Howard v. City of Alameda

• Decision Date: 27 April 2022
• Docket Number: A159622
• Parties: MORTIMER HOWARD, Plaintiff and Appellant, v. CITY OF ALAMEDA, Defendant and Respondent; JERRY A. SCHNEIDER, Real Party in Interest and Respondent.
• Court: California Court of Appeals

MORTIMER HOWARD, Plaintiff and Appellant, v. CITY OF ALAMEDA, Defendant and Respondent;

JERRY A. SCHNEIDER, Real Party in Interest and Respondent.

A159622

California Court of Appeals, First District, First Division

April 27, 2022

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. RG18893937

East J. ^[*]

Appellant Mortimer Howard filed a petition for writ of mandate under Code of Civil Procedure section 1085, alleging that the City of Alameda (City) exceeded its authority and abused its discretion when it issued an encroachment permit to his neighbor, Jerry A. Schneider. The permit allowed Schneider to maintain a wooden fence that is constructed on public space adjacent to the paved sidewalk. The trial court denied the petition, concluding that the City had the authority to issue the permit and had not abused its discretion in doing so. Alternatively, the court found that Howard had failed to exhaust his administrative remedies. We agree that issuing the permit was within the City's discretion and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Background and the First Petition

Howard owns the property located at 2901 Jackson Street in the City. Schneider, real party in interest, is the owner of the property located at 2860 Jackson Street (Property), which is diagonally across the street from Howard's home. The Property is a corner lot situated at the intersection of Jackson Street and Mound Street. A gated wooden fence (Fence) runs along the Property's Mound Street frontage, enclosing Schneider's garden which is visible from the sidewalk. The Fence borders the paved sidewalk that fronts the Property, encroaching approximately three and a half feet into the 12-foot-wide public right-of-way. Schneider installed the Fence in 2015, replacing an older fence that had been constructed in the same location. Schneider used a different design that includes a larger and taller gate. Reportedly, the former fence had been in place for at least 25 years, well before Schneider purchased the Property in 2008.

In the summer of 2015, Howard began complaining to the City about the Fence. Howard told the City that the Fence was constructed on the public right-of-way. Although he received responses from various City officials, including promises that they would investigate the encroachment, they eventually ceased communicating with him.

Beginning in September 2015, the City's Public Works Department (Department) sent Schneider notices asking him to abate certain objects and vegetation encroaching onto the sidewalk, and threatening to remove all unauthorized items at his expense if no action was taken. The letter advised Schneider that Alameda Municipal Code (AMC)^[1] section 22-21.5 "prohibits any person from placing any object obstructing the free use or passage of streets, ways, or sidewalks." (Italics omitted.) Schneider complied with some of the City's abatement requests, but did not remove the Fence.

Schneider wrote to the City's then-mayor in November 2015 complaining that he was being unfairly targeted by the Department. The mayor later met with two Department employees, reportedly asking "why we were arbitrarily picking on citizens who have planter strips that 'make Alameda Alameda'" and "why we were picking on citizens and responding to complaint requests only versus enforcing all the time." Throughout 2016, Schneider and the City exchanged communications that culminated in the Permit at issue. Specifically, a senior code enforcement officer notified Department officials that the Fence encroached on the public right-of-way, opining that Schneider "would need to either demo/back up his fence to private property or pull an encroachment permit with the liability insurance [and] all via the permit center."

The Department's acting director (Director) advised Schneider to submit a permit application to the City, recommending that he describe the work as "something to the effect of 'requesting encroachment permit for fence and plantings alleged to be interfering with the right of way.'" He further advised that he would make sure the permit application "gets to the right people here." Schneider filed an encroachment permit application.

The Director informed Schneider that he would need to agree to certain conditions before an encroachment permit would issue, including that the permit "will have an indefinite time limit and is revocable by the Public Works Director at any time." The City's risk management staff initially indicated that Schneider would need to provide a certificate of insurance and other documents to obtain approval. The City then prepared a tentative encroachment permit for the Property. Schneider subsequently received an e-mail indicating that the City was ready to move forward with the encroachment permit "without the hold harmless/indemnity provisions," as such provisions had been deemed unnecessary. Schneider paid the permit fee. The City issued Schneider the final version of his encroachment permit on November 21, 2016. In it, the work description states: "WOOD FENCE AND PLANTINGS IN PUBLIC RIGHT OF WAY. **REVISE TEMP ENCROACHMENT TO TEMP SHORT TERM ENCROACHMENT PERMIT W/ NO EXPIRATION DATE." The Permit incorporates a letter from the Director, identifying the following conditions that are attached to the encroachment permit:

"1. Any alterations to the existing fences facing Mound Street must be submitted to Public Works for its review and approval, and the submission must include a copy of this encroachment permit and these conditions.

"2. All shrubs and/or plant material on the street side of your sidewalk must be no higher than 3.5 feet and fully contained within-and not spilling over-the edge of the curb facing the sidewalk and the edge of the sidewalk facing the curb.

"3. On the Mound Street side, you will maintain two clearings free of plantings or other obstructions in order to provide access to the sidewalk for a parked vehicle's passenger. The concrete area that connects the curb and sidewalk counts as one clearing. The other clearing will be at least three feet wide." The letter further states, "The permit will have an indefinite time limit and is revocable by the Public Works Director at any time." On November 30, 2016, the City e-mailed Howard's counsel a copy of the Permit.

In the meantime, Howard had grown increasingly frustrated with the City's lack of communication and hired an attorney who wrote to the city attorney, city manager, and the senior code enforcement officer threatening to obtain a writ of mandamus to compel enforcement of the sidewalk ordinance. In September 2016, Howard filed a petition for writ of mandate seeking an order compelling the City to take enforcement action against Schneider. In February 2017, Schneider demurred to the petition and the City filed a motion for judgment on the pleadings. Concluding that the issuance of the Permit had mooted this petition, Howard dismissed it without prejudice.

B. The Underlying Petition Is Filed

In February 2018, Howard filed the underlying petition for writ of mandate against former city manager Jill Keimach and others, challenging the City's issuance of the Permit. In his trial brief, Howard argued that the Permit was void because the City had lacked the authority to issue it. Alternatively, he asserted that the City had abused its discretion in granting the Permit. In response, the City contended that it had the authority under the AMC to grant the Permit, and that the permitting decision fell within its police power. Although the City agreed with Howard that "the Permit [was] largely without precedent," it asserted this factor did not "render [the Permit] unlawful or otherwise improper." The City also argued that Howard's challenge was barred due to his failure to appeal the Permit's issuance to the City Council per section 22-21.5, subdivision (b).^[2]

On December 16, 2019, the trial court issued its order denying Howard's petition. The court found that the AMC authorized the City to grant the Permit and that the City had exercised its authority consistent with state law. The court also concluded that the City did not abuse its discretion in issuing the Permit. As a separate and independent ground for denying the petition, the court found that Howard had failed to exhaust his administrative remedies. Judgment was entered in favor of Schneider and the City. This appeal followed.

II. DISCUSSION

A. Failure to Exhaust Administrative Remedies

We first address the trial court's conclusion that the action is barred because Howard did not exhaust his administrative remedies by appealing the Permit's issuance to the City Council. Howard contends the conclusion is flawed because the duty to exhaust administrative remedies was never triggered as section 22-21.5, subdivision (b)'s appeal provision logically applies to permit applicants only. Alternatively, he asserts the administrative remedy is inadequate, and argues that this case falls within the "public interest" exception to the exhaustion requirement. This last contention is persuasive.

Where a petitioner seeks a writ of mandate under Code of Civil Procedure section 1085,"' "[i]f an administrative remedy is available and has not yet been exhausted, an adequate remedy exists and the petitioner is not entitled to extraordinary relief." '" (Pich v. Lightbourne (2013) 221 Cal.App.4th 480, 491.)" 'The exhaustion doctrine "is . . . a fundamental rule of procedure" [citation] under which "relief must be sought from the administrative body and this remedy exhausted before the courts will act." '" (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620; accord, Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)" '" 'The basic purpose for...