Sometimes in the land use world, municipal planners and other regulators need to be reminded of the simple things. For example, a fundamental precept of due process is that the rules cannot be changed in the middle of the game because doing so is arbitrary and unfair. To some extent, this basic concept underlies or informs the law of vested rights, estoppel, stare decisis, and statutory interpretation.
The Second District’s recently published decision in Tower Lane Properties v. City of Los Angeles (2nd Dist. 2014) 224 Cal.App.4th 262, Case No. B244092, applies simple and well established land use rules that the City of Los Angeles and its planners apparently forgot – or ignored. These include: (1) CEQA applies only to discretionary approvals; (2) grading and building permits are generally not discretionary approvals; (3) approvals of tentative maps for the subdivision of land are discretionary approvals; (4) tentative maps – or any type of subdivision map – are required only for actual subdivisions of land; and (5) an agency’s interpretation of its own ordinance is not entitled to deference if not consistent with the ordinance’s plain language, or not itself longstanding and consistent.
The City of Los Angeles has a subdivision ordinance that states grading permits shall not be issued for hillside sites larger than 60,000 square feet unless a tentative map has been approved by the City planner. Tower Lane Properties sought grading and building permits for a family compound on three preexisting hillside lots totaling 85,000 square feet. The City refused to issue the permits unless Tower Lane applied for a tentative subdivision map – a discretionary approval for major subdivisions of 5 or more lots – and underwent the accompanying CEQA review. Tower Lane didn’t want or need to subdivide its land, so it refused and sued, seeking a writ of mandate to clear the condition; the trial court granted the writ and the Court of Appeal, in a terse, 15-page published opinion, affirmed.
After reviewing the relevant local ordinance and Subdivision Map Act provisions in detail, the Court of Appeal unsurprisingly held that the City’s local subdivision ordinance did not require a tentative map for projects (like Tower Lane’s) that did not involve any subdivisions of land, and therefore the City could not deny a large lot, hillside grading permit for failure to obtain such an unnecessary map. Simply put, the ordinance requiring a tentative map as a prerequisite to grading and building permits by its plain language applied only to subdivisions, and not at all to projects not involving or requiring a subdivision. The City’s asserted belief that the tentative map process was “well suited for analyzing the potential [environmental] impacts of hillside grading” was beside the point, and did not make that process applicable when the structure and language of the local ordinance – not to mention the State Subdivision Map Act, I might add – did not. Significantly, the City’s historical interpretation of the ordinance had been unclear and inconsistent, and it had actually only been applied to subdivisions of land; thus, the City had not followed any consistent and longstanding interpretation that would warrant judicial deference or trump the ordinance’s plain language. Further, the City’s alleged undisclosed unilateral interpretation was likewise entitled to no deference.
As I interpret it, the case boils down to this: City’s desire to impose the discretionary tentative subdivision map approval process on Tower Lane’s grading and building project, which did not involve or seek any subdivision of land, simply in order to apply CEQA’s environmental review provisions to the project was untenable.
As the Court aptly summed it up in the opinion’s penultimate paragraph:
Appellants argue that Tower Lane’s project should be subject to discretionary review under the Ordinance because the project will have significant environmental impacts. Environmental review of large hillside grading projects like Tower Lane’s residential compound may be desirable public policy, but “[c]ourts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority.” [citation] The trial court properly interpreted the Ordinance to apply to subdivisions only.
The rules were clear. They did not require CEQA review of non-subdivision hillside grading approvals notwithstanding potential environmental impacts. The Planning Department could not change these rules on Tower Lane in the middle of the game to make CEQA apply to a project over which the City lacked the requisite discretionary controls under the existing rules. Any rule change would have to be made by the City Council through new legislation – something courts, and certainly not City planners, aren’t allowed to do.
Again, pretty basic, yet very important, stuff. Too bad it took a trial court’s writ and a published appellate decision for the City to “get it.”
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.