PLH v. City of L.A. CA2/5 ( 2022 )

Filed 4/27/22 PLH v. City of L.A. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PLH, LLC, AN INDIANA LIMITED B304268
LIABILITY COMPANY, et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. Nos.
18STCP02606, 18STCP02645,
v. 18STCP02647)
CITY OF LOS ANGELES, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Dismissed.
Law Offices of Daniel Friedlander and Daniel Friedlander
for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Terry Kaufmann Macias,
Senior Assistant City Attorney, Steve Blau and Patrick Hagan,
Deputy City Attorneys, for Defendants and Respondents.
____________________________________
This case arises from a dispute over whether state law
required respondent City of Los Angeles (the City)1 to issue
building permits to petitioners and appellants PLH, LLC and
related entities (petitioner)2 without petitioner first obtaining
conditional use permits. The state law in question is the
California Solar Rights Act of 1978 (Stats. 1978, ch. 1154, the
“Solar Rights Act”) and relevant subsequent amendments.
Interpreting the law in effect at the time of the trial court’s
decision in November 2019, the trial court found that the Solar
Rights Act did not apply to petitioner’s projects; the trial court
denied the writ relief sought by petitioner in three consolidated
cases, dismissed the remaining claims, and entered judgment in
favor of the City. Petitioner appealed.
While petitioner’s appeal was pending, the relevant
statutory language was amended, effective January 1, 2022, to
1The City of Los Angeles Planning Commission and
individuals Frank M. Bush and Vince Bertoni are also identified
as respondents in this appeal. References to the City include all
respondents as appropriate.
2 Based on the appellate and administrative record, it
appears that PLH, LLC is the controlling owner of other business
entities (e.g., Chatsworth Solar, LLC; Kagel Canyon Solar, LLC;
and Sylmar Solar, LLC) that were the permit applicants or
petitioning parties at various stages of the proceedings under
review. Because the entities are interrelated and present their
appellate argument in a single brief, our opinion will refer to a
single petitioner despite the existence of three consolidated cases
with separate petitioners. This usage is simply a matter of ease
of reference, and is not intended to limit the scope of this opinion
to PLH, LLC alone.
2
expressly exclude projects like the ones proposed by petitioner.
As a result of the amendments, we conclude that petitioner’s
contentions on appeal are moot, and we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background3
Petitioner owns three parcels of land, each one adjacent to
residential property and zoned either agricultural (A2-1) or
suburban-equine keeping (RA-1-K). In November 2014,
petitioner applied for building permits from the Los Angeles City
Department of Building and Safety (DBS) for all three parcels,
seeking to build support structures for photovoltaic panels (the
proposed projects) to generate electricity which would then be
sold to the Los Angeles Department of Water and Power
(LADWP) under a program called the Feed-in-Tariff (FiT)
program.4 DBS informed petitioner that it would not issue the
3 The factual background of this case is largely undisputed.
The parties lodged with this court the eight-volume
administrative record that was entered into evidence by the trial
court. Our review of the factual background is based on the
clerk’s transcript and the administrative record, viewed in the
light most favorable to respondent City where there is a conflict.
4 In 2012, as the use of solar panels became more
widespread, the City enacted a Solar Ordinance (Ord. 182,110)
and authorized creation of the FiT program (Ord. 182,108).
Under the FiT program, the LADWP had authority to purchase
up to three megawatts of electricity from a solar energy facility,
3
building permits until petitioner obtained conditional use permits
(CUPs). Rather than seek CUP approval, however, petitioner
appealed the DBS decision, first to the Director of Planning, then
to the City of Los Angeles Planning Commission, which denied
the appeal in August 2018.
Petitioner Seeks Relief in Court
In October 2018, petitioner filed petitions for writ of
mandate in superior court as to each proposed project. The
petitions sought declaratory and injunctive relief against the City
for its refusal to issue building permits without a CUP, alleging
claims for a traditional writ of mandate, administrative
mandamus, violation of the Solar Rights Act, denial of
substantive and procedural due process, denial of equal
protection, and claims for declaratory and injunctive relief.
Petitioner’s claims were based on the premise that the City had
incorrectly interpreted the Solar Rights Act and sought orders
directing the City to issue building permits for petitioner’s
proposed projects without requiring CUPs. The trial court
consolidated the cases and stayed the non-writ causes of action.
After a hearing in late November 2019, the trial court
issued a 12-page written decision denying writ and declaratory
up to a total of 150 megawatts from all sources. Each facility was
subject to a conditional use permit, and in March 2015, the City
adopted a Master Conditional Use Permit (Master CUP) for
certain types of facilities, such as rooftop or parking lot facilities,
provided the facilities were outside of specified zoning
designations. FiT projects that did not fall under the Master
CUP, including petitioner’s proposed projects, would still require
a conditional use permit.
4
relief, based on its determination that the Solar Rights Act did
not apply to the proposed projects. The trial court explained,
“petitioners raise a pure question of law: whether the Solar
Rights Act applies to the three solar projects, which would
construct industrial-scale solar facilities to generate power for
offsite use.” The trial court construed the statutory language and
the legislative history as limiting the Solar Rights Act to projects
that generate power for use on-site, and as excluding industrial-
scale solar facilities designed to generate power solely for off-site
use. Accordingly, petitioner could not rely on the Solar Rights
Act to obtain writ relief requiring the City to issue building
permits without conditions set forth in a CUP. The trial court
then dismissed the remaining two causes of action (denial of due
process and equal protection) because they were derivative of the
substantive allegations made on the writ claims. In January
2020, the trial court entered final judgment against petitioner
and in favor of the City, and Petitioner appealed on February 11,
2020.
DISCUSSION
In its opening and reply briefs on appeal, petitioner argued
the trial court’s decision was based on an erroneous
interpretation of statutory language. Specifically, petitioner
argued the Solar Rights Act, which preempts the authority of
local agencies and prohibits them from imposing conditions on
anything that falls within the statutory definition of a “solar
energy system,” required the City to issue building permits
without requiring petitioner to first obtain CUPs for the proposed
projects.
5
While the current appeal was pending, the California
Legislature amended the statutory definition of a “solar energy
system.” At the invitation of this court, the parties submitted
letter briefs addressing the impact of the amendment on the
current appeal. The parties agree that petitioner’s projects no
longer fall within the new statutory definition of a solar energy
system. As a result, the City contends that petitioner’s appeal is
moot. Petitioner contends that the appeal is not moot, because if
this court agrees that the proposed projects fell within the former
statutory definition of “solar energy system,” petitioner would
have the “equivalent of a vested right.” Petitioner further
contends that even without a vested right, the appeal is not moot
because petitioner is entitled have the matter remanded on the
issue of damages based on its due process and equal protection
claims.
A. Standard of Review
“‘A traditional mandamus is sought to enforce a
nondiscretionary duty to act on the part of a court, an
administrative agency, or officers of a corporate or administrative
agency.’ [Citation.] ‘There are two requirements essential to
issuance of a writ of mandate under Code of Civil Procedure
section 1085: (1) the respondent has a clear, present, and usually
ministerial duty to act; and (2) the petitioner has a clear, present,
and beneficial right to performance of that duty.’ [Citation.]”
(Pacifica Firefighters Assn. v. City of Pacifica (2022) 76
6
Cal.App.5th 758.)5 “[W]here the pertinent facts are undisputed
and the issue is one of statutory interpretation, the question is
one of law and we engage in a de novo review of the trial court’s
determination. [Citation.]” (Marshall v. Pasadena Unified
School Dist. (2004) 119 Cal.App.4th 1241, 1253.)
Although petitioner ostensibly sought both traditional and
administrative mandate in its complaint, given that it seeks
declaratory and injunctive relief based on the argument that the
Solar Rights Act imposes upon the City a ministerial duty to
issue a building permit, we apply the law of ordinary mandamus,
where “the law to be applied is that which is current at the time
of judgment in the appellate court.” (Callie v. Board of
Supervisors (1969) 1 Cal.App.3d 13, 18; see also Citizens for
Positive Growth & Preservation v. City of Sacramento (2019) 43
Cal.App.5th 609, 626 [new California Environmental Quality Act
statute stating that traffic delays shall not be considered a
significant impact on environment rendered moot petitioner’s
5 Petitioner’s complaint sought both traditional and
administrative mandate, and neither the parties nor the trial
court have drawn any meaningful distinction between the two
forms of relief. (See City of Hesperia v. Lake Arrowhead
Community Services Dist. (2019) 37 Cal.App.5th 734, 746–749
[discussing differences in types of writ relief].) Under Code of
Civil Procedure section 1085, a party can pursue traditional
mandate to challenge an agency’s failure to perform an act
required by law. Under Code of Civil Procedure section 1094.5, a
party seeking an administrative mandate may challenge the
results of an administrative hearing. (Id. at p. 746.) “It is not
inconsistent to award relief under both sections 1094.5 and 1085
of the Code of Civil Procedure.” (Conlan v. Bonta (2002) 102
Cal.App.4th 745, 752.)
7
challenge to city’s finding that traffic delays were not a
significant impact]; Association of Irritated Residents v.
Department of Conservation (2017) 11 Cal.App.5th 1202, 1222
[reviewing “how events occurring after the commencement of a
case can result in its mootness” and whether process for
dismissing is a ruling on the merits]; Fairbank v. City of Mill
Valley (1999) 75 Cal.App.4th 1243, 1255–1257, fn. 12 [“where no
vested rights will be impaired, it is appropriate for an appellate
court to apply the law in existence at the time of its decision
rather than at the time an approval was issued”].) “The reason a
reviewing court applies current rather than former law when
reviewing an injunctive decree is because injunctive relief
operates in the future. [Citations.] . . . The reviewing court is
interested in the law’s prospective effect since that is when the
decree under review will operate.” (City of Watsonville v. State
Dept. of Health Services (2005) 133 Cal.App.4th 875, 884.)
“‘“When we interpret a statute, ‘[o]ur fundamental task . . .
is to determine the Legislature’s intent so as to effectuate the
law’s purpose. We first examine the statutory language, giving it
a plain and commonsense meaning. We do not examine that
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’”’” (Meza v. Portfolio
Recovery Associates, LLC (2019) 6 Cal.5th 844, 856.)
8
B. The Solar Rights Act
Since 1978, the California Legislature has enacted
legislation and policies to promote “all feasible uses of alternative
energy supply sources,” including solar energy. (Pub. Resources
Code, § 25980; Gov. Code, § 65850.5.) “[I]t is the policy of the
state to promote and encourage the use of solar energy systems
and to remove obstacles thereto.” (Civ. Code, § 714, subd. (b).)
Local agencies may not adopt ordinances that create
unreasonable barriers to the installation of solar energy systems.
(Gov. Code, § 65850.5, subd. (a).) Applications to install solar
energy systems must be administratively approved by cities or
counties, although a use permit may be required if the governing
body makes specified findings of adverse impacts on public health
or safety. (Gov. Code, § 65850.5, subd. (b); Health & Saf. Code,
§ 17959.1.)
The statutory definition of a “solar energy system” appears
in Civil Code section 801.5, subdivision (a). (Gov. Code,
§ 65850.5, subd. (j)(4).) As originally enacted in 1978, the statute
defined a solar energy system as any structural design feature of
a building, any solar collector, or other solar energy device
“whose primary purpose is to provide for the collection, storage,
and distribution of solar energy” for water heating, or for space
heating or cooling. (Former Civil Code § 801.5, subd. (a), added
by Stats. 1978, ch 1154, § 5, p. 3543.)6 In 2001, the definition
6 The relevant portion states: “As used in this section, ‘solar
energy system’ means either of the following: [¶] (1) Any solar
collector or other solar energy device whose primary purpose is to
9
was amended to expand the earlier, more limited, list of solar
energy system purposes (e.g. water heating, space heating and
cooling) to include generating electricity.7 In 2018, other
amendments unrelated to the current appeal took effect.8
provide for the collection, storage, and distribution of solar
energy for space heating or cooling, or for water heating; or [¶] (2)
Any structural design feature of a building, whose primary
purpose is to provide for the collection, storage, and distribution
of solar energy for space heating or cooling, or for water heating.”
(Former Civil Code § 801.5, subd. (a), added by Stats. 1978, ch
1154, § 5, p. 3543.
7 The amended statutory language read: “As used in this
section, ‘solar energy system’ means either of the following: [¶] (1)
Any solar collector or other solar energy device whose primary
purpose is to provide for the collection, storage, and distribution
of solar energy for space heating, space cooling, electric
generation, or water heating. [¶] (2) Any structural design
feature of a building, whose primary purpose is to provide for the
collection, storage, and distribution of solar energy for electricity
generation, space heating or cooling, or for water heating.”
(Former Civil Code § 801.5, subd. (a), amended by Stats. 2000, ch.
537, § 2.)
8 The amended statutory language read: “As used in this
section, ‘solar energy system’ means either of the following: [¶] (1)
Any solar collector or other solar energy device whose primary
purpose is to provide for the collection, storage, and distribution
of solar energy for space heating, space cooling, electric
generation, or water heating. [¶] (2) A structural design feature
of a building, including either of the following: [¶] (A) Any design
feature whose primary purpose is to provide for the collection,
storage, and distribution of solar energy for electricity
10
Effective January 1, 2022, the definition of a solar energy system
was amended again, this time to limit the definition so as to
exclude a system that is “designed for procurement of electricity
by an electric utility.” (Civ. Code, § 801.5, subd. (a).)9
generation, space heating or cooling, or for water heating. [¶] (B)
Any photovoltaic device or technology that is integrated into a
building, including, but not limited to, photovoltaic windows,
siding, and roofing shingles or tiles. (Former Civil Code § 801.5,
subd. (a), amended by Stats. 2017, ch. 849, § 1.)
9 The amended statutory language now reads: “As used in
this section, ‘solar energy system’ means either of the following
that is designed to serve one utility retail customer on the same
property, more than one utility retail customer on the same
property, one utility retail customer on the same, adjacent, or
contiguous properties, or more than one utility retail customer on
the same, adjacent or contiguous properties, and is not designed
for procurement of electricity by an electric utility:
(1) Any solar collector or other solar energy device whose
primary purpose is to provide for the collection, storage, and
distribution of solar energy for space heating, space cooling,
electric generation, or water heating.
(2) A structural design feature, including the following:
(A) Solar racking, solar mounting, and elevated solar
support structures, including, but not limited to, solar carports,
solar shade structures, solar awnings, solar canopies, and solar
patio covers, regardless of whether the feature is on the ground or
on a building. Elevated solar support structures include the
aboveground superstructure and associated foundation elements
that support the solar collectors or other solar energy devices
described in paragraph (1).
(B) Any design feature whose primary purpose is to provide
for the collection, storage, and distribution of solar energy for
11
Although petitioner and the City disagree about whether
the proposed projects are solar energy systems as that term was
defined between 2001 and 2021, they both agree that the current
statutory definition excludes the proposed projects, because the
proposed projects would produce electricity solely for sale to an
electric utility. Despite acknowledging that this court must apply
the law currently in effect, petitioner urges this court to decide
the question of whether the pre-2022 statutory definition of a
solar energy system encompassed its proposed projects.
C. Vested Rights and Equitable Estoppel
Petitioner argues that if it prevails in this appeal on the
issue of the meaning of the pre-2022 version of the Solar Rights
Act, it “would have not only acquired the equivalent of a vested
right to proceed” that requires the City to administratively
approve the proposed projects, “but the City would be estopped
from denying administrative approval of [petitioner’s] projects.”
In essence, petitioner is arguing that once a statutory
amendment has taken effect, if a court subsequently determines
that a city violated a ministerial duty under the prior law, the
beneficiary of that ministerial duty has “the equivalent of a
vested right.” Petitioner also invokes the concepts of equity and
electricity generation, space heating or cooling, or for water
heating.
(C) Any photovoltaic device or technology that is integrated
into a building, including, but not limited to, photovoltaic
windows, siding, and roofing shingles or tiles.” (Civ. Code,
§ 801.5, subd. (a); amended by Stats. 2021, ch. 235, § 2.)
12
fairness to argue that this court should now compel the City,
which required all earlier participants in the FiT program to
either conform to the Master CUP or obtain a CUP, to approve
petitioner’s permit application, even though current law allows
the City to require a CUP. Petitioner’s argument lacks any
support in the relevant authorities.
In order to assert a vested right in the land use context, a
permit applicant must show that (1) the local agency has issued a
valid building permit, and (2) the applicant “has performed
substantial work and incurred substantial liabilities in good faith
reliance” on the permit. (Avco Community Developers, Inc. v.
South Coast Regional Com. (1976) 17 Cal.3d 785, 791 (Avco); see
also Attard v. Board of Supervisors of Contra Costa County (2017)
14 Cal.App.5th 1066, 1076–1079 (Attard) [rejecting vested rights
claim of homeowners who secured an invalid building permit
after purporting to have received approval to connect residential
sewage line to a different city].)
Petitioner cannot meet either prong of the test for the
existence of a vested right. First, no building permit ever issued,
because petitioner did not even attempt to obtain the CUP that
the City was purporting to require. (See Toigo v. Town of Ross
(1998) 70 Cal.App.4th 309, 322 (Toigo) [“[c]ourts 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 preliminary approvals have been granted”].) Second, while
petitioner points out it invested millions of dollars into the project
and entered into contracts with LADWP’s FiT program, it
acknowledges that these expenses were incurred before it sought
13
a building permit from the City in November 2014. Therefore,
the expenses were not incurred in reliance on any permit. (See
Avco, supra, 17 Cal.3d at pp. 791–794.)
In a conclusory manner, petitioner argues, “Equity and
fairness now dictate that, should [petitioner] prevail in this
appeal, the City should be required to administratively approve
[petitioner’s] projects under the statutory definition that existed
at the time [petitioner] submitted their permit applications and
plans to the City. Anything [sic] other result would result in
substantial injustice [and] inequity to [petitioner.]” Petitioner
does not cite to any authority to support this argument, and the
argument runs contrary to the case law on vested rights and
equitable estoppel in the land use context. Previous cases have
explained that a petitioner claiming equitable estoppel “faces
daunting odds in establishing estoppel against a governmental
entity in a land use case. Courts have severely limited the
application of estoppel in this context by expressly balancing the
injustice done to the private person with the public policy that
would be supervened by involving estoppel to grant development
rights outside of the normal planning and review process.”
(Toigo, supra 70 Cal.App.4th at p. 321, citing Avco, supra, 17
Cal.3d at p. 800; see also Attard, supra, 14 Cal.App.5th at p. 1079
[“equitable estoppel against the government . . . is the exception,
not the rule”].)
To the extent petitioner is arguing equitable estoppel
separate from the doctrine of vested rights, it has neither met the
basic requirements for equitable estoppel nor has it demonstrated
that this is the type of “extraordinary case” where estoppel
against a government agency is justified because the estoppel is
narrow and the injustice is great. (Attard, supra 14 Cal.App.5th
14at pp. 1079–1081.) Without citing to any supporting evidence,
petitioner blames the City for taking almost four years to
complete the appeals process. Petitioner also notes that the
parties spent the next three years in litigation. This is not
enough to establish estoppel in the land use context. We also
note that petitioner’s estimation that the parties spent three
years in litigation includes close to two years spent on the current
appeal, where petitioner sought and was granted deadline
extensions totaling over 180 days.
D. Petitioner’s Due Process and Equal Protection
Claims Cannot Survive Denial of Writ Relief
Petitioner contends that even if the amended definition of
“solar energy system” precludes writ relief, it is entitled to pursue
its “damage claims encompassed within the fourth and fifth
causes of action,” for denial of substantive and procedural due
process and for denial of equal protection. Neither cause of
action, however, states a claim for damages. Similar to
petitioner’s claims for writ, declaratory, and injunctive relief, the
fourth cause of action alleges that the City denied petitioner due
process because the Government Code prohibited the City from
requiring a CUP, and seeks to set aside the denial of the building
permits and require the City to permit the projects to proceed
without further discretionary approvals. In the fifth cause of
action for denial of equal protection, petitioner alleges the City
granted approvals to other projects without requiring a CUP; this
cause of action also seeks to set aside the denial of the building
permits and require the City to permit the projects to proceed
without further discretionary approvals. Petitioner’s prayer for
15
relief includes boilerplate references to “other relief as the Court
may deem just and proper,” which are included in each and every
writ and non-writ cause of action, but we decline to construe
these as claims for damages. Moreover, other than reciting
general principles of ripeness and mootness, petitioner’s
argument lacks any citation to legal authority in support of its
argument that these two claims state a valid theory of damages,
or somehow survive even if writ relief is unavailable.
DISPOSITION
The appeal filed by PLH, LLC; Chatsworth Solar, LLC;
Kagel Canyon Solar, LLC; and Sylmar Solar, LLC is dismissed as
moot. In the interest of justice, each party shall bear its own
costs.
MOOR, J.
I concur:
RUBIN, P. J.
16
PLH, LLC et al. v. City of Los Angeles et al.
B304268
BAKER, J., Concurring in Part and Dissenting in Part
The majority dismisses the appeal as moot. That is largely
correct, but as to plaintiffs and appellants’ claim for
administrative mandamus relief, I would affirm on the merits.
For that claim, we apply the law in effect at the time of
defendants and respondents’ action on the permit applications,
not the law as it stands now. (City of Grass Valley v. Cohen
(2017) 17 Cal.App.5th 567, 580; see also Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1194.) Even under prior law,
however, the processing of the permit applications was not error.
BAKER, J.