Filed 1/24/18 Peeling v. Harris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



MARK PEELING,

Plaintiff and Appellant,

v.

ED HARRIS et al.,

Defendants and Respondents.
D071552



(Super. Ct. No. 37-2014-00032893- CU-EI-CTL)


APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed.
Thorsnes Bartolotta McGuire, Vincent J. Bartolotta and Karen R. Frostrom for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Jana Mickova Will, Deputy City Attorney, for Defendants and Respondents.

INTRODUCTION
This case involves an application to subdivide three lots in the Point Loma area of San Diego to create five lots for five homes. After the Planning Commission of the City of San Diego (Planning Commission) approved the project, the local community planning board, Peninsula Community Planning Board (PCPB), appealed to the City Council of San Diego (City Council). The City Council granted the appeal and overturned the Planning Commission's decision. The superior court denied the property owner, Mark Peeling, mandamus relief and entered summary judgment in favor of the City of San Diego (City) and former Councilmember Ed Harris on Peeling's inverse condemnation claim.
On appeal, Peeling contends (1) PCPB did not have standing to appeal approval of the project to the City Council, (2) the hearing before the City Council was untimely, and (3) the court should not have granted summary judgment because the inverse condemnation cause of action is ripe for judicial review. We disagree with each of these contentions and affirm the judgment.
BACKGROUND
Peeling owns three lots on approximately one acre in Point Loma with two existing homes fronting on Harbor View Drive. Peeling applied to the City for a tentative map to allow him to subdivide the three lots into five lots. He proposed constructing three new homes in addition to retaining two existing homes, which would result in five homes on five lots.
In 1982, the City closed to vehicular traffic the portion of Martinez Street that is behind and below Peeling's property after a landslide from neighboring property made through traffic impractical. The City did not vacate the public right of way. Because of lack of access to Martinez Street, the proposed project's plan provided access to each of the homes from a single driveway off of Harbor View Drive.
PCPB considered the Peeling project in April 2013. On a motion to oppose the project, five board members voted in favor, three voted against, and two abstained. The motion failed for lack of a majority vote since there were 11 active board members.
A staff report to the Planning Commission referred to the PCPB vote and attached the minutes of the April PCPB meeting. Access was raised as a concern by the PCPB.
At the hearing before the Planning Commission, neighbors raised concerns, including a neighbor who pointed out the proposed new homes did not have frontage on either Martinez Street or Harbor View Drive. The Planning Commission voted to approve the project on October 17, 2013.
The PCPB appealed the Planning Commission's approval to the City Council. A motion to withdraw the appeal failed for lack of a majority vote and withdrawal did not occur. The PCPB discussed supporting the appeal based, in part, upon the double frontage ordinance.
The City Council heard the matter on July 14, 2014. Several neighbors spoke in favor of the appeal and against the project, including members of the PCPB who stated they spoke for the neighbors rather than as designated representatives of the PCPB. Neighbors raised concerns about frontage because Martinez Street was closed and the proposal did not comply with the San Diego Municipal Code (SDMC).
The City Council overturned the Planning Commission's decision because the project did not comply with SDMC section 144.0211, subdivision (a), which requires all lots to have "frontage on a street that is open to and usable by vehicular traffic." (Italics omitted.) Peeling's proposed new lots abut Martinez Street, but do not have frontage on Martinez Street that is usable and open to vehicular traffic.
Peeling challenged the City's decision by filing a complaint with the superior court. The operative first amended complaint alleged causes of action for (1) violation of title 42 United States Code section 1983, (2) inverse condemnation, (3) conspiracy, (4) writ of mandate under Code of Civil Procedure section 1085, and (5) writ of mandate under Code of Civil Procedure section 1094.5. It sought injunctive and mandamus relief as well as compensatory and punitive damages. The court sustained without leave to amend the City's demurrer as to the conspiracy and Code of Civil Procedure section 1085 claims and struck the claim for punitive damages. The court bifurcated the first and second causes of action and stayed discovery on those issues pending a hearing on the writ of mandamus.
The court denied Peeling's writ petition concluding there was substantial evidence the PCPB was an interested party with authority to appeal the Planning Commission's decision because it submitted its minutes to the City, as documented in the report to the Planning Commission. The court also noted local community planning groups are interested parties as a matter of law pursuant to City Council Policy 600-24. The court further concluded the City did not abuse its discretion in denying the tentative map for the project because there was substantial evidence the project did not comply with SDMC section 144.0211, subdivision (a), which requires all lots to have frontage on a street that is open and usable by vehicular traffic. Because the new proposed lots would be behind the lots on Harbor View Drive, they solely abutted Martinez Street, which was closed to vehicular traffic. Finally, the court rejected the contention the appeal was not timely heard by the City because the argument was not raised with the City and was outside the scope of the pleadings.
Thereafter, the court granted the City's motion for summary judgment concluding Peeling's cause of action under title 42 United States Code section 1983 for violation of procedural due process, substantive due process and equal protection failed as a matter of law in light of the court's denial of mandamus relief upholding the validity of the City's decision. As to the inverse condemnation claim, the court agreed the issue is not ripe for judicial review because Peeling had not sought a variance and, therefore, the City had not reached a final decision regarding application of the regulations to the proposed project.
DISCUSSION
I
We first consider Peeling's challenge to the denial of mandamus relief. Peeling does not challenge the trial court's finding that sufficient evidence supported the City's denial of the project based upon violation of SDMC section 144.0211, subdivision (a), on the merits. Instead, he asserts two procedural challenges to PCPB's appeal to the City Council: standing and timeliness.
A
" 'An appellate court's review of the administrative record for legal error and substantial evidence in … mandamus cases, is the same as the trial court's: The appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review … is de novo.' " (Association of Irritated Residents v. State Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1494.) A court reviewing a discretionary decision determines "whether the [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 [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." (Code Civ. Proc., § 1094.5, subd. (b).) In reviewing the administrative decision, we apply the substantial evidence standard of review to the City's factual findings. (TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1370–1371.) "In determining whether substantial evidence supports the [City's] decision, we look to the 'whole' administrative record and consider all relevant evidence, including that evidence which detracts from the decision. Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the [City]. Rather, it is for the [City] to weigh the preponderance of conflicting evidence, as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it." (Kirkorowicz v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986; accord, Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073–1074.) We give deference to the City's interpretation of its own laws. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032, 1047.)
B
Peeling contends PCPB did not have standing to appeal the Planning Commission's decision approving the project. We disagree.
SDMC section 112.0508, subdivision (a), provides an "applicant" or an "interested person" may appeal to the City Council a decision by the Planning Commission related to an application for a permit or map. (Italics in original.) SDMC section 113.0103 defines interested person as "a person who was present at a public hearing from which an appeal arose and who had filed a speaker slip with the decision maker at that public hearing or a person who expressed an interest in the decision in writing to that decision maker before the close of the public hearing." A plain reading of the ordinance does not require the interested party to take a position supporting or opposing the project, it merely requires the party to express some interest in the project in writing.
PCPB met this requirement. It expressed an interest in the project in writing by submitting its minutes before the Planning Commission made its decision. The City's staff report to the Planning Commission documented not only the vote count on the motion to recommend denial of the project, but also the concerns expressed about the project by the board members and a member of the public who attended the meeting. One of these concerns was about access to the property. Although the PCPB did not obtain a majority vote to take an official action approving or opposing the project, it is clear PCPB was interested in the project and made the nature of its interest and the community concerns known to the Planning Commission.
The PCPB also submitted minutes to the City Council reflecting votes taken regarding the appeal as well as discussions regarding grounds for appeal based upon frontage issues. The voting history for the PCPB was shared with the City Council as part of the executive summary and a power point presentation.
We also note PCPB is a local community planning group that, according to City Council Policy 600-24, is officially recognized as an advisory body to the Planning Commission and the City Council on all land use and development project issues in their area. However, because PCPB met the requirement of an interested party entitled to appeal, we need not consider whether a recognized community planning group is an interested party as a matter of law. The City Council properly considered PCPB's appeal.
C
Peeling next contends the City did not timely hear PCPB's appeal. Peeling initially attempted to cite Government Code section 66452.5, subdivision (a)(3), which applies to an appeal by a subdivider or tenant of the subject property. Conceding PCPB is neither, Peeling refers in his reply brief to Government Code section 66452.5, subdivision (d)(1), which states an interested person adversely affected by a decision by an advisory agency may file an appeal with the legislative body. The statute provides in pertinent part: "Upon the filing of the appeal, the legislative body shall set the matter for hearing. The hearing shall be held within 30 days after the date of a request filed by the subdivider or the appellant. If there is no regular meeting of the legislative body within the next 30 days for which notice can be given pursuant to [Government Code] [s]ection 66451.3, the appeal may be heard at the next regular meeting for which notice can be given, or within 60 days from the date of the receipt of the request, whichever period is shorter."
Peeling does not indicate either he or the PCPB submitted a request for hearing to trigger the deadlines in the statute. Nevertheless, even if such a request were submitted, we conclude Peeling failed to exhaust any administrative remedy for such a timeliness claim by failing to raise the issue at the administrative level. Peeling agreed to continue a scheduled hearing on the matter from April to July to allow newly appointed Councilmember Harris time to review the project. Prior to the July 2014 hearing Peeling stated the project was unreasonably delayed by failing to docket and hear the appeal, but he did not contend the appeal was invalid on this basis. " 'The essence of the exhaustion doctrine is the public agency's opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.' " (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 528.)
Finally, even if we were to overlook the failure to exhaust the administrative remedy, the project could not be deemed approved pursuant to Government Code section 66452.5, subdivision (c)(2), because the project did not comply with SDMC section 144.0211, subdivision (a).
II
Peeling's final contention is that the court erred in granting summary judgment as to his inverse condemnation claim because such a claim is ripe for judicial review. Again, we disagree.
A
" 'A defendant moving for summary judgment has the burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.' " (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 965.) " 'If a defendant's moving papers make a prima facie showing that justifies a judgment in its favor, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.' " (Ibid.)
"We independently review the granting of summary judgment to ascertain whether there is a triable issue of material fact justifying reinstatement of the action. [Citation.] The trial court's ruling to grant a summary judgment should be upheld only if no triable issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law." (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 520.)
B
"[T]he adoption of zoning ordinances or land use plans such as the one at issue in this case is a matter within the police power of the state and its subdivisions. [Citations.] It is of course true … that 'an undue restriction on the use of private property is as much a taking for constitutional purposes as appropriating or destroying it.' [Citation.] However, the courts of this state have consistently held that before a zoning ordinance or land use plan crosses the line separating a valid exercise of the police power from an unreasonable regulation tantamount to a compensable taking, the landowner must be deprived ' "of substantially all reasonable use of his [or her] property." ' " (Terminals Equip. Co. v. City (1990) 221 Cal.App.3d 234, 242.) A reduction of market value of property due to a zoning ordinance does not give rise to an inverse condemnation claim. (Ibid.)
The City met its burden of establishing the inverse condemnation action is not ripe for judicial review. It established (1) the City Council denied the project for failing to comply with the requirement under SDMC section 144.0211, subdivision (a), that all lots shall have frontage on a street that is open and usable by vehicular traffic; and (2) Peeling did not exhaust his administrative remedies by seeking a variance or other relief. Peeling did not dispute these facts, other than to argue there was no legitimate reason to require compliance with the ordinance because frontage access from Martinez Street was impossible and his project is burdened more than others by requiring compliance.
Whether or not Peeling's objections to the application of the ordinance to his property have merit would be the subject of an application for a variance, which the City has not yet had the opportunity to evaluate and reach a final decision. "[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." (Williamson County Reg'l Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 186.) Unlike in Del Monte Dunes v. City v. Monterey (9th Cir. 1990) 920 F.2d 1496, 1506, there is no indication from the record it would be futile for Peeling to go through the variance process in this case. Although the City's staff report recommended access by a driveway on Harbor Drive, there is no indication the City had the opportunity to consider and reject a variance request to SDMC section 144.0211, subdivision (a). Indeed, the ordinance itself provides access to a dedicated public street may be approved by the City Engineer. (SDMC, § 144.0211, subd. (a).) There is no indication from this record that Peeling sought such an approval. "[W]e are not required to engage in 'the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise.' " (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 331–332.) The inverse condemnation claim is not ripe for judicial review and the court properly granted summary judgment.

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



MCCONNELL, P. J.

WE CONCUR:



BENKE, J.



AARON, J.