Nemer v. City of Mill Valley

GARY NEMER, Individually and as Trustee, etc., Plaintiff and Appellant, v. CITY OF MILL VALLEY et al., Defendants and Respondents.

A157210

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

October 16, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Marin County Super. Ct. No. CIV1701132)

Homeowner Gary Nemer filed a petition for writ of mandate and complaint against his local planning authorities over a home remodel project undertaken by Nemer's neighbors (the Geiszlers) that Nemer alleges was constructed in a manner that exceeds the scope of work that had been authorized, and violates both the conditions of its approval and the local planning code in various ways.

His operative pleading is extremely detailed and difficult to parse, as is his appellate briefing, but in substance Nemer alleges that city planning authorities turned a blind eye to his complaints about the unauthorized and illegal aspects of construction, and never held a hearing about his code violation complaints or those aspects of the construction that he complained were improper and required a variance under the local planning code. He seeks a writ of mandate and related relief, asking the court to require the City, among other things, to void the certificate of occupancy it issued after a final inspection of the completed construction and to hold properly noticed hearings about those aspects of the construction that he challenges.

The trial court granted summary judgment for the local authorities, respondents City of Mill Valley and the Mill Valley City Council (collectively, the City), and Nemer timely appealed from the judgment. We reverse.

The parties articulate the principal issue on appeal in broad terms, characterizing it as whether the City has a mandatory duty to "enforce" local law. But the only question it is necessary for us to address is quite narrow: whether the City has a mandatory duty under specific provisions of local law, redressable by writ of mandate, to revoke the certificate of occupancy it issued for the completed construction project if Nemer proves any of his allegations that aspects of the construction violate either the law or the terms and conditions of the Geiszlers' building permit. Given the procedural posture of this appeal, it is unnecessary to decide, and we do not address, whether Nemer may compel the City to initiate any legal proceedings against his neighbors. We hold that the City, on this record, did not meet its burden as the party moving for summary judgment to demonstrate its entitlement to judgment, because it did not demonstrate as a matter of law that mandamus is not available for at least some of the relief that Nemer seeks: that is, to overturn the City's approval, through the issuance of the certificate of occupancy, of completed construction that Nemer alleges violates the law. Accepting the City's position that it cannot be compelled by writ of mandate to revoke, as null and void, a certificate of occupancy that it issued for construction that violates the code or the terms of the permit would render the entire planning and permitting process a pointless exercise, because property owners could obtain a permit and then violate its terms and theplanning code without recourse. The City's position cannot be squared with provisions of the Mill Valley Municipal Code that declare a certificate of occupancy issued in such circumstances to be "void."

We also hold that the City did not meet its burden to prove as a matter of law that Nemer cannot prevail on his claim the City violated state and local law by failing to hold a publicly noticed hearing concerning those aspects of construction that Nemer alleges required a variance.

BACKGROUND

A. The Local Regulatory Framework

By way of context, we set out the applicable provisions of the Mill Valley Municipal Code (MVMC or the Code).¹

The City's land use ordinance, set forth in title 20 of the MVMC, is called the Zoning Ordinance of the City of Mill Valley (hereafter, the Zoning Ordinance).²

The Zoning Ordinance requires certain construction projects to undergo a "design review" process, governed by chapter 20.66 of the Zoning Ordinance. The declared purpose is aesthetic: "to maintain . . . the City's attractiveness and character." Pursuant to section 20.66.020, design review is required "whether or not a building permit is required." The process entails an application, accompanied by drawings and plans and written material "as may be required to clearly and accurately describe the proposed work and its effect on the terrain and existing improvements," followed by a noticed public hearing.

In addition, the City's construction codes, contained in chapter 14.05 of title 14 of the MVMC, require a building permit "for any work governed by any of the Codes specified in this Chapter."³ Section 14.05.032, subdivision (F) states that "[t]he issuance of a permit or approval of plans, calculations, specifications, diagrams, and computations shall not be construed to be a permit for, or an approval of any violation of any of the provisions of this chapter or of other ordinances, rules, or regulations of the City . . . ."

Under section 20.64.060, variances may be granted "[w]hen, because of special circumstances applicable to the property . . . the strict application of the provisions of this Title [20] will deprive such property of privileges enjoyed by other property in the vicinity and under identical zoning classification, or deprive provision of solar access." To obtain a variance, both the Zoning Ordinance and state law (Gov. Code, § 65905) require a noticed public hearing.

Finally, section 20.04.040 of the Zoning Ordinance requires a certificate of occupancy in order to use or occupy any building that has been erected or modified, and requires one to be issued "when a project complies with all provisions of this Title [20] and all other titles applicable thereto, including all health laws, and all conditions of any permits have been met." Section 20.04.042, prohibits the issuance of a certificate of occupancy for any structure that violates the Zoning Code and declares any such certificate of occupancy to be "null and void."⁴ Similarly, section 20.68.010 requires all cityofficials to comply with the Zoning Code, and again declares that "Any permit or license issued contrary to any of the provisions of this Title shall be void."

Other provisions of the Code are discussed below, where relevant.

B. The Geiszlers' Construction

In 2015, Nemer's neighbors, the Geiszlers, secured approvals from the City for their home renovation project. The City did not grant them any variances.

First, the Geiszlers secured approval of their design review application through a noticed public hearing process in which Nemer participated and voiced various objections to the proposed project. Nemer appeared at the initial hearing before the local Zoning Administrator who approved, "with conditions," the Geiszlers' design review application over his objections. Nemer then appealed the Zoning Administrator's decision to the Planning Commission, which held another noticed public hearing and, again over his objections, upheld the approval. Finally, he appealed the Planning Commission's decision to the City Council which, in July 2015, adopted a resolution that again denied his appeal and affirmed the Zoning Administrator's approval of the design review application.

Thereafter, on November 11, 2015, the City issued a building permit, and construction began.

In the midst of construction, in June 2016, Nemer filed a code enforcement complaint with the City alleging that various aspects of the work had not been authorized by the planning process. He supplemented that by letter on October 31, 2016, and filed another code enforcement complaint in November 2016.

In February 2017, after the Geiszlers had completed their renovation project, the City conducted a final inspection of the property and did not find any violations of the local code or the building permit. On February 23, the City wrote to Nemer advising him of the final inspection and advised him it was closing its investigation of his code enforcement complaints ("the closure letter"). It issued the Geiszlers a certificate of occupancy.⁵

C. The Prior Lawsuit

This is the second lawsuit Nemer has filed against the City and the Geiszlers concerning their home renovation project. The first lawsuit he brought against them provides necessary context for a proper understanding of the scope of Nemer's current claims, and so we briefly describe that prior litigation.

In October 2015, after the City Council had approved the project but before the issuance of a building permit and commencement of construction, Nemer filed a verified petition for writ of mandate against the City, and filed an amended pleading in February 2016 to add the Geiszlers as defendants. His original claims, as amended, sought to challenge the City's approval of the Geiszlers' project and asserted related due process claims, and on demurrer were held to be time-barred. His second amended pleading sought a writ of mandate compelling the City to require the Geiszlers to halt construction he alleged had not been approved. In October 2016, the trial court sustained a demurrer without leave to amend, on the grounds the City had no mandatory duty to require the Geiszlers to stop their construction, and Nemer had failed to exhaust his administrative remedies, as his codeviolation complaint had been filed just days before he filed his second amended petition but he did not allege it had yet been acted upon.

D. This Litigation

Five months later, in March 2017,...