Tejon Real Estate, LLC v. City of Los Angeles

Filed 1/22/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TEJON REAL ESTATE, LLC, B247255
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC485719)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles, Frederick
C. Shaller, Judge. Affirmed.
David M. Leeper for Plaintiff and Appellant.
Michael N. Feuer, City Attorney and Brian I. Cheng, Deputy City Attorney
for Defendant and Respondent.
Appellant Tejon Real Estate, LLC, the owner of a vacant lot in Los Angeles,
contends the trial court erred in sustaining the demurrer of respondent City of Los
Angeles (City) to appellant’s complaint and dismissing the underlying action.
Appellant had engaged in discussions with City representatives concerning the
conditions under which it could obtain an extension of water service to its lot, and
whether installation of a fire hydrant would be required prior to building a
residence. Having obtained informal opinions from City and Fire Department
representatives concerning the cost of the water extension and the necessity of the
hydrant, appellant initiated an action for declaratory relief, seeking interpretation
of the Department of Water and Power Rules Governing Water and Electric
Service (DWP Rules) and the Fire Code. We conclude an action for declaratory
relief is not appropriate to review an administrative decision; moreover, the action
was unripe, as appellant had failed to exhaust administrative remedies or obtain a
final administrative determination. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s original complaint alleged that it owned a vacant lot described
as unimproved and zoned for a single family residence. The lot is located on an
unpaved portion of Harriman Avenue, approximately 430 feet from the closest
water main and fire hydrant. Appellant alleged that it desired to build a residence
on the lot and had been informed by a Fire Department “representative” that a
building permit would not be approved unless there was a fire hydrant within 300
feet of the proposed structure. In addition, appellant allegedly received a written
estimate from the DWP stating that the cost of extending the water main to the lot
2
would be $77,000.1 Appellant alleged that the requirements outlined by the
representatives were not authorized by law, and that it was DWP’s obligation to
provide water service at its own expense, “rather than make it impractical for an
owner of a lot to build on the lawfully subdivided lot, because of the expense of
obtaining water and fire protection . . . .” Appellant sought a court interpretation of
DWP’s Rules, in particular Rule 15, governing “[e]xtensions of the Department’s
Water Distribution System which are necessary to make water service of a
permanent character available to Applicants . . . .”
The City demurred contending that the case was not ripe, and that appellant
had failed to exhaust the administrative process as it had not submitted plans,
applied for a permit or obtained an official decision from the City. Moreover, to
the extent appellant contended it had received a final administrative decision,
administrative mandamus rather than declaratory relief was the appropriate
remedy. The demurrer was sustained with leave to amend, and appellant filed a
first amended complaint (FAC).
In the FAC, appellant alleged that its inquiries to City and Fire Department
personnel represented a “complete application for water service to the subject lot”
and that the letter it received in response to its inquiry represented “the official
action and final determination on [its] application[] by [DWP].” Appellant
conceded it had not applied for a building permit, but contended the cost of
providing water service to the lot was not dependent on the use of the property.
Appellant further contended that applying for a building permit would be a “waste”
of funds because the lot was “in an area where homes do not sell for enough
1
According to the complaint, this was the estimated expense of installing a 430-foot
long, six-inch extension, which would supply 1,200 gallons of water per minute, or 20
gallons per second, the pressure allegedly needed to fight a fire.
3
money to make it practical to start spending an unknown amount of money to seek
permits as long as the cost of water remains at $77,000.”
Appellant quoted a DWP rule applicable to a water main extension “on [an]
unimproved street[], not in [a] new subdivision,” which was “not at . . . grade”
level. Although it denied Harriman Avenue was not at grade level, appellant
sought to rely on this provision, contending it prohibited charging the owner for
the extension “‘[w]here[] in the opinion of the Chief Engineer of Water Works, the
estimated revenue from the service to be provided does not justify the additional
cost necessary for local distribution facilities.’” (Quoting DWP Rules, rule
15.A.6.c.) In addition, appellant alleged that a fire hydrant and six-inch water
supply was not required, because the applicable provisions of the Fire Code state
that its requirements pertain “‘unless otherwise determined by the Chief.’”
(Quoting Fire Code, § 57.09.07; see also § 57.09.08 [“Supplemental fire protection
equipment or systems shall consist of . . . [f]ire hydrants which shall be installed in
accordance with section 57.09.06 . . . , or as required by the Chief.”].)2 Appellant
alleged that before it could be charged for the service extension, “there must first
be a reasonable opinion by the DWP that, ‘the estimated revenue from the service
to be provided does not justify the additional cost necessary for local distribution
facilities,’” that the Fire Chief had the “authority to be flexible as to the location
and flow rate of fire hydrants,” and that “the [Fire Code] does not require a hydrant
within 300 feet of a building, or 20 gallons per second, with 20 psi remaining, as
the [City’s] staff is requiring, because the [C]hief has the authority to determine
otherwise, which authority must be exercised reasonably.”
2
The Fire Code provisions to which appellant refers are contained in Article Seven,
Chapter V of the Los Angeles Municipal Code.
4
In the prayer for relief, the FAC requested a declaration determining whether
“a service connection could be used, instead of a main extension, and still provide
adequate water for a permit for a single family residence on the subject lot” and
whether “a standard, single outlet fire hydrant, located directly in front of
plaintiff’s lot, fed by a 1-1/4 inch service connection, would be a project which
should be approved by the Fire Chief, if the proposed house had a garage with two-
hour fire rated walls and ceiling, and if all roofs were covered with class A fire
rated covering, with stucco covering all exterior walls, and with automatic fire
sprinklers inside all portions of the house and garage, with a box to hold a 44 yard
hose, to bring water within[] 300 feet of the house, or what else would make a
house on the subject lot a project which would be approved by the Fire Chief.”
The City again demurred, asserting as it had before that the request for
declaratory relief was not ripe, and that administrative remedies had not been
exhausted as appellant had not prepared plans for an actual project or applied for
permits. The City pointed out that “until complete plans (showing all features of
the house) are submitted for review, [it] [could] not grant any exemption or impose
any conditions.” The City also continued to assert that declaratory relief was not
an appropriate substitute for mandamus. Appellant contended that the facts alleged
in the FAC established that application for a permit would have been futile. It
stated it would amend to seek a writ of mandate if necessary.
The court sustained the demurrer without leave to amend, stating: “In spite
of the ruling on the Demurrer to the complaint placing [appellant] on notice of this
defect in the pleading, [appellant] has still not alleged facts to establish that this
controversy is ripe for declaratory relief. [Appellant] admits it never applied for
permits, nor is there an allegation of an actual proposal for construction. Nor are
there any facts alleged to establish that applying for a permit would have been
futile.” The court found that “[a]dministrative decisions are reviewable by
5
administrative writ,” and observed that appellant was “attempting to sidestep the
administrative process by obtaining an advisory opinion on a hypothetical project
. . . requir[ing] [the court] to apply the applicable Rules in the abstract.”
Appellant’s action was dismissed. This appeal followed.
DISCUSSION
The sole cause of action in appellant’s complaint was for declaratory relief.
Appellant contends (1) that it “completed the application process for water service”
and received a “final determination,” and (2) that it is, therefore, entitled to a
declaration interpreting the pertinent rules and regulations under Code of Civil
Procedure section 1060. Appellant is incorrect on both counts.
A. Declaratory Relief Is Not an Appropriate Method to Challenge an
Administrative Decision
Section 1060 of the Code of Civil Procedure authorizes a party “who desires
a declaration of his or her rights or duties with respect to another” to bring an
original action “for a declaration of his or her rights and duties,” and permits the
court to issue “a binding declaration of these rights or duties.” A declaratory relief
action is an appropriate method for obtaining a declaration that a statute or
regulation is facially unconstitutional, something appellant does not seek. (Agins
v. City of Tiburon (1979) 24 Cal. 3d 266, 272-273, overruled on other grounds in
First English Evangelical Lutheran Church of Glendale v. Los Angeles County
(1987) 482 U.S. 304.) Where, as here, the challenge is to a regulation’s
“application to the lands of the complaining part[y], . . . the proper and sole
remedy [is] administrative mandamus.” (Id. at p. 273; accord, Taylor v. Swanson
(1982) 137 Cal. App. 3d 416, 418 [“If a landowner desires to attack the overall
constitutionality of a zoning ordinance which impedes a desired use of his
6
property, the remedy is an action for declaratory relief . . . ; . . . if the landowner
. . . seeks only to obtain a ruling that the regulation as applied to his particular
property is unconstitutional, that issue is properly raised before the agency and its
adverse decision is reviewable by administrative mandate and not otherwise.” (Fn.
& italics omitted.)]; State of California v. Superior Court (1974) 12 Cal. 3d 237,
248, 249 [“It is settled that an action for declaratory relief is not appropriate to
review an administrative decision.”]; Tri-County Special Educ. Local Plan Area v.
County of Tuolumne (2004) 123 Cal. App. 4th 563, 576, quoting Walker v. Munro
(1960) 178 Cal. App. 2d 67, 72 [“‘The declaratory relief provisions do not
independently empower the courts to stop or interfere with administrative
proceedings by declaratory decree.’”]; see Zetterberg v. State Dept. of Public
Health (1974) 43 Cal. App. 3d 657, 663 [“A difference of opinion as to the
interpretation of a statute as between a citizen and a governmental agency does not
give rise to a justiciable controversy [for declaratory relief].”].) Courts have
specifically held that “‘the proper method to challenge the validity of conditions
imposed on a building permit is administrative mandamus under Code of Civil
Procedure section 1094.5.’” (Rezai v. City of Tustin (1994) 26 Cal. App. 4th 443,
448-449, quoting City of Santee v. Superior Court (1991) 228 Cal. App. 3d 713,
718.)
Because appellant’s complaint and FAC improperly sought declaratory relief
to review a purported administrative decision, demurrer was properly sustained on
that ground alone. (See State of Calif. v. Superior Court, supra, 12 Cal.3d at
pp. 248-249; Selby Realty Company v. City of San Buenaventura (1973) 10 Cal. 3d
110, 126-127.)
7
B. Appellant Failed to Exhaust Its Administrative Remedies as the
Informal Information Provided by Representatives of DWP and the Fire
Department Did Not Represent a Final Administrative Decision
When a statute or lawful regulation establishes a quasi-judicial
administrative tribunal to adjudicate remedies, “the aggrieved party is generally
required to initially resort to that tribunal and to exhaust its appellate procedure.”
(Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal. 4th 917, 930.) “‘In the
context of administrative proceedings, a controversy is not ripe for adjudication
until the administrative process is completed and the agency makes a final decision
that results in a direct and immediate impact on the parties.’” (McAllister v.
County of Monterey (2007) 147 Cal. App. 4th 253, 274-275, quoting Santa Barbara
County Flower & Nursery Growers Assn. v. County of Santa Barbara (2004) 121
Cal. App. 4th 864, 875.) “With limited exceptions, . . . where an adequate
administrative remedy is provided . . . , resort to that forum is a ‘jurisdictional’
prerequisite to judicial consideration of the claim.” (Styne v. Stevens (2001) 26
Cal. 4th 42, 56.)
“The exhaustion doctrine is principally grounded on concerns favoring
administrative autonomy (i.e., courts should not interfere with an agency
determination until the agency has reached a final decision) and judicial efficiency
(i.e., overworked courts should decline to intervene in an administrative dispute
unless absolutely necessary).” (Farmers Ins. Exchange v. Superior Court (1992) 2
Cal. 4th 377, 391.) Restricting courts to review of final agency decisions permits
courts to “benefit[] from the expertise of an agency particularly familiar and
experienced in the area.” (Styne v. Stevens, supra, 26 Cal.4th at p. 58.) “‘“Even
where the administrative remedy may not resolve all issues or provide the precise
relief requested by a plaintiff, the exhaustion doctrine is still viewed with favor
“because it facilitates the development of a complete record that draws on
8
administrative expertise and promotes judicial efficiency.”’” (Sierra Club v. San
Joaquin Local Agency Formation Com. (1999) 21 Cal. 4th 489, 501.)
A demurrer may properly be sustained based on the failure to adequately
plead exhaustion of administrative remedies. (Shuer v. County of San Diego
(2004) 117 Cal. App. 4th 476, 482.) In order to withstand a demurrer for failure to
allege exhaustion of available administrative remedies, the plaintiff must allege
facts showing that he did exhaust administrative remedies or facts showing that he
was not required to do so. (Ibid; Campbell v. Regents of University of California
(2005) 35 Cal. 4th 311, 333.)
Here, it is clear from the allegations of the complaint that appellant failed to
obtain a final administrative decision before filing the underlying action. Indeed,
appellant admits that it did not prepare or submit plans or seek a building permit
which would have provided an opportunity for all the relevant City departments to
determine precisely what conditions to impose under the City’s various building
and safety provisions before appellant could commence construction of the
proposed residence. Complaining of the expense, appellant contends it should not
be required to undergo the plan preparation and permitting procedures required by
every party who seeks to develop a property in a modern city. Courts are
unsympathetic to the contention that a landowner should be allowed to litigate the
validity of zoning or building regulations as applied to a specific property without
having undergone the complete permitting process, particularly where, as here, the
party contends entitlement to an exemption or variance.3 “[T]he question of
3
In this regard, we note that the DWP rule on which appellant primarily seeks to
rely requires the “‘opinion of the Chief engineer of Water Works’” concerning whether
the revenue from the water service to be provided justifies “the additional cost necessary
for local distribution facilities.” Similarly, appellant claimed the necessity of the fire
hydrant and the appropriate water supply could not be resolved without a
“‘determin[ation] by the [Fire] Chief’” whether alternate arrangements might satisfy the
(Fn. continued on next page.)
9
entitlement to an exemption [from the standard rules and regulations] involves the
marshalling of facts,” and if courts allow developers to bypass administrative
exemption proceedings and resort to the courts in the first instance, “it would not
only frustrate one of the underlying purposes of the exhaustion doctrine, i.e., the
need for judicial intervention might be obviated by the outcome of the
administrative proceedings, but would also reward developers who made no
attempt to fulfill the requirements of the act and the regulation, while penalizing
those who made a good faith effort to comply.” (South Coast Regional Com. v.
Gordon (1977) 18 Cal. 3d 832, 837-838; see, e.g., State of California v. Superior
Court, supra, 12 Cal.3d at p. 249 [plaintiff alleging in lawsuit it had vested right to
proceed with development of coastal property without obtaining permit was
required first to seek vested right determination from commission with authority
over coastal development]; Metcalf v. County of Los Angeles (1944) 24 Cal. 2d 267,
269-270 [party challenging validity of zoning ordinance as applied to specific
property must first apply to local regional planning commission to have property
exempted from restrictions of challenged ordinance]; Frisco Land & Mining Co v.
State of California (1977) 74 Cal. App. 3d 736, 754-755 [subdivider failed to
exhaust administrative remedies where it failed to seek administrative hearing on
claim of exemption based on vested rights or permit for development]; see
Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal. App. 4th 531, 542
[party’s contention its application for a tentative tract map and conditional use
permit were entitled to benefit of statutory “‘safe harbor’” provision “purely
conjectural” until application was complete].)
Fire Code. Appellant has not and cannot allege that it received these determinations from
those officials.
10
Appellant contends exhaustion would be futile, as there is no basis to believe
completion of a formal application for a building permit would affect the $77,000
estimate for water service, and it is “certain” that a building permit would be
denied unless a hydrant were installed within 300 feet of the proposed residence.
The futility exception applies “only if the party invoking it can positively state that
the administrative agency has declared what its ruling will be in a particular case.”
(Steinhart v. County of Los Angeles (2010) 47 Cal. 4th 1298, 1313.) A statement of
opinion by city representatives other than the body charged with hearing and
deciding the conditions under which the proposed residence can be built is not
sufficient to allow appellant to invoke futility. (See Burchett v. City of Newport
Beach (1995) 33 Cal. App. 4th 1472, 1475-1476, fn. 1, & 1479 [city not bound by
notation of city planner expressing agreement that existing nonconforming
driveway could be used as driveway for two new residences]; People ex rel. State
Pub. Wks. Bd. v. Superior Court (1979) 91 Cal. App. 3d 95, 104 [commission’s
positions “should not be inferred from general comments of staff”].) In South
Coast Regional Com. v. Gordon, where the property owner had been sued to
restrain further construction without a permit, the court rejected the owner’s
contention that it would have been futile to seek an exemption to the permit
requirement because the lawsuit was proof that the commission had reached its
final conclusion: “[T]he fact that the Attorney General, as the representative of the
commission, has taken the position on its behalf in this litigation that Gordon is not
entitled to an exemption cannot be deemed the equivalent of a determination to the
same effect by a vote of the commission after a public hearing.” (South Coast
Regional Comm. v. Gordon, supra, 18 Cal.3d at p. 838; accord, Steinhart v. County
of Los Angeles, supra, 47 Cal.4th at pp. 1313-1314 [position taken by county in
court actions insufficient basis to assume that it had predetermined its position and
would have reached same decision had timely application for administrative
11
review been made].) Here, appellant was provided preliminary opinions and
estimates from City personnel. Appellant did not receive a final determination
from the City and cannot say with certainty what charges will be imposed or
conditions enforced once the City has rendered its final decision based on specific
plans for construction. It would be premature for a court to step in at this point
before the City has had an opportunity to interpret its own rules and building
requirements.
The necessity of engaging in the administrative process to the end is
particularly critical in the present situation. Among other things, appellant
requested that the court determine whether “a service connection could be used,
instead of a main extension, and still provide adequate water [for the residence]”
and whether a “1-1/4 inch service connection” would be adequate to feed a fire
hydrant if the residence were made of stucco and constructed with “two-hour fire
rated walls and ceiling” and “all roofs were covered with class A fire rated
covering.” Courts are in no position to resolve such matters without the benefit of
the expertise of City personnel knowledgeable about water supply and fire safety
issues. Once appellant has submitted specific plans, obtained a review, and learned
the actual conditions under which it may be allowed to construct a residence and
the applicable regulations, it will be in a better position to challenge any rule it
believes was improperly interpreted.
12
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
13