Second District Court of Appeal Rejects City of Los Angeles’ Attempt to Require Tentative Tract Map or EIR for Benedict Canyon Luxury Home Development

by Rick McNeil and Colin Higgins

In this case involving the interpretation of the Los Angeles Municipal Code and the Subdivision Map Act, Tower Lane Properties sought a grading permit from the City of Los Angeles for the construction of a three-residence family compound totaling approximately 35,000 square on three contiguous hillside lots totaling approximately 85,000 square feet in Benedict Canyon.
The City’s Planning Department advised Tower Lane that it must comply with Los Angeles Municipal Code (“LAMC”) Section 91.7006.8.2, which requires approval of a tentative tract map whenever grading will be conducted on a hillside area larger than 60,000 square feet. Tower Lane objected to this requirement on the ground that the tentative tract map requirement only applied to subdivisions and it was not proposing to subdivide its land.
Tower Lane filed a petition for a writ of mandate to compel the City to clear the Section 91.7006.8.2 requirement and the trial court granted Tower Lane’s petition.

On appeal, the Second District Court of Appeal observed that the applicable LAMC sections fell within the City’s counterpart to the Subdivision Map Act, Government Code Section 66410 et seq. The Court of Appeal likewise concluded that Section 91.7006.8.2 – by referencing tentative tract maps – applies to subdivisions only and therefore concluded that Tower Lane was not subject to the tentative tract map requirement.
The Court of Appeal also rejected the City’s argument that the Court should defer to the City’s interpretation of its own ordinances for several reasons, including the following: first, two memoranda detailing the City agencies’ application of the Ordinance to hillside building projects were released after Tower Lane applied for its permit; second, although the City Attorney had authored historical opinions regarding subdivided hillside projects, those opinions did not establish that the Ordinance applied to non-subdivided projects; and, third, two City officials that provided declarations regarding whether Section 91.7006.8.2 applied where no subdivision was proposed contradicted themselves. Under these circumstances, the Court of Appeal concluded that the City’s historical position on the Ordinance was “unclear and inconsistent….” and, therefore, “entitled to no deference.”

Basic Facts:

Respondent Tower Lane Properties sought a grading permit from the City of Los Angeles’ Department of Building and Safety for the construction of a three-residence family compound totaling approximately 35,000 square feet to be located on three contiguous hillside lots totaling approximately 85,000 square feet in the Benedict Canyon neighborhood of Los Angeles. The Department of Building and Safety forwarded the building plans to the City’s Planning Department for review for compliance with the City’s building codes.

The Planning Department advised Tower Lane that to obtain a grading permit it must comply with Los Angeles Municipal Code (“LAMC”) Section 91.7006.8.2, which requires approval of a tentative tract map whenever grading will be conducted on a hillside area larger than 60,000 square feet. [Section 91.7006.8.2 provides: “No permit shall be issued for the import or export of earth materials to or from and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m2) unless a tentative tract map has been approved therefor by the advisory agency. The advisory agency may waive this requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.]

Tower Lane objected to this requirement and applied for a waiver. The City conditioned the issuance of a waiver of the preparation of an EIR under CEQA. Tower Lane refused to prepare an EIR and instead filed a petition for a writ of mandate to compel the City to clear that Section 91.7006.8.2 requirement.

The trial court found that Section 91.7006.8.2 applies only when a hillside project involves subdividing land, which Tower Lane’s project did not, and granted Tower Lane’s petition and issued a writ directing the City to clear that Section 91.7006.8.2 permit condition from the project. The City and intervenors (adjacent residents Bruce and Marsha Karsh) appealed.

Appellate Decision (Affirmed):

After observing that the standard of review applicable to the interpretation of an ordinance is de novo, and after setting forth basic rules of statutory construction that would apply to such a review, the Court of Appeal discussed two issues, the Subdivision Map Act and judicial deference to an agency’s interpretation of its own ordinance.

Subdivision Map Act

In interpreting LAMC Section 91.7006.8.2, the Court of Appeal relied upon the Subdivision Map Act, Government Code Section 66410 et seq.) because that section falls within the Subdivision Map Act subdivision of the LAMC (Section 91.7006.8.1) and because Section 91.7006.8.2 – by referencing tentative tract maps – applies to subdivisions only.

As noted by the Court of Appeal, the Subdivision Map Act permits the subdivision of land either through a tentative and final map pursuant to Section 66426 (when five or more parcels are involved) or through a parcel map pursuant to Section 66428 (when four or fewer parcels are involved). Similarly, the LAMC defines a tentative map as “a map made for the purpose of showing the design of a proposed subdivision creating five or more parcels ….” (Section 17.02.)

Judicial Deference

In 2011 and 2012 the City issued two memoranda detailing the City agencies’ application of the Ordinance to hillside building projects. (These memoranda were released after Tower Lane applied for its permit.) Among other things, these memoranda stated that the Ordinance applied to all large (i.e., larger than 60,000 square feet hillside projects. In addition, the City Attorney authored historical opinions regarding subdivided hillside projects, although those opinions did not establish that the Ordinance applied to non-subdivided projects. In addition, two City officials that provided declarations regarding whether Section 91.7006.8.2 applied where no subdivision was proposed contradicted themselves.
Under these circumstances, the Court of Appeal observed:
“While recognizing that an agency’s interpretation must be given great weight, the interpretation is not binding, and ultimate responsibility for interpretation turns on ‘whether the agency has a comparative interpretive advantage over the courts, and also whether its interpretation is likely to be correct’ …. Here, interpretation of the Ordinance requires no technical expertise that would give the City agencies a comparative interpretative advantage. Further, we consider whether an agency has consistently followed its putative interpretation, and how long it has done so…. Here, the City’s historical position on the Ordinance has been unclear and inconsistent…. Because the City cannot point to a consistent and long-standing interpretation, its current interpretation is entitled to no deference.”

Case Name:

Tower Lane Properties v. City of Los Angeles, 224 Cal.App.4th 262, 168 Cal.Rptr.3d 358 (Cal.App. 2 Dist.) (February 28, 2014)

Trial Court Judge:

James C. Chalfant, Los Angeles County Superior Court

Appellate Panel:

Judge Chaney Presiding
Judges Johnson, Miller concurring

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