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This case was last updated from Los Angeles County Superior Courts on 07/07/2019 at 00:37:33 (UTC).

BAKOR INVESTMENTS WHITTIER LLC ET AL VS CITY OF WHITTIER

Case Summary

On 01/05/2018 BAKOR INVESTMENTS WHITTIER LLC filed a Property - Other Real Property lawsuit against CITY OF WHITTIER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER, SAMANTHA JESSNER and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9259

  • Filing Date:

    01/05/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA P. JESSNER

SAMANTHA JESSNER

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

BAKOR INVESTMENTS WHITTIER LLC

SUBHADRA INVESTMENTS WHITTIER LLC

Defendants and Respondents

WHITTIER CITY OF

DOES 1 TO 10

CITY OF WHITTIER

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SUTTON CHRISTOPHER ESQ.

SUTTON CHRISTOPHER ALAN

Defendant and Respondent Attorneys

JONES & MAYER

JEE KRISTA MACNEVIN

 

Court Documents

NOTICE OF CASE ASSIGNMENT; A.D.R. PACKAGE; LOCAL FORM STIPULATIONS

1/8/2018: NOTICE OF CASE ASSIGNMENT; A.D.R. PACKAGE; LOCAL FORM STIPULATIONS

DECLARATION RE O.S.C. FOR NON-APPEARANCE AT CASE MANAGEMENT CONFERENCE AND SEPTEMBER 14, 2018 CALENDAR CONFLICT

9/10/2018: DECLARATION RE O.S.C. FOR NON-APPEARANCE AT CASE MANAGEMENT CONFERENCE AND SEPTEMBER 14, 2018 CALENDAR CONFLICT

NOTICE OF CONTINUANCE OF C.M.C. AND O.S.C.

9/13/2018: NOTICE OF CONTINUANCE OF C.M.C. AND O.S.C.

STIPULATION TO CONTINUE C.M.C. AM) O.S.C.; EPROPOSEDI ORDER

9/28/2018: STIPULATION TO CONTINUE C.M.C. AM) O.S.C.; EPROPOSEDI ORDER

Case Management Statement

10/4/2018: Case Management Statement

Case Management Order

10/19/2018: Case Management Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/21/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

6/20/2019: Minute Order

Minute Order

6/21/2019: Minute Order

Notice of Trial Setting Conference and Attached Orders Thereon

7/2/2019: Notice of Trial Setting Conference and Attached Orders Thereon

CASE MANAGEMENT STATEMENT

4/30/2018: CASE MANAGEMENT STATEMENT

Minute Order

5/4/2018: Minute Order

ANSWER TO VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF, ETC

2/20/2018: ANSWER TO VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF, ETC

NOTICE OF CASE MANAGEMENT CONFERENCE ORDER

1/31/2018: NOTICE OF CASE MANAGEMENT CONFERENCE ORDER

ORDER TO SHOW CAUSE HEARING

1/18/2018: ORDER TO SHOW CAUSE HEARING

NOTICE OF CASE MANAGEMENT CONFERENCE

1/18/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF PLAINTIFF'S ELECTION TO PREPARE RECORD OF CITY PROCEEDINGS

1/16/2018: NOTICE OF PLAINTIFF'S ELECTION TO PREPARE RECORD OF CITY PROCEEDINGS

VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF; DECLARATORY RELIEF; INVERSE CONDEMNATION; MANDAMUS

1/5/2018: VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF; DECLARATORY RELIEF; INVERSE CONDEMNATION; MANDAMUS

17 More Documents Available

 

Docket Entries

  • 07/02/2019
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 07/01/2019
  • at 10:54 AM in Department 1, Samantha Jessner, Presiding; Court Order

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  • 07/01/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 07/01/2019
  • Certificate of Mailing for (Minute Order (Court Order Re Reassignment to Writs and Receivers Court) of 07/01/2019); Filed by Clerk

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  • 07/01/2019
  • Minute Order ( (Court Order Re Reassignment to Writs and Receivers Court)); Filed by Clerk

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  • 06/21/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Court Order

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  • 06/21/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 06/21/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 06/21/2019); Filed by Clerk

    Read MoreRead Less
  • 06/20/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Court Order

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  • 06/20/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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37 More Docket Entries
  • 01/18/2018
  • ORDER TO SHOW CAUSE HEARING

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  • 01/16/2018
  • NOTICE OF PLAINTIFF'S ELECTION TO PREPARE RECORD OF CITY PROCEEDINGS

    Read MoreRead Less
  • 01/16/2018
  • Notice; Filed by Plaintiff/Petitioner

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  • 01/08/2018
  • Proof-Service/Summons

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  • 01/08/2018
  • Notice of Conference Date; Filed by Plaintiff/Petitioner

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  • 01/08/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 01/08/2018
  • NOTICE OF CASE ASSIGNMENT; A.D.R. PACKAGE; LOCAL FORM STIPULATIONS

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  • 01/05/2018
  • VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF; DECLARATORY RELIEF; INVERSE CONDEMNATION; MANDAMUS

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  • 01/05/2018
  • SUMMONS

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  • 01/05/2018
  • Complaint; Filed by Bakor Investments Whittier LLC (Plaintiff); Subhadra Investments Whittier, LLC (Plaintiff)

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Tentative Rulings

Case Number: BC689259    Hearing Date: December 01, 2020    Dept: 82

Bakor Investments Whittier, LLC, et al.

v.

City of Whittier,

Judge Mary Strobel

Hearing: December 1, 2020

BC689259

Tentative Decision on Petition for Writ of Mandate: Remanded for Proper Findings under Topanga

Petitioner Bakor Investments Whittier, LLC (“Bakor” or “Petitioner”) petitions for a writ of administrative mandate directing Respondent City of Whittier (“Respondent” or “City”) to set aside the October 10, 2017, decision of its City Council to deny a development review permit for Petitioner Bakor to construct a two-story hotel at 14116-14128 Whittier Boulevard, Whittier, CA (the “Property”).

Requests for Judicial Notice

Petitioner’s RJN Exhibits 1-2, 5 – Granted. (Evid. Code § 452(b), (h).) No objection has been received.

Petitioner’s RJN Exhibits 3-4 – Granted. Respondent’s objections are overruled. The Whitter Municipal Code and Whittier Ordinances are subject to judicial notice under Evidence Code section 452(b) and (h). Petitioner is not required to satisfy the requirements of CCP section 1094.5(e) for the court to judicially notice these municipal code provisions. The exhibits are relevant to arguments made in Petitioner’s writ briefs; Respondent may address those arguments on the merits.

Petitioner’s RJN Exhibits 6-8 – Denied. These City resolutions are already part of the administrative record. Thus, judicial notice of Exhibits 6-8 is not required.

Respondent’s RJN Exhibits 1-2 – Granted.

Background

Administrative Proceedings

On or about December 11, 2015, Petitioner submitted Development Review Permit No. DRP15-115 to construct a 18,209-square foot, two-story hotel on the Property. (AR 1252.) The project site is located on Whittier Boulevard, near Calmada Avenue, and in the “Center District” area of the Whittier Boulevard Specific Plan (“WBSP”). (AR 5-6.)

Pursuant to Whittier Municipal Code (“WMC”) Section 18.56.040, the Community Development Director referred the development review application to the Design Review Board (“DRB”) as it relates to the architectural design of the building. (AR 611.) On May 11, 2017, the DRB voted 4-1 (Vice Chair O'Toole dissenting) to adopt Resolution No. DRB17-06 to approve the Project's design with conditions. The DRB heard testimony from the applicant who described the proposed project's layout, parking, and operational characteristics. The DRB also heard testimony from residents who expressed concerns about the potential impacts to the surrounding community. (AR 611, 186-187.)

On May 23, 2017, Council Member Dutra requested City Council review of Development Review No. DRP15-115 pertaining to the Project’s architectural design and compliance within the Whittier Boulevard Specific Plan guidelines. (AR 611.)

On August 7, 2017, the Planning Commission (“Commission”) conducted a public hearing of the Project’s compliance with development standards and voted 3-0-1 (Commissioner Cornejo absent and Commissioner Claver dissenting) to approve the Project with amended conditions of approval. Prior to the Commission hearing, the applicant reduced the number of rooms from 44 to 41 to take into consideration some of the public comments received at the community and the Design Review Board meetings. (AR 612, 588-600.)

On August 8, 2017, Mayor Pro Tem Warner requested City Council review of the Commission action. (AR 612.)

On September 26, 2017, the City Council held a hearing on Development Review Permit No. DRP15-115. After hearing testimony and after deliberating, the Council voted 4-1 (Mayor Pro Tem Warner dissenting) to deny the permit. The Council directed staff to bring back a resolution denying Development Review Permit No. DRP15-115 based on the Council’s findings. (See AR 1207-1225 [Council deliberations and motion at September 26, 2017 meeting]; AR 1252-53 [October 10, 2017 staff report recommending findings].)

On October 10, 2017, the City Council voted 3-1 (Mayor Pro Tem Warner dissenting and Henderson absent) to approve Resolution No. 8918, which denied Development Review Permit No. DRP15-115. (AR 1276-77.) Council’s findings are discussed below.

Writ Proceedings

On January 5, 2018, Petitioner filed a verified complaint for injunctive relief, declaratory relief, inverse condemnation, writ of mandate, and other claims. On February 20, 2018, Respondent filed an answer.

On July 1, 2019, Department 1 reassigned the action to Department 82, a writs and receivers department, only with respect to the third and fourth causes of action for writ of mandate.

On August 20, 2019, at a trial setting conference, the court stayed all non-writ causes of action and set the writ petition for hearing.

On May 18, 2020, Petitioner filed its opening brief in support of the writ petition. The court has received Respondent’s opposition, Petitioner’s reply, the administrative record, and the joint appendix.

On November 23, 2020, the court entered a request for dismissal of Petitioner Subhadra Investments Whittier, LLC.

Standard of Review

Petitioner seeks a writ of mandate pursuant to CCP section 1094.5. The third and fourth causes of action are for writ of mandate under CCP section 1085 and CCP section 1094.5, respectively. Both causes of action concern the City Council’s denial on October 10, 2017, after a hearing, of Petitioner’s application for Development Review Permit Number DRP15-116. (Pet. ¶¶ 80-92.) Because a hearing was required by law for City’s decision, Petitioner’s remedy is a petition for writ of administrative mandate pursuant to CCP section 1094.5. (See Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) The court adjudicates both the third and fourth causes of action under section 1094.5.

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

The substantial evidence standard of review applies to City Council’s findings of fact. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [applying substantial evidence review to land use decisions].) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board (2002) 104 Cal. App. 4th 575, 584-85), or evidence of ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef v. Janovici (1996) 51 Cal. App. 4th 267, 305 n. 28.) “Courts may reverse an [administrative] decision only if, based on the evidence …, a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

However, “‘[o]n questions of law arising in mandate proceedings, [the trial court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Analysis

Was City Council Required by Law to Approve the Project or Impose Conditions?

Petitioner contends that City Council had a mandatory duty under the WBSP and other municipal law to approve the Project as a matter of “right” subject to conditions to address any design review issues. (Opening Brief (OB) 13-15.) As phrased in the opening brief, Petitioner contends that it has a “vested right under local law in an approval with conditions” and that “[t]he WBSP imposed a duty to approve the project ‘by right’ with conditions.” (OB 13; see also Reply 3 [same].) These arguments are not persuasive.

The City’s code requires development review in order “to ensure that the design [of a project] is based upon the general architectural character of the neighborhood, design quality, development compliance with the provisions of applicable laws, consistency with the design of the neighborhood in which the development is located, compliance with development standards, guidelines and conditions of approval.” (AR 612-613, citing Whittier Municipal Code (“WMC”) § 18.56.010.) Development review, which applies to new construction, determines whether the WBSP design standards and development regulations are met. (See Pet. RJN Exh. 1.)

Sections 18.56.045 and 18.56.060 of the WMC explicitly provide that the approving authority “shall have the authority to approve, conditionally approve or deny development review applications”; this decision includes a final decision by the council on “an appeal from a decision of the . . . commission,” pursuant to Section 18.56.065. (Resp. RJN Exh. 1.) The review authority of the Commission, or the Council on appeal, is specifically to consider the application “with respect to conformance with the Whittier general plan, the zoning ordinance, development guidelines and other city standards.” (See WMC §§ 18.56.060, 18.56.065.)

Thus, contrary to Petitioner’s suggestion (see OB 1-9), City Council was not bound by findings or decisions made by the DRB or Commission.[1] Indeed, Petitioner later admits that City Council was required to conduct a de novo hearing on the question of whether the Project complies with City’s development standards, including in the WBSP. (See OB 14.)

Petitioner cites to statements of City staff during the DRB and Commission hearings, apparently to support an argument that “this project was ‘of right’ and the only discretion of the City was to impose proper conditions to ensure consistency with the Whittier Boulevard Specific Plan (‘WBSP’) standards.” (Reply 2 and OB 1-9.) The record supports, and Respondent concedes, that lodging facilities are a “permitted use” within the central district area of the WBSP. (See AR 7, 62; Oppo. 6.) However, “permitted use” is not the same as project approval. The proposed hotel is a permitted use by applicable zoning, and that use cannot be denied, but this does not mean the proposed project was required to be approved, whether with conditions or not, if City Council found development and design review standards were not satisfied.

Statements of City staff and attorney to the DRB and Commission, quoted in Petitioner’s brief, are generally consistent with this conclusion. As phrased by City Attorney Adams and quoted in Petitioner’s brief: “You couldn't deny a motel for being there because it's allowed by right. But, uh, you do have the purview to make sure that there's compliance with the standards and -- and that the parking is appropriate.” (See OB 8, citing AR 442.) “If you are to -- to make a motion to deny it, uh, the development permit, which you have the right to do, you would also have to make findings. You would have to make findings whether or not it is in compliance with the development standard guidelines or maybe that the parking isn't appropriate.” (OB 9, citing 533-534.)

In reply, Petitioner contends that City’s subsequent amendment of the WMC to impose “discretionary CUP review” on hotels/motels supports its contention that City Council lacked discretion to deny Development Review Permit Number DRP15-116 under the city law that governed at the time of Petitioner’s application. (Reply 2-3.) While City’s amended ordinances may be relevant to Petitioner’s arguments, that does not undermine the fact that under the city law applicable when the project was reviewed, City Council had discretion to deny a “permitted use” that did not comply with development and design standards.

Finally, City Council presumably had discretion to impose conditions on the Project, in addition to or different from those imposed by DRB and Commission, to obtain compliance with the WBSP. Respondent makes no argument to the contrary in opposition. (See Oppo. 19.) However, such discretion did not, standing alone, require Council to impose conditions rather than deny the Project. Determining whether a City Council decision to deny the permit, rather than impose conditions, was an abuse of discretion depends on the factual circumstances of each case and the City Council’s findings.

Assuming proper findings were made under WMC section 18.56.010 et seq. and the WBSP, City Council had discretion to deny Development Review Permit No. DRP15-115. However, as discussed below, City Council did not make sufficient findings to explain its decision.

Compliance with Topanga

Petitioners contends that Resolution 8918 lacked sufficient findings to satisfy findings requirements in CCP section 1094.5, prevailing case law, and City’s WBSP. (OB 13-14; Reply 4-5.) The court agrees.

Under CCP section 1094.5(b), an abuse of discretion is established if the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).) In Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515, the Supreme Court held that "implicit in [Code of Civil Procedure] section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order." The court explained that "among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the agency's mode of analysis. [Citations.] Absent such road signs, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. Moreover, properly constituted findings enable the parties to the agency proceeding to determine whether and on what basis they should seek review." (11 Cal. 3d at 516-517 [fns. Omitted].)

“Administrative agency findings are generally permitted considerable latitude with regard to their precision, formality, and matters reasonably implied therein.” (Southern Pacific Transportation Co. v. State Bd. of Equalization (1987) 191 Cal.App.3d 938, 954.) The agency's findings may “be determined to be sufficient if a court has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.” (West Chandler Blvd. Neighborhood Ass’n vs. City of Los Angeles (2011) 198 Cal.App.4th 1506, 1521-22.) However,‘ “mere conclusory findings without reference to the record are inadequate.” (Id. at 1521.) The court must be able to “discern the analytic route the city council traveled from evidence to action.” (Ibid. [finding city council findings violated Topanga].)

“The nature of the statute, ordinance, or rule being applied by that agency is also relevant to the analysis of the adequacy of an administrative agency's findings.” (Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421 [City's findings satisfied Topanga].)

The findings must be sufficient to allow “meaningful judicial review of the challenged administrative decisions.” (Glendale Memorial Hosp. & Health Center v. Department of Mental Health (2001) 91 Cal.App.4th 129, 139.) “When the administrative agency's findings are not adequate, an appropriate remedy is to remand the matter so that proper findings can be made.” (Id. at 140.)

Here, DRB and Commission both approved the development review of the Project. City Council did not. In denying Development Review Permit No. DRP15-115, City Council made the following findings:

The City Council finds, based upon the testimony and other evidence received at the public hearing, and upon the study and investigation made by staff, that Development Review Permit No. DRP15-115 does not adhere to the WBSP Center District design guidelines to create high quality design projects. The following items were identified as inconsistencies with the WBSP design guidelines: 1) a lack of building articulation based on the mass and scale of the building architecture; 2) the visual impact of the building landscape buffer/setback in light of a potential future Caltrans widening; 3) the placement and visibility of the wall mounted mechanical equipment; 4) the front door onto Whittier Boulevard was not a prominent double door; 5) the lack of open space connectivity to the Boulevard; 6) the height of the proposed combination block wall that abuts the vacant lot to the east; and, 7) there was insufficient parking for the operation of the hotel based on the number of rooms. (AR 1277.)

Petitioners contend that “[t]he seven items [Council] claimed did ‘... not adhere to WBSP-Center Street design guidelines...’ are not linked to any standards in the WBSP or to any evidence or expertise.” (OB 13.) The court agrees that City Council’s findings do not satisfy Topanga and related case law, summarized above. The WBSP is a lengthy, 335-page document. The administrative record spans more than 1300 pages. According to Respondent’s opposition, City Council’s decision is supported by testimony and documentary evidence from the proceedings before the DRB, Commission, and City Council. (Oppo. 11-19.) However, City Council’s decision does not cite or identify the parts of the WBSP or the evidentiary record upon which the denial was based.

Significantly, City Council’s decision did not adopt findings of the DRB or Commission; did not adopt reasoning of a staff report; and did not incorporate any findings stated in any motion by a Councilmembers that might supplement or explain the Council’s written findings. DRB and Commission both found that the Project complied with development standards and the WBSP. While City Council was authorized to conduct a de novo review and reach a different conclusion, it was required to explain its reasons and findings. Notably, the September 26, 2017 staff report found that the Project complied with development standards and the WBSP. (AR 611-624.) The staff report proceeding the October 10, 2017, decision includes only a conclusory analysis similar to the ultimate Council decision. (AR 1252-53.)

The subjective nature of City Council’s design review determination also shows non-compliance with Topanga. Council denied the Project on the grounds that it does satisfy a goal of the WBSP to “create high quality design projects” in the central district area. (AR 1277.) On its face, the concept of “high quality design project” appears subjective. In opposition, Respondent confirms that the “the call ‘for high quality’ was ‘subjective’ and dependent upon the particular location.” (Oppo. 14; see AR 1215 [Councilmember Dutra: “And so the vision, you know, for high quality -- it's so subjective. That's what's tough about it.”]) Topanga required City Council to provide sufficient discussion of the WBSP and evidentiary record so that Petitioner and the court could understand the City’s “mode of analysis” with respect to the “subjective” determination that the Project would not result in a “high quality” design project.

In opposition, Respondent cites several parts of the WBSP upon which City’s decision was purportedly based. Respondent then cites to statements of Councilmembers, testimony from the Commission or Council hearings, or other evidence to support the City Council’s findings. (Oppo. 9-19.) The court cannot determine which statements of the Councilmembers were the basis for the City’s decision. Moreover, the court cannot determine from the Council’s conclusory findings which of the WBSP provisions and extensive record evidence were relied upon by the Council.

As an example, Council found that the Project is inconsistent with the WBSP because of “a lack of building articulation based on the mass and scale of the building architecture.” Council did not describe the reasons the “building articulation” of the Project was deficient or how the “mass and scale” of the building impacted this determination. In opposition, Respondent indicates that several different WBSP provisions and oral and documentary evidence are relevant to this finding. (Oppo. 13-14.) However, the court’s inquiry under CCP section 1094.5 focuses on the findings made by the administrative body – the City Council – and not the analysis and findings supplied in an opposition brief on writ review.

As another example, Council found that “there was insufficient parking for the operation of the hotel based on the number of rooms.” Respondent acknowledges that “there were no set standards in the WMC as to parking for hotels at the time.” (Oppo. 17; see AR 212.) City Traffic Engineer concurred with the parking study, which found that the 37 proposed parking spaces were sufficient to meet demand for the 41 guest rooms. (AR 568-569; see also AR 212-213, 314, 618-619.) Although this evidence did not necessarily bind City Council with respect to the Project’s parking, it did require Council to provide sufficient findings to bridge the analytic gap between the raw evidence and its finding that parking was insufficient. Council did not supply such findings and City cannot do so for the first time on writ review.

City’s decision also does not comply with Topanga with respect to the question of whether the Project complied with the WBSP when DRB and Commission conditions are considered. Thus, for instance, the Commission staff report analyzed landscaping, open space, block walls, refuse storage, light and glare, land use compatibility, building design, and signage. The report cited to conditions of approval that, according to staff, ensured the Project's compliance with the WBSP. (AR 215-216.) Respondent argues repeatedly that the conditions imposed by DRB and Commission “do not address” the Council’s concerns. (See Oppo. 14:20-24; see also Oppo. 15, fn. 2, 16:1-3, 16:21-24, 17:11-14, 17:23-25 [arguing that DRB and Commission conditions did not address Council’s concerns].) However, City Council’s decision does not show the Council’s mode of analysis with respect to the sufficiency of conditions imposed by DRB and Commission. (See AR 1276-77.)

Respondent contends that “each finding relates directly to matters at issue in the WBSP as applicable to the project and as discussed in detail in records considered by the Council in the AR (see, e.g., 611-1017) and as orally discussed at the public hearings (AR 71-166; 401- 549; 1018-1226).” (Oppo. 9.) This argument confirms the findings are deficient under Topanga. Respondent cites to more than 800 pages in the record, but the City Council’s findings do not bridge the analytic gap between this raw evidence and ultimate decision or order.

Young v. City of Coronado (2017) 10 Cal.App.5th 408, 421, cited by Respondent, is factually distinguishable. In Young, the City Council voted to approve the Commission’s decision to designate the property as a historical resource; the City’s and Commission’s resolutions recited statutory language of historic designation criteria; and City’s and Commission’s resolutions made additional factual findings that bridged the analytical gap between the raw evidence and the decision. In addition, the City’s staff report “was utilized by both the Commission and the City Council in reaching the determination that the subject property should be designated a historic resource” and further supported the Court’s conclusion that the City complied with Topanga. (Id. at 421-424.) Here, in contrast, City Council’s decision did not incorporate statutory language; included only conclusory findings without reference to raw evidence; and did not incorporate or follow a more detailed staff report or Commission decision. Furthermore, the court perceives a meaningful difference between City Council’s statutory findings in Young, which were based on a narrow list of historic designation criteria (see Young at 423-24), and City Council’s admittedly “subjective” determination here that the Project was not “high quality” within the meaning of the 335-page WBSP.

The court states no opinion on the question of whether the seven “inconsistencies with the WBSP” identified in City Council’s decision could, in the abstract, support denial of the permit. The court only concludes that the findings that were made by City Council in Resolution No. 8918 do not comply with Topanga, for the reasons stated above.

Based on the foregoing, City Council did not make sufficient findings to satisfy CCP section 1094.5 and Topanga. Accordingly, the court will issue a writ directing Respondent to set aside the Council’s decision and for Council to make proper findings. Because the findings do not specify the evidence upon which the City Council relied, the Court cannot reach the issue of whether substantial evidence supports the City Council’s findings. This is another reason why sufficient findings are important.

Conclusion

The petition is GRANTED IN PART. The court will issue a writ directing Respondent to set aside the City Council’s October 10, 2017, decision denying Development Review Permit No. DRP15-115. On remand, City Council shall conduct further proceedings on Petitioner’s permit application in a manner consistent with this court’s ruling and shall make sufficient findings on the existing record to comply with Topanga Assn. for a Scenic Community v. County of Los Angeles, (1974) 11 Cal. 3d 506, 515.

Petitioner’s counsel should address at the hearing how Petitioner intends to proceed with the non-writ causes of action. The court cannot issue a writ until final judgment is entered, after resolution of Petitioner’s non-writ causes of action. Should Petitioner wish to proceed immediately with the non-writ causes of action, the court will transfer the matter to Department 1 for assignment of the non-writ causes of action to a general civil department prior to issuance of the writ. (LASC Local Rules 2.8(d) and 2.9.)

Petitioner’s and Respondent’s counsel should also address whether it would be appropriate in this case for the court to issue an interlocutory remand order for further findings under Topanga, prior to transferring the non-writ causes of action to a general civil department.


[1] However, City Council’s departure from the DRB and Commission decisions has some relevance to the question, discussed below, of whether City Council made sufficient findings under Topanga.

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