Kalnel Gardens, LLC v. City of L.A.

3 Cal.App.5th 927

208 Cal.Rptr.3d 114

KALNEL GARDENS, LLC, Plaintiff and Appellant,

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

B264434

Court of Appeal, Second District, Division 8, California.

Filed September 29, 2016

Loeb & Loeb, Allan J. Abshez and Elizabeth A. Camacho, Los Angeles, for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Terry Kaufmann Macias, Assistant City Attorney and Michael J. Bostrom, Deputy City Attorney for Defendants and Respondents.

RUBIN, J.

Developer Kalnel Gardens, LLC, appeals from the judgment denying its petition for a writ of administrative mandate seeking to overturn the City of Los Angeles's decision to halt a previously approved 15–unit housing project in Venice. We dismiss the appeal in part as to the developer's cause of action based on the Housing Accountability Act because the developer did not seek appellate review by way of a writ petition as required by that statute. We affirm as to the remaining causes of action because there is substantial evidence that the proposed project violated the visual and scenic elements requirement of the California Coastal Act, and because the Coastal Act takes precedence over statutes awarding density and height increase bonuses for proposed residential developments that include affordable housing units.

FACTS AND PROCEDURAL HISTORY

In 2013, City of Los Angeles planning officials approved Kalnel Gardens, LLC's proposed project to tear down a two-story, three-unit apartment building at the triangular intersection of Mildred and Ocean Avenues and Venice Boulevard in the Venice area. The project would include a total of 15 housing units: five duplexes and five single family homes. Kalnel was allowed to exceed the normal density restrictions for that location because two of the units would be designated for very low income households. These “density bonuses” were authorized by the Housing Accountability Act (Gov. Code, § 65589.5 (HAA) ), the Density Bonus Act (Gov. Code, § 65915 ) and the Mello Act (Gov. Code, § 65590 ).¹ The low income housing units also entitled Kalnel to certain other zoning concessions, including a height variance above the usual 25–foot limit. As a result, the project included a flat roofline height of 33.75 feet and a varied roofline height of 40.5 feet.

In addition to approving the density bonuses and height variances, city planning officials adopted a mitigated negative declaration under the California Environmental Quality Act (Pub. Resources Code, § 21000, et seq. (CEQA)). Soon after, the City's advisory agency approved the project's vesting tentative tract map, including findings that the project complied with the City's General Plan as well as the Venice Specific Plan. The City's zoning administrator also approved a coastal development permit under the Coastal Act (Pub. Resources Code, § 30000, et seq. ).

In September 2013, a group of neighboring residents appealed the planning department's various approvals concerning Kalnel's project, including the coastal development permit. The residents contended the project violated the Coastal Act because its height, density, setbacks, and other visual and physical characteristics were out of step with the existing neighborhood.²

At the December 2013 appeal hearing before the West Los Angeles Area Planning Commission (the Commission), numerous area residents spoke about how the proposed project was out of step with the unique character of the Venice neighborhood, which was described as artistic and charming. According to the residents, one- and two-story structures outnumbered taller structures in the area by a ratio of nine to one. The visual impact of the few taller structures that existed was mitigated by setbacks of as much as 200 feet, while the Kalnel project had the same 25–foot setback as did one-story homes. Many of the homes were 1920's era one-story bungalows. The project's three-story height, which included rooflines of up to 40 feet, would tower over and shadow nearby properties. The design as a whole was described as having solid stucco brown walls with no windows, articulation, or character of any kind.

These concerns were echoed in a statement by Tricia Keane, the planning director for City Council Member Mike Bonin. Keane agreed that the surrounding neighborhood consisted primarily of one- and two-story single and multi-family homes. Few, if any, “reach the height, story, scale and mass proposed by this project.” The proposed project was not consistent with the character of the neighborhood, which she called the “gateway to Venice.” A Commission staff member confirmed that there were only a few three-story buildings near the site of the proposed project, with everything else being one story.

Alan Abshez, counsel for Kalnel, said that there was a three-story library across the street from the project site, and that similar size structures could be found along nearby stretches of Venice Boulevard and Mildred Avenue. At bottom, however, Abshez said this was “all a case about affordable housing and density bonus.” Abshez contended that the density and height of Kalnel's project were all the result of its compliance with the statutory requirement that the project include affordable housing.

Commission Vice President Donovan said that issues related to the density bonus were “outside the purview” of the appeal hearing, which instead focused on the Commission's discretionary power concerning the issuance of coastal development permits under the Coastal Act. At Donovan's suggestion the Commission found that the development did not conform to the Coastal Act because its size, height, bulk, mass, and scale were incompatible with and harmful to the surrounding neighborhood and because the setbacks were too small.³

Kalnel appealed the Commission's decision to the City Council, which denied the appeal and adopted the Commission's findings. Kalnel then brought an administrative mandate action against the City, alleging that it had violated the HAA, the Density Bonus Act, and the Mello Act.⁴

Distilled, the trial court found that the City had not complied with the HAA and that the density bonus, height and setback variations initially approved for the project were proper under the housing density statutes and other City zoning plans and regulations, including the Coastal Commission-approved Venice Land Use Plan. Even so, the trial court found that the three housing density statutes were subordinate to the Coastal Act and that substantial evidence supported the City's findings that the project violated that act because it was visually out of step with the surrounding coastal community.⁵ Kalnel does not contend that there was insufficient evidence to support the finding that the project violated the Coastal Act. Therefore, the primary issue on appeal is whether the Coastal Act in fact takes precedence over the various housing density provisions.

STANDARD OF REVIEW

At issue in administrative mandate proceedings is whether the agency acted without or in excess of jurisdiction, whether there was a fair hearing, and whether there was a prejudicial abuse of discretion. An abuse of discretion occurs when the agency did not proceed in the manner required by law, its 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).)

Our role is the same as the trial court's: we review the administrative record to determine whether the City's findings are supported by substantial evidence. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 962, 103 Cal.Rptr.3d 383 (Reddell ).) To the extent interpretation of a statute is involved, we exercise independent review and apply the well-settled rules of statutory construction. (Automotive Funding Group, Inc. v. Garamendi (2003) 114 Cal.App.4th 846, 851, 7 Cal.Rptr.3d 912.)

The fundamental rule of statutory construction is to ascertain the Legislature's intent in order to give effect to the purpose of the law. (Pasadena Metro Blue Line Construction Authority v. Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663–664, 44 Cal.Rptr.3d 556 (Pasadena Metro Blue Line ).) We first examine the words of the statute and try to give effect to the usual, ordinary import of the language while not rendering any language surplusage. The words must be construed in context and in light of the statute's obvious nature and purpose. The terms of the statute must be given a reasonable and commonsense interpretation that is consistent with the Legislature's apparent purpose and intention. (Id. at p. 664, 44 Cal.Rptr.3d 556.) Our interpretation should be practical, not technical, and should also result in wise policy, not mischief or absurdity. (Ibid. ) We do not interpret statutes in isolation. Instead, we read every statute with reference to the entire scheme of law of which it is a part in order to harmonize the whole. (20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1275, 109 Cal.Rptr.2d 611.)

If the statutory language is clear, we should not change it to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Pasadena Metro Blue Line, supra, 140 Cal.App.4th at p. 664, 44 Cal.Rptr.3d 556.) If there is more than one reasonable interpretation of a statute, then it is ambiguous. (Joannou v. City of Rancho Palos Verdes (2013) 219 Cal.App.4th 746, 752, 162 Cal.Rptr.3d 158 (Joannou ).) If so, we turn to secondary rules of construction, including maxims of construction, the legislative history, and the wider historical circumstances of a statute's enactment. (Ibid. )

DISCUSSION

1. Summary of the Three Housing Density Statutes

1.1 The Housing Accountability Act (HAA)

The HAA (§ 65589.5 ), known as the “anti-NIMBY law,”⁶ was designed to limit the ability of local governments to reject or render infeasible housing developments based on their density without a thorough analysis of the “economic,...