Boppana v. City of Los Angeles

RAO BOPPANA et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent

ROBERT NOLAN, Real Party in Interest and Respondent.

B305928

California Court of Appeals, Second District, Third Division

July 16, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS172743 Mary H. Strobel, Judge. Affirmed.

Craig S. Sherman, for Plaintiffs and Appellants.

Michael N. Feuer, City Attorney, Terry Kaufmann Macias Assistant City Attorney, and K. Lucy Atwood, Deputy City Attorney, for Defendant and Respondent City of Los Angeles.

Ervin Cohen & Jessup, Ellia M. Thompson and Kimberly D. Lewis for Real Party in Interest and Respondent.

EDMON P. J.

Appellants Rao and Rita Boppana (collectively, Boppana) filed a petition for writ of administrative mandate challenging three building permits issued by the City of Los Angeles (City) to Boppana's^[1] next-door neighbor, respondent Robert Nolan (Nolan). The trial court denied the petition, concluding that Boppana was not denied a fair administrative hearing, the City did not abuse its discretion by granting the three building permits, and Boppana failed to exhaust some of his administrative remedies.

Boppana appeals, urging that (1) he was denied a fair hearing because the City refused to consider a 1987 geotechnical report he submitted with his administrative appeal, (2) the City abused its discretion by granting Nolan a permit to build retaining walls that exceeded applicable height limitations, (3) the City abused its discretion by granting Nolan a permit to build a recreation room that violated an eight foot set-back requirement, and (4) the City abused its discretion by allowing Nolan to drain surface water onto protected wetlands and Boppana's property. As we discuss, Boppana was not denied a fair hearing, and the City did not abuse its discretion by refusing to revoke the challenged permits. Accordingly, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties and the Property

Respondent Nolan owns a single family home located at 7830 South Berger Avenue in Playa Del Rey (the property). Appellant Boppana lives next door to Nolan at 7824 Berger Avenue.

The property is comprised of three parcels totaling 12, 889 square feet: a 5, 561 square foot parcel that Nolan acquired prior to 1989, and two additional parcels acquired before 2012. In 2012, a “lot tie” was recorded for all three parcels.^[2] Nolan built a three-story house, swimming pool, spa, and patio on the property; subsequently, he built a recreation room and retaining walls, which are the subjects of this appeal.

B. The Permits at Issue

On March 30, 2012, Nolan submitted an application to build an accessory recreation building (the recreation room). The City accepted the application into plan check on April 5, 2012, and issued a building permit (permit no. 12010-30000-00748) on March 24, 2015 (the recreation room permit). It issued a certificate of occupancy on July 31, 2017.

On April 15, 2013, Nolan submitted an application to build two rows of six-foot retaining walls at the rear of his property. The City accepted the application into plan check on May 16, 2013, and issued a building permit (permit no. 13020-30000-00849) on March 24, 2015 (the retaining wall permit). The permit was finalized on September 29, 2015.

On July 18, 2014, Nolan submitted an application to grade a portion of the property. The City issued the grading permit on March 24, 2015, and finalized it on July 25, 2016.

C. Boppana's Administrative Appeals^[3]

1. Department of Building and Safety Appeal

In March and May 2016, Boppana's counsel sent letters to the Los Angeles Department of Building and Safety (LADBS) requesting revocation of the recreation room and retaining wall permits. Subsequently, on May 23, 2016, Boppana filed a “Request for Modification of Building Ordinances” appealing the issuance of the permits. Boppana asserted, among other things, that the recreation room caused the property's total square footage to exceed that permitted by ordinance, the retaining walls were higher than six feet when measured from the property's natural grade, and surface water from the property unlawfully drained into coastal bluffs and wetlands.

LADBS denied Boppana's appeal. In a written decision, LADBS found that (1) the recreation room was within the allowable residential floor area because it and the existing three-story house collectively occupied less than 45 percent of the lot area, (2) the retaining walls were within the allowable height of six feet above the natural grade, and (3) the drainage from the new recreation building would be directed to Berger Street by use of a sump pump. LADBS therefore concluded that the permits complied with all applicable Los Angeles City Codes.

2. Director of Planning Appeal

In November 2016, Boppana filed an appeal from the LADBS's decision to the Director of Planning. On October 31, 2017, Associate Zoning Administrator Theodore Irving (Irving), on behalf of the Director of Planning, denied the appeal. Irving found the administrative record and testimony at a public hearing provided substantial evidence that LADBS did not err in issuing the building permits.

3. Area Planning Commission Appeal

Boppana filed a further appeal to the Area Planning Commission (APC) on November 14, 2017. The APC heard the appeal on February 7, 2018. At the conclusion of the hearing, the four-person APC unanimously voted to uphold the decision of the Director of Planning.

D. Petition for Writ of Mandate

Boppana filed a petition for writ of administrative mandate (Code Civ. Proc., § 1094.5) in the superior court on March 15, 2018, and filed the operative first amended petition on May 11, 2018. The court denied the petition in full on March 20, 2020. This timely appeal followed.

DISCUSSION

I. Legal Principles and Standard of Review

Code of Civil Procedure section 1094.5 provides that a writ of administrative mandate may issue if an inferior tribunal has acted in excess of its jurisdiction, denied the petitioner a fair trial, or prejudicially abused its discretion. Abuse of discretion is established if the tribunal “has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

“ ‘ “In determining whether the agency complied with the required procedures and whether the agency's findings are supported by substantial evidence, the trial court and the appellate courts essentially perform identical roles. We review the record de novo and are not bound by the trial court's conclusions.” [Citation.]' [Citation.] ‘As a general matter, courts “will be deferential to government agency interpretations of their own regulations, particularly when the interpretation involves matters within the agency's expertise and does not plainly conflict with a statutory mandate. [Citation.]... [W]e will not disturb the agency's determination without a demonstration that it is clearly unreasonable.” [Citation.] While final responsibility for interpreting a statute or regulation rests with the courts and a court will not accept an agency interpretation that is clearly erroneous or unreasonable, “ ‘[a]s a general rule, the courts defer to the agency charged with enforcing a regulation when interpreting a regulation because the agency possesses expertise in the subject area.' ”' ” (Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment (2018) 24 Cal.App.5th 220, 229; see also Exxon Mobil Corp. v. Office of Environmental Health Hazard Assessment (2009) 169 Cal.App.4th 1264, 1276 [same].)

II.

The City Did Not Abuse Its Discretion

by Issuing the Retaining Wall Permit

The parties agree that under the applicable provisions of the Los Angeles Municipal Code (LAMC), retaining walls on the property may be no more than six feet high as measured from the property's “natural grade.” “Natural grade” is the property's grade prior to any excavation or addition of fill.

Boppana asserts that the City erred in granting the retaining wall permit because the walls were more than six feet high when measured from the property's natural grade. Specifically, he contends (1) the City refused to consider evidence establishing the natural grade of the property, and (2) substantial evidence establishes that Nolan illegally raised grades on the property and the City incorrectly measured the artificial grade. As we discuss, neither contention has merit.

A. Additional Facts

1. The LADBS and Director of Planning Appeals

In proceedings before the LADBS, Boppana contended that Nolan had artificially raised the grade on his property prior to applying for the retaining wall permit. Boppana urged that the City had not accounted for this artificial raise because it (1) relied on maps created after Nolan raised the property's grade, and (2) did not consider a 1987 Geotechnical Report (1987 report), which Boppana said showed that “over 9 feet of fill was placed in the Nolan back yard prior to the preparation of the soils report in 1987.”

In its written decision denying Boppana's appeal, LADBS stated that to measure the height of the retaining walls, it used 2006 contour lines shown on a Department of Public Works tool called NavigateLA, ^[4] as well as contour lines shown on a survey prepared by a licensed surveyor retained by Nolan. Based on the contour lines, LADBS concluded that the retaining walls were “within the allowable height of six (6) feet.”

In his appeal to the Director of Planning, Boppana continued to urge that the retaining wall permit was issued in error because the height of...