Temple of 1001 Buddhas v. City of Fremont

319 Cal.Rptr.3d 181

100 Cal.App.5th 456

TEMPLE OF 1001 BUDDHAS, et al., Plaintiffs and Appellants,

v.CITY OF FREMONT, Defendant and Respondent.

A167719

Court of Appeal, First District, Division 4.

Filed March 6, 2024

Trial Court: San Francisco City & County Superior Court, Trial Judge: Hon. Frank Roesch (Alameda County Super. Ct. No. 21CV002808)

Thigpen Legal, PC, Jordana Thigpen for Plaintiffs and Appellants.

Allen, Glaessner, Hazelwood & Werth, LLP, Kimberly Y. Chin, Maria Nozzolino, Lori Sebransky, Oakland, for Defendant and Respondent.

BROWN, P. J.

This appeal arises from a final administrative decision after a hearing upholding nuisance determinations and orders with respect to plaintiffs’ residential property. Plaintiffs’ main claim is that section 1.8.8 of the California Building Code (Building Code) preempts the City of Fremont’s process for appeals relating to violations of the Fremont Building Standards Code (Fremont Municipal Code, §§ 15.05.010 et seq.) and nuisance orders premised thereupon.

In support, plaintiffs direct us to Lippman v. City of Oakland (2017) 19 Cal. App.5th 750, 229 Cal.Rptr.3d 206 (Lippman), a decision by a First District, Division Four panel, which held that: (1) Build- ing Code section 1.8.8 requires a city to provide for appeals before an independent agency or board authorized to hear such appeals or the city’s governing body, and (2) Oakland’s appeals process for determinations relating to building code and building maintenance code violations, which set appeals before a single hearing officer appointed by the enforcing agency, violated section 1.8.8. (Lippman, at p. 760, 229 Cal.Rptr.3d 206.) Plaintiffs also raise numerous challenges regarding the fairness of their administrative appeal hearing.

We reject plaintiffs’ procedural unfairness claims and their arguments insofar as Fremont’s nuisance determinations rested on zoning violations. But, consistently with the analysis in Lippman, we conclude that state law preempts Fremont’s appeals process for enforcement determinations based on violations of Fremont’s Building Standards Code, including Fremont’s nuisance determinations that rest on alleged violations of that code. We accordingly reverse the judgment in part and direct the trial court to issue appropriate mandamus relief.

BACKGROUND

The property at issue is a 29-acre parcel located in Fremont, subject to certain development constraints.¹ Portions of the property have a slope of at least 30 percent; the property is traversed by at least two natural watercourses; and it is located in a very high fire hazard area and an earthquake-induced landslide zone. The property is zoned as open space. Historically, the property was used for agricultural purposes, supporting a single-family home (main house), a barn (former bam), a mobile home (mobile home), and a detached structure that the parties refer to as a barn or garage (former garage).

In 2013, Fremont served Miaolan Lee, then-owner of the property², with a "Notice and Order to Abate Nuisance" arising from the conversion of the former barn to residential uses (NOA 1). The parties settled the matter in 2014, agreeing that the former barn would not be used as a dwelling unit.

In 2017, Fremont received a complaint regarding construction on the property. After several attempts to arrange an inspection, Fremont obtained a court warrant. Fremont inspected the property in February 2018, and city staff found many code violations, including new, unpermitted structures; unpermitted construction, electrical and plumbing work; construction within a riparian corridor; and evidence of habitation in buildings where habitation was not permitted. Fremont’s Community Development Department, Building & Safety Division (Building & Safety Division), issued a "Notice and Order to Abate Nuisance" on March 29, 2018 (NOA 2). NOA 2 set forth 12 violations associated with construction and structures on the property and required plaintiffs to legalize the structures or, if the structures could not be legalized, to obtain permits to demolish them. Lee appealed.

On May 24, 2018, Fremont conducted another inspection pursuant to a second inspection warrant. On June 14, 2018, Fremont’s Building & Safety Division issued a "Notice and Order to Vacate" (NOV). The NOV stated that the building official had condemned three structures on the property as unfit for human habitation: a new two-story residence (new house); the former garage, which had been expanded to a three-story building with a residential dwelling unit; and the former barn, which had again been remodeled extensively without permits.

On June 19, 2018, the Building & Safety Division issued a "Notice and Order to Abate Nuisance Amended" (NOA 2A). NOA 2A provided that it amended and superseded NOA 2. It listed 13 violations, and it required plaintiffs to legalize the structures or, if the structures could not be legalized, to obtain permits to demolish them. Lee timely appealed the NOV and NOA 2A.

On October 10, 2019, Lee submitted a conditional use permit application to Fremont. She stated therein that the project included a zoning or general plan change, but she did not provide the required new zoning or general plan designation. Lee also stated that the project site contained two dwelling units, buildings used for religious institutions/facilities, and new religious institution/facilities uses. She later clarified that the proposed religious use was private, she intended to continue using the property for single-family residential uses, and her application was directed at obtaining permits for several of the violating structures cited in NOA 2A.

Fremont responded with a project information summary listing additional required submittals, and it subsequently provided Lee with comments on her permit application. Lee submitted a response in November 2020. However, according to Fremont’s planning department, the city never received a revised submittal from Lee with maps that Fremont had requested. In November 2020, the planning department referred the matter back to the code enforcement department.

On March 11, 2021, the Building & Safety Division issued a "Notice and Order to Abate Nuisance Amended" (NOA 3). NOA 3 listed the following 13 violations: (1) construction of an accessory gazebo structure and pools; (2) construction of structures (a bridge, paths, decks, and stairs) around the existing watercourse; (3) alterations to an existing mobile home; (4) alterations to an existing non-habitable structure (the former barn), including a kitchen, shower, and air conditioning units; (5) additions and alterations to the existing former garage, including an additional 4,000 square feet of floor area and two new floor levels appearing to contain habitable space; (6) a new, 3,000-square foot greenhouse with associated electrical, mechanical, and plumbing work; (7) alterations to the existing main house, including a new garage, new habitable space, and exterior decks; (8) flat work/hard scape disturbing soils in excess of one acre; (9) a new, 2,500-square foot dwelling space approximately 180 feet from the main house; (10) solar panel additions to an existing solar energy system; (11) construction and/or alteration of structures with plumbing supply and drain/waste systems that increased the drain, waste, or effluent discharge of the property; (12) construction and/or installation of liquid carrying tanks and associated plumbing; and (13) construction of a tree house with electrical fixtures.

NOA 3 provided that it amended and superseded NOA 2A. Each violation in NOA 3 cited Fremont Municipal Code (Municipal Code) section 8.60.040, and provided that "any condition which violates any code or ordinance adopted by [Fremont] is unlawful and a public nuisance." The infringement of multiple sections of the Municipal Code and various state laws served as the basis for the nuisance determinations, and each of the 13 violations also listed the laws infringed. NOA 3 in- structed, "You have the right to appeal the determination of nuisance or the specific remedies and administrative orders imposed by this Notice by filing a written appeal with the City Clerk … within seven (7) calendar days of the date of service of this Notice for violations pursuant to [Municipal Code] § 8.60.120, [Municipal Code] § 15.45.130, and [Municipal Code] § 15.05.060."

On March 12, 2021, Lee appealed NOA 3. Fremont appointed Ann Danforth as the hearing officer to hear the appeal of the NOV and NOA 3. Danforth held a multiday hearing and issued a decision finding that Fremont had met its burden of establishing the 13 violations in NOA 3. Danforth ordered removal of various structures that could not be legalized because of violations of Fremont’s zoning laws — specifically Municipal Code section 18.55.040, subdivision (b)(7), which forbids any development within a riparian corridor, and Municipal Code section 18.55.050, subdivision (c), which forbids any development on slopes equal to or steeper than 30 percent.

Following Danforth’s decision, plaintiffs filed a verified petition including claims for administrative mandamus under Code of Civil Procedure section 1094.5, declaratory relief, and injunctive relief.

In their opening brief below, plaintiffs argued that Danforth exceeded her jurisdiction by ordering demolition and abused her discretion for numerous reasons, including because substantial evidence did not support her findings. They further argued that they received an unfair hearing. Plaintiffs also asserted that Fremont’s hearing process for appeals was deficient, and, quoting Lippman, supra, 19 Cal. App.5th 750, 229 Cal.Rptr.3d 206, they argued that " ‘there is a mandatory duty to establish a local appeals board or an agency authorized to hear appeals. And, if no such board or agency exists, the governing body shall act as the local appeals board.’ " Plaintiffs made a similar, somewhat more detailed argument regarding Lippman and ...