EAD Santa Nella, LLC v. City of Los Angeles

Filed 8/22/08 EAD Santa Nella, LLC v. City of Los Angeles CA/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court for Los Angeles County, Dzintra Janavs and Maureen Duffy-Lewis, Judges. Affirmed.

Roger Jon Diamond for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney, Jeri L. Burge, Assistant City Attorney, Tayo A. Popoola and Steven N. Blau, Deputy City Attorneys, for Defendants and Respondents.

Los Angeles zoning regulations prohibit the establishment of an adult entertainment business within 500 feet of a public park under the control, operation, or management of the City Board of Recreation and Parks Commissioners. (L.A. Mun. Code,  12.70 [hereafter section 12.70].) The question presented in this case is whether an undeveloped parcel of land in a master planned community is a public park under those zoning regulations when (1) the land is not owned by the City, but (2) Tract Map Conditions for approval of the development require that the parcel be used as a park, that all improvements be approved by the City in consultation with the Department of Recreation and Parks, and that the park be maintained in a manner satisfactory to the City. The Zoning Administrator issued a Zoning Administrator Interpretation finding that the parcel was a public park, the West Los Angeles Planning Commission determined it was a public park, and the trial court affirmed that determination. We affirm the judgment.

BACKGROUND

Appellant EAD Santa Nella, LLC (EAD) acquired real property on Centinela Avenue in May 2006, and planned to convert a warehouse on that property into an adult entertainment business. In April 2006, before the close of escrow, EAD submitted to the Los Angeles Department of Building and Safety applications for the issuance of building permits to convert the warehouse into an adult cabaret.

EADs property was adjacent to Playa Vista, a master planned community being developed at that time. In fact, EADs property was across the street from a parcel that, although not yet developed, had consistently been designated in the Playa Vista Tract Map as an active open space since at least 1995. According to the Proposed Development Criteria for Playa Vista, active open space is defined as public and privately owned parks and recreation areas including recreation and community centers, playing fields, playgrounds, swimming pools, and related facilities used for active park and recreation purposes.

In 1995, the Director of Planning as Advisory Agency approved a revised Vesting Tentative Tract Map with conditions of approval that included three conditions relevant to this action:

Condition No. 16 requires that the lots designated as active open space be offered for dedication to the Department of Recreation and Parks. If the parcels are not accepted by the City, they must be offered for dedication to the appropriate state or federal agency. If no public agency accepts the dedication, a property owners association must be formed to maintain the parcels in a manner satisfactory to the City of Los Angeles.

Condition No. 17 requires that any plans for the improvement of parks be submitted to the Advisory Agency, for approval in consultation with . . . the Department of Recreation and Parks prior to their implementation.

Condition No. 30 requires the developer to designate a minimum of 28.6 acres of recreational/park space before recordation of the first final map unit.

Playa Vista offered the active open space lots for dedication, and the City and other government agencies declined the offer. In compliance with Condition No. 16, a property owners association (the Master Association) was formed in 1999 to maintain the parcels.[1] On February 7, 2000, a Master Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Playa Vista, A Master Planned Community was recorded. The Master Declaration provides, among other things, that the covenants, conditions, restrictions, and reservation of easements run with and burden the properties in the development, and that the restrictions and obligations relating to parks and the Master Association may be enforced by the City. The restrictions and obligations relating to parks include section 7.3.5, which provides that the areas identified in the Proposed Development Criteria for Playa Vista as Active Open Space will be identified as Parks open for public use and designated as Corporation Property to be conveyed to and maintained by the Master Association. . . . [] The Parks must be kept open to the general public without restriction except on hours of use. The Master Association cannot discriminate between Owners and non-residents in regard to use of the Parks. As the City approves construction of the Parks, it issues Plot Plan approvals. The Master Association shall maintain each Park in a good, attractive condition and in accordance with its Plot Plan approval. The Improvements in the Parks cannot be modified without City approval of a tract modification.

On June 9, 2006, before the City issued a building permit to EAD, the developer of Playa Vista submitted an application for a Zoning Administrator Interpretation (ZAI). The developer indicated it had learned that the Department of Building and Safety was processing a Change of Use permit application to change the use of the warehouse owned by EAD to an adult cabaret. The developer contended that issuance of the permit would violate section 12.70 because the adult cabaret would be within 500 feet of a parcel that, although currently vacant, was to become a public park. The developer asked the Planning Department to issue a ZAI to this effect.

That same day, Jon Kirk Mukri, General Manager of the Department of Recreation and Parks, sent a memorandum to Michael Logrande, Acting Chief Zoning Administrator, regarding the parks at Playa Vista. Mr. Mukri explained that Playa Vista has dedicated a total of 47 acres of parkland, which is required to be open to the public in perpetuity and maintained in a manner satisfactory to the City. He stated that [t]he Department of Recreation and Parks has been collaborating closely with Playa Vista, as well as with the City Planning Department and the local Council District, in the conceptual design of all the parks in the Playa Vista development. He also discussed the work of the Department of Recreation and Parks to integrate the Playa Vista parks with neighboring City parks and recreational facilities, and noted that all of the Playa Vista parks will be included in City maps of public parkland and that City Recreation staff will be on site to expand and enhance the recreation programs and park areas as well as to link with existing recreation programs at other City facilities.

Mr. Logrande issued the ZAI that same day. He noted that the parcel at issue was designated in the Playa Vista Specific Plan as a park to be developed with tennis and basketball courts and other features commonly associated with public parks. He also noted that Condition No. 16 of the Tract Map requires the park to be maintained in a manner satisfactory to the City of Los Angeles, which he found grant[ed] authority to the Board of Recreation and Parks Commissioners and the Recreation and Parks Department to control, operate, and manage the operation of the park. He found further support for this finding in Condition No. 17 of the Tract Map (which requires that any plans for improvement of the park be submitted to the Advisory Agency for approval in consultation with the Department of Recreation and Parks), and in Mr. Mukris memorandum describing the Departments involvement in the development and maintenance of the parks. He concluded that the parcel at issue is a public park under section 12.70 and therefore the Department of Building and Safety is not authorized to issue a permit to operate an adult cabaret within 500 feet of the parcel.

EAD filed an appeal to the Area Planning Commission, contending that the ZAI incorrectly interpreted or applied section 12.70 in determining that the parcel at issue is a public park. At the hearing on the appeal, counsel for EAD argued that the issue on appeal was strictly a statutory interpretation issue. Counsel argued that the parcel is not a public park because (1) it currently was vacant land, with only an intent that it will be a public park sometime in the future; and (2) the City declined the offer of dedication and therefore the parcel is not public property.

The Area Planning Commission denied the appeal and sustained the ZAI. The Commission found that the parcel at issue was a public park under the control, operation, or management of the City based upon (1) Tract Map Condition No. 30, which designates the parcel as active open space that must be developed as a park and recreation area; (2) Condition No. 16, which requires that a covenant be executed and recorded guaranteeing that the park remain open to the public and maintained in a manner satisfactory to the City in perpetuity; and (3) Condition No. 17, which requires all plans for improvements to the park to be approved by the Advisory Agency in consultation with the Department of Recreation and Parks. The Commission also noted that Mr. Mukris memorandum to Mr. Logrande confirms its finding that the parcel is a public park within the definition of section 12.70.

EAD filed the instant action against the City and Mr. Logrande in his personal and official capacities. The operative pleading -- the second amended petition and complaint -- includes a petition for writ of mandamus under Code of Civil Procedure section 1085, a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5, and a complaint alleging three causes of action under 42 United States Code section 1983. The first cause of action alleges that EAD was denied its right to due process because Mr. Logrande issued the ZAI without providing EAD notice and an opportunity to be heard. The second cause of action alleges that the determination that the parcel is a public park was intended to deprive or hinder EAD from exercising its First Amendment right to construct and operate an adult cabaret. The third cause of action seeks a declaration that the parcel is not a public park as defined in section 12.70. The trial court ordered the writ claims bifurcated from the remaining claims and stayed all proceedings on the remaining claims pending the courts resolution on the writ claims.

In its opening brief on the petitions for administrative mandamus and traditional mandamus, EAD argued there was no evidence that the parcel at issue is under the control, operation, or management of the City Board of Recreation and Parks Commissioners or the Department of Recreation and Parks because the City declined the offer of dedication and does not own the property. It contended that the Departments role was only as a consultant, and that the Department was authorized to manage and control only City-owned property.

The trial court denied the petitions, holding that the Commissions finding that the parcel is a park under the control, operation, or management of the City Board of Recreation and Parks Commissioners was not erroneous or an abuse of discretion, and was supported by substantial evidence. The case was then transferred to another trial court for trial on the remaining claims.

The City and Mr. Logrande moved for judgment on the pleadings with respect to the remaining claims on the ground that the courts resolution of the petitions leaves nothing left to be litigated because EADs claims seek to vindicate the same primary right, i.e., the invalidity of the ZAI and the Commissions determination. EAD did not contest that it sought by its claims to vindicate the same primary right. Rather, it argued that its claims were not precluded because it was not given a full and fair opportunity to litigate whether the Department of Recreation and Parks controls the property because it did not have the right or opportunity to conduct discovery in the writ proceedings. The court granted the motion for judgment on the pleadings and entered judgment against EAD. EAD timely filed a notice of appeal from the judgment.

DISCUSSION

EAD contends on appeal that the trial court erred in denying its petitions and upholding the decision of the City that the parcel at issue is a public park because the Zoning Administrator failed to strictly apply section 12.70. EAD also contends that the trial court erred in granting the motion for judgment on the pleadings on its claim for violation of its due process rights.[2] Neither contention has merit.

A. The Ruling on the Petitions

We begin with the standard of review. We note that EAD petitioned for both administrative mandamus (Code Civ. Proc.,  1094.5) and traditional mandamus (Code Civ. Proc.,  1085). In its opening brief on appeal, however, EAD describes the proceeding as an administrative mandamus and civil rights case. Therefore, we will apply the standard of review for administrative mandamus.

Under that standard, [t]he courts review of the administrative decision extends to the questions whether the [administrative agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [administrative agency] 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. [Citation.] The courts review the findings and decision of the administrative agency under a substantial evidence standard, as here, when no fundamental vested right is implicated. [Citation.] When the substantial evidence test applies, the trial court exercises an essentially appellate function in determining whether the administrative record is free from legal error. On appeal, our scope of review is identical to that of the trial court. [Citation.] (NBS Imaging Systems, Inc. v. State Bd. of Control (1997) 60 Cal.App.4th 328, 335.)

In its opening brief on appeal, EAD makes passing reference to several issues, with little discussion and no citation to authority,[3]before it makes what appears to be its principal argument: as a matter of law, the parcel cannot be deemed a public park under the control, operation, or management of the City Board of Recreation and Parks Commissioners because the City does not own the parcel and acts merely as a collaborator or consultant. This argument is contrary to the law and the evidence in the record.

There is no dispute that the City declined Playa Vistas offer of dedication of the parcel and therefore does not own the property. But the fact that the City does not own the property does not preclude the Department of Recreation and Parks from having the authority to operate, control, or manage it. Section 594 of the Los Angeles City Charter provides that the Department shall operate, manage and control all property now or hereafter owned or controlled by the City for public recreation. (L.A. Charter,  594, subd. (a), italics added.)

There is substantial evidence in the record that the property is controlled by the City for public recreation. In accordance with conditions the City imposed for approval of the tract map, recorded covenants require that all property identified in the Playa Vista Proposed Development Criteria as active open space -- including the property at issue here -- be maintained as parks open to the general public, that the City approve any plans for improvements to the property, and that the Master Association maintain the property in a manner satisfactory to the City. The General Manager of the Department of Recreation and Parks stated in a memorandum to the Zoning Administrator that the Department is working to integrate the Playa Vista parks with neighboring City parks and recreational facilities, that the Playa Vista parks will be listed on City maps of public parkland, and that Department staff will be on site at the Playa Vista parks. And Darrell Ford, a representative of the Department who spoke at the hearing on EADs appeal, stated that, in addition to Department staff who will be based in Playa Vista, maintenance staff from the Department will be checking park conditions on an ongoing basis to ensure they are properly maintained and to follow up on any complaints that arise.

In short, the evidence shows that although the property at issue is not owned by the City, the City has required that it be developed and maintained as a park open to the general public, and exercises continuing oversight over its use as a park. The City did not, as EAD asserts, reinterpret section 12.70 to defeat a proposed adult cabaret or to eliminate or reduce the number of adult entertainment sites, thus raising First Amendment concerns. Rather, the Zoning Administrator and the Area Planning Commission simply applied the plain language of section 12.70 to the facts established by the evidence before them and correctly determined that the property is a public park under the Citys control within the definition of section 12.70.[4]

B. The Ruling on the Motion for Judgment on the Pleadings

As noted above, City and Mr. Logrande moved for judgment on the pleadings as to the three claims that remained after the trial court denied EADs petitions for mandamus, on the ground that the claims and the petition involved the same primary right. EAD did not challenge the assertion that the petitions and the remaining claims involved the same primary right, and does not address the primary right issue on appeal. Instead, EAD argues on appeal that state courts have concurrent jurisdiction over the Federal Civil Rights Act and that the City and Mr. Logrande violated the act by issuing the ZAI without providing EAD with notice and an opportunity to be heard. EADs argument fails on several grounds.

First, the only time, prior to filing its opening brief on appeal, that EAD asserted the City and Mr. Logrande violated its due process right by failing to provide notice and an opportunity to be heard was in its complaint. It did not raise the issue in its appeal to the Area Planning Commission from the ZAI; instead, its counsel stated the issue before the Commission was strictly a statutory interpretation issue. It did not raise the issue in the hearing on its petitions; it argued there was no evidence to support the ZAI or Commissions interpretation of section 12.70. It did not even raise the issue in its opposition to the motion for judgment on the pleadings; it argued it did not have a full and fair opportunity to litigate whether the Department of Recreation and Parks controls the park at issue because it was not allowed discovery and the record was limited to the administrative record. Having failed to raise the issue in the administrative appeal, the hearing on the petitions, or in opposition to the motion for judgment on the pleadings, EAD has forfeited the issue. (See, e.g., Griswold v. Mt. Diablo Unified Sch. Dist. (1976) 63 Cal.App.3d 648, 652-653 [exhaustion of administrative remedies applies where constitutional issue was not raised before administrative agency]; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847 [theory presented for first time on appeal will not be considered].)

Second, by failing to challenge the Citys and Mr. Lograndes assertion, EAD apparently concedes that its due process claim involves the same primary right as its petitions for mandamus. Under the primary right theory, the invasion of one primary right gives rise to a single cause of action. (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1194.) Resolution of the petitions adversely to EAD, therefore, barred its due process claim based upon the same primary right. (Ibid.)

In any event, even if EADs claim were not barred under the primary right theory and its argument had been timely raised, the claim fails on the merits. Due process does not require that a property owner be given notice and an opportunity to be heard before a preliminary determination is made, so long as the owner is given notice and an opportunity to be heard before the determination becomes final. (Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 689-690.) Section 12.21 of the Los Angeles Municipal Code grants the Zoning Administrator the authority to interpret zoning regulations when the meaning of the regulation is not clear, and provides that anyone aggrieved by the Zoning Administrators determination may file an appeal from the determination. (L.A. Mun. Code,  12.21, subd. (A)(2).) EAD received notice of the Zoning Administrators determination and was afforded an opportunity to be heard before the Area Planning Commission. It received all the process it was due.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] The original name of the Master Association was Playa Vista Maintenance Corporation. In 2000, the name was changed to Playa Vista Parks and Landscape Corporation.

[2] We note that EAD does not address the granting of the motion with regard to its other two claims (for violation of First Amendment rights and for declaratory relief). Therefore, we deem those two claims to be abandoned.

[3] Because EAD fails to make a coherent argument or cite authority regarding those issues, we deem them waived. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

[4] EAD has asked this court to take judicial notice of a document entitled Playa Vista Parks and Landscape Corporation (PVPAL) The Fields at Playa Vista Policies and Use Reservation Permit Procedure. The document states that it was approved on March 8, 2007, with an effective date of April 1, 2007. The document was not considered by the Zoning Administrator or the Area Planning Commission, and therefore it is not relevant to the issue here, i.e., whether substantial evidence supports the Area Planning Commissions determination. Moreover, the document was not before the trial court. Although a reviewing court may take judicial notice of matters not before the trial court, it is not required to do so. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) We decline to do so here, and deny EADs request.