Kalnel Gardens, LLC v. City of Los Angeles

Filed 9/29/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KALNEL GARDENS, LLC, B264434
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS148403)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James C. Chalfant, Judge. Affirmed.
Loeb & Loeb, Allan J. Abshez and Elizabeth A. Camacho for Plaintiff and
Appellant.
Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Assistant City
Attorney and Michael J. Bostrom, Deputy City Attorney for Defendants and
Respondents.
__________________________
Developer Kalnel Gardens, LLC, appeals from the judgment denying its petition
for a writ of administrative mandate seeking to overturn the City of Los Angeles’s
decision to halt a previously approved 15-unit housing project in Venice. We dismiss the
appeal in part as to the developer’s cause of action based on the Housing Accountability
Act because the developer did not seek appellate review by way of a writ petition as
required by that statute. We affirm as to the remaining causes of action because there is
substantial evidence that the proposed project violated the visual and scenic elements
requirement of the California Coastal Act, and because the Coastal Act takes precedence
over statutes awarding density and height increase bonuses for proposed residential
developments that include affordable housing units.
FACTS AND PROCEDURAL HISTORY
In 2013, City of Los Angeles planning officials approved Kalnel Gardens, LLC’s
proposed project to tear down a two-story, three-unit apartment building at the triangular
intersection of Mildred and Ocean Avenues and Venice Boulevard in the Venice area.
The project would include a total of 15 housing units: five duplexes and five single
family homes. Kalnel was allowed to exceed the normal density restrictions for that
location because two of the units would be designated for very low income households.
These “density bonuses” were authorized by the Housing Accountability Act (Gov. Code,
§ 65589.5 (HAA)), the Density Bonus Act (Gov. Code, § 65915) and the Mello Act
(Gov. Code, § 65590).1 The low income housing units also entitled Kalnel to certain
other zoning concessions, including a height variance above the usual 25-foot limit. As a
result, the project included a flat roofline height of 33.75 feet and a varied roofline height
of 40.5 feet.
1
All further undesignated section references are to the Government Code. We will
sometimes refer to these three acts collectively as the housing density statutes, and we
will discuss them in more detail in section 1 of our discussion.
2
In addition to approving the density bonuses and height variances, city planning
officials adopted a mitigated negative declaration under the California Environmental
Quality Act (Pub. Resources Code, § 21000, et seq. (CEQA)). Soon after, the City’s
advisory agency approved the project’s vesting tentative tract map, including findings
that the project complied with the City’s General Plan as well as the Venice Specific
Plan. The City’s zoning administrator also approved a coastal development permit under
the Coastal Act (Pub. Resources Code, § 30000, et seq.).
In September 2013, a group of neighboring residents appealed the planning
department’s various approvals concerning Kalnel’s project, including the coastal
development permit. The residents contended the project violated the Coastal Act
because its height, density, setbacks, and other visual and physical characteristics were
out of step with the existing neighborhood.2
At the December 2013 appeal hearing before the West Los Angeles Area Planning
Commission (the Commission), numerous area residents spoke about how the proposed
project was out of step with the unique character of the Venice neighborhood, which was
described as artistic and charming. According to the residents, one- and two-story
structures outnumbered taller structures in the area by a ratio of nine to one. The visual
impact of the few taller structures that existed was mitigated by setbacks of as much as
200 feet, while the Kalnel project had the same 25-foot setback as did one-story homes.
Many of the homes were 1920's era one-story bungalows. The project’s three-story
height, which included rooflines of up to 40 feet, would tower over and shadow nearby
properties. The design as a whole was described as having solid stucco brown walls with
no windows, articulation, or character of any kind.
These concerns were echoed in a statement by Tricia Keane, the planning director
for City Council Member Mike Bonin. Keane agreed that the surrounding neighborhood
2
The residents raised several other challenges to the project, including its effect on
traffic, vehicular and pedestrian safety, parking, and coastal access. The trial court’s
judgment, and our analysis, is limited to the issue of visual and scenic compatibility
under the Coastal Act.
3
consisted primarily of one- and two-story single and multi-family homes. Few, if any,
“reach the height, story, scale and mass proposed by this project.” The proposed project
was not consistent with the character of the neighborhood, which she called the “gateway
to Venice.” A Commission staff member confirmed that there were only a few three-
story buildings near the site of the proposed project, with everything else being one story.
Alan Abshez, counsel for Kalnel, said that there was a three-story library across
the street from the project site, and that similar size structures could be found along
nearby stretches of Venice Boulevard and Mildred Avenue. At bottom, however, Abshez
said this was “all a case about affordable housing and density bonus.” Abshez contended
that the density and height of Kalnel’s project were all the result of its compliance with
the statutory requirement that the project include affordable housing.
Commission Vice President Donovan said that issues related to the density bonus
were “outside the purview” of the appeal hearing, which instead focused on the
Commission’s discretionary power concerning the issuance of coastal development
permits under the Coastal Act. At Donovan’s suggestion the Commission found that the
development did not conform to the Coastal Act because its size, height, bulk, mass, and
scale were incompatible with and harmful to the surrounding neighborhood and because
the setbacks were too small.3
Kalnel appealed the Commission’s decision to the City Council, which denied the
appeal and adopted the Commission’s findings. Kalnel then brought an administrative
mandate action against the City, alleging that it had violated the HAA, the Density Bonus
Act, and the Mello Act.4
3
The Commission also adopted findings concerning traffic issues and other
concerns.
4
Kalnel also stated two causes of action under federal civil rights law alleging that
the City’s actions violated Kalnel’s constitutional due process and equal protection rights.
(42 U.S.C. § 1983.) The trial court did not address that issue and neither do the parties on
appeal. As a result, neither do we.
4
Distilled, the trial court found that the City had not complied with the HAA and
that the density bonus, height and setback variations initially approved for the project
were proper under the housing density statutes and other City zoning plans and
regulations, including the Coastal Commission-approved Venice Land Use Plan. Even
so, the trial court found that the three housing density statutes were subordinate to the
Coastal Act and that substantial evidence supported the City’s findings that the project
violated that act because it was visually out of step with the surrounding coastal
community.5 Kalnel does not contend that there was insufficient evidence to support the
finding that the project violated the Coastal Act. Therefore, the primary issue on appeal
is whether the Coastal Act in fact takes precedence over the various housing density
provisions.
STANDARD OF REVIEW
At issue in administrative mandate proceedings is whether the agency acted
without or in excess of jurisdiction, whether there was a fair hearing, and whether there
was a prejudicial abuse of discretion. An abuse of discretion occurs when the agency did
not proceed in the manner required by law, its order or decision is not supported by the
findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5,
subd. (b).)
Our role is the same as the trial court’s: we review the administrative record to
determine whether the City’s findings are supported by substantial evidence. (Reddell v.
California Coastal Com. (2009) 180 Cal. App. 4th 956, 962 (Reddell).) To the extent
interpretation of a statute is involved, we exercise independent review and apply the well-
settled rules of statutory construction. (Automotive Funding Group, Inc. v. Garamendi
(2003) 114 Cal. App. 4th 846, 851.)
5
The trial court also found that the City’s original issuance of a mitigated negative
declaration for the project under CEQA had been proper, and rejected two new issues
raised by the City at trial: that the project violated the Venice Land Use Plan by calling
for the consolidation of more than two lots, and that it hinged on the City ceding a certain
portion of public right of way to the developer. Because we affirm the trial court’s
judgment under the Coastal Act, we need not reach those issues.
5
The fundamental rule of statutory construction is to ascertain the Legislature’s
intent in order to give effect to the purpose of the law. (Pasadena Metro Blue Line
Construction Authority v. Pacific Bell Telephone Co. (2006) 140 Cal. App. 4th 658, 663-
664 (Pasadena Metro Blue Line).) We first examine the words of the statute and try to
give effect to the usual, ordinary import of the language while not rendering any language
surplusage. The words must be construed in context and in light of the statute’s obvious
nature and purpose. The terms of the statute must be given a reasonable and
commonsense interpretation that is consistent with the Legislature’s apparent purpose and
intention. (Id. at p. 664.) Our interpretation should be practical, not technical, and
should also result in wise policy, not mischief or absurdity. (Ibid.) We do not interpret
statutes in isolation. Instead, we read every statute with reference to the entire scheme of
law of which it is a part in order to harmonize the whole. (20th Century Ins. Co. v.
Superior Court (2001) 90 Cal. App. 4th 1247, 1275.)
If the statutory language is clear, we should not change it to accomplish a purpose
that does not appear on the face of the statute or from its legislative history. (Pasadena
Metro Blue Line, supra, 140 Cal.App.4th at p. 664.) If there is more than one reasonable
interpretation of a statute, then it is ambiguous. (Joannou v. City of Rancho Palos Verdes
(2013) 219 Cal. App. 4th 746, 752 (Joannou).) If so, we turn to secondary rules of
construction, including maxims of construction, the legislative history, and the wider
historical circumstances of a statute’s enactment. (Ibid.)
DISCUSSION
1. Summary of the Three Housing Density Statutes
1.1 The Housing Accountability Act (HAA)
The HAA (§ 65589.5), known as the “anti-NIMBY law,”6 was designed to limit
the ability of local governments to reject or render infeasible housing developments based
on their density without a thorough analysis of the “economic, social, and environmental
effects of the action . . . .” (§ 65589.5, subd. (b).) When a proposed development
6
NIMBY is the acronym for Not In My Backyard.
6
complies with objective general plan and zoning standards, including design review
standards, a local agency that intends to disapprove the project, or approve it on the
condition that it be developed at a lower density, must make written findings based on
substantial evidence that the project would have a specific, adverse impact on the public
health or safety and that there are no feasible methods to mitigate or avoid those impacts
other than disapproval of the project. (§ 65589.5, subd. (j) (1) & (2).)7
1.2 The Density Bonus Act
The Density Bonus Act (§ 65915) is designed to address the shortage of affordable
housing in California. (Latinos Unidos Del Valle De Napa Y Solano v. County of Napa
(2013) 217 Cal. App. 4th 1160, 1164.) When a developer agrees to set aside a certain
percentage of the units in a housing development for low or very low income residents,
the local agency with approval power over that development must award the developer
both certain itemized concessions and a density bonus that allows an increase in density
above what the zoning ordinances would ordinarily allow. (Ibid.)
Local governments are required to enact ordinances that implement the density
bonus law (§ 65915, subd. (a)), which the City did through Los Angeles Municipal Code
section 12.22.A.25. The Density Bonus Act also provides for judicial remedies if the
local agency refuses to grant the required density bonus. (§ 65915, subd. (d)(3).)
1.3 The Mello Act
The Mello Act (§§ 65590-65590.1) establishes minimum requirements for
affordable housing within the coastal zone. (Pacific Palisades Bowl Mobile Estates, LLC
v. City of Los Angeles (2012) 55 Cal. 4th 783, 798 (Pacific Palisades).) It does this in two
ways: first, by requiring the construction of replacement low income housing when
existing affordable housing is demolished (§ 65590, subd. (b)); second, as applicable
here, by requiring new affordable housing units as part of new developments, either at the
site of the new development or somewhere else (§ 65590, subd. (d)). While a local
agency must require replacement affordable housing when existing affordable housing is
7
The trial court found, and the City does not dispute, that it failed to make the
required findings under the HAA.
7
demolished within the coastal zone, the agency may reject the addition of affordable
housing units in a proposed new development if those units are found to be not feasible.
(§ 65590, subd. (d)). Feasibility “means capable of being accomplished in a successful
manner within a reasonable period of time, taking into account economic, environmental,
social, and technical factors.” (§ 65590, subd. (g)(3).)
2. The Coastal Act
The court in Pacific Palisades, supra, 55 Cal.4th at pages 793-794, gave a detailed
description of the Coastal Act, which we paraphrase below.
The Coastal Act (Pub. Resources Code, § 30000, et seq.), is a comprehensive
scheme to govern land use planning for the state’s entire coastal zone. As part of its
enactment the Legislature made several findings: That the coastal zone “is a distinct and
valuable natural resource of vital and enduring interest to all the people”; that permanent
protection of the state’s natural and scenic resources is of paramount concern; that “it is
necessary to protect the ecological balance of the coastal zone”; and that “existing
developed uses, and future developments that are carefully planned and developed
consistent with the policies of [the Coastal Act], are essential to the economic and social
well-being of the people of this state . . . .” (Pub. Resources Code, § 30001, subds. (a)
and (d).)
The Coastal Act is to be “liberally construed to accomplish its purposes and
objectives.” (Pub. Resources Code, § 30009.) In almost all cases, any development
within the coastal zone requires a coastal development permit in addition to any other
permits required by law from state or local governments or state and local agencies.
(Pub. Resources Code, § 30600, subd. (a).)
The Coastal Act relies heavily on local government “to achieve maximum
responsiveness to local conditions, accountability, and public accessibility . . . .” (Pub.
Resources Code, § 30004, subd. (a).) It requires local governments to develop local
coastal programs, comprised of a land use plan and implementing ordinances to promote
the Coastal Act’s objectives. (Pub. Resources Code, §§ 30004, subd. (a); 30001.5;
30500-30526.) In 2001 the Coastal Commission certified the City’s Venice Land Use
8
Plan as the local coastal program governing the City’s issuance of coastal development
permits.
Once the Coastal Commission certifies a local government’s program, the Coastal
Commission delegates authority over coastal development permits to the local
government. (Pub. Resources Code, §§ 30519, subd. (a); 30600.5, subds. (a), (b) & (c).)
Under the Coastal Act, the local coastal program and development permits issued by
local agencies are not just matters of local law. Instead, they embody state policy. A
fundamental purpose of the Coastal Act is to ensure that state policies prevail over local
government concerns.
3. The Appeal Must Be Dismissed in Part Because Kalnel Did Not File a Writ
Petition as Required by the Housing Accountability Act
Kalnel’s first cause of action was for violation of the HAA. Even though the trial
court concluded the City had violated the HAA, it denied relief under the Coastal Act.
Nevertheless, Kalnel purports to appeal the denial of its HAA claim. The City contends
that we must dismiss that portion of the appeal because Kalnel was required to obtain
appellate review of its HAA claim by way of a writ petition.
Subdivision (m) of section 65589.5 provides that actions brought to enforce the
HAA shall be brought as administrative mandate actions. Subdivision (m) also provides
the mechanism for appellate review in such cases: “Upon entry of the trial court’s order,
a party shall, in order to obtain appellate review of the order, file a petition within 20
days after service upon it of a written notice of the entry of the order, or within such
further time not exceeding an additional 20 days as the trial court may for good cause
allow. If the local agency appeals the judgment of the trial court, the local agency shall
post a bond, in an amount to be determined by the court, to the benefit of the plaintiff if
the plaintiff is the project applicant.” (Italics added.)
Kalnel did not ask for an additional 20 days in which to file a writ petition, and did
not file a writ petition at all. Instead, within 60 days after service of notice that judgment
had been entered it filed a notice of appeal as to the entire judgment. The City contends
9
that we have no jurisdiction to consider Kalnel’s challenge to the judgment insofar as the
HAA cause of action is concerned. We agree.
Because the statute mentions appellate review of a trial court order, but goes on to
require a bond when a local agency appeals a judgment, Kalnel contends that the statute
requires a writ petition only when interlocutory relief is sought from a trial court order in
an action under the HAA. The legislative history of the HAA leads us to reject this
contention.
As originally introduced, and as first amended, section 65589.5 did not mention
the procedure for seeking appellate review in HAA actions. (Legis. Counsel’s Dig., Sen.
Bill No. 575 (2005-2006 Reg. Sess.).) Subdivision (m) was added as part of a June 7,
2005, amendment, and provided that, after a trial ended, “[u]pon entry of the trial court’s
order [denying relief], a party shall, in order to obtain appellate review of the order,” file
a writ petition within 20 days, with the trial court permitted to extend that period by up to
20 more days. If the local agency appealed the judgment, then the agency would have to
post a bond. (Legis. Counsel’s Dig., supra, at pp. 9-10, italics added.)
The only parties who can be denied relief in an HAA action are developers such as
Kalnel who are challenging a local agency’s disapproval of a proposed development.
Appellate review of an order denying relief in such an action must therefore refer to a
trial court judgment in favor of the local agency whose decision has been challenged, not
to some unspecified interlocutory order.
SB 575 amended subdivision (m) to its current form on June 16, 2005, by deleting
the limiting phrase “denying relief” from the mandatory writ procedure. Just as
amendments to existing legislation are indicative of legislative intent to broaden or
restrict the scope of a statute (Lockheed Martin Corp. v. Workers’ Comp. Appeals Board
(2002) 96 Cal. App. 4th 1237, 1245), so too is the evolution of proposed legislation from
its introduction to its final form. (Quarterman v. Kefauver (1997) 55 Cal. App. 4th 1366,
1373.) Instead of requiring a writ petition by only a party denied relief in an HAA action
– which must mean developers – the Legislature must have intended to expand the writ
requirement to all parties in HAA actions.
10
Our conclusion is bolstered by the Legislative’s Counsel Digest, which is the
official summary of the legal effect of a bill and is relied upon by the Legislature
throughout the legislative process. (Joannou, supra, 219 Cal.App.4th at p. 759.)
Although it is not binding, the digest is entitled to great weight. (Ibid.) In describing
every version of SB 575 from the time subdivision (m) was first added and then amended
to delete the “denying relief” language, the digest stated that the bill would “specify
procedures for appeal of the court’s order.” (Legis. Counsel’s Dig., supra, italics added.)
It appears to us that the Legislature: (1) loosely interchanged the term “appeal” as an
alternative for appellate review by way of writ proceedings; and (2) intended “order” to
mean the final judgment in an HAA action. In other words, the final order in an HAA
action was not an appealable judgment or order under Code of Civil Procedure section
904.1.
The City also contends that the HAA writ review provision is substantially similar
to the California Public Records Act. (§ 6250, et seq.) The losing party in a Public
Records Act case must also file a writ petition within 20 days of the trial court’s order
(§ 6259, subd. (c).) Under that provision, the failure to do so divests the appellate court
of jurisdiction, a defect that cannot be remedied by treating a notice of appeal as a writ
petition if the notice of appeal was filed after the 20-day writ petition deadline. (MinCal
Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal. App. 4th 259, 265.)
As Kalnel points out, however, section 6259, subdivision (c) expressly states that
an order of the court in a Public Records Act case “is not a final judgment or order within
the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may
be taken, but shall be immediately reviewable by petition to the appellate court for the
issuance of an extraordinary writ” within 20 days after notice of entry of order is served.
Because the HAA contains no such express limitation on the right to appeal, Kalnel
contends that judgments in HAA actions are as appealable as any other final judgment.
We agree that the requirement to seek writ relief as the only avenue of appellate
review in HAA actions would have been clearer if the Legislature had chosen the same
express limiting language found in the Public Records Act. Even so, in light of the
11
legislative history of section 65589.5, subdivision (m), we see no other reasonable
construction of the statement that a party to an HAA action must file a writ petition
within 20 days of service of notice of entry of the adverse order “in order to obtain
appellate review.” We therefore dismiss Kalnel’s appeal of the HAA order even though
it is part of a final judgment.8
4. The Density Bonus Act Is Subordinate to the Coastal Act
The Density Bonus Act (§ 65915) states: “Nothing in this section shall be
construed to supersede or in any way alter or lessen the effect or application of the
[Coastal Act].” (§ 65915, subd. (m).) As the City observes, this language is a clear
expression of legislative intent that the Density Bonus Act is subordinate to the Coastal
Act.
Kalnel disagrees, relying on a provision of the Density Bonus Act stating that the
grant of a density bonus or concession “shall not be interpreted, in and of itself, to require
. . . a local coastal plan amendment.” (§ 65915, subds. (f)(5), (j).)
The language of subdivision (m) could not be clearer: the Density Bonus Act does
not supersede the Coastal Act or in any way alter or lessen its effect. The plain language
of the provision therefore governs. (Drouet v. Superior Court (2003) 31 Cal. 4th 583,
593.) That the mere grant of a density bonus or concession does not require a coastal
plan amendment does not raise a conflict with, or create an ambiguity in, the plain
meaning of subdivision (m) or otherwise suggest that the Coastal Act takes a back seat to
the Density Bonus Act.
Kalnel also contends that other legislative provisions declaring the vital
importance of encouraging affordable housing somehow alter the plain meaning of
section 65915, subdivision (m). (§§ 65580, subd. (a) [housing availability to persons of
8
We note that in Honchariw v. County of Stanislaus (2011) 200 Cal. App. 4th 1066,
which the parties cite for other purposes, the Court of Appeal reviewed the judgment in
an HAA action by way of appeal. However, the issue of appealability versus writ review
was not mentioned in that decision, and it is therefore not authority for the proposition
that HAA final orders are appealable.
12
all economic means is priority of highest order]; 65589.5, subd. (g) [lack of affordable
housing is a critical statewide problem].) We disagree.
First, we are construing the Density Bonus Act (Gov. Code, § 65915), not those
other provisions, and, as just discussed, under that law the Coastal Act takes precedence.
Second, the Coastal Act seems to strike a balanced pose between the policies of
affordable housing and coastal protection, stating only that it is “important . . . to
encourage the protection of existing and the provision of new affordable housing” within
the coastal zone. (Pub. Resources Code, § 30604, subd. (g).) As a result, under that
provision, density bonuses granted under the HAA (Gov. Code, § 65985.5) or the Density
Bonus Act (Gov. Code, § 65915) may be denied if the local agency issuing a coastal
development permit finds that the project “cannot feasibly be accommodated on the site
in a manner that is in conformity with” the Coastal Act. (Pub. Resources Code, § 30604,
subd. (f).) We find this consistent with the Coastal Act’s statement that protecting coastal
resources is a “paramount concern” because those resources are of “vital and enduring
interest.” (Pub. Resources Code, § 30001, subds. (a), (d).)
In short, the Legislature appears to have struck a balance between the Coastal Act
and the Density Bonus Act by requiring local agencies to grant density bonuses unless
doing so would violate the Coastal Act. We therefore hold that section 65915 is
subordinate to the Coastal Act and that a project that violates the Coastal Act as the result
of a density bonus may be denied on that basis.9
5. The Mello Act Is Also Subordinate to the Coastal Act
Determining the relationship between the Mello Act and the Coastal Act is not as
clear cut a task. Unlike the Density Bonus Act (Gov. Code, § 65915), the Mello Act does
not state that the Coastal Act supersedes it. Instead, the Mello Act states that it “shall
apply within the coastal zone as defined by the Coastal Act.” (Gov. Code, § 65590,
subd. (a).) The Coastal Act also provides that “[n]othing in this division shall exempt
9 Because the HAA similarly provides that it shall not be construed to relieve local
agencies from complying with the Coastal Act (§ 65589.5, subd. (e)), if we were to reach
that issue we would likely conclude that it too was subordinate to the Coastal Act.
13
local governments from meeting the requirements of state and federal law with respect to
providing low- and moderate-income housing, replacement housing, relocation benefits,
or any other obligation related to housing imposed by existing law or any law hereafter
enacted.” (Pub. Resources Code, § 30007.)
Standing alone, these two provisions might be construed as giving the Mello Act
primacy over the Coastal Act. However, the Coastal Act also requires that the design of
new developments protect scenic views and be “visually compatible with the character of
the surrounding areas.” (Pub. Resources Code, § 30251.) That was the basis of the
City’s decision to reject the Kalnel project, and on appeal Kalnel does not contend there
was insufficient evidence to support that finding.
In the face of an undisputed Coastal Act violation, does Public Resources Code
section 30007 require that the City stand down from enforcing the Coastal Act in order to
comply with the Mello Act?
We begin with the Mello Act itself, which states only that it “shall apply” in the
coastal zone. Under Kalnel’s interpretation, the Mello Act supersedes the Coastal Act,
requiring approval of increased density affordable housing developments even if they
violate Coastal Act provisions. However, the Legislature knows how to expressly state
that one statute supersedes another, but did not do so here. In the absence of such an
express declaration of legislative intent, we will not presume that the Legislature intended
to do so if we can harmonize the Mello Act with the Coastal Act. (Apartment Assn. of
Los Angeles County, Inc. v. City of Los Angeles (2009) 173 Cal. App. 4th 13, 18;
Sacramento Newspaper Guild v. Sacramento County Board of Supervisors (1968)
263 Cal. App. 2d 41, 54-55.) As set forth below, we conclude they can be harmonized.
We next turn to Public Resources Code section 30007.5, where the Legislature has
provided interpretive guidance in reconciling conflicting Coastal Act Provisions: “The
Legislature further finds and recognizes that conflicts may occur between one or more
policies of this division. The Legislature therefore declares that in carrying out the
provisions of this division such conflicts be resolved in a manner which on balance is the
most protective of significant coastal resources. In this context, the Legislature declares
14
that broad policies which, for example, serve to concentrate development in close
proximity to urban and employment centers may be more protective, overall, than
specific wildlife habitat and other similar resource policies.” (Pub. Resources Code,
§ 30007.5.) The Coastal Act must “be liberally construed to accomplish its purposes and
objectives.” (Pub. Resources Code, § 30009.)
As discussed above, the Coastal Act states that although affordable housing is
encouraged within the coastal zone, density bonuses may be reduced if the increased
density is incompatible with the Coastal Act. (Pub. Resources Code, § 30604, subd. (f).)
As we read it, this provision subordinates affordable housing density bonuses to the
Coastal Act, in apparent contradiction to Public Resources Code section 30007. We must
resolve that conflict in the manner that is most protective of coastal resources, and do so
through a liberal construction that will accomplish the Coastal Act’s purpose and
objectives. (Pub. Resources Code, §§ 30007.5, 30009.)
As also noted above, this case involves an undisputed violation of Public
Resources Code section 30251, which requires development design that protects scenic
views and is “visually compatible with the character of the surrounding areas.” The
Coastal Act contains several other directives that could also clash with the Mello Act:
preventing intrusion into environmentally sensitive areas (Pub. Resources Code,
§ 30240); maintaining public access to the coast (Pub. Resources Code, § 30252); and in
the case of new development, protecting special communities and neighborhoods with
unique characteristics that are popular visitor destination points for recreational uses
(Pub. Resources Code, § 30253, subd. (e)).10
Which interpretation is most protective of coastal resources? One that requires
Mello Act housing even if it blocks coastal access, intrudes into environmentally
sensitive areas, or is visually incompatible with existing uses, or one that requires
application of the Mello Act’s affordable housing requirements within the coastal zone so
long as those housing projects abide by the Coastal Act’s overall protective provisions?
10 Although the City did not rely on the latter provision, it seems applicable here.
15
Remembering the Legislature’s statements that protecting coastal resources is a
paramount concern because those resources are of vital and enduring interest, it seems
clear that the latter interpretation must prevail. We therefore conclude that Kalnel’s
project was still subject to the Coastal Act despite its compliance with the Mello Act.
Accordingly, the City properly rejected the project pursuant to Public Resources Code
section 30251.11
6. The City Was Not Required to Make Findings that the Project Could Not Be
Feasibly Accommodated Under the Coastal Act
Kalnel contends that, even if the Coastal Act takes precedence and its project was
incompatible with the surrounding community, the City violated the Coastal Act by not
finding that the project could not be accommodated on the site in conformity with that
act. (Pub. Resources Code, § 30604, subd. (f).)
The trial court rejected that contention, concluding that Public Resources Code
section 30604, subdivision (f) applied only where the density of a development had been
reduced, not where, as here, an entire project was rejected based on subjective aesthetic
considerations that violated the Coastal Act. We agree.
Subdivision (f) states that the agency in charge of issuing a coastal development
permit “may not require measures that reduce residential densities below the density
sought by the applicant if the density sought is within the permitted density or range of
density established by local zoning plus the additional density permitted under [section
65915], unless the issuing agency . . . makes a finding, based on substantial evidence in
the record, that the density sought by the applicant cannot feasibly be accommodated on
the site in a manner that is in conformity with [the Coastal Act] or the certified local
coastal program.”
11
At oral argument, counsel for Kalnel contended that our decision would mean that
the housing density statutes do not apply in the coastal zone. We disagree. While those
statutes do apply in the coastal zone, we hold only that they may still be superseded by
the Coastal Act. While we recognize the importance of encouraging affordable housing,
it is for the Legislature to strike the balance between that policy and the Coastal Act.
16
Kalnel contends this provision applies because the City’s conduct was the ultimate
density reduction of disapproving the entire project. As City Planning Commissioner
Donovan stated during the appeal hearing before that agency, the issue was visual
compatibility under the Coastal Act, not density. We do not believe the City would have
had to make the feasibility findings had it rejected the project because it cut off coastal
access or intruded into an environmentally sensitive area. In such a case density would
not have been the issue and no density reduction would have been ordered. The same
reasoning applies here where the City denied the project because it was visually
incompatible and otherwise out of step with the surrounding community. Accordingly,
the City was not required to make the feasibility findings required by Public Resources
Code section 30604, subdivision (f).
7. The City Did Not Violate the Venice Land Use Plan
In 2001 the Coastal Commission certified the City’s Venice Land Use Plan
(VLUP), which is the local coastal program governing the City’s issuance of coastal
development permits. (Pub. Resources Code, § 30600.5, subd. (c).) Under that
provision, the City shall issue a permit if it finds that the proposed development conforms
to the VLUP. (Ibid.) The trial court found that the Kalnel project met the standards of
the VLUP, leading Kalnel to contend that the City violated both the VLUP and the
Coastal Act.
Kalnel supports this contention by pointing to provisions of the VLUP that:
(1) grant additional density and height bonuses for housing projects located in multiple
housing areas near Venice Boulevard, which would include the area around the proposed
Kalnel project (VLUP Policies I.A.13.b&e; V.A.2); and (2) require the City to identify
all feasible means of accommodating a density increase, implement the means most
protective of coastal resources, and, if it finds that all feasible incentives would have an
adverse impact, to grant the incentive that is most protective of coastal resources (VLUP
Policies 1.A.13.c.&e).
The City contends that Public Resources Code section 30600.5 is not applicable
because the City did not find that Kalnel’s project was compatible with the VLUP. We
17
agree. A predicate to the applicability of that section is a finding by the local agency that
the proposed development conforms to its local coastal plan. The City overturned the
earlier decisions of its planning officials concerning compliance and was therefore not
compelled to issue the coastal development permit under Public Resources Code section
30600.5.
As for the trial court’s apparent finding that the Kalnel project complied with the
VLUP, we make two observations. First, the finding is ambiguous to the extent the trial
court also found that the project violated the Coastal Act. Second, because we exercise
independent review, we are not bound by the trial court’s findings, and will instead
determine for ourselves whether the City acted properly. As set forth below, we conclude
that the City’s actions were consistent with the VLUP.
The City contends that its decision was consistent with the VLUP, pointing to
provisions: (1) stating that building heights and bulks shall be controlled to preserve the
nature and character of existing neighborhoods (VLUP Policy I.A.1.a); (2) call for the
preservation of “stable single-family residential neighborhoods” and promote new
developments that are compatible with those neighborhoods (VLUP Policy I.A.2); and
(3) require yards in the Kalnel project area to accommodate the need for fire safety, open
space, storm water percolation, and on-site recreation consistent with the existing scale
and character of the neighborhood12 (VLUP Policy I.A.7).
While those VLUP policies tend to support the City’s position, they are not
conclusive. More persuasive to us are the following portions of the VLUP: (1) a
summary of Venice coastal issues under the heading, “Preservation of Venice as a
Special Coastal Community,” listing the goals of “Preservation of community character,
scale and architectural diversity[,] [¶] “Development of appropriate height, density,
buffer and setback standards.”; and (2) a policy statement that the VLUP was intended to
address various coastal act policies, including Public Resources Code section 30251,
12
The City also contends that this issue was waived because Kalnel did not raise
VLUP compliance at trial. We disagree. The project’s compliance with VLUP was
mentioned in the petition and argued in Kalnel’s trial court points and authorities.
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which calls for development that is visually compatible with the character of surrounding
areas.
As we see it, the VLUP was expressly designed to protect the visual and scenic
compatibility requirements of the Coastal Act that were the basis for the City’s rejection
of Kalnel’s project. At best, the handful of height and density policies cited by Kalnel set
up a conflict with those policies. However, a closer examination of the height and
density policies upon which Kalnel relies shows that they are inapplicable here.
Although VLUP policies I.A.13.b,c and e do call for the application of density
bonuses in accordance with the Density Bonus Act (§ 65915), those policies fall within
the subject heading “Replacement of Affordable Housing.” The first policy in that
section is also captioned “Replacement of Affordable Housing,” and states that it
applies “[p]er the provisions of . . . the ‘Mello Act’ [in regard to] the conversion or
demolition of existing residential units occupied by [low income residents]. It prohibits
the conversion or demolition of such existing units unless they are replaced in accordance
with the Mello Act.” The section goes on to address issues such as the location of
replacement housing (VLUP Policy I.A.10), the ratio of replacement units (VLUP Policy
I.A.11), and the right of displaced low income residents to priority for the replacement
units (VLUP Policy I.A.13). The density and height bonus requirements that Kalnel
relies upon follow as part of the same section.
As discussed earlier, the Mello Act applies in two situations: (1) when existing
low income units are demolished, they must be replaced with new ones; and (2) when
new developments include low income housing, density bonuses apply unless the
increased density conflicts with the Coastal Act. The density and height bonus policies
that Kalnel relies on are expressly geared toward the former circumstance, where existing
low-income units are demolished. This case involves a new development, however, and
is not covered by those policies.
Even if those policies do apply to proposed new developments that include
affordable housing, they do not assist Kalnel. According to Kalnel, under VLUP Policy
I.A.13.c, the City was obligated to not only permit the increased density and
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accompanying height incentives, but to identify all feasible means of accommodating the
increased density if the City found that the project would have an adverse effect on
coastal resources. Based on this, Kalnel contends the City violated the VLUP by failing
to approve the project and by failing to identify ways in which Kalnel’s project might be
feasibly accommodated.
Read in its entirety, this provision states that any housing development approved
under the Density Bonus Law “shall be consistent, to the maximum extent feasible and in
a manner most protective of coastal resources, with all otherwise applicable certified
local coastal program policies and development standards.” (VLUP Policy I.A.13.c.)
After describing what steps the City must take if a proposed project is consistent with the
local coastal policies, the provision addresses the City’s obligations if it finds “that the
means for accommodating the density increase . . . will have an adverse effect on coastal
resources . . . .” In such a case, “the City shall identify all feasible means of
accommodating the 25 percent density increase and consider the effects of such means on
coastal resources. The City shall require implementation of the means that are most
protective of coastal resources.” (Ibid.) “Coastal resources” is defined to mean “public
access, marine and other aquatic resources, environmentally sensitive habitat, and the
visual quality of coastal areas.” (VLUP Policy I.A.13.f, italics added.)
As we read it, this policy affirms the significance of Coastal Act compliance when
approving projects with affordable housing density bonuses, including the provision
concerning visual conformity with the surrounding area. Most important, however, is the
policy’s limited applicability to decisions based on the effect of a density bonus on
Coastal Act compliance. In other words, the City’s accommodation obligation applies
only when it determines that a project’s increased density causes a conflict with the
Coastal Act. As mentioned previously, that is not what occurred here. Instead, the
project was disapproved for purely aesthetic reasons unrelated to its density, making
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VLUP Policy I.A.13.c. inapplicable.13 As the City points out, under Kalnel’s reasoning
the City was obligated to propose architectural design changes to the proposed project, a
task beyond the reach of planning commissioners or City Council members.
Finally, as the City points out, Kalnel’s reliance on VLUP Policy V.A.2 has no
apparent application here because that policy addresses street improvements, including
taking into account additional density considerations for affordable housing. That policy
has no effect on whether or not a project should be approved in the first instance or
otherwise complies with the Coastal Act. We therefore conclude that the City complied
with the VLUP.
DISPOSITION
The judgment is affirmed. The City of Los Angeles shall recover its costs on
appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
13
As counsel for the City conceded at oral argument, Kalnel is free to seek approval
of a redesigned project at the same density so long as its visual qualities are compatible
with the surrounding neighborhood.
21