Venice Town Council, Inc. v. City of Los Angeles

• Decision Date: 31 July 1996
• Docket Number: No. B091312,B091312
• Citation: 55 Cal.Rptr.2d 465,47 Cal.App.4th 1547
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5705, 96 Daily Journal D.A.R. 9271 The VENICE TOWN COUNCIL, INC., et al., Plaintiffs, Petitioners and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

Page 465

55 Cal.Rptr.2d 465

47 Cal.App.4th 1547, 96 Cal. Daily Op. Serv. 5705,

96 Daily Journal D.A.R. 9271

The VENICE TOWN COUNCIL, INC., et al., Plaintiffs, Petitioners and Appellants, v. CITY OF LOS ANGELES, et al., Defendants and Respondents.

No. B091312.

Court of Appeal, Second District, Division 7, California.

July 31, 1996.

As Modified on Denial of Rehearing Aug. 22, 1996.

Review Denied Oct. 23, 1996.

Western Center on Law & Poverty, John E. Huerta and Richard A. Rothschild, and Robert N. Jacobs, Los Angeles, and Legal Aid Foundation of Long Beach, Dennis Rockway, Long Beach, for Plaintiffs, Petitioners and Appellants.

James K. Hahn, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, Los Angeles, Anthony Saul Alperin, Assistant City Attorney and Claudia Culling, Deputy City Attorney, Los Angeles, for Defendants and Respondents.

JOHNSON, Associate Justice.

This case raises the issue whether the Mello Act (Gov.Code, §§ 65590 and 65590.1) imposes a mandatory duty on local governments to require developers to replace residential units, or pay an in-lieu fee, whenever they demolish or convert dwelling units occupied We conclude the City's interpretation of its responsibilities under the Mello Act is erroneous. The plain language of the statute imposes a mandatory duty on the City in certain circumstances to require replacement housing for low or moderate income persons or families where units occupied by qualifying persons are converted or destroyed. We further conclude the City has no discretion to allow a developer to escape the requirement of providing affordable replacement units whenever the City permits a non-coastal dependent commercial structure to replace existing affordable residential units. Because the trial court based its ruling on the City's erroneous interpretation of its duties under the Mello Act, we reverse the judgment of dismissal with directions to overrule the demurrer.

by low or moderate income persons in the coastal zone. Appellants, the Venice Town Council, Inc., the Barton-Hill Neighborhood Association and Carol Berman, a low income tenant who resides in Venice, contend the Mello Act imposes such a duty. Respondent, the City of Los Angeles (City), argues the Mello Act imposes no mandatory duties on local governments. It claims the Mello Act only requires replacement dwelling units when the City in its discretion determines replacement of low or moderate income housing is "feasible."

FACTS AND PROCEEDINGS BELOW

In 1981 the Legislature enacted Government Code section 65590. ¹ This provision is known as the Mello Act and its purpose is to preserve residential housing units occupied by low or moderate income persons or families in the coastal zone. The Mello Act applies to condominium conversions, demolitions, new construction, conversions from residential to non-residential uses and new residential developments in the coastal zone.

Section 65590, subdivision (a) specifies all local governments having coastal zones must comply with the Mello Act. This subdivision provides "[e]ach respective local government shall comply with the requirements of this section in that portion of its jurisdiction which is located within the coastal zone."

Subdivision (b) of section 65590 is the provision which imposes a mandatory duty on local governments to require replacement housing as a condition of granting a permit to demolish or convert housing units which are occupied by low or moderate income persons or families. Subdivision (b) provides "[t]he conversion or demolition of existing residential dwelling units occupied by persons and families of low or moderate income, ..., shall not be authorized unless provision has been made for the replacement of those dwelling units with units for persons and families of low or moderate income." (Italics added.) The replacement units may be erected either on the same site, elsewhere within the coastal zone or within three miles of the coastal zone, whichever location proves most feasible. (§ 65590, subd. (b).)

There are certain narrow circumstances where the mandatory requirement for replacement of converted or demolished affordable housing units is subject to a finding replacement of the affordable housing is "feasible." The types of conversions or demolitions which may be reviewed for feasibility of replacement with affordable housing are (1) single family dwellings, duplexes, or ten or fewer units of multiple residential structures (§ 65590, subd. (b)(1)); (2) residential units replaced by coastal dependent or coastal related uses (§ 65590, subd. (b)(2)); ² (3) converted or demolished residential units in a jurisdiction with less than 50 acres of available privately owned vacant land in the coastal zone (§ 65590, subd. (b)(3)); (4) payment of a fee in lieu of affordable replacement housing, provided the local government has a program to ensure the fees will be used to build replacement units in, or within three miles of, the coastal zone (§ 65590, subd. (b)(4)); and (5) residential Even if one of these special circumstances applies, however, and the local government finds the further fact that it is feasible for the developer to replace some or all of the converted or demolished affordable housing units, "replacement dwelling units shall be required." (§ 65590, subd. (b), italics added.) ³

units which have been declared a public nuisance (§ 65590, subd. (b)(4).)

Subdivision (c) of section 65590 also imposes a mandatory duty on local governments to require replacement housing when they determine any residential structure is no longer feasible in a certain location and permit a non-coastal dependent use to be built in its place. This subdivision provides: "The conversion or demolition of any residential structure for purposes of a nonresidential use which is not 'coastal dependent', ..., shall not be authorized unless the local government has first determined that a residential use is no longer feasible in that location. If a local government makes this determination and authorizes the conversion or demolition of the residential structure, it shall require replacement of any dwelling units occupied by persons and families of low or moderate income pursuant to the applicable provisions of subdivision (b)." (Italics added.)

Section 65590, subdivision (d) pertains to new housing developments. With new housing developments residential units for low or moderate income persons are required if the local government determines such units are feasible within the new development, within the coastal zone or within three miles of the coastal zone. ⁴

Section 65590, subdivision (g)(3) defines the term "feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technical factors." Any "feasibility" determination may be reviewed by administrative mandate. (§ 65590, subd. (e).)

The Legislature in section 65590, subdivision (h)(3) specified the Mello Act was not intended, nor should be construed, as requiring any local government to adopt individual ordinances or programs to implement the various provisions of the Mello Act. ⁵

In 1982 the Los Angeles City Council adopted a formal policy to implement the Mello Act. It directed the City's planning department to require, on a one-for-one basis, the replacement of any rental units occupied by low or moderate income persons converted or demolished in the coastal zone. In addition, the City Council directed that as an interim measure, the planning department was to use interpretative guidelines the coastal commission established for new construction as its guideline when determining the feasibility of requiring low or moderate income housing as a condition of granting permits for new housing construction.

In February 1993, the City approved an application by owners of an apartment building at 615 Ocean Front Walk in Venice to convert three ground floor residential units of the apartment building to commercial uses. The City granted the application based on its finding residential use of the ground floor units abutting the Venice board walk was no longer feasible at that location. The City also found the new retail stores were "coastal dependent." (See fn. 2, supra.) Several persons challenged the City's approval permitting demolition of the existing residential units without making an in-lieu fee or replacement of those units a condition of approval. The City's approval of this permit apparently triggered the present litigation.

Appellants filed an action against the City and the owners of 615 Ocean Front Walk for traditional writ of mandate (Code Civ. Proc., § 1085), administrative mandate (Code Civ. Proc., § 1094.5), injunctive and declaratory The City demurred to appellants' second amended complaint for injunctive and declaratory relief and traditional mandate, claiming the Mello Act imposed no mandatory duties on the City. The City argued each of its determinations under the Mello Act required a finding of "feasibility." It claimed the decision whether a certain project is "feasible" is necessarily discretionary because the determination rests on a case by case factual analysis. Therefore, the City argued appellants' complaint stated no claim for relief because its actions under the Mello Act are only reviewable in an action for administrative mandate. However, the City claimed the statute of limitations for administrative review barred all but five of appellants' claims, and with regard to those five, appellants had failed to exhaust their administrative remedies prior to filing suit. Finally, the City argued appellants lacked standing to enforce the Mello Act.

relief. The City twice demurred to the complaint, arguing the remedies appellants sought were unavailable. The trial court sustained the City's demurrer to appellants' first amended complaint with leave to amend. In its [47...