 19, 2020 public hearing on SP’s appeal noted those issues,
stating: “The [PC] considered the [P]roject on June 6, 2019 and [the hearing]
was continued off-calendar to allow [SP] to address various issues, which are
listed below.” That agenda report also described events occurring after the
PC’s June 6, 2019 hearing, stating: “Subsequent to the June 6, 2019 hearing,
[SP] questioned the legal purview of the [PC] to request significant changes
on the application . . . . [SP] submitted an alternative design for the east
elevation [of the Project] to soften the view to address the [PC’s] concerns
raised at the June 6, 2019 hearing. Though [SP] did not address all of the
[PC’s] concerns (see list below), staff determined the changes to be an
improvement to the previous decision. However, staff informed [SP] that
modifying the design will expand the City’s legal authority under the [DRP]
to request additional modifications beyond the limited scope of improvements
being requested as part of the subject application. [SP] requested to move
forward to the June 18, 2020 [PC] hearing with the original design with a
supplemental request to include the revised east elevation as an option for
the [PC] to consider.” The report then states: “The [PC] held a second
hearing on June 18, 2020 to consider the subject application request. At that
42
hearing, staff provided responses to the various issues raised by the [PC] at
the June 6, 2019 hearing as follows (see staff’s response[s] in italics below
[regarding] each item): . . . .” The list of issues set forth in the agenda report
that had apparently been raised at the PC’s June 6, 2019 hearing includes
landscaping, beach sand replenishment, bulk and mass concerns pertaining
to scenic view corridors, step down of Phase II building with slope and
inclusion of single-story elements to enhance views from street, increase
articulation from street, parking, need for photo simulations from a street
level perspective regarding effect on views, and the lack of a pedestrian
sidewalk on an adjacent street. At its June 18, 2020 public hearing, the PC
considered SP’s revisions to the Project and denied its application for the
development permits.
Applying the presumption of correctness and the doctrine of implied
findings, we presume that, in denying SP’s requested relief, the trial court
impliedly found that SP’s application was not deemed approved pursuant to
section 65956(b). Further, we presume that the trial court made all factual
findings necessary to support the judgment for which substantial evidence
exists in the record. (Shaw, supra, 170 Cal.App.4th at p. 267.) One such
finding would be that, in light of the issues raised by members of the PC and
public at the June 6, 2019 hearing, SP withdrew its application for
development permits based on its existing version of the Project rather than
have the PC deny its application at that hearing, thereafter revised its plans
for the Project to address those issues, and resubmitted those plans to the PC
for its consideration in 2020. The court could have further found that
because SP effectively withdrew its application at the June 6, 2019 hearing,
the time period within which the PC was required to approve or disapprove
SP’s application (as of June 6, 2019) ceased to run and therefore, the
43
application was not “deemed approved” pursuant to section 65956(b). Based
on our review of the administrative record, as discussed above, there is
substantial evidence to support these implied findings. The PSA does not
contain any provisions precluding an applicant from submitting a complete
application for a development permit and thereafter withdrawing it. (Cf.
Linovitz Capo Shores LLC v. California Coastal Com. (2021) 65 Cal.App.5th
1106, 1119-1120 (Linovitz) [implicitly recognizing that applicants may
withdraw applications, but concluding in that case that substantial evidence
supported trial court’s finding that applicant had not, in fact, withdrawn its
application, so application was deemed approved pursuant to § 65956(b)].)
Although the record on appeal does not contain any evidence showing that SP
expressly withdrew its application at the June 6, 2019 hearing, SP did not
provide any transcript of the PC’s June 6, 2019 hearing that may have shown
its express withdrawal of its application so that it could revise its Project in
light of the issues raised at that hearing. Also, there is nothing in the record
showing that SP objected to the June 6, 2019 being continued off calendar.
The minutes from the PC’s June 6, 2019 meeting stating that the PC’s
consideration of SP’s application was “CONTINUED OFF CALENDAR,”
support an implied finding that SP withdrew its application. In addition,
SP’s subsequent resubmission of its revised Project in 2020 further supports
an implied finding that it had withdrawn its application on June 6, 2019, and
effectively filed a new application for that revised Project in 2020. By not
including a transcript or other evidence showing what transpired at the PC’s
June 6, 2019 hearing, we conclude that SP failed to provide an adequate
record on the issue; that failure requires that we resolve against SP the
factual question of the withdrawal of its application at the June 6, 2019
hearing. (Fladeboe, supra, 150 Cal.App.4th at p. 58; Eisenberg et al., Cal.
44
Practice Guide: Civil Appeals and Writs, supra, at ¶ 8:17, p. 8-6.)
Accordingly, we conclude that there is substantial evidence to support the
trial court’s implied finding that SP’s application, as considered by the PC on
June 6, 2019, was not deemed approved pursuant to section 65956(b), but
rather, that SP withdrew the application at that hearing. We further
conclude that on SP’s resubmission of its revised Project in 2020, the PC
timely denied its application at its June 18, 2020 hearing and therefore,
complied with the PSA’s requirements for timely approval or disapproval of
land use permit applications. Accordingly, the trial court correctly rejected,
albeit impliedly, SP’s section 65956(b) argument.
C
The CC’s finding that the 2005 permits had expired
Finally, we address the trial court’s award of declaratory relief to SP.
In its judgment granting in part and denying in part SP’s request for
declaratory relief, the trial court found that because the City had not
provided SP with notice that the issue of the validity of the 2005 permits
would be considered by the CC at its August 19, 2020 hearing, the CC was
without power to find that the 2005 permits had expired and were null and
void. Accordingly, in its judgment, the court directed the City to modify its
Resolution 2020-78 to remove the language set forth in finding number 8.
1. Consideration of issue on appeal. Although the City has not filed a
cross-appeal challenging the judgment to the extent that the trial court
directed it to remove the language of finding number 8 from its Resolution
2020-78, we nevertheless exercise our inherent discretion to address the issue
of whether the court erred by ordering the City to do so.
45
The CC’s finding in its resolution that the 2005 permits were null and
void is central to our disposition of SP’s appeal. We conclude that the trial
court’s determination that the CC could not make such a finding due to lack
of proper notice to SP is so “interwoven” with the issue of the validity of the
2005 permits that we may exercise our discretion to address that
determination and, if erroneous, modify the judgment accordingly. (Cf. Hong
Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 487-488; City of Santa
Maria v. Cohen (2017) 11 Cal.App.5th 96, 107-108; In re Marriage of Garrity
& Bishton (1986) 181 Cal.App.3d 675, 690; Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs, supra, ¶ 8:197, p. 8-162.) “The test of
whether a portion of a judgment appealed from is so interwoven with its
other provisions as to preclude an independent examination of the part
challenged by the appellant is whether the matters or issues embraced
therein are the same as, or inter-dependent upon, the matters or issues which
have not been attacked.” (American Enterprise, Inc. v. Van Winkle (1952)
39 Cal.2d 210, 217.) In California, “when an appeal is taken from a portion of
a judgment which cannot be separated from the remainder of it,” that appeal
“brings before the reviewing court all of the nonseverable portions.” (Ibid.)
In the circumstances of this case, we conclude, as discussed below, that we
may review the trial court’s consideration of the question whether the City
gave proper notice regarding the CC’s consideration of the expiration of the
2005 permits at its public hearing on SP’s appeal of the PC’s denial of its
application, because that question directly relates to our determination that
there was substantial evidence to support the CC’s finding number 8 and
thus, its denial of SP’s appeal. If left unaddressed, the trial court’s
determination that the language of finding number 8 must be removed from
46
the CC’s Resolution would result in an internally inconsistent judgment.
(Ibid.)
2. Analysis. Based on our review of the record, it is clear that the City
gave proper notice of the CC’s August 19, 2020 public hearing on SP’s appeal
of the PC’s denial as such notice was required by statutory and EMC
provisions. First, the Government Code sets forth certain notice
requirements for public hearings on land use permits or other development
permits. Section 65905 provides: “(a) . . . [A] public hearing shall be held
on . . . an application for a conditional use permit or equivalent development
permit, a proposed revocation or modification of a variance or use permit or
equivalent development permit, or an appeal from the action taken on any of
those applications.” The City was therefore required to hold a public hearing
on the CC’s consideration of SP’s appeal from the PC’s denial of SP’s
application. Section 65905, subdivision (b) provides: “Notice of a hearing
held pursuant to subdivision (a) shall be given pursuant to Section 65901.”
Section 65901, subdivision (a) sets forth the manner of publication for notices
of public hearing, which is not an issue in this case. Section 65901,
subdivision (b) provides: “The notice shall include the information specified
in Section 65094.” Significantly, section 65094 provides: “As used in this
title, ‘notice of public hearing’ means a notice that includes the date, time,
and place of a public hearing, the identity of the hearing body or officer, a
general explanation of the matter to be considered, and a general description,
in text or by diagram, of the location of the real property, if any, that is the
subject of the hearing.” (Italics added.)
The EMC sets forth similar provisions requiring that the City provide
notice of its public hearings on certain land use decisions. In particular,
47
EMC sections 23.08060(F) and 30.74.060(F) require that the CC consider the
approval or disapproval of an application for a DRP or MUP at a “noticed,
public hearing.” EMC section 30.01.070(A) provides: “When a noticed, public
hearing must be conducted the following shall apply: [¶] 1. Notice shall
contain the date and time set for hearing which shall not be less than 10 nor
more than 40 calendar days from the date of notice. Notice shall describe the
purpose of the hearing and a description of the areas affected.” (Italics
added.)
After the PC made its June 18, 2020 determination denying SP’s
application, the City issued its notice of the CC’s August 19, 2020 public
hearing on SP’s appeal of the PC’s decision, which set forth information
regarding the case number, application filing date, and location of the project.
The notice then described SP’s project, stating: “To consider an appeal of the
[PC’s] denial of a Major Use Permit Modification, Design Review Permit
Modification, Parcel Map Waiver and Coastal Development Permit to modify
a previously approved 25-unit timeshare hotel constructed in two phases with
associated updated landscape/site improvements and a temporary
construction trailer. The project also includes a request to consolidate three
existing legal lots into one parcel.” (Italics added.)
Based on our review of the language of the notice of the CC’s public
hearing, we conclude that the notice complied with all statutory and
ordinance requirements for notices of public hearings on the relevant land
use decisions. In particular, the City’s notice of the CC’s August 19, 2020
public hearing on SP’s appeal of the PC’s decision described the purpose of
that hearing as being for the purpose of the CC’s consideration of SP’s appeal
of the PC’s “denial of a Major Use Permit Modification, Design Review Permit
Modification, Parcel Map Waiver and Coastal Development Permit.” In so
48
doing, the City’s notice of the CC’s August 19, 2020 public hearing properly
set forth “a general explanation of the matter to be considered” by the PC
within the meaning of section 65094 and the “purpose of the hearing” within
the meaning of EMC section 30.01.070(A)(1). (Italics added.)
Contrary to SP’s arguments in the trial court, the City’s notice of the
CC’s public hearing was not required to set forth, in detail, every possible
finding that the CC might make in support of its consideration of SP’s appeal.
Neither the Government Code sections nor the EMC ordinances, quoted
above, require such detail in a notice of public hearing. Rather, only a
“general explanation” or description of the “purpose” of the hearing is
required. (§ 65094; EMC § 30.01.070(A)(1).) SP does not cite, nor are we
aware of, any statutory or case authority requiring that notices of public
hearings on land use decisions set forth, in detail, all possible findings that
the public agency might make in approving or denying an application for a
development permit or an appeal of a decision approving or denying such an
application. Further, even assuming that SP’s appeal to the CC involved
fundamental vested rights and/or its right to procedural due process, SP does
not cite, nor are we aware of, any case holding that notices of public hearings
on such vested rights must provide more than a notice of the hearing,
including the date of the hearing and a description of the matter to be
considered at that hearing, and an opportunity to be heard at that hearing.
On the contrary, case law holds that procedural due process generally does
not require that notices of public hearings be detailed regarding the possible
specific issues to be considered and possible specific findings that might be
made by a public agency. (See, e.g., Linovitz, supra, 65 Cal.App.5th at
pp. 1123-1125; Benson, supra, 139 Cal.App.4th at p. 353 [notice of public
hearing was adequate even though it did not apprise appellant of specific
49
issues to be considered at hearing].) The California Supreme Court has
“refrain[ed] from describing a specific formula which details the nature,
content, and timing of the requisite notice.” (Horn v. County of Ventura
(1979) 24 Cal.3d 605, 618.) Nevertheless, the court held that “notice must, at
a minimum, be reasonably calculated to afford affected persons the realistic
opportunity to protect their interests.” (Id. at p. 617.) Alternatively stated, a
notice of public hearing must apprise interested parties of the pending public
hearing that may affect their property interests and an opportunity to
present their objections. (Ryan v. California Interscholastic Federation-San
Diego Section (2001) 94 Cal.App.4th 1048, 1072.) “All that is required is that
the notice be reasonable.” (Pacific Gas & Electric Co. v. Public Utilities Com.
(2015) 237 Cal.App.4h 812, 860.) The court in Laupheimer v. State of
California (1988) 200 Cal.App.3d 440, held that a notice of public hearing
need not contain asserted procedural details, but rather, that the notice need
only be reasonably calculated, under all of the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to be heard on that action. (Id. at p. 453, citing Mullane v.
Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.)
Applying the above standards for notices of public hearings to the City’s
notice of the CC’s August 19, 2020 public hearing, we conclude that notice
satisfied applicable statutory requirements, as well as procedural due
process. That notice provided SP, as well as nearby property owners and
other interested members of the public, with notice of the matter to be
considered by the CC at its August 19, 2020 public hearing, including a
sufficient description of that matter, and an opportunity to be heard on the
matter. Specifically, the notice for the CC’s August 19, 2020 public hearing
sufficiently described the matter to be considered as the CC’s consideration of
50
SP’s appeal of the PC’s denial of its application for modification of the DRP,
modification of the MUP, a CDP, and a PMW. Nothing more was required.
Accordingly, in considering SP’s appeal of the PC’s denial of its application
for modification of, or issuance of, those development permits, the CC could
properly consider all relevant factors, and make all specific findings of fact
supported by the evidence, in making its decision to approve or deny SP’s
appeal. In so doing, the CC could, as discussed below, consider whether
modifications of the DRP and MUP could be properly approved if those
permits had expired by operation of law and therefore were no longer valid
(i.e., were null and void). In particular, in deciding SP’s appeal of the PC’s
decision, the CC could properly consider the expiration of the DRP by
operation of law, which the PC expressly cited as one basis for its denial of
SP’s application.
Contrary to SP’s argument, the omission from the notice of public
hearing of any detailed description of the CC’s consideration of the specific
issue of the validity of the 2005 permits in considering SP’s appeal did not
preclude the CC from properly making findings on that issue if supported by
substantial evidence. To the extent that SP relies on Fort Bragg as support
for its argument, we conclude that the language on which SP relies is dicta
and, in any event, Fort Bragg supports, rather than undermines, our
conclusion that the City’s notice of public hearing in this case allowed the CC
to properly consider the issue of the validity of the 2005 permits and their
expiration by operation of law. First, Fort Bragg concluded that the trial
court erred by misconstruing the phrase “substantial evidence of use in
progress” as requiring actual construction of buildings in order to avoid
expiration of a conditional use permit and, based thereon, reversed the trial
court’s judgment denying the petition for writ of mandate requesting
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reinstatement of that permit after the public agency found that the permit
had expired. (Fort Bragg, supra, 204 Cal.App.3d at pp. 1129-1132.) Because
the ordinance in Fort Bragg is inapposite to the EMC ordinances regarding
expiration of the DRP and MUP in this case, Fort Bragg’s holding on that
issue is irrelevant to the proper interpretation and application of the EMC
ordinances. Second, although Fort Bragg discussed the possibility that the
public agency’s action could be interpreted as revoking, as opposed to making
a finding of expiration of, the conditional use permit, it concluded that the
issue of revocation was not properly before the public agency because the
agency had not given notice that the issue of revocation, as opposed to
expiration, would be considered at the public hearing. (Id. at pp. 1131-1132.)
The court concluded that although the public agency had given notice that
the issue of expiration of the conditional use permit would be considered at
the hearing, the notice did “not afford[ ] notice of the city council’s intention
to consider revocation” of that permit at its hearing. (Id. at p. 1132.) Rather,
“[t]he hearing solely concerned the expiration of the permit in light of
whether substantial evidence of use had been demonstrated . . . . Any
attempted revocation is therefore a nullity.” (Ibid.) In so holding, Fort
Bragg, albeit in dicta, distinguished between a public agency’s consideration
of the issue of expiration of a permit and its consideration of revocation of a
permit. (Ibid.)
In the circumstances of this case, the record shows that, unlike the
public notice in Fort Bragg, the City’s notice of the CC’s public hearing did
not expressly state that the CC would decide the issue of expiration of SP’s
2005 DRP and MUP. Nevertheless, the City’s notice of the CC’s public
hearing properly gave notice of the purpose of the hearing, which implicitly
included the CC’s consideration of any relevant factors or evidence in support
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of, or opposition to, the PC’s denial of SP’s application, including the PC’s
finding that the 2005 DRP had expired by operation of law and its denial of
all four permits, which was presumably based on the fact that a valid DRP
must be issued before any additional development permits may issue.9
For the foregoing reasons, we conclude that the trial court erred by
directing the City to remove from the CC’s August 19, 2020 resolution
denying SP’s appeal its finding number 8, as quoted above.10 We therefore
modify the judgment by deleting that order and thereby, in effect, reinstate
the CC’s finding number 8.11
DISPOSITION
The judgment is modified to delete the following language: “The Court
directs the City of Encinitas to modify City Council Resolution 2020-78 to
remove the following: [¶] Pursuant to Encinitas Municipal Code Sections
23.08.160 (Design Review Permit) and 30.74.120 (Use Permit), there is
substantial evidence in the record that the Design Review and Major Use
Permits are null and void because two years passed after the effective date,
9 To the extent that SP argues that the CC’s decision was, in effect, a
revocation of its 2005 permits, our conclusion that those permits expired by
operation of law disposes of that contention; there can be no meaningful
revocation of an expired permit.
10 In so concluding, the trial court did not cite any case law in support of
its conclusion that the notices for the PC’s and CC’s public hearings were
required to set forth the issue of the validity of the DRP and MUP or
expiration thereof or, for that matter, other specific issues or possible
findings, in order for those issues to be properly addressed at the hearings.
In particular, although the trial court discussed the Fort Bragg case in
general, as noted, that case supports, rather than conflicts with, our
conclusion in this case.
11 The trial court nevertheless found, as noted ante, that SP’s 2005
permits expired in 2007 by operation of law pursuant to provisions of the
EMC.
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construction had not started, and the project was not pursued diligently. An
extension of the permit was not requested 15 days prior to the date of
expiration. The project was dormant between 2009 to 2013 with no activity
completed.” The judgment is further modified to revise the sentence in line
nine on page two to read as follows: “The relief sought by Surfer’s Point, LLC
in the Motion is hereby denied.” As so modified, the judgment is affirmed.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
HALLER, J.
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