Venice Coalition etc. v. City of Los Angeles ( 2019 )

Filed 1/9/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
VENICE COALITION TO B285295
PRESERVE UNIQUE
COMMUNITY CHARACTER et al., (Los Angeles County
Super. Ct. No. BC611549)
Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Affirmed.
Venskus & Associates, Sabrina Venskus, Elise Cossart-
Daly; Wittwer Parkin, William P. Parkin and Pearl Kan for
Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Terry P. Kaufmann
Macias, Assistant City Attorney, Amy Brothers and Patrick
Hagan, Deputy City Attorneys for Defendants and Respondents.
_________________________
INTRODUCTION
Appellants Venice Coalition to Preserve Unique
Community Character and Celia R. Williams alleged in a
complaint filed in Los Angeles County Superior Court that the
City of Los Angeles engaged in a pattern and practice of illegally
exempting certain development projects in Venice from
permitting requirements in the Venice Land Use Plan and in the
California Coastal Act. The trial court granted summary
judgment as to all causes of action, and Venice Coalition, et al.,
appeal. As we find that the City is entitled to judgment as a
matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, appellants Venice Coalition to Preserve
Unique Community Character and Celia R. Williams (Venice
Coalition) filed a complaint for declaratory and injunctive relief
against respondents the City of Los Angeles and Department of
City Planning for the City of Los Angeles (City). The complaint
alleged violations of due process under the California
Constitution, and violations of the California Coastal Act (Coastal
Act), the Venice Land Use Plan (LUP), and the California Code of
Civil Procedure. The first cause of action alleged the City
engaged in a pattern and practice of approving development
projects without affording the community an opportunity for
notice and a hearing. The second cause of action alleged the City
failed to ensure all development projects complied with the
requirements of the LUP. The third cause of action alleged the
City acted in excess of its authority by issuing exemptions from
the California Coastal Act’s requirement that development
projects obtain Coastal Development Permits (CDP’s). The
fourth cause of action alleged the exemptions granted by the City
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were unauthorized under Public Resources Code section 306101 of
the Coastal Act. The fifth cause of action asked the court to
enjoin the City from using taxpayer funds to illegally issue
permitting exemptions.
The City filed a motion for judgment on the pleadings,
which the trial court denied. The City then filed a motion for
summary judgment, which the trial court granted.
Venice Coalition timely appealed the court’s grant of
summary judgment as to the first, second, fourth, and fifth
causes of action. Venice Coalition is not challenging the grant of
summary judgment as to the third cause of action.
DISCUSSION
A. Standard of review
We review a trial court’s grant of summary judgment de
novo, “considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made
and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th
317, 334.) We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party. (Miller v. Department of
Corrections (2005) 36 Cal. 4th 446, 460.)
Summary judgment is warranted if all the papers
submitted show that there is no triable issue as to any material
fact such that the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c).) A motion for
summary adjudication shall be granted only if it completely
1 All further statutory references are to the Public Resources
Code unless otherwise indicated.
3
disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty. (Id., subd. (f)(1).)
The moving party “bears the burden of showing the court
that the plaintiff ‘has not established, and cannot reasonably
expect to establish, a prima facie case.’ ” (Miller v. Department of
Corrections, supra, 36 Cal.4th at p. 460.) The burden then shifts
to the plaintiff to show the existence of a triable issue; to meet
that burden, the plaintiff “ ‘ “may not rely upon the mere
allegations or denials of its pleadings . . . but, instead, shall set
forth the specific facts showing that a triable issue of material
fact exists as to that cause of action.” ’ ” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal. 4th 264, 274.)
B. Regulatory Background
The City employs two different, but parallel, processes to
approve or deny all development projects in the Venice
community. One involves the Venice specific plan which governs
all development in Venice. The other process is pursuant to the
Coastal Act, with which all development in Venice must also
comply. To comply with the specific plan, all development
projects in Venice must either undergo a project permit
compliance review, or a determination that a review is not
required. To comply with the Coastal Act, all development
projects in Venice must obtain a CDP or an exemption from the
CDP requirement.
1. The Coastal Act
The California Coastal Act of 1976 is a comprehensive
scheme governing land use planning for the entire coastal zone of
California. (Pacific Palisades Bowl Mobile Estates, LLC v. City of
Los Angeles (2012) 55 Cal. 4th 783, 793 (Pacific Palisades).) The
broad goals of the Coastal Act are permanent protection of the
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state’s natural and scenic resources; protection of the ecological
balance of the coastal zone; and regulation of existing and future
developments to ensure consistency with the policies of the
Coastal Act. (§ 30001.) With certain exceptions, “any person
wishing to perform or undertake any development in
the coastal zone must obtain a coastal development permit ‘in
addition to obtaining any other permit required by law from any
local government or from any state, regional, or local
agency. . . .’ ” (Pacific Palisades, at p. 794; § 30600, subd. (a).)
The Coastal Act authorizes exemptions from the CDP
requirement for certain minor developments such as
improvements to existing single family residences and other
structures. (§ 30610.)
The Coastal Act requires local governments to develop local
coastal programs,which consist of a land use plan and a local
implementation plan. (Pacific Palisades, supra, 55 Cal.4th at p.
794.) “Once the California Coastal Commission certifies a local
government’s program, and all implementing actions become
effective, the commission delegates authority over coastal
development permits to the local government.” (Ibid.) Prior to
the certification of its local coastal program “ ‘a local government
may, with respect to any development within its area of
jurisdiction . . . , establish procedures for the filing, processing,
review, modification, approval, or denial of a coastal development
permit.’ ” (Ibid.) Actions pursuant to a locally issued CDP are
appealable to the Coastal Commission. (Ibid.)
In 1978, the Coastal Commission granted to the City the
authority to issue both CDP’s for development within the Coastal
Zone and exemptions for development projects that do not require
a CDP under the Coastal Act. The City’s CDP program is
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codified in section 12.20.2 of the Los Angeles Municipal Code. In
2001, the Coastal Commission certified the Venice LUP. The
City submitted a Venice local implementation plan to the Coastal
Commission in 2004; as of yet, the implementation plan has not
been certified.
2. The Venice Land Use and Specific Plans
The certified Venice LUP is a part of the City’s general
plan, which guides the City’s use of land and the design and
character of buildings and open space. One of the goals of the
LUP is to control building heights and bulks to “preserve the
nature and character of existing residential neighborhoods.”
In 2003, the City Planning Commission approved the
amended Venice specific plan at a public hearing. The specific
plan is an ordinance developed to implement the policies of the
LUP; specifically, the specific plan regulates “all development,
including use, height, density, setback, buffer zone and other
factors in order that it be compatible in character with the
existing community and to provide for the consideration of
aesthetics and scenic preservation and enhancement, and to
protect environmentally sensitive areas.” The specific plan sets
forth two processes by which a development project may be
evaluated and approved. For many small-scale development
projects, such as construction and demolition of four unit or
smaller residential projects not located on walk streets,2 the
Director of Planning may issue a “Venice Sign-Off” (VSO), which
2 A “walk street” is a “public street in the Coastal Zone
and/or beach area that has been improved for public pedestrian
use over part of its width and is landscaped . . . over the
remainder, but which has not been improved for vehicular
access.”
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exempts the project from a project permit compliance review. All
other projects must be evaluated for project permit compliance.
C. First Cause of Action: The VSO Process is Ministerial
The first cause of action alleged the City denied Venice
residents due process by issuing VSO’s without notice and a
hearing. The City countered that the VSO process is ministerial
and therefore does not trigger due process protections. The trial
court agreed with the City, as do we.
Local governments take three types of actions in land use
matters: legislative, adjudicative, and ministerial. (Calvert v.
County of Yuba (2006) 145 Cal. App. 4th 613, 622.) Legislative
actions “involve the enactment of general laws, standards or
policies, such as general plans or zoning ordinances.” (Ibid.)
Adjudicative actions “involve discretionary decisions” that apply
laws to specific development projects such as zoning permits.
(Ibid.) “Ministerial actions involve nondiscretionary decisions
based only on fixed and objective standards, not subjective
judgment; an example is the issuance of a typical, small-scale
building permit.” (Ibid.)
The federal and state Constitutions prohibit the
government from depriving persons of property without due
process of law. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 7,
subd. (a).) Adjudicative governmental actions that implicate
significant or substantial property deprivation generally require
the procedural due process protections of reasonable notice and
an opportunity to be heard. (Calvert v. County of Yuba, supra,
145 Cal.App.4th at p. 622.) Legislative action generally does not
require due process protections because “it is not practical that
everyone should have a direct voice in legislative decisions;
elections provide the check there.” (Ibid.) Ministerial actions do
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not generally trigger due process protections because they are
“essentially automatic based on whether certain fixed standards
and objective measurements have been met.” (Id. at p. 623.) In
other words, land use decisions that require a public official to
exercise judgment are discretionary and require notice and a
hearing. Actions which require a public officer to perform “in a
prescribed manner in obedience to the mandate of legal
authority” without regard to his or her own judgment are
ministerial and do not trigger due process protections.
(Rodriguez v. Solis (1991) 1 Cal. App. 4th 495, 501.)
Here, section 8A of the Venice specific plan provides that
the Director of Planning may issue a VSO to certain projects
upon a determination that they are exempt from project permit
compliance review. Section 8A lists several types of projects
eligible for VSO’s, including improvements to existing single- or
multiple-family structures not located on a walk street; new
construction of one single-family unit and not more than two
condominium units not located on a walk street; new construction
of four or fewer rental units, not located on a walk street; and
demolition of four or fewer units. Once the Director of Planning
determines that a project is eligible under one of these categories,
he or she must then determine whether it meets certain fixed
development requirements applicable to the neighborhood in
which the proposed project lies. These requirements include
maximum height, maximum density, and minimum yard setback
measurements. The Director of Planning uses forms that are
essentially checklists requiring only a determination that the
proposed project does or does not meet objective measurement
criteria.
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Sections 8B and 8C of the Venice specific plan, however,
govern development projects not subject to VSO approval and
therefore subject to project permit compliance review. Under
section 8C, the Director of Planning must make certain findings,
including that the project “is compatible in scale and character
with the existing neighborhood, and . . . not be materially
detrimental to adjoining lots or the immediate neighborhood.”
We agree with the City and the trial court that the VSO
process is ministerial. The Director of Planning is not required to
exercise independent judgment; he or she only reviews a set of
fixed, objective construction measurements. In contrast, the
project permit compliance review in section 8C requires the
Director of Planning to exercise independent, subjective judgment
as to whether the project is generally compatible with the
character of the existing neighborhood.
Venice Coalition also argues that, by its nature, the VSO
process cannot be ministerial because each project must be
reviewed for compliance with the LUP. As discussed in the next
section, Venice Coalition contends that the LUP mandates that
all projects, including those granted a VSO, must conform to the
character of the existing community; as such, project approval
must involve a discretionary decision that cannot be adequately
captured in a checklist. Because we agree with the court and the
City that VSO projects do not need to be separately reviewed for
compliance with the LUP, and because we agree that the VSO
process is ministerial, we conclude that for VSO projects the
Venice Coalition is not entitled to notice and a hearing.
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D. Second Cause of Action: The Director of Planning is
Not Required to Review VSO Projects for Compliance
with the LUP
Venice Coalition argues that the Director of Planning must
conduct a discretionary analysis of every VSO to ensure it is
compliant with the LUP. Venice Coalition points to language on
the cover of the Venice specific plan stating “[p]lease refer to the
certified Venice Coastal Land Use Plan for other development
standards that may apply to your project” and language in the
LUP stating new development must respect the “scale and
character of community development,” the “massing and
landscape of existing residential neighborhoods,” and must
identify, protect, and restore the “historical, architectural and
cultural character of structures and landmarks.”
Venice Coalition has not identified any ordinance,
municipal code provision, or statute requiring the Director of
Planning to independently review small-scale VSO projects for
compatibility with the LUP. Moreover, in 2003, the City
Planning Commission previously determined that the amended
specific plan complies with the LUP. The amended Venice
specific plan was developed in response to the City Council’s
direction to the planning staff to update the specific plan to
ensure consistency with development standards in the LUP,
including lot consolidation, roof structures, maximum height,
yard setback, and parking.
Accordingly, we agree with the City that VSO projects that
are consistent with specific plan standards are necessarily
consistent with LUP policies.
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Furthermore, any challenge to the VSO process as
embodied in the specific plan is time-barred. Section
65009(c)(1)(A) of the Government Code sets a 90-day statute of
limitations to “attack, review, set aside, void, or annul the
decision of a legislative body to adopt or amend a general or
specific plan.” Venice Coalition claims it is not attacking the
Venice specific plan itself, its adoption, or the City’s
determination that the specific plan is consistent with the LUP.
Rather, Venice Coalition claims it is only challenging the City’s
ongoing failure to ensure that VSO projects “respect the scale,
massing, character, and landscape of existing neighborhoods” as
required by the LUP.
This argument, however, is an attempt to recast what is
essentially a challenge to the specific plan itself as being
inconsistent with the LUP. In 2003, the City previously
determined that the ministerial process outlined in the specific
plan was consistent with the LUP. Thus, as set out above,
compliance with the specific plan is compliance with the LUP.
Consistent with that 2003 determination, the specific plan
contains no language requiring the Director of Planning to
independently review specific plan projects for compliance with
the LUP. Arguing that the Director of Planning must
nonetheless conduct such an independent review is tantamount
to arguing that the City was wrong. This argument should have
been brought to the attention of the City within the statutory
time limitation.
Moreover, besides being unnecessary, it would not be
feasible to impose a duty on the City to review VSO projects for
compliance with the LUP without altering the specific plan itself.
Venice Coalition is essentially aiming to convert the ministerial
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VSO process, which the City already authorized as compliant
with the LUP, into a discretionary one by imposing an additional
duty on the Director of Planning that the City did not
contemplate. In other words, the remedy Venice Coalition urges
would require an alteration of the specific plan, which is
tantamount to an attack on the specific plan itself. Again, any
attempt to do so should have been presented within the statutory
time limitation.
Finally, if a project receives VSO approval, it still must get
a CDP. Venice Coalition does not dispute that the City applies
LUP policies as part of the CDP process, which is discretionary.
The Municipal Code requires the City to find that development
projects conform to Chapter Three of the Coastal Act. (L.A. Mun.
Code, § 12.20.2(G)(1)(a).) Among the requirements in Chapter
Three is the mandate that development be “sited and designed to
protect views to and along the ocean and scenic coastal areas, to
minimize the alteration of natural land forms, to be visually
compatible with the character of surrounding areas, and, where
feasible, to restore and enhance visual quality in visually
degraded areas. (§ 30251.) Therefore, the City ultimately does
end up evaluating specific plan projects for compliance with the
LUP. We see no reason why the City should be compelled to
undergo this process again and again.
E. Fourth Cause of Action: Additions to Existing
Structures are Eligible for Exemptions Under the Coastal
Act
Venice Coalition alleged in the fourth cause of action that,
in violation of the Coastal Act, the City was issuing exemptions
from the CDP process for additions to existing buildings and
demolitions ordered as part of a nuisance abatement order.
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Venice Coalition argued that section 30610 only allows for
“improvements” to existing structures, not additions. On appeal,
Venice Coalition argues not that all additions are disallowed by
the Coastal Act, but that improvements that increase the existing
height or floor area by more than 10 percent are impermissible in
all areas of the Coastal Zone. Not so.
Venice Coalition points to sections 13250, subdivision (b)(4)
and 13253, subdivision (b)(4) of title 14 of the California Code of
Regulations for the proposition that no improvements to existing
structures that increase floor area or height by more than 10
percent are allowed in the entire coastal zone. The language of
these regulations, however, is as follows: “[o]n property not
included in subsection (b)(1) above3 that is located between the sea
and the first public road paralleling the sea or within 300 feet of
the inland extent of any beach or of the mean high tide of the sea
where there is no beach, whichever is the greater distance, or in
significant scenic resources areas as designated by the commission
or regional commission,” CDP’s are required for improvements
that would increase the internal floor area of an existing
structure by 10 percent or more, improvements of 10 percent or
less where an improvement to the structure had previously been
undertaken pursuant to section 30610, subdivisions (a) or (b), and
increases in height by more than 10 percent of existing
3 Subdivision (b)(1) of sections 13250 and 13253 of title 14 of
the California Code of Regulations provides that CDP’s are
required for all improvements to a single-family structure located
on a beach, wetland, seaward of the mean high tide line, on
environmentally sensitive habitat area, an area designated as
highly scenic in a LUP, or within 50 feet of the edge of a coastal
bluff.
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structures. (Italics added.) With respect to existing single-family
residences in the specific areas described above, CDP’s are also
required for any significant non-attached structures such as
garages, fences, shoreline protective works, or docks. (Cal. Code
Regs., tit. 14, § 13250, subd. (b)(4).) The plain language of the
regulation makes clear that the 10 percent limitation applies only
to property within a certain proximity to the sea or in a
designated scenic resource area. Venice Coalition points to no
language in the regulations or elsewhere limiting the size of
improvements to structures in other parts of the coastal zone.
Furthermore, the language of these regulations, which
were enacted to carry out the provisions of section 30610,
subdivision (a), confirms that the Coastal Act contemplates that
improvements to existing structures would include additions.
Were it otherwise, the regulations would disallow all
improvements that increase the size of an existing structure
rather than limiting those in certain specified coastal areas to
less than 10 percent. Finally, Charles Posner, Supervisor of
Planning for the Coastal Commission, stated in a sworn
declaration that Commission staff approves the City’s issuance of
exemptions for additions to existing structures.
With respect to demolitions ordered as part of a nuisance
abatement order, Venice Coalition does not argue this issue on
appeal. Nonetheless, we agree with the trial court’s
determination that no provision of the Coastal Act limits the
City’s power to abate nuisances and order demolition of unsafe or
substandard conditions. To the contrary, the Coastal Act
explicitly provides that no provision in the Act can limit “the
power of any city or county or city and county to declare, prohibit,
and abate nuisances.” (§ 30005, subd. (b).)
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Venice Coalition also argues on appeal that the City fails to
provide notice of many of the exemptions in violation of the
Coastal Act. Venice Coalition did not, however, raise this issue in
the trial court, nor did they include the underlying facts to
support this allegation in their separate statement of facts
opposing summary judgment. We therefore decline to address
the issue here. (City of San Diego v. Rider (1996)
47 Cal. App. 4th 1473, 1493 [a party waives a new theory on
appeal when it fails to include the underlying facts in the
separate statement of facts in opposing summary judgment.].)
F. Fifth Cause of Action: Venice Coalition is Not
Entitled to Injunctive Relief
The trial court granted summary judgment as to the fifth
cause of action for injunctive relief because it was predicated on
the success of the other claims. An injunction is a remedy, not a
cause of action. Therefore, it may not be issued if the underlying
causes of action are not established. (Allen v. City of Sacramento
(2015) 234 Cal. App. 4th 41, 65.) As we affirm the court’s grant of
summary judgment as to the first, second, and fourth causes of
action, we also affirm the court’s grant of summary judgment as
to the fifth cause of action.
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DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
RUBIN, J.

Presiding Justice of the Court of Appeal, Second Appellate.
District, Division Five, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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