ORANGE COAST EQUITIES LLC V. The City Of VICTORVILLE.

ORANGE COAST EQUITIES, LLC, Plaintiff and Appellant,

v.THE CITY OF VICTORVILLE et al., Defendants and Respondents.

No. E047980

No. CIVVS701254

Court Of Appeal Of The State Of California

Fourth Appellate District

Division Two

June 25, 2010

Buchalter Nemer, George J. Stephan and Efrat M. Cogan for Plaintiff and Appellant.

Green de Bortnowsky & Quintanilla, Joan Stevens Smyth and Randall Nakashima for Defendant and Respondent.

OPINION

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed.

Ramirez P.J.

Plaintiff and appellant Orange Coast Equities, LLC (OCE) sought approval of a subdivision map for the development of vacant property. Two billboards exist along a 14-foot strip of that parcel to be dedicated for road widening under the City of Victorville's (City) General Plan. The City denied approval of OCE's subdivision map due to City's determination that the proposed subdivision map did not comply with the General Plan as required by the Subdivision Map Act. (Gov. Code, §§ 66410, et seq.) The proposed subdivision map omitted the street dedications necessary for Motorized Circulation Element of the General Plan. OCE claimed that the City's refusal to approve the subdivision map constituted imposition of a de facto condition of removal of the billboards for approval of the map at its own expense, in violation of the Outdoor Advertising Act. (Bus. & Prof. Code, § 5412.6.) OCE sought a petition for writ of mandate seeking relief from the City's administrative decision, as well as a complaint for declaratory relief and inverse condemnation. The trial court denied OCE's petition for writ of mandate.¹

OCE appeals, claiming that the City violated Business and Professions Code section 5412.6 by denying approval of the subdivision map without providing compensation for the removal of the billboards. We conclude the City's determination that the subdivision map failed to comply with the General Plan due to OCE's failure to include on the map the dedications for the widening of Amargosa Road, does not constitute a requirement by the City that a lawfully erected display be removed as a condition or prerequisite for the issuance of the approval, within the meaning of the Outdoor Advertising Act. (Bus. & Prof. Code, § 5412.6.)

BACKGROUND

OCE owns a five-acre parcel of land located in the City of Victorville, south of the logical extension of Sycamore Street and west of and abutting Amargosa Road. The parcel is vacant land except for two billboards, on easements held by TLC Properties, Inc. and Lamar Central Outdoor, LLC, doing business as Lamar Advertising Company. The easements are located on the 14-foot strip of property running along the eastern edge of the parcel, abutting Amargosa Road. The City's General Plan calls for widening Amargosa Road from its current width of 70 feet to 84 feet, requiring dedication of the 14-foot strip burdened by the easements.

Commencing in 2003, OCE sought approval of a subdivision map which would divide the parcel into three smaller parcels. However, the existence of the two billboards meant that structural development was prohibited within one hundred feet of a developed business site property line. (Former Muni. Code of City of Victorville [Victorville Muni Code], § 18.62.070(f)(6)².) OCE was informed on November 12, 2003, that under the zoning ordinance, once the billboard ceases to comply with any of the regulations contained in Victorville Muni Code section 18.62.070(f) it becomes a legally nonconforming sign, subject to removal at the owner's expense.

In 2004, OCE submitted a new proposed subdivision map, which would have divided the property into four parcels, placing the billboards on a separate parcel whichwould remain undeveloped, to conform to the zoning requirements. However, the fourth parcel with the billboards would have less than the required minimum square footage of 10, 000 square feet after roadway dedications for Sycamore Street and Amargosa Road. The City's Engineering Department recommended conditional approval of the subdivision map, the conditions being that the map must show any easement traversing the property, as well as street dedications in accordance with the Motorized Circulation Element of the General Plan respecting the 14-foot strip along Amargosa Road, and 32 feet for Sycamore Road, including a 400-foot radius curve to intersect Amargosa Road.

In November 2004, OCE submitted a new proposed subdivision map, which was tentatively approved subject to certain conditions. The engineering conditions required that the subdivision map show any easement of record, and that OCE dedicate, free and clear of any liens, easements or structures or encumbrances, the street right-of-ways relating to Amargosa Road and Sycamore Street. OCE filed an appeal from this decision but abandoned it. However, in May, 2006, OCE submitted another proposal, and requested that the City compensate it for the removal of the billboards. In June 2006, the submitted proposal was rejected as incomplete because it did not identify all roadway dedications. OCE believed the application was complete and refused to include the roadway dedications as not being required.

On August 17, 2006, OCE submitted a new application to subdivide the parcel, this time seeking to divide the property into three parcels. In September 2006, the Director of Development and Senior Planner for the City's Planning Commission recommended disapproval of the proposed parcel as incomplete because Sycamore Street, a collector roadway on the Circulation Element of the General Plan, was not shown, nor was the cross-section of Sycamore Street shown. The Planning Commission conducted a regular meeting on September 13, 2006, where the Planning Commission voted to consider the application incomplete.

In January 2007, a hearing was set before the Planning Commission to review OCE's most recent submission. The hearing was postponed when it was discovered that the proposed subdivision map deviated substantially from the prior submission, completely omitting the 14-foot right of way. The issue was revisited at a public hearing of the Planning Commission which took place on February 28, 2007, where the Planning Commission voted to deny approval of the parcel map because it did not comply with the City's General Plan.

OCE appealed the decision of the Planning Commission to the City Council. On April 3, 2007, the City Council concluded that the Planning Commission had not abused its discretion, resolving to deny relief. On July 2, 2007, OCE filed a petition for writ of mandate and a complaint for declaratory relief and damages for inverse condemnation. By way of amendment, Lamar Central Outdoor, LLC, doing business as Lamar Advertising Company (Lamar) was named as a defendant.³ On July 10, 2008, the court denied the petition for writ of mandate because the weight of the evidence supported the Planning Commission's denial of the subdivision application because the General Plan expressly referred to the widening of the road. On February 18, 2009, OCE requesteddismissal, with prejudice, of the balance of the complaint for purposes of expediting the appeal of the order denying the petition for writ of mandate. On March 18, 2009, OCE appealed.

DISCUSSION

OCE contends that the trial court erred in denying its petition for writ of mandate. Although it concedes the City did not expressly condition map approval on the removal of the billboards, it asserts that denial of approval of the most recent subdivision map constituted the imposition of a de facto condition or prerequisite of removal of the billboards. In this way, OCE contends that the denial of approval of the subdivision map violated the provision of the Outdoor Advertising Act requiring compensation by the City for the cost of removal of the billboards. (Bus. & Prof. Code, § 5412.6.) We disagree. Statutory Backdrop

No local agency shall approve a tentative map or a parcel map for which a tentative map was not required, unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan. (Gov. Code, § 66473.5.) Under the Subdivision Map Act (Gov. Code, §§ 66410, et seq.), a legislative body of a city or county shall deny approval of a tentative map, or a parcel map for which a tentative map is not required, if, among other things, the proposed map is not consistent with applicable general and specific plans. (Gov. Code, § 66474, subd. (a).) The intent of this legislation is to preserve the integrity of the "general plan" concept. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936.)

Section 5412 of the Business and Professions Code provides, in essence, that no advertising display, such as a billboard, which was lawfully erected anywhere within the state, may be compelled to be removed without payment of compensation. Section 5412.6 provides that, "The requirement by a governmental entity that a lawfully erected display be removed as a condition or prerequisite for the issuance or continued effectiveness of a permit, license, or other approval for any use, structure, development, or activity other than a display constitutes a compelled removal requiring compensation under Section 5412, unless the permit, license, or approval is requested for the construction of a building or structure which cannot be built without physically removing the display."

The regulation and control of the design and improvement of subdivisions is vested in the legislative bodies of local agencies. (Gov. Code, § 66411.) Government Code section 66475 permits the imposition, by local ordinance, of a requirement for dedication or irrevocable offer of dedication of real property with the subdivision for streets, alleys and other access rights. The City of Victorville has adopted an ordinance requiring the inclusion of street dedications on proposed subdivi...