York v. City of Los Angeles, B278254

• Decision Date: 08 March 2019
• Docket Number: B278254
• Citation: 245 Cal.Rptr.3d 731,33 Cal.App.5th 1178
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth K. YORK et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

33 Cal.App.5th 1178

245 Cal.Rptr.3d 731

Kenneth K. YORK et al., Plaintiffs and Appellants,

v.CITY OF LOS ANGELES et al., Defendants and Respondents.

B278254

Court of Appeal, Second District, Division 3, California.

Filed March 8, 2019

As Modified April 5, 2019

Ervin Cohen & Jessup and Allan B. Cooper, Beverly Hills, for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Terry P. Kaufmann Macias, Assistant City Attorney, Charles D. Sewell and Jennifer K. Tobkin, Deputy City Attorneys for Defendants and Respondents.

EDMON, P. J.

Kenneth and Annette York (plaintiffs) own a 40-acre parcel of land in the Hollywood Hills. In 2011, they sought approval from the City of Los Angeles (City) to build a large house, guest house, and recreational area on the property. To do so, they also sought approval of nearly 80,000 cubic yards of grading—more than 24 times the amount of grading permitted by right. The City granted permission to build the home and most of the accessory structures, but denied the grading request. Plaintiffs then filed a complaint in the superior court that sought a writ of mandate and alleged causes of action for inverse condemnation and violation of civil rights. The superior court denied the mandate petition and granted judgment on the pleadings on the inverse condemnation and civil rights causes of action. Plaintiffs appealed.

On appeal, plaintiffs characterize the City’s action as a final decision limiting them to 3,300 cubic yards of grading—a grading limitation that plaintiffs contend will foreclose any development of the property. The record does not bear out these characterizations. While the City denied plaintiffs’ request for almost 80,000 cubic yards of grading, it neither definitively limited plaintiffs to 3,300 cubic yards nor precluded plaintiffs from submitting another, more modest, development proposal. Moreover, nothing to which plaintiffs have directed our attention supports plaintiffs’ contention that building a home of any size on the property will require all, or nearly all, of the grading requested. Accordingly, we find no error in the trial court’s determinations, and thus we affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL HISTORY

A. Plaintiffs’ Development Proposal

Plaintiffs own a 40-acre parcel located at 6459 Innsdale Drive, Los Angeles (the property), as well as a smaller adjacent parcel on which they have lived for many years. The property is bordered on three sides by publicly-owned land: Griffith Park to the north and east, and the Department of Water and Power to the west. The property currently is undeveloped with the exception of a vineyard, orchards, and vegetable gardens. It is zoned RE-40-1-H (residential estate—minimum lot size 40,000 square feet).

On November 15, 2011, plaintiffs applied to the Los Angeles Planning Department for approval to build an 8,000 square foot home, a 1,300 square foot guest house, a driveway, swimming pool, tennis court, storage sheds, retaining walls, and "wine caves" on the property. In connection with the proposed project, plaintiffs requested approval for 79,700 cubic yards of grading: 39,850 cubic yards of cut (excavated earth materials) and 39,850 cubic yards of fill (deposit of excavated materials on-site).

B. The Baseline Hillside Ordinance

The Baseline Hillside Ordinance (BHO), which is codified at Los Angeles Municipal Code (LAMC)¹ section 12.21(C)(10), sets out the maximum amount of grading allowable on a property in a designated hillside area. At all times relevant to this appeal, the maximum grading permitted by the BHO on the property as a matter of right was 3,300 cubic yards. (Former § 12.21(C)(10)(f)(1).)²

A party may obtain relief from the BHO’s grading limitations by applying to the Planning Department for a deviation. A zoning administrator may grant a deviation from "by-right" grading limitations to allow additional grading up to an amount no greater than 500 cubic yards plus five percent of the total lot size. (Former § 12.21(C)(10)(f)(4)(i).) It is undisputed that plaintiffs’ property is approximately 40 acres, or 1,742,400 square feet, and thus that the zoning administrator had discretion to grant up to 87,620 cubic yards of grading.

In order to grant a deviation from the by-right grading limitations, a zoning administrator must hold a public hearing and make the following findings required by section 12.24(E):

"(1) ... the project will enhance the built environment in the surrounding neighborhood or will perform a function or provide a service that is essential or beneficial to the community, city, or region;

"(2) ... the project’s location, size, height, operations and other significant features will be compatible with and will not adversely affect or further degrade adjacent properties, the surrounding neighborhood, or the public health, welfare, and safety; and

"(3) ... the project substantially conforms with the purpose, intent and provisions of the General Plan, the applicable community plan, and any applicable specific plan."

The zoning administrator must also make the following additional findings required by section 12.24(X)(28)(b)(5)(ii): "[A]pproval ... is in conformity with the public necessity, convenience, general welfare and good zoning practice[;] ... the action will be in substantial conformance with the various elements and objectives of the General Plan[;] ... [¶] ... [¶] ... the increase in the maximum quantity of earth import or export will not lead to the significant alteration of the existing natural terrain[; ] ... the hauling of earth is being done in a manner that does not significantly affect the existing conditions of the Street improvements and traffic of the Streets along the haul route[;] and ... potentially significant impacts to the public health, safety, and welfare of the surrounding community are being mitigated to the fullest extent feasible."

C. The Zoning Administrator’s Determination

On November 19, 2013, Associate Zoning Administrator Charles Rausch (the zoning administrator) conducted a public hearing on plaintiffs’ proposed project. Approximately 30 to 40 local residents attended the hearing, the majority of whom opposed the project.

On about August 8, 2014, the zoning administrator issued a written determination approving the construction of the requested single-family home and most of the accessory buildings and retaining walls. However, the zoning administrator denied the request for 79,700 cubic yards of grading. In connection with the denial, the zoning administrator made a number of specific findings, including the following:

The project will not enhance the built environment in the surrounding neighborhood or will not perform a function or provide a service that is essential or beneficial to the community, city, or region (§ 12.24(E)(1) ) : "One of the intents of the [BHO] was to control the mass of individual single-family homes in hillside areas of the city. Along with controls on the size of homes, an important section of the ordinance controlled grading which would occur on individual lots. The intent of the grading restrictions was to control the amount of flat areas on lots that could be graded in order to include private recreational facilities such as swimming pools, tennis courts, lawn areas and guest houses. The construction of such uses often resulted in excessive grading as well as the construction of retaining walls of excessive heights in order to manufacture flat areas on hillsides which could accommodate such uses.

"The plan for the subject property included an extensive auxiliary 12-foot wide driveway which extended from the main 20-foot wide driveway to the proposed house up the hillside to a proposed tennis court. The driveway itself would cause extensive grading in order to flatten the slope to the maximum of a 15% grade required by the Fire Department for emergency vehicle access. It would also require extensive grading of the easterly and westerly slopes adjacent to the tennis court. It was explained at the hearing that this extensive grading of up to 79,700 cubic yards of earth was needed in order to balance all of the graded material on the site and avoid the need to haul dirt off the site on the often narrow streets which surround the site.

"The Zoning Administrator has decided to deny the requested 79,700 cubic yards of grading and instead permit the maximum of 3,300 cubic yards of grading permitted by Section 12.21(C)(10)(f) of the Municipal Code for an RE40 lot which is approximately 40 acres in size. ... [O]ne of the intents of the Hillside Standards Ordinance was to control the amount of grading in hillside areas which often marred the views of the scenic hillsides of the Santa Monica Mountains in the Los Angeles region. Normally a 40-acre parcel of land is large enough to accommodate grading because the ridges and valleys which cross such large lots conceal the grading and other development of the site. In this particular case, the property sits on a prominent ridge leading up the side of Cahuenga Peak and Mount Lee under the iconic Hollywood Sign which is prominent to the east of the site. The property is famous for a large vineyard which has been planted on it and is prominently visible from the flats of Hollywood and very prominent in sight lines up the hill from the Hollywood (U.S. 101) Freeway. The addition of a large graded area on the westerly end of this prominent property would be seen from large areas of the Central Los Angeles Basin. In addition, the property is also very prominent to those on the popular walking trail which the City maintains around Lake Hollywood—especially from Mulholland Dam at the foot of the lake. Though view protection is normally not a concern in Individual Community Plan areas, the Hollywood Community Plan’s objectives include Objective 3a[,] ‘In Hillside residential areas to minimize grading so as to retain the natural terrain and ecological balance’ and Objective 7[,] ‘To encourage the preservation...