Author Archives: Sara Dudley

Fourth District Finds LUP Policies Constitutional; Other Challenges Barred as Untimely Under CCP § 1094.5

In Beach and Bluff Conservancy v. City of Solano Beach (2018) ­­28 Cal.App.5th 244, filed October 17, 2018, the Fourth Appellate District concluded that a petitioner’s remedy for challenges to policies under the California Coastal Act was exclusively limited to a writ of administrative mandamus (Code Civil Proc., § 1094.5) and that to the extent the challenge raised constitutional claims, those challenges failed on the merits.

In 2014, the California Coastal Commission approved the city’s amended land use plan (ALUP), pursuant to its local coastal program under the provisions of the Coastal Act. The amendments provided conditions and restrictions on the use, expansion, and repair of private coastal access stairways and retaining walls to protect new development or accessory buildings, and conditions under which private access stairways must be converted to public use.

Petitioner Beach and Bluff Conservancy alleged that the ALUP policies violated the Coastal Act, were unconstitutional, or both, and filed both a writ of mandate under traditional mandamus (CCP § 1085) and complaint for declaratory relief. The lower court ruled for the Conservancy, finding two of seven policies inconsistent with the Coastal Act. This appeal and cross-appeal followed.

First, the court found that, as the Coastal Act expressly provides, a writ of mandate is the exclusive remedy for a challenge to a Commission-certified policy on the ground that it is inconsistent with the Act. The Coastal Act requires the Commission to certify a local government’s LUP and amendments as consistent with the Act, by vote of the commissioners, pursuant to a noticed public hearing followed by written findings. In doing so, the Commission clearly acts in a quasi-judicial capacity, under CCP section 1094.5. It is well-established that an action for declaratory relief is not appropriate to review an administrative decision. Accordingly, the court held that the petitioner’s challenges to four ALUP policies alleging they were inconsistent with the Act were barred by the petitioner’s failure to file a timely writ petition for administrative mandamus.

Although the Conservancy’s facial constitutional challenges were not subject to CCP’s section 1094.5 filing procedures, the court held that these allegations failed on the merits.  Facial constitutional challenges are generally disfavored because they often rest on speculation and may lead to premature interpretation of the enactment on the basis of a “bare-bones” record.  A petitioner has a heavy burden to demonstrate that an enactment is facially unconstitutional.

The court found that the petitioner’s regulatory takings challenge failed because they could not demonstrate that the enactments effected a physical taking or deprived the owners of all economically beneficial or viable use of their property. The policy that provided for conversions of private stairways to a public stairways could not be deemed to facially conflict with constitutional takings principles, because the policy did not inevitably require a property conversion. Rather, the policy provided that conversion would occur only if specified conditions are met (when public access can be feasibly provided and the stairway already uses some public land per a deed restriction or public easement).

The court also ruled that allegations under the “unconstitutional conditions doctrine,” which limits the government’s power to require surrender of a constitutional right in exchange for a discretionary benefit, also failed. The doctrine applies only where the condition constitutes an exaction in the form of a conveyance of a property interest or the payment of money. It does not apply where, as here, the government simply restricts the use of property without demanding an exaction. And, the Nollan/Dolan test developed to determine if an exaction is permissible applies only to permit approvals, and not to facial constitutional challenges.

Lastly, the court opined that the disposition of this appeal does not preclude future “as-applied” constitutional challenges to the ALUP. Citing federal law with approval, the court stated that the doctrine of res judicata (and collateral estoppel) does not bar claims that arise from events that postdate the filing of the initial complaint. Affected property owners can always challenge the application of these policies as applied to their properties.

First District Holds that Claims that Could Have Been Raised in Prior Litigation Are Barred by the Doctrine of Res Judicata

In Atwell v. City of Rohnert Park, No. A151896, A153011, (Sept. 26, 2018), __Cal.App.5th__, the First District Court of Appeal upheld a lower court’s ruling in favor of the respondent city on a motion for judgment on the pleadings, finding that petitioner’s claims were barred by the doctrine of res judicata. The First District’s opinion, not originally slated for publication, held that subsequent individual petitioners were in privity with the Sierra Club in a prior suit, that the same claim of inconsistency with the general plan could have been raised in that prior suit, and the public interest exemption to the doctrine of res judicata did not apply in the circumstances of the instant case.

In 2010, the city certified an EIR and related approvals for Walmart to expand an existing store to include a 24-hour supermarket. The city found that the project was consistent with its General Plan’s Policy LU-7, concerning land use for grocery stores. Sierra Club filed suit in 2012 under the California Environmental Quality Act (CEQA) and the state Planning and Zoning law (“Sierra Club action”). While Sierra Club raised the general plan consistency issue in its initial pleading, it did not argue it in its briefing. The court in the Sierra Club action consequently did not address the issue in its decision invalidating the EIR.

The city prepared a revised EIR in 2015, but it did not alter the consistency analysis involving Policy LU-7. The city subsequently reapproved the project. In its 2015 findings, the city stated that the project was even more consistent with Policy LU-7 than before, as it would serve several neighborhoods that were now coming online in the store’s vicinity. Petitioners in the instant action, who had not participated in the prior Sierra Club action, filed this suit. The city successfully moved for a judgement on the pleadings, and this appeal followed.

Following a final judgment on the merits, the doctrine of res judicata bars a party, and persons in privity with that party, from relitigating a claim that was actually litigated or that could have been litigated in the prior action. At issue is whether the current petitioners are in privity with Sierra Club, and if the general plan consistency claim was litigated in the prior action.

The court concluded that the two petitions raised the same general issue, as both alleged inconsistencies with the same general plan policy. The court considered it irrelevant that Sierra Club did not argue this issue in its briefing, even though it raised it, as res judicata extends to claims that could have been litigated, even if they weren’t.

In reaching this decision, the court dismissed the petitioners’ argument that the claims were different because they challenged the newer 2015 findings. For purposes of res judicata, plaintiffs have suffered the same injury when the same primary right is at stake, even if there are different theories of recovery, different forms of relief sought, or if there are new facts supporting recovery. The court distinguished the instant case from other decisions in the land use and CEQA context, where the second suit was a factually-distinct attempt to comply with CEQA and concerned distinct episodes of noncompliance. That was not the case here. Even though the city’s 2015 resolutions were “new” and revisions were made to other sections of the EIR as a result of the Sierra Club action, the court decided that the later petition did not raise concerns about those revisions, and those revisions were unrelated to Policy LU-7.

The court found that the instant and previous parties were in privity, even though the later petitioners were unaffiliated with Sierra Club, did not otherwise coordinate with or collaborate with the Sierra Club, did not participate in the prior suit, and were seeking redress for both public and private harms.

A nonparty is in privity with a prior party if they have an interest so similar to that party’s interest that the party acted as the nonparty’s virtual representative in the first action, such that the nonparty can reasonably expect to be bound by the prior decision. The actual relationship between the parties is not the key question, but rather, those entities’ relationship to the subject matter of the litigation.

Here, both appellants’ petition and the prior petition alleged claims as members of the public and harms that would be suffered by the community. The petitioners failed to distinguish the harms that they would suffer, directly or indirectly, from the harms alleged in the Sierra Club action, nor could the court find meaningful distinction.

The petitioners were adequately represented in the prior suit, even though Sierra Club ultimately decided not to pursue the general plan consistency claim. Lack of adequate representation has been found when the prior petitioner abnegated its role as a public agent, committed a procedural error that prejudiced the outcome, or lacked the funding to pursue the claim. There was no such evidence in this case. The court therefore assumed that the Sierra Club diligently litigated their petition, and made an informed decision not to pursue the consistency argument. The current petitioners were bound by this tactical decision.

The court rejected the petitioners’ argument under the public policy exception. The public policy exception holds that when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that relitigation not be foreclosed. The petitioners argued that they raised a unique and important issue of statutory construction. But this situation was not a question of law regarding statutory interpretation. Rather, at issue was the interpretation of an ordinance as applied to a project approval. Such a claim inherently requires the court to consider the facts and circumstances surrounding the project, and not just questions of law.

Finally, the court stated that even if the claims were not barred by res judicata, the city’s finding of consistency was not arbitrary and capricious. The city had discretion to interpret its own policies, and could determine that the project would meet that policy’s goal of creating neighborhood-serving supermarkets.

First District Finds Noise Analysis by Non-Expert Attorneys Not Substantial Evidence

In Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, the First District upheld a negative declaration for a youth treatment center, finding that noise analysis offered by non-expert attorneys was not substantial evidence in support of a fair argument of a potentially significant noise impact from outdoor recreation activities and the parking lot at the center.

In 2014, Santa Rosa approved plans to convert the shuttered Warrack Hospital to the SAY Organization’s new Dream Center. SAY is a non-profit organization that provides housing, counseling, and job services to youth and families in Sonoma County. The facility would offer temporary housing, job skills training, health services, and enrichment activities. The property is in a developed area, surrounded by residential housing, offices, and a hospital.

SAY filed applications for a conditional use permit, rezoning, and design review to implement the project. The initial study/negative declaration concluded there would be no significant impacts, and the planning commission approved the project. Two neighbors appealed the decision to the city council on the basis that the city’s noise impact analysis was flawed. The neighbors filed suit after the city rejected their appeal. The lower court found for the city, and petitioners appealed.

The First District evaluated whether substantial evidence supported a fair argument that noise impacts from the project’s parking lot and outdoor recreation area could be significant, thus requiring an EIR.

Petitioners urged the court to reject the city’s noise study, and rely instead on their independently calculated findings purporting to show the project’s noise levels would be significant. Petitioners’ attorneys extrapolated their own analysis from a previous study conducted by noise experts for the city, for another project, at a different site. Petitioners also argued that the city’s noise ordinance set the maximum allowable noise levels, and any noise that would exceed those thresholds was a significant impact.

The court rejected all of petitioners’ arguments. First, the court rejected petitioners’ interpretation of the city’s noise ordinance, finding that its “base” noise values set the standard or normally acceptable levels, not maximum allowable levels, and thus, were not significance thresholds for CEQA’s purposes. Furthermore, the ordinance was not as inflexible and quantitative as petitioners alleged, but rather, allowed for experts to consider factors such as the noises’ level, intensity, nature, and duration when determining if impacts would be significant. Under this analysis, petitioners failed to identify any evidence in the record that noise impacts would exceed the allowable threshold.

The court rejected the petitioners’ contention that their noise calculations based on another study for a different project were substantial evidence that this project could result in noise impacts. Substantial evidence must be reasonable, credible, and of solid value. In testing for potential significant impacts, a party cannot just import the values of one study onto those of another, particularly in the absence of qualified expert opinion. Petitioners’ convoluted methodology and ultimate conclusions were based on speculation, rested on supposition and hypothesis, and were not confirmed by experts. The analysis also ignored key facts, such as limitations on parking lot use and hours of operation.

The court also noted that petitioners’ conclusions, which they drew from the different project’s noise study, were not presented to the city during the approval process, and did not appear in any part of the administrative record; rather the other study was simply attached to their comments during their city council appeal. Only during appellate briefing did petitioners present the calculations they extrapolated from the other study. For that reason alone, the court stated it was justified in rejecting the petitioners’ calculations.

Given the court’s conclusion that the offered evidence lacked the requisite foundation and credibility, petitioners failed to demonstrate, even under the comparatively low fair argument standard, that further environmental review was required.

(Bridget K. McDonald)

Second District Upholds Fee Award on Unsuccessful CEQA Claims

On May 3, 2018, in partially published decision in La Mirada Avenue Neighborhood Association of Hollywood v. City of Los Angeles (2018) ­­­­2 Cal.App.5th 586, the Second District Court of Appeals upheld a plaintiff fee award under Code of Civil Procedure section 1021.5, including fees for plaintiff’s unsuccessful CEQA claims.

The underlying dispute concerns the city’s approval of a Target superstore in an area controlled by a subarea of a specific plan. In approving the project, the city granted eight variances to Target. The plaintiff prevailed on its claims that the six of the eight variances were not supported by substantial evidence, but lost on its CEQA claims. An appeal was dismissed as moot (Mirada I).

During the appeal’s pendency, the city created a new planning subarea for the project, where no variances would be required, and approved the project. Those approvals were vacated, and an appeal is pending.

This opinion concerns the lower court’s order of over $900,000 in plaintiff attorney’s fees from Mirada I. The city and Target appealed, contending that the plaintiff is not the successful party and that no significant benefit has been conferred on a large class of persons.  No fees have been earned, appellants contend, because Target successfully advocated for a change in the zoning law, which will allow the store to proceed, and the project’s validity under the changed law is yet to be determined. Appellants further argued that in any event, the fees are excessive. The Second District rejected all of those contentions.

The court applied the “catalyst test” to determine the plaintiff’s status as a successful party under CCP section 1021.5. Under the catalyst test, it is sufficient to earn fees if a plaintiff can demonstrate that their litigation motivated the defendants to alter their behavior. It does not require that the plaintiff achieve a specific outcome.

Here, the plaintiff was “successful” in two ways. First, they vindicated their interest when the variances were set aside and further development was enjoined. Second, the suit prompted the “legislative fix” of creating a changed zoning subarea for the project. The court also determined that the plaintiff conferred a “significant benefit” to the entire city of Los Angeles, considering the significance of the benefit and the size of the class receiving the benefit, in light of the circumstances. When the benefit is a policy change, as here, the court considers whether the law being enforced furthers a significant policy. The court found that the plaintiff secured the benefit of getting the city to comply with the municipal code concerning variances. The orderly enforcement of this vital public interest benefits all city residents.

The appellants also argued that since the suit concerning the new zoning subarea was still pending, the rights at issue were still unsettled, and therefore, the plaintiff was not entitled to fees. Resolving this issue in favor of the plaintiff, the court stated that where a party has obtained a final judgment in its favor on the merits, under the law in existence at the time, and where what remains to be finally adjudicated is the validity of a project under the law as subsequently amended, a plaintiff is entitled to fees.

In support of this rule, the court reiterated that the focus of the inquiry is the litigation objectives of the prevailing plaintiff, not the defendant’s goals. Plaintiff accomplished their stated purpose of judicial review of the city’s variance process. It was not necessarily their goal to stop the project entirely. Additionally, section 1021.5 does not require a showing that the entire dispute is settled. The plaintiff obtained a final judgment in their favor on the merits, under the law in existence at the time. A court can only resolve disputes based on existing law, not the law as it might be amended in the future. The court declined to contemplate whether plaintiff would be entitled to fees under the new zoning of the subarea, which was not at issue in the Mirada I litigation.

Finally, the court found that the lower court did not abuse its discretion in calculating the fee amount, including a multiplier, by allowing the attorneys to recover fees for their time spent on the unsuccessful CEQA claims, noting that attorneys cannot know from the outset which claims will be successful.

City Must Place Certified Referendum on Ballot, First District Rules

In Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, the First Appellate District reversed the trial court’s ruling, finding that a certified voter referendum must be placed on the ballot, and rejecting the city’s argument that doing so would conflict with the Planning and Zoning Law.

In August 2015, the city adopted a resolution amending the general plan to re-designate the subject parcel from administrative professional office (APO) to low-density single-family residential (R-20). After the general plan amendment became effective, the city approved an ordinance codifying the zoning change. The updated zoning would allow for the development of 44 single-family homes proposed by a developer. Subsequently, appellants timely certified a referendum seeking to repeal the ordinance, or alternatively, to have the ordinance submitted to a public vote. The city refused to place it on the ballot. The city maintained that it had discretion to do so, because the referendum was de facto invalid. The city reasoned that if it passed, the referendum would result in an inconsistency between the general plan (R-20 zoning) and the municipal code (which would revert it to APO). Under the Government Code, a zoning ordinance that conflicts with the general plan is invalid. Appellants filed a petition for writ of mandate to compel the city to place the referendum on the ballot. After the trial court ruled for the city, this appeal followed.

In finding for the appellants, the court relied on the Sixth District’s recent decision under similar facts in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34 (review granted Aug. 23, 2017). Key to the Bushey court’s decision was the difference between a referendum and an initiative. An initiative is the power of electorate to propose new laws. In contrast, a referendum grants the electorate the power to approve or reject existing laws. A referendum which vacates an ordinance, like the one at issue here, maintains the status quo. If the voters approved the referendum, then the city must adopt alternative zoning which is consistent with the general plan. If the voters reject the referendum, then no inconsistency is created.

Furthermore, the city does not have discretion to unilaterally keep a properly certified referendum off of the ballot. When presented with the certified referendum, the city’s options were to repeal the zoning ordinance, place the referendum on the ballot and suspend the ordinance, or after placing the referendum on the ballot, file a writ of mandate to have the referendum removed. When a local agency inappropriately refuses to place a referendum on the ballot, this refusal, although improper, may be retroactively validated by the court. Here, the city should have placed the referendum on the ballot, then filed a writ of mandate. Nevertheless, for reasons stated, the court did not validate the city’s decision. The remaining issue of the appellant’s attorneys’ fees was remanded to the trial court.