Bahmani v. City of L.A.
| Decision Date | 01 August 2019 |
| Docket Number | B280029 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ZOHREH BAHMANI et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS148503)
APPEAL from a judgment of the Los Angeles Superior Court, Mary H. Strobel, Judge. Affirmed.
Manatt, Phelps & Phillips, Victor De La Cruz, Benjamin G. Shatz, and Jordan Ferguson for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Terry P. Kaufmann Macias, Senior Assistant City Attorney, and Amy Brothers, Deputy City Attorney, for Defendants and Respondents.
Alston & Bird, Paul J. Beard II for Real Party in Interest and Respondent.
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This is the third appeal between two neighbors whose homes overlook the Pacific Ocean. In the second appeal, we affirmed an administrative finding that the original building permit issued to the downslope neighbor miscalculated the required setback for that neighbor's front yard. That neighbor obtained a supplemental building permit. In this third appeal, the upslope neighbor now claims that the supplemental building permit is invalid because (1) the supplemental permit did not comply with the terms of the administrative order invalidating the original permit, and (2) the issuance of the supplemental permit requires the downslope neighbor to "return[] to square one" and to obtain all new approvals and permits as if the original permit had never issued. We reject both claims, and affirm.
FACTS AND PROCEDURAL BACKGROUND
Real party in interest Ivan Svitek, as the trustee of the Ivan Svitek Living Trust (Svitek), owns an 11,369 square foot lot on a bluff overlooking the Bel-Air Bay Club, the Pacific Coast Highway and the Pacific Ocean. Petitioners Zohreh Bahmani and Farzin Khalkhali (Khalkhali) live in a house on a parcel up the slope from Svitek's, petitioner Nicolas Andrews owns a nearby home, and petitioner Bel-Air Bay Neighborhood Association is an unincorporated organization run by Khalkhali and created to "protect[] [the subject] neighborhood . . . fromincompatible" "development" (collectively, neighbors).1 The slope is a geologically unstable area, chiefly due to prior landslides in the area.
1. The approval-in-concept
In February 2011, Svitek applied to the Department of Planning of Respondent City of Los Angeles (the City) and obtained an approval-in-concept (AIC) to build a 4,989 square foot single-family dwelling, comprised of "two-story [single-family dwelling] with basement" with a height of 37 feet, 11.25 inches. The AIC represented the Planning Department's finding that the "proposed project conform[ed] in concept to the City['s] land use regulations," but acknowledged that it was "not [itself] a permit." The AIC further provided that "[i]f it is found that the . . . plan or statements" submitted by Svitek in applying for the AIC "are not correct or do not conform to applicable City regulations, [the AIC] shall become null and void." The AIC also set forth the City's general rule that AICs may be issued for "[s]ingle-family dwellings" "except those in geologically unstable areas."
2. The de minimis waiver
In May 2011, Svitek applied to the California Coastal Commission (Coastal Commission) to be excused from the usual requirement that he obtain a Coastal Commission-issued coastal development permit. Based in part on the City's issuance of the AIC, the Coastal Commission issued a letter recommending thatSvitek be issued a "waive[r]" from "the requirement for a coastal development permit" after finding that Svitek's "proposed project is consistent with the community character, and will have no negative effects on visual resources or coastal access" (the de minimis waiver). The de minimis waiver became effective at the Coastal Commission's public meeting on June 16, 2011, when no commissioner objected.
3. The original building permit
In September 2011, the City's Department of Building and Safety issued Svitek a building permit authorizing him to demolish the existing house and to erect a "[n]ew 2 story single family dwelling with basement garage Type V-B, 2 story with basement" (the original building permit). The permit authorized the home to be built to a height of 37.9 feet and included a blueprint showing a front yard setback of 9 feet, 10 inches.
In May 2013, the Department of Building and Safety issued a modification to the original building permit to substitute "2-story single family dwelling with basement garage" to "3 story Single Family Dwelling With Attached Garage."2
Armed with the de minimis waiver and original building permit, Svitek began demolition in November 2011 and construction in May 2012.
After noticing the construction on Svitek's lot, neighbors in June 2012 wrote a letter to the Coastal Commission demanding that it revoke the de minimis waiver on the ground that Svitek's waiver application contained inaccurate statements. When the Coastal Commission responded that it had no procedures for revoking de minimis waivers and that a review of Svitek's application did not reveal any inaccuracies, neighbors in October 2012 filed a petition for a writ of mandate against the Coastal Commission challenging its issuance of the de minimis waiver.
After the trial court sustained a demurrer to the initial petition with leave to amend, neighbors filed a first amended petition that added six new claims and, as pertinent here, one new defendant—the City. In the amended petition, neighbors sought (1) declaratory relief that the AIC was "null and void" because, as is relevant here, (a) "[t]he AIC states on its face that it may not be applied to single family dwellings in geologically unstable areas," and (b) the proposed height of the dwelling exceeded the 33 foot height limit set by the City's zoning laws, and (2) a writ of mandate against the City to revoke the original building permit because of the dwelling's excessive height.
The trial court sustained the City's motion to strike and its demurrer to the neighbors' first amended petition without leave to amend. The court struck the writ of mandate claim against the City because neighbors had not obtained the court's permission to add new defendants. The court sustained demurrers (1) to the declaratory relief claim involving the AIC because the AIC was the product of an administrative decision and "'an action for declaratory relief is not appropriate to reviewan administrative decision,'" and (2) to the writ of mandate claim against the City because neighbors had not exhausted their administrative remedies by challenging the original building permit administratively.
Neighbors appealed, and we affirmed the dismissal of their lawsuit in its entirety, including the trial court's order striking all claims naming the City as a new defendant (Khalkhali et al. v. Cal. Coastal. Comm'n. (Nov. 3, 2014, B249860) [nonpub. opn.] at *8-*9 (Khalkhali)) and the trial court's order sustaining the demurrer to the first amended petition without leave to amend (id. at *3). As pertinent to this appeal, we concluded that (1) the "City's issuance of the AIC and the Commission's issuance of the de minimis waiver" were "properly subject to administrative mandate," and thus could not be challenged via declaratory relief, and (2) neighbors had abandoned on appeal any challenge to the trial court's conclusion that they had not exhausted their administrative remedies regarding the original building permit.
As their lawsuit against the Coastal Commission progressed, neighbors in February 2013 and July 2013 filed two administrative challenges with the Department of Building and Safety seeking to revoke the original building permit. (Svitek v. City of Los Angeles (Dec. 20, 2017, B268745) [nonpub. opn.] at *7) The February 2013 challenge alleged several grounds for revoking the permit, including that (1) the original building permit violated the 33-foot height limit set forth in Los Angeles Municipal Code section 12.21.1, and (2) the AIC violated Zoning Administrator Memorandum No. 85, which prohibits issuance of an AIC for projects located in "geologically unstable" areas. The July 2013 challenge alleged that the permit violated the frontyard setback calculation mandated by Los Angeles Municipal Code section 12-08-C.1.
After the Department of Building and Safety rejected both challenges, neighbors appealed, and the City's Director of Planning denied both appeals. Neighbors again appealed and the West Los Angeles Area Planning Commission (Area Planning Commission) granted both appeals. With regard to the first challenge involving the height of Svitek's dwelling, the Area Planning Commission ruled that the City "err[ed] in issuing" the original building permit that "allow[ed] a 37.9 foot height for the single family dwelling." In making this ruling, the Area Planning Commission noted that the AIC for Svitek's project was "issued in error" because Svitek's property was "not eligible" for an AIC due to its "site being located in a geologically unstable area." However, the Area Planning Commission noted that the AIC's "issuance" had been "litigated"—and "rejected"—in the courts. More to the point, the Area Planning Commission also found that "the issuance of [the AIC] and the De Minimis Waiver [by the Coastal Commission] [was] an integral part in determining the building height of the subject property and...
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