Siegel v. City of Lawndale CA2/4

Filed 3/29/16 Siegel v. City of Lawndale CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
FRED SIEGEL, B258666
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS140246)
v.
CITY OF LAWNDALE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court for Los Angeles County,
Luis A. Lavin, Judge. Affirmed.
Fred Siegel, in pro. per, for Plaintiff and Appellant.
Aleshire & Wynder, Tiffany J. Israel and Jeff M. Malawy for Defendants
and Respondents.
Plaintiff and appellant Fred Siegel, doing business as Fred Siegel, ABC
Income Tax, appeals from a judgment denying his petition for writ of mandate and
injunctive and declaratory relief. In his petition, Siegel sought to invalidate as
unconstitutional certain provisions of the Lawndale Municipal Code governing
businesses operating out of residential properties. He brought this action against
the City of Lawndale and the City Council of the City of Lawndale (collectively,
City) after City revoked his license to operate his home business due to his
violation of those provisions. The trial court found that Siegel’s action was time-
barred and, in any event, the provisions do not violate a property owner’s
constitutional rights. We affirm the judgment on the ground that the action is time-
barred, and therefore do not reach the constitutional issue. (See Santa Clara
County Local Transportation Authority v. Guardino (1995) 11 Cal. 4th 220, 230
[“‘[W]e do not reach constitutional questions unless absolutely required to do so to
dispose of the matter before us’”].)
BACKGROUND
A. Relevant Provisions of the Lawndale Municipal Code
This case involves two sections of the Lawndale Municipal Code1 – sections
17.36.110 and 5.08.1202 – that govern “home occupations.” A “home occupation”
is defined in the Municipal Code as “an occupation conducted by the occupant of a
dwelling as a secondary use in which there is no display, no stock-in-trade, no
commodity sold on the premises, no person employed other than residents of the
1
Further undesignated section references are to the Lawndale Municipal Code.
2
Section 17.36.110 is found in title 17 of the Municipal Code, which governs
zoning; section 5.08.120 is found in title 5, which governs business taxes, licenses and
regulations.
2
dwelling; and no mechanical equipment used, except for that necessary for
traditional housekeeping and computer purposes.”3 (§ 17.08.020.) Home
occupations are not allowed unless a valid home occupation permit has been
issued. (§ 17.36.100.) In addition, any person conducting a business, including a
home occupation, must procure a license from City; in the case of a home
occupation, the license must be renewed annually. (§§ 5.05.020, 5.08.010,
5.08.120.) It appears that, in practice, a business license for a home occupation
operates as both a license and a home occupation permit; there is a single
application used, which is reviewed by the zoning division, and the applicant is
given a copy of the relevant sections of the zoning regulations from title 17,
including section 17.36.110, when applying for a license.
Section 17.36.110 provides, in relevant part: “Home occupation permits
shall be issued by the city, after approval of the director upon payment of a fee as
established by city council resolution provided that the following conditions are
met: [¶] . . . [¶] G. That no sign or advertising device relative thereto shall be
displayed on the premises other than on approved vehicles; [¶] H. That the use
will not generate pedestrian or vehicular traffic substantially greater than traffic
normal to the neighborhood in which it is located nor require the use of additional
off-street parking facilities.”
The section dealing with home occupations in the business taxes, licenses
and regulation title of the Municipal Code is section 5.08.120. It provides, in
relevant part: “Individuals residing in the city may undertake business activities
within their residential dwelling unit or outbuilding thereto, provided all of the
following provisions are complied with: [¶] A. The street address of the
3
Before 2002, the Municipal Code defined “home occupation” as “the utilization of
a person’s own residence or an outbuilding thereto for any business use, be it
manufacturing or commercial.” (Former § 17.36.090, repealed by Ord. No. 912-02.)
3
residential unit shall not be advertised as the location of the business activity. [¶]
B. No clientele shall be permitted at the residential unit. [¶] . . . [¶] F. The use
is permitted in the residential use zone.” (§ 5.08.120.)
B. Facts Relevant to This Case
Siegel has operated an income tax business from his home since 2001. In
October 2000, before starting his home occupation, Siegel applied for and obtained
a home occupation permit/business license from City. When he submitted his
application, he received a copy of the home occupation zoning requirements. In
addition, a member of the zoning division made a notation on Siegel’s application
stating: “No pedestrian activity on site, see conditions for home occupation, no
storage.”
In March 2008, City received complaints alleging that Siegel was violating
City’s home occupation zoning provisions. City staff investigated the complaints,
and sent Siegel a letter regarding various violations that were observed. In
addition to noting Siegel’s violation of certain landscaping and other provisions,
the letter stated: “Your home occupation must not occupy the required parking
area for the property. No signs may be posted for advertising purposes on the
property, and the business may not generate pedestrian or vehicular traffic, other
than what is normal for the neighborhood. It has been observed that you have
signs advertising your business and parking on your property, and it [is] further
alleged that your business is generating excessive pedestrian and vehicular traffic
to your property. It was also noted that your Home Occupation/Business License
has not been renewed and at this time, is delinquent.”
There is no evidence in the record regarding what, if anything, was done
with respect to the allegations set forth in City’s letter. City apparently received no
further complaints regarding Siegel’s home occupation during the next four years.
4
In April 2012, however, City received another complaint. City staff went to the
property to investigate on April 11, 2012, and observed a sign posted on the front
of the house advertising “ABC Income Tax.” They met with Siegel, who admitted
that he receives customers at his home for his business and allows those customers
to park in the property’s off-street parking area. Siegel was issued a courtesy
notice regarding the violations of the Municipal Code.
On April 18, 2012, City staff noted that Siegel’s violations were continuing,
and on April 26, 2012, City’s Finance Department sent a letter to Siegel revoking
his business license. Siegel appealed the revocation and, following a hearing on
the matter, the City Council upheld the Finance Director’s determination to revoke
the business license/home occupation permit on August 20, 2012.
On November 13, 2012, Siegel initiated the instant action against City by
filing a petition for writ of mandate, injunction, declaratory relief, and
administrative mandamus. The petition alleges 10 causes of action based upon
alleged constitutional violations. The first four and the tenth causes of action
challenge the revocation of Siegel’s business license, and seek a writ of mandate to
reinstate his license. The remaining causes of action seek injunctive or declaratory
relief to prohibit future alleged constitutional violations by City.
In January 2013, City sent Siegel a letter informing him that the revocation
of his license in 2012 did not prevent him from applying for a 2013 license. Siegel
applied for, and received, a home occupation business license in March 2013.
Siegel subsequently informed the trial court that City’s issuance of the license in
2013 rendered moot his claims related to the revocation of his 2012 license, and
that he would not be pursuing the first four causes of action.
In his opening brief on the petition, Siegel confirmed that the first four
causes of action were moot. He argued, however, that City threatened to enforce
sections 5.08.120 and 17.36.110 in the future, and asked the trial court to hold that
5
subdivisions (A) and (B) of section 5.08.120 and subdivision (G) of section
17.36.110 are unconstitutional because they infringe on the rights of free speech,
association, and petition, and they deny property owners due process and equal
protection.
In the statement of facts section of his brief, Siegel asserted that, until his
license was revoked in 2012, City had not cited anyone operating a home
occupation for violating section 5.08.120, subdivision (B) by allowing client visits.
He also stated that he had not seen the staff report upon which the city council
relied during the hearing on his appeal of the revocation of his license until he
received the administrative record in this case, and he disputed several of the facts
set forth in that report. Finally, Siegel asserted that City selectively enforced
sections 5.08.120 and 17.36.110 against him, but did not enforce them against
other businesses, and that City had a history of harassing him. Siegel purported to
support the assertions in his statement of facts with citations to his declaration (and
exhibits attached thereto), the administrative record, and several exhibits attached
to a request for judicial notice.
In the argument portion of his brief, Siegel made the following arguments.
First, he argued that section 5.08.120, subdivision (A), which prohibits the use of
the home’s address in advertising, is a content ban that impermissibly infringes on
the rights of free speech and association. Second, he argued that section 5.08.120,
subdivision (B), which prohibits clientele at the residential unit, impermissibly
infringes on the rights of association and of speech for the purposes of petitioning
for redress (because “Siegel assists clients in petitioning state and federal
governments related to taxes”). Third, Siegel argued that section 17.36.110,
subdivision (G), which prohibits signs or advertising devices related to the home
occupation on the residential property, is a content ban that infringes on the rights
of speech, association, and petitioning; he also argued that this subdivision
6
conflicts with City’s “Sign Ordinance” that allows other signs at residences under
less restrictive terms. Finally, Siegel argued that City violated his procedural due
process rights by the way in which it conducted the hearing to revoke his 2012
license.
In its opposition brief, City argued that Siegel’s constitutional challenges to
sections 5.08.120 and 17.36.110 were facial challenges, and were barred by Code
of Civil Procedure section 338, subdivision (a) (a three-year statute of limitations,
which City contends is applicable to challenges to the validity of local ordinances),
or by Government Code section 65009, subdivision (c)(1)(B) (a 90-day statute of
limitations applicable to challenges to zoning ordinances). City also argued that
sections 5.08.120, subdivision (A) and 17.36.110, subdivision (G) are valid
regulations of commercial speech, and that section 5.08.120, subdivision (B) does
not violate the rights to association or petition because it does not restrict a
homeowner from preparing tax forms for clients (to the extent that involves
petitioning activity), nor does it preclude the homeowner from meeting with clients
at other locations. Finally, City argued that Siegel’s due process claim relating to
the hearing to revoke his 2012 license was moot because City issued him a license
in 2013.
At the initial hearing on the petition, the trial court issued a tentative ruling
(which is not part of the record on appeal) that apparently rejected Siegel’s
challenge to section 5.08.120, subdivision (B), but ruled in favor of Siegel on his
other challenges. Addressing the ruling against Siegel, counsel for Siegel4 noted
that the court analyzed Siegel’s argument as a facial challenge. He argued it
should have been analyzed as an as-applied challenge because that subdivision
4
Until the hearing, Siegel had represented himself. He associated counsel just
before the hearing.
7
conflicts with section 17.36.110, subdivision (H) (which prohibits home
occupation use that “generate[s] pedestrian or vehicular traffic substantially greater
than traffic normal to the neighborhood”), and City arbitrarily chose which section
to enforce against Siegel. City argued that Siegel had not previously argued that
the alleged conflict was a ground for invalidating section 5.08.120, subdivision
(B), and that in any case, there was no such conflict. After hearing City’s
argument on the statutes of limitations and the provisions banning signs or the use
of the residence address in advertising, the court asked for supplemental briefing
on two issues (whether Siegel’s challenges were facial or as-applied, and how the
court may interpret possibly conflicting provisions in order to avoid finding them
unconstitutional) and continued the matter for another hearing.
At the continued hearing, the trial court explained that prior to receiving the
supplemental briefs, it had struggled to understand Siegel’s theory, i.e., whether it
was a facial or as-applied challenge to the provisions at issue. After reviewing the
entire case, including the supplemental briefs, the court concluded that all of
Siegel’s claims were facial challenges, and that they were time-barred. The court
noted it also had concluded that even if the claims were not time-barred, the
provisions at issue could be interpreted in a manner that would not offend the
constitution.
After the hearing, the trial court issued a statement of decision and order
denying Siegel’s petition. The court found that all of Siegel’s claims challenging
City’s revocation of his home occupation business license were moot in light of
City’s issuance of a new license in 2013. In addition, the court noted that Siegel
alleged in his petition that certain provisions of the Municipal Code internally
conflict and were applied to him in an arbitrary and capricious manner, but he did
not present any arguments in his briefing before the court to support those
allegations. The court also noted that the petition sought relief for what it alleged
8
was an effort by City to punish Siegel for his past attempts to petition the City and
other governmental entities for redress, and that Siegel set forth facts regarding
those alleged acts in his opening brief, but the brief did not apply those facts to any
of his constitutional challenges. Because the brief did not properly address those
allegations, the court deemed those grounds for relief waived.
Addressing City’s argument that Siegel’s challenges to sections 5.08.120
and 17.36.110 are time-barred under Government Code section 65009, subdivision
(c)(1), the court first examined whether those challenges were facial or as-applied.
The court noted that Siegel did not argue that the advertising/sign bans set forth in
sections 5.08.120, subdivision (A) and 17.36.110, subdivision (G) were applied in
an impermissible manner as to him and did not present any evidence to show how
City impermissibly enforces those provisions against him and not against other
individuals subject to the provisions. The court also found that, although Siegel
contended in his declaration that City had never enforced section 5.08.120,
subdivision (B), against other persons who operated businesses from their homes,
he did not offer any independent evidence to substantiate that contention, nor did
he offer evidence that City had ever impermissibly or selectively applied that
provision in the past. Therefore, the court found that Siegel presented facial
challenges to all of those provisions.
Having found that Siegel presented facial challenges, the court concluded
that those challenges were time-barred under Government Code section 65009,
subdivision (c)(1). The court also found that even if those provisions were not
zoning laws subject to the statute of limitations set forth in Government Code
section 65009, Siegel’s claims were barred by the three-year statute of limitations
set forth in Code of Civil Procedure section 338, subdivision (a). Finally, the court
found Siegel failed to show that the provisions at issue are unconstitutional. The
court entered judgment against Siegel, denying the petition in its entirety.
9
Siegel filed a motion to vacate the judgment, which was deemed denied
under Code of Civil Procedure section 663a, subdivision (b), when the trial court
did not rule within 60 days from City’s service of the notice of entry of judgment,
and Siegel timely filed a notice of appeal from the judgment.
DISCUSSION
Siegel raises numerous contentions on appeal, many of which are either
forfeited because they were not raised below or are inadequately briefed on appeal
(arguments 3, 4, 7, 8, 12, and 13). Others are related to claims that Siegel
conceded to the trial court were rendered moot by City’s issuance of a license to
him in 2013 (arguments 1C and 1D).5 Of his remaining arguments, we need
address only two – his argument that the trial court’s determination that he did not
bring an as-applied challenge was faulty because the court failed to consider
evidence that City had impermissibly or selectively applied section 5.08.120,
subdivision (B) in the past, and his argument that Government Code section 65009
does not apply to his claims.
5
Although Siegel asserts (in argument 10) that “License revocation issues are not
moot,” he misunderstands the trial court’s ruling. He argues that City’s issuance of a
license in 2013 does not make the revocation of his 2012 license moot because City
asserts the 2013 license is subject to the same restrictions that he was found to have
violated with regard to his 2012 license. But the trial court found that Siegel’s claims
challenging the license revocation were moot because they sought a writ of mandate
ordering City to reinstate a license Siegel no longer needs. That ruling does not affect
Siegel’s claims challenging the restrictions imposed upon home occupations.
10
A. The Trial Court Correctly Concluded That Siegel Asserts Only Facial
Challenges
Before we address the application of Government Code section 65009, we
must first address Siegel’s argument that the trial court failed to consider certain
evidence in making its determination that Siegel presented only facial challenges,
because that determination was critical to the court’s conclusion that Siegel’s
claims were barred by Government Code section 65009, subdivision (c)(1)(B).
“A facial challenge to the constitutional validity of a statute or ordinance
considers only the text of the measure itself, not its application to the particular
circumstances of an individual. . . . [P]etitioners must demonstrate that the
[statute’s] provisions inevitably pose a present total and fatal conflict with
applicable constitutional prohibitions.” (Tobe v. City of Santa Ana (1995) 9
Cal. 4th 1069, 1084 (Tobe).) An as-applied challenge, on the other hand, is a
challenge that seeks “(1) relief from a specific application of a facially valid statute
or ordinance to an individual or class of individuals who are under allegedly
impermissible present restraint or disability as a result of the manner or
circumstances in which the statute or ordinance has been applied, or (2) an
injunction against future application of the statute or ordinance in the allegedly
impermissible manner it is shown to have been applied.” (Ibid.) “[A]n as-applied
challenge requires evidence that the statute is or has been applied in an
unconstitutional manner in the past.” (U.D. Registry, Inc. v. State of California
(2006) 144 Cal. App. 4th 405, 419.)
In the present case, as noted, the trial court found that Siegel did not present
as-applied challenges because he did not present evidence to show that City
impermissibly or selectively applied sections 5.08.120 and 17.36.110 in the past.
In his appellant’s opening brief, Siegel contends that he did present such evidence.
He points to a list of home businesses licenses issued by City in 2012, a
11
photograph of the back yard of the former mayor of City, a photograph of his home
office, evidence related to City’s prosecution of him for an alleged violation of a
different zoning ordinance regarding hedges, and evidence regarding an auto body
and paint shop in a nearby lot. None of this evidence, however, is sufficient to
satisfy Siegel’s burden.
For example, as Siegel notes in his appellant’s opening brief, the trial court
denied his request for judicial notice of the list of home business licenses issued.
Siegel does not challenge the court’s denial of his request, but even if he could
show that the trial court’s denial was erroneous, the list says nothing about how
City applied (or did not apply) section 5.08.120, subdivisions (A) or (B), or section
17.36.110, subdivision (G) to any of those businesses.
Similarly, although Siegel contends the photograph of the former mayor’s
back yard shows that City selectively enforced section 5.08.120, the photograph
alone is insufficient. First, Siegel presented no evidence that the former mayor’s
property is located in a residential zone and subject to section 5.08.120. Second,
even if the property were subject to section 5.08.120, Siegel presented no evidence
that the former mayor was never cited for any violations. These same infirmities
also apply to the evidence related to the nearby auto body and paint shop – there is
no evidence the property is located in a residential zone, nor is there evidence that
the shop was never cited for violations, if any such violations took place.
Finally, the photograph of Siegel’s home office and the evidence related to
the hedges prosecution do nothing to show how City has impermissibly or
selectively applied section 5.08.120, subdivisions (A) or (B), or section 17.36.110,
subdivision (G).
Because Siegel failed to present evidence to show that City impermissibly or
selectively applied those provisions, the trial court properly found that Siegel did
not present as-applied challenges, and instead brought only facial challenges.
12
(Tobe, supra, 9 Cal.4th at p. 1084; U.D. Registry, Inc. v. State of California, supra,
144 Cal.App.4th at p. 419.)
B. Government Code Section 65009 Applies and Bars Siegel’s Claims
As noted, the trial court found that Siegel’s claims were barred by
Government Code section 65009, subdivision (c)(1)(B) and (E). On appeal, Siegel
argues that Government Code section 65009 does not apply to this case because its
purpose is to “make[] sure low income housing projects are not held up by minor
contingencies and [it] only applies to a license for construction of a housing
project.” He is incorrect.
Government Code section 65009, subdivision (c)(1) provides in relevant
part: “Except as provided in subdivision (d),[6] no action or proceeding shall be
maintained in any of the following cases by any person unless the action or
proceeding is commenced and service is made on the legislative body within 90
days after the legislative body’s decision: [¶] . . . [¶] (B) To attack, review, set
aside, void, or annul the decision of a legislative body to adopt or amend a zoning
ordinance. [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any
decision on the matters listed in Sections 65901 and 65903, or to determine the
reasonableness, legality, or validity of any condition attached to a variance,
conditional use permit, or any other permit.”
In Travis v. County of Santa Cruz (2004) 33 Cal. 4th 757 (Travis), the
California Supreme Court explained the purpose of Government Code section
65009: “Located in division 1 (Planning and Zoning) of title 7 (Planning and Land
Use) of the Government Code, section 65009 is intended ‘to provide certainty for
6
Subdivision (d) of Government Code section 65009 relates to affordable housing
developments, and is not at issue here.
13
property owners and local governments regarding decisions made pursuant to this
division’ [citation] and thus to alleviate the ‘chilling effect on the confidence with
which property owners and local governments can proceed with projects’ [citation]
created by potential legal challenges to local planning and zoning decisions. [¶]
To this end, [Government Code] section 65009 establishes a short statute of
limitations, 90 days, applicable to actions challenging several types of local
planning and zoning decisions [including the adoption of a zoning ordinance and
the grant, denial, or imposition of conditions on a variance or permit] [citation].
Subdivision (e) of the statute provides that after expiration of the limitations
period, ‘all persons are barred from any further action or proceeding.’” (Travis,
supra, 33 Cal.4th at pp. 765-766.)
As explained by the appellate court in County of Sonoma v. Superior Court
(2010) 190 Cal. App. 4th 1312 (Sonoma), “[t]he limitations periods set out in the
statute are triggered by specific acts of local land use planning authorities.
[Citation.] For the actions described in [Government Code] section 65009,
subdivision (c)(1), the 90-day limitations period begins to run from the date on
which the challenged decision is made. [Citation.] Thus, where a party brings a
facial challenge to a zoning ordinance, the limitations period begins to run on the
date the ordinance becomes effective. [Citation.]” (Sonoma, supra, 190
Cal.App.4th at p. 1324.) If a party challenges conditions attached to a conditional
use permit or other permit, the limitations period runs from the date the permit was
approved or, if the party files an administrative appeal against the conditions
imposed, the date of final administrative action on the permit. (Travis, supra, 33
Cal.4th at p. 767.) If a party brings a facial challenge and also challenges
conditions attached to a conditional use permit or other permit, the facial challenge
may be heard more than 90 days after the enactment of ordinance, but only if the
challenge to permit conditions is timely filed. (Id. at pp. 768-769.)
14
In this case, section 17.36.110 was enacted in 1971, when City adopted
Ordinance No. 245, and section 5.08.120 was enacted in 1991, when City adopted
Ordinance No. 685-91. Therefore, Siegel’s facial challenge to these provisions,
which was brought in 2012, is barred by Government Code section 65009,
subdivision (c)(1)(B), unless his challenge can be deemed a challenge of the
conditions applied to his home occupation permit and it was timely filed under
subdivision (c)(1)(E) of Government Code section 65009. We conclude it cannot.
Although Siegel filed the petition in this case within 90 days after the final
administrative action on his appeal from the revocation of his home occupation
permit/business license, that administrative action is not the relevant action for
purposes of computing the time limit for filing a challenge to the conditions on his
permit. Under Travis, the limitations period for a challenge to conditions imposed
on a permit starts to run when those conditions are imposed unless a timely appeal
is taken from the imposition of those conditions. It is undisputed that Siegel first
obtained a home occupation permit/business license on October 30, 2000, and that
the permit/license was issued subject to the conditions set forth in sections
5.08.120 and 17.36.110. Siegel did not file an appeal from the imposition of those
conditions. Therefore, his challenge, brought more than 12 years after he first
obtained a home occupation permit/business license is untimely, and his action is
barred. (Gov. Code, § 65009, subds. (c)(1)(E), (e).)
15
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
16