La Mirada Avenue Neighborhood Assn. of Hollywood v. City of L.A. CA2/8 ( 2015 )

Filed 9/9/15 La Mirada Avenue Neighborhood Assn. of Hollywood v. City of L.A. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LA MIRADA AVENUE B259672
NEIGHBORHOOD ASSOCIATION OF
HOLLYWOOD, (Los Angeles County
Super. Ct. No. BS137262)
Plaintiff and Respondent,
v.
CITY OF LOS ANGELES,
Defendant and Respondent,
5929 SUNSET (HOLLYWOOD), LLC,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, James C.
Chalfant, Judge. Affirmed.
Armbruster Goldsmith & Delvac, LLP, R.J. Comer; Sullivan & Cromwell, LLP,
Robert A. Sacks, Edward E. Johnson, Fanxi Wang and Jonathon Townsend for Real
Party in Interest and Appellant.
The Silverstein Law Firm and Robert P. Silverstein for Plaintiff and Respondent.
******
In this mandamus action, plaintiff La Mirada Avenue Neighborhood Association
of Hollywood (La Mirada) is a group of residents and residential property owners in the
City of Los Angeles (City), who advocate for residential quality of life issues in
Hollywood. Real party in interest 5929 Sunset (Hollywood), LLC (the Developer)
constructed the Sunset and Gordon Project (the project) in Hollywood. Before the
Developer built the project, the so-called Old Spaghetti Factory (OSF) building occupied
part of the space. This building had some historical significance. The Developer’s
predecessor in interest agreed to preserve the façade of the OSF building and incorporate
it into the project. As we will explain below, this did not occur. Instead, the Developer
changed the plan and completely demolished the OSF building. La Mirada brought this
action to compel certain remedies from the City and the CRA/LA1 for the demolition of
the OSF façade. The trial court granted the petition in large part. We affirm.
FACTS AND PROCEDURE
1. The Project and Its Approval
The project is a high-rise, mixed-use development located at 5929-5945 Sunset
Boulevard and 1512-1540 North Gordon Street in Hollywood. The project consists of a
23-story, 260-foot tall building, containing approximately 305 residential units, 40,000
square feet of office space, 13,500 square feet of retail space, and approximately 21,000
square feet of public park space. The 23-story building includes subterranean parking
levels. The original developer of the project was Sunset & Gordon Investors, LLC
(Sunset Gordon). The current Developer is the successor in interest to Sunset Gordon
and assumed all its rights and obligations with respect to the project.
1 The CRA/LA acted as the City’s lead agency for the project for purposes of
compliance with the California Environmental Quality Act (Pub. Res. Code, § 21000 et
seq.) (CEQA). It is a successor agency to the City’s original redevelopment agency.
Redevelopment agencies were formed by the Community Redevelopment Law (Health &
Saf. Code, § 33000 et seq.) to adopt and effectuate redevelopment plans for the
elimination of blighted areas. (Community Development Com. v. County of Ventura
(2007) 152 Cal. App. 4th 1470, 1478.)
2
The OSF building and other structures previously occupied the space on which the
project now sits. Although the OSF building was erected in 1924, it was not designated a
historic landmark at the national, state, or local levels. Still, Sunset Gordon’s plans for
development recognized that the OSF building had historical value. The final
environmental impact report (EIR) under CEQA indicated that the proposed project
would incorporate the OSF building façade into the new development “as a beneficial
design feature, preserving that portion of the building to retain its distinctive qualities and
preserve local neighborhood character.” At the same time, the EIR’s section on
“Alternatives to the Proposed Project” recognized the possibility that Sunset Gordon
would not retain the OSF building but would memorialize the social significance of the
building in some other way. But by the time the City fully approved the project, the
requirement to retain the OSF façade had been incorporated into various approvals and
entitlements granted by the City, including as follows.
Zone Change Ordinance and “Q Condition 7”: The City’s approval of the project
involved adopting a new ordinance (L.A. Ord. No. 180094, amending L.A. Mun. Code,
§ 12.04) that among other things changed the zoning for the property. The zone change
ordinance placed the property in the so-called (Q) classification and included “(Q)
Qualified Conditions of Approval.”2 One of the conditions, which we shall refer to as “Q
Condition 7,” stated in pertinent part: “The use and development of the property shall be
in substantial conformance with the plot plan submitted with the application and marked
Exhibit B1, dated March 13, 2008, and attached to the subject City Plan Case file. Prior
2 Section 12.32, subdivision G of the Los Angeles Municipal Code (LAMC) is
entitled “Special Zoning Classifications.” Subdivision G.2 allows for property to be
zoned with the “Q Qualified Classification.” (LAMC, § 12.32, subd. G.2.) The City may
use the Q Qualified Classification when “the property [shall] not be utilized for all the
uses ordinarily permitted in a particular zone classification and/or . . . the development of
the site shall conform to certain specified standards.” (LAMC, § 12.32, subd. G.2.(a).)
Thus, here, the (Q) Qualified Conditions of Approval placed limitations on the
development and use of the project property.
3
to the issuance of building permits, revised, detailed development plans that show
compliance with all conditions of approval . . . shall be submitted to the satisfaction of
the Planning Department.” (Italics added.)
Plot Plan: The plot plan referenced in Q Condition 7 graphically depicted the
project. A notation pointing to the OSF building read: “Portion of existing building to
remain.” (Capitalization omitted.) A graphic depiction of the proposed demolition
contained another notation for the OSF building that read: “Extent of existing building
façade to be maintained and refurbished.” (Capitalization omitted.) Accordingly, Q
Condition 7 required that the Developer build the project in substantial conformance with
these notations on the plot plan.
Vesting Tentative Tract Map: The City approved a vesting tentative tract map for
the project containing a number of notes, one of which stated: “Existing structure of
[OSF] building is to remain and be incorporated into new development (corner of Sunset
and Gordon). All other existing structures to the north (off Gordon Street) to be removed
for new development.” Findings related to the vesting tentative tract map described the
project as including “a partial structural treatment plan to retain and incorporate a portion
of the existing [OSF] Building as a prominent design element at the corner of Sunset
Boulevard and Gordon Street.” The findings also stated that adverse and unavoidable
impacts of the project would be outweighed by “substantial community benefits,”
including that the project would promote rehabilitation and restoration by preserving key
elements of the OSF building.
Parking-related Variances: The City approved nine land use variances for the
project.3 Among these were variances to permit reduced residential parking, increased
3 LAMC section 12.27 permits developers to seek, and the City to approve,
“variances,” or departures, from the City’s standard zoning ordinances. (Trancas
Property Owners Assn. v. City of Malibu (2006) 138 Cal. App. 4th 172, 182.) “A
comprehensive zoning plan could affect owners of some parcels unfairly if no means
were provided to permit flexibility. Accordingly, in an effort to achieve substantial parity
4
compact car spaces, and the elimination of clear space (that is, elimination of the extra
space typically required where parking stalls adjoin structural elements such as columns
or walls). Sunset Gordon justified the parking variances by relying in part on the
requirement to retain the OSF façade. It asserted that the retention of the façade
prevented it from developing a subterranean parking structure under that area of the
project, thereby limiting the quantity and size of parking spaces the project could
accommodate. Additionally, at hearings before various City entities, representatives for
Sunset Gordon testified that the project would preserve the façade of the building and the
need to retain the façade justified the parking variances and other exemptions for the
project. The City’s findings approving the project cited the retention of the OSF façade
as one justification for the variances.
2. La Mirada’s First Lawsuit Challenging the Project
The above project approvals and transactions occurred in 2007 or 2008. In August
2008, La Mirada filed a petition for writ of mandate challenging various land use
entitlements, variances, and discretionary approvals that the City had granted the project.
(La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles
(Super. Ct. L.A., 2009) No. BS116355 (La Mirada I).) The City and Sunset Gordon’s
opposition to the petition argued in relevant part that the retention of the OSF building
was one of several special circumstances justifying the parking variances. Similarly, at
oral argument, Sunset Gordon asserted that the retention of the OSF building was a
special circumstance justifying the parking variances because subterranean parking could
not be built under the OSF building. The trial court denied La Mirada’s writ petition in
La Mirada I.
and perhaps also in order to insulate zoning schemes from constitutional attack, our
Legislature laid a foundation for the granting of variances. Enacted in 1965, section
65906 of the Government Code establishes criteria for these grants . . . .” (Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 511, fn.
omitted.)
5
We affirmed the court’s decision in a nonpublished opinion. (La Mirada Avenue
Neighborhood Association of Hollywood v. City of Los Angeles (Sept. 22, 2010,
B217060).) The appeal focused on the three parking variances in particular. We held
that substantial evidence supported the administrative findings and these findings
supported the decision to grant the variances. We noted there was insufficient room for
the parking spaces that the LAMC would require without the parking variances. We also
noted the reasons for this were straightforward, and they included the need to retain part
of the OSF building: “These [reasons] are the unusual L-shaped configuration of the site
of the Project, the partially residential zoning that imposes the higher parking space
requirements, the higher water table that limits the number of subterranean levels, the
presence of the OSF building that reduces the space available for parking, and the
zoning limitations on above-the-ground parking.” (La Mirada Avenue Neighborhood
Association of Hollywood v. City of Los Angeles, supra, B217060, italics added.)
3. Complete Demolition of the OSF Building
During the time La Mirada I was pending (roughly August 2008 to September
2010), the project had essentially halted. Neither demolition nor construction occurred.
Sunset Gordon applied for a partial demolition permit in February 2008 before it stopped
work on the project. Paperwork connected to that application described the work as
“partial demolition” of the OSF building and indicated the OSF walls would be braced
and would remain part of the proposed new building.
The Developer revived the project around August 2011, when it took over the
project from Sunset Gordon. The Developer’s engineer and architect evaluated the
proposed project and issued opinions relating to the OSF building. The engineer opined
that the Developer should demolish and reconstruct the OSF façade rather than try to
maintain the existing structure. He concluded that the thickness of the walls in the
building and their less-than-ideal seismic retrofitting made them prone to structural
damage during heavy construction because of vibrations. While workers could brace the
walls, working around the bracing would increase the risk of injury. The architect opined
that the only way to fully restore the OSF building to reflect its original 1924 appearance
6
was to demolish it and reconstruct it based on visual records. He indicated that
preservation of the existing façade was not feasible due to deterioration caused by
vacancy, vandalism, and exposure to weather.
The Developer met with CRA/LA staff members and discussed demolishing the
entire OSF building and reconstructing the façade in the 1920’s style, while also
salvaging four wood trusses and a fireplace mantel for installation in the new building. In
January 2012, the City department of building and safety (LADBS) issued the Developer
a permit for full demolition of the OSF building. Because of some errors in clearing the
demolition permit, the permit was re-cleared on February 21, 2012, and the Developer
began demolishing the OSF building that day. The Developer completed demolition on
February 22, 2012. It salvaged and removed the trusses and mantel to an offsite location.
LADBS issued building permits and the Developer began construction in July
2012.
4. Filing of the Instant Lawsuit and Exhaustion of Administrative Remedies
La Mirada filed the instant petition for writ of mandate in May 2012 challenging
the full demolition of the OSF building. In relative short order it moved for a preliminary
injunction staying construction of the project. The Developer had completed
approximately 16 percent of the project at that point. The court held that La Mirada
demonstrated a probability of success on its claims that the Developer and the City had
violated City ordinances in demolishing the OSF building, but the court denied the
motion for failure to exhaust administrative remedies, among other reasons. The court
directed La Mirada to exhaust its administrative remedies before the case went any
further.
La Mirada then filed an administrative appeal with LADBS, arguing that the
agency issued the demolition and building permits in violation of project conditions and
approvals. LADBS concluded that it did not err and La Mirada appealed that decision to
the City director of planning.
A City zoning administrator heard and determined the appeal on behalf of the
director of planning. The zoning administrator determined that LADBS erred in granting
7
the full demolition permits but not in granting the building permits for construction of the
project. He held the Developer fully complied with approved plans except for the
complete demolition of the OSF building, and as such, the project substantially
conformed to the plot plan. He determined that the Developer could seek a clarification
of Q Condition 7 to remedy the error in issuing the demolition permit. That is, a
clarification of the Q Condition could “correct” the plot plan so that retention of the OSF
façade was not required.4
La Mirada next appealed the zoning administrator’s decision to the central area
planning commission for the City (the Commission), which upheld the zoning
administrator’s decision in full.
The Developer then met with the City planning department to discuss what
additional approvals and environmental review might be needed to proceed with the
project, given that LADBS erred in granting the full demolition permit. As a result of
this meeting, the Developer filed the following applications: (1) to clarify Q Condition 7,
which involved revising the notes on the plot plan to reflect that the Developer
completely demolished the OSF building and re-created the façade; (2) for plan approval
findings relating to the parking and other variances mentioning retention of the OSF
building, which explained that re-creation of the façade presented the same unique
circumstances and hardships as retention; and (3) to revise notes on the vesting tentative
tract map to reflect demolition and re-creation of the OSF façade rather than retention.
The Developer also submitted an addendum to the EIR that attempted to address any
potential environmental impacts of these proposed revisions.
It appears the Developer completed construction, or at least mostly completed it,
by September 2014, and LADBS issued temporary certificates of occupancy for the
public park and residential units at that time.
4 LAMC section 12.32, subdivision H permits developers to request a clarification
of a Q Condition from the director of City planning.
8
5. Trial Court’s Ruling on the Operative Petition
La Mirada filed the operative petition, the second amended petition, after it had
exhausted its administrative remedies by appealing up to the Commission. The petition
sought a writ of mandate voiding the demolition permits and all building and related
permits issued for the project. The petition pled traditional mandamus (Code Civ. Proc.,
§ 1085) and, in the alternative, administrative mandamus (id. § 1094.5). The court
determined that it would review the claim to void all permits as administrative
mandamus, given that La Mirada had pursued an administrative appeal and the court had
an administrative record before it. The court heard the petition in October 2014, just after
the temporary certificates of occupancy had issued.
As a threshold matter, the City and the Developer argued that La Mirada’s claims
were moot because the project was complete and the City had already required the
Developer to seek revisions of the relevant project approvals affected by the complete
demolition of the OSF building. The court rejected this mootness argument and held a
determination that the “building permits are void ha[d] meaning.”
The court then declared the Commission had abused its discretion in determining
the building permits were validly issued. It characterized the Commission’s decision that
the demolition permit was void but the building permits were not as “improper
piecemealing of the demolition permit from the remaining permits.” Under Q Condition
7, the use and development of the property had to substantially conform to the plot plan,
and compliance with all conditions of approval was required “[p]rior to the issuance of
building permits.” The court held demolition and reconstruction of the façade did not
substantially conform to the plot plan or comply with all conditions of approval, and
pursuant to LAMC sections 11.02 and 12.29, all permits were therefore void, including
the demolition permit, building permits, and temporary occupancy certificates.
While the court voided all permits, it determined that the City had “discretion as to
what to require from Developer, which might have to modify the Project or provide
parking alternatives.” It also determined that the CRA/LA and the City had to conduct a
additional environmental review to consider the potential impacts of the demolition and
9
reconstruction of the façade, something the City should have done before permitting the
change to the project. It expressed doubt that the Developer’s proposed addendum to the
EIR would suffice and indicated something more—a subsequent EIR or supplemental
EIR under CEQA5—might be required. Nevertheless, it observed that “the City ha[d] not
exercised its discretion on the adequacy of Developer’s proposed environmental review,
and the issue [was] not ripe for judicial review.” No permits could issue until the City
had revised project approvals and completed associated CEQA review.
After the court entered judgment (1) directing the City to void all permits
previously granted, including but not limited to demolition and building permits and
certificates of occupancy, and (2) directing the City and the CRA/LA to prepare and
process subsequent environmental review before permitting any more changes to the
project, the Developer timely appealed.
DISCUSSION
1. The Petition Is Not Moot
The Developer renews its argument from below that the operative petition is moot
and subject to dismissal. Like the trial court, we disagree.
A court should decide only actual controversies and will not render opinions on
moot questions. (Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal. App. 4th
1550, 1557.) “A case is moot when any ruling by [the] court can have no practical
impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v.
Garreks, Inc. (2000) 77 Cal. App. 4th 880, 888.) “Notwithstanding, there are three
discretionary exceptions to the rules regarding mootness: (1) when the case presents an
5 Under State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15001), “substantial
changes” to the project may require a “subsequent” EIR. (Id., § 15162, subd. (a).) A
“supplemental” EIR may suffice if only “minor additions or changes” to the previous EIR
are necessary so that it applies adequately to the changed project. (Id., § 15163, subd.
(a).) An “addendum” to the EIR is appropriate “if some changes or additions are
necessary” but there have been no substantial changes to the project of the type calling
for a subsequent EIR. (Id., § 15164, subd. (a).)
10
issue of broad public interest that is likely to recur [citation]; (2) when there may be a
recurrence of the controversy between the parties [citation]; and (3) when a material
question remains for the court’s determination.” (Cucamongans United for Reasonable
Expansion v. City of Rancho Cucamonga (2000) 82 Cal. App. 4th 473, 479-480.)
The Developer’s mootness argument proceeds as follows. Demolition of the OSF
façade cannot be reversed. The City declared the demolition permits erroneously granted
long before the court entered judgment. The building permits “are no longer operable”
because the Developer has finished construction. The project is complete—the City has
issued temporary certificates of occupancy, tenants are occupying the residential tower of
the project, and the public park is open. The City commenced the remedial process
sought by La Mirada when it instructed the Developer to apply for revisions to project
approvals and provide for subsequent environmental review by submitting an addendum
to the EIR. Thus, the case was rendered moot by the City’s remedial process, the
Developer asserts, and the trial court’s judgment could have no practical impact.
To the contrary, a ruling on the petition has an important practical impact. It is
true that, while the action was pending, the City began to pursue some of the remedies
sought by La Mirada. But the City declined to void the building and other permits
beyond the demolition permit, including the temporary certificates of occupancy. The
operative petition expressly sought to void these certificates and all other permits and
prohibit issuance of any further certificates until the City’s decisionmaking bodies had
formally revised and reapproved the project. The trial court’s written ruling granted this
relief. The voiding of these certificates and a stay on further ones pending reapproval is
not a meaningless act with no practical impact. The residential building and park cannot
be occupied without valid certificates of occupancy. (LAMC, §§ 91.109.1, 91.109.5.) If
La Mirada is correct that all permits including occupancy certificates are void pending
reapproval, this clearly affects the tenants of the building, the public who use the park,
and the Developer, who will have to deal with a project that may not be occupied for
some period of time.
11
Put another way, even if the case were moot, we would exercise our discretion to
consider it because a material issue remains for our determination. (Cucamongans
United for Reasonable Expansion v. City of Rancho Cucamonga, supra, 82 Cal.App.4th
at pp. 479-480.) The Developer can hardly contend that it is immaterial whether it has
valid certificates of occupancy pending reapproval. We think we may safely assume the
issue matters to the Developer. If it did not, it would not have stopped the City from
enforcing an order to vacate during the pendency of this appeal. The City issued an order
to vacate to the Developer in March 2015 because the City believed the temporary
certificates of occupancy, which were good for six months starting in September 2014
(LAMC, § 91.109.5), had expired, and it would not issue more pending the outcome of
this case. The Developer petitioned us for a writ of supersedeas to stay the City’s order
to vacate pending this appeal, and we issued the requested stay order.
Even if La Mirada has obtained some of the relief it originally sought, at least one
material issue remains for determination, and a court ruling has practical impacts. We
will not direct the trial court to dismiss the petition as moot.
2. The Commission Abused Its Discretion in Declining to Void All Permits and
Licenses
We now turn to the merits of the key issue, whether the City should have voided
all permits including the certificates of occupancy. The Developer does not truly contest
that the City issued the full demolition permit in error. Instead, the Developer contends
the City need not void all other permits to make up for the complete demolition of the
OSF building. We disagree. The Commission abused its discretion in finding the
demolition permits were invalid but not the subsequently issued permits.
a. Standard of Review
“Code of Civil Procedure section 1094.5, the state’s administrative mandamus
provision . . . structures the procedure for judicial review of adjudicatory decisions
rendered by administrative agencies. . . . Subdivision (b) of section 1094.5 prescribes that
when petitioned for a writ of mandamus, a court’s inquiry should extend, among other
issues, to whether ‘there was any prejudicial abuse of discretion.’” (Topanga Assn. for a
12
Scenic Community v. County of Los Angeles, supra, 11 Cal.3d at pp. 514-515.) Code of
Civil Procedure section 1094.5, subdivision (b) defines “abuse of discretion” to include
instances in which the administrative agency “has not proceeded in the manner required
by law, the order or decision is not supported by the findings, or the findings are not
supported by the evidence.” The trial court examines whether substantial evidence in the
administrative record supports the agency’s findings. (Horwitz v. City of Los Angeles
(2004) 124 Cal. App. 4th 1344, 1354 (Horwitz).)
The City’s interpretation of its own municipal code and ordinances is entitled to
great weight. Still, the ultimate interpretation of the LAMC and City ordinances is a
question of law that we review de novo, and we will not follow the City’s interpretation
of them when that interpretation is clearly erroneous. (Horwitz, supra, 124 Cal.App.4th
at p. 1354; Terminal Plaza Corp. v. City and County of San Francisco (1986) 186
Cal. App. 3d 814, 826-827.)
Our role on appeal is identical to that of the trial court. Thus, we are not bound by
the trial court’s determinations. (Lucas Valley Homeowners Assn. v. County of Marin
(1991) 233 Cal. App. 3d 130, 142; Alberstone v. California Coastal Com. (2008) 169
Cal. App. 4th 859, 863.)
b. Analysis
The Commission committed a prejudicial abuse of discretion because it did not
proceed in the manner required by law here. (Code Civ. Proc., § 1094.5, subd. (b).) We
must therefore affirm the trial court’s judgment granting La Mirada’s mandamus petition.
The zone change ordinance adopted to approve this project included Q Condition
7. Q Condition 7 had two requirements. First, that the Developer shall use and develop
the property in “substantial conformance with the plot plan.” And second, that “[p]rior to
the issuance of building permits,” the Developer shall submit development plans showing
“compliance with all conditions of approval.”
The Commission adopted the decision of the zoning administrator. The zoning
administrator found the full demolition permit violated the first requirement of Q
Condition 7 in that the permit did not substantially conform to the plot plan. Specifically,
13
the plot plan was “quite clear” that the OSF façade was to be maintained and refurbished,
and complete demolition was inconsistent with this plan. He observed that the Developer
could have sought to change the plot plan so that it could demolish and reconstruct the
façade, but because the Developer did not, LADBS erred in granting the full demolition
permit. If the demolition had substantially conformed to a modified plot plan, there
would have been no violation of Q Condition 7.
This portion of the zoning administrator’s decision is consistent with the LAMC.
LAMC section 11.02 provides: “Notwithstanding any other provisions of this Code or
any other ordinance of the City of Los Angeles, no permit or license shall be issued in
violation of any provisions of this Code or any other ordinance of the City of Los
Angeles; if any permit or license is issued in violation of any provision of this Code or
any other ordinance of the City of Los Angeles the same shall be void.” (Italics added.)
LADBS issued the full demolition permit in violation of Q Condition 7 and,
consequently, in violation of the zone change ordinance. The permit was void for
violating a City ordinance.
Despite his ruling that the full demolition permit did not comply with Q Condition
7, the zoning administrator determined that the later-issued building permits did
substantially conform to Q Condition 7. This is where his decision “does not proceed in
the manner required by law” and so constitutes an abuse of discretion. The second part
of Q Condition 7 required the Developer to submit development plans complying with all
conditions of approval before building permits could issue. If completely demolishing
the OSF building did not substantially conform to the plot plan—as the zoning
administrator determined—then a development plan in which the façade was completely
demolished did not substantially conform to the plot plan. In both cases, the use and
development of the property violated Q Condition 7. We see no logical basis for
“piecemealing” the two types of permits, as the trial court put it. The City should not
have issued the building permits because of the failure to comply with Q Condition 7.
What is more, LAMC section 11.02 mandated that any permit or license issued in
violation of Q Condition 7 (the zone change ordinance) shall be void, not just demolition
14
permits. Accordingly, all the building permits and licenses were void, as they were based
on a development in violation of Q Condition 7.6
The Developer contends that we should accord the City agency’s interpretation of
Q Condition 7 and LAMC section 11.02 great deference, and under these provisions, the
City properly exercised its discretion in determining the building permits were valid. The
Developer is mistaken. Once the City determined complete demolition of the OSF
building did not substantially conform, it had no discretion to leave subsequently issued
permits untouched. The unambiguous language of LAMC section 11.02 stated that such
noncompliant permits “shall be void.” In case there is any confusion, the LAMC
provides: “‘Shall’ is mandatory.” (LAMC, § 11.01, boldface omitted.)
Horwitz demonstrates our points. In that case, a homeowner obtained a building
permit to construct an addition to his house. He based the permit on an erroneous
calculation of the required front-yard setback such that the completed remodel was 14
feet closer to the street than the LAMC permitted. (Horwitz, supra, 124 Cal.App.4th at
p. 1347.) A neighbor challenged the homeowner’s permit by way of an administrative
appeal. (Ibid.) The administrative appeal went up to the Commission, which ruled in
favor of the homeowner on the front-yard setback issue. (Id. at p. 1351.) The trial court
disagreed and issued a writ commanding the City to revoke all of the homeowner’s
building permits and his certificate of occupancy. (Id. at p. 1354.) The appellate court
affirmed. (Id. at p. 1355.) The City asserted that the court had no authority to revoke the
6 La Mirada also relies on section 12.29 of the LAMC to argue that the City should
have voided all permits for violating Q Condition 7. This section states: “The violation
of any valid condition imposed by the Director, Zoning Administrator, Area Planning
Commission, City Planning Commission or City Council in connection with the granting
of any action taken pursuant to the authority of this chapter, shall constitute a violation of
this chapter and shall be subject to the same penalties as any other violation of this
Code.” (LAMC, § 12.29.) We need not address LAMC section 12.29 or the Developer’s
arguments in opposition to this section. Resort to this section is unnecessary when
LAMC section 11.02 obtains the result La Mirada seeks.
15
permits, and it should have remanded the matter to the City for it to choose a course of
action within its discretion. (Ibid.) That argument missed the point. A zoning ordinance
set forth the formula for measuring front-yard setbacks. There was no discretion
involved in applying the setback formula. The homeowner’s construction had to conform
to the mandatory requirements of the setback ordinance. (Ibid.) The construction did not
conform because the homeowner miscalculated the setback and the City mistakenly
accepted that calculation. It followed that the City had to revoke the permits. The City
had no discretion to issue a permit in the absence of compliance with the setback
ordinance. (Id. at pp. 1355-1356.) The mandatory revocations included the certificate of
occupancy because it could not stand without the permits. (Id. at p. 1355, fn. 6.)
Similarly, here, the City had no discretion to issue permits that violated Q
Condition 7 and the zone change ordinance. LAMC section 11.02 unambiguously voided
such permits, and, by its clear terms, it did not allow the City any discretion to not void
them. The void permits must also include the certificates of occupancy, as in Horwitz.
Each application for a type of building permit included an application for certificate of
occupancy in the same document. Once the City granted the applications and issued the
temporary certificates, the LAMC required the certificates of occupancy to contain the
building permit numbers on which they relied. (LAMC, § 91.109.4, subd. 1.) With void
underlying permits, the certificates of occupancy could not stand.
It is important to note that we are not holding the City may never issue permits and
certificates of occupancy for the project. The City had no discretion to refuse to void the
permits and certificates because of the mandatory duty to void set forth in LAMC section
11.02. But all parties agree that it has discretion to revise the project conditions,
entitlements, and EIR that it approved in the first place and to make the changes it deems
necessary after demolition of the OSF building. Once the City has completed its
remedial review, it will presumably issue permits and certificates that comply with the
revised project documents. The City started this process in March 2014 when it directed
the Developer to apply for various revised entitlements and submit revisions to the EIR.
The results of that remedial process were not before the trial court, nor are they before us.
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As such, we will not attempt to speculate about what a proper exercise of discretion
would look like.
The Developer relies on cases like Riggs v. City of Oxnard (1984) 154 Cal. App. 3d
526, which held the City of Oxnard had the discretion to resolve a zoning violation in a
number of ways, including by issuing a criminal citation for the violation or by the less
drastic measure of amending the zoning ordinance to bring the violator in compliance
with the amended ordinance. (Id. at pp. 530-531.) But Riggs merely stands for the
unremarkable position that when an ordinance states a violation “may be” prosecuted in
one way, the use of the word “may” signifies that the city has the discretion to resolve the
violation in some other way. (Id. at p. 530.) As we have discussed at length, this case
involves an LAMC section that imposes a mandatory duty to void the permits at issue. It
is distinguishable from Riggs.
Before concluding, we note that La Mirada contends collateral and judicial
estoppel bar the Developer’s positions in this case. We need not decide whether these
doctrines apply. Whether they apply or not, we are not persuaded by the Developer’s
positions.
DISPOSITION
The judgment is affirmed. La Mirada shall recover costs on appeal.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.
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