Kenneth K. York v. City of Los Angeles

Kenneth and Annette York (plaintiffs) own a 40-acre parcel

of land in the Hollywood Hills. In 2011, they sought approval

from the City of Los Angeles (City) to build a large house, guest

house, and recreational area on the property. To do so, they also

sought approval of nearly 80,000 cubic yards of grading—more

than 24 times the amount of grading permitted by right. The

City granted permission to build the home and most of the

accessory structures, but denied the grading request. Plaintiffs

then filed a complaint in the superior court that sought a writ of

mandate and alleged causes of action for inverse condemnation

and violation of civil rights. The superior court denied the

mandate petition and granted judgment on the pleadings on the

inverse condemnation and civil rights causes of action. Plaintiffs

appealed.

On appeal, plaintiffs characterize the City’s action as a

final decision limiting them to 3,300 cubic yards of grading—a

grading limitation that plaintiffs contend will foreclose any

development of the property. The record does not bear out these

characterizations. While the City denied plaintiffs’ request for

almost 80,000 cubic yards of grading, it neither definitively

limited plaintiffs to 3,300 cubic yards nor precluded plaintiffs

from submitting another, more modest, development proposal.

Moreover, nothing to which plaintiffs have directed our attention

supports plaintiffs’ contention that building a home of any size on

the property will require all, or nearly all, of the grading

requested. Accordingly, we find no error in the trial court’s

determinations, and thus we affirm the judgment in its entirety.

3

FACTUAL AND PROCEDURAL HISTORY

A. Plaintiffs’ Development Proposal

Plaintiffs own a 40-acre parcel located at 6459 Innsdale

Drive, Los Angeles (the property), as well as a smaller adjacent

parcel on which they have lived for many years. The property is

bordered on three sides by publicly-owned land: Griffith Park to

the north and east, and the Department of Water and Power to

the west. The property currently is undeveloped with the

exception of a vineyard, orchards, and vegetable gardens. It is

zoned RE-40-1-H (residential estate—minimum lot size 40,000

square feet).

On November 15, 2011, plaintiffs applied to the

Los Angeles Planning Department for approval to build an 8,000

square foot home, a 1,300 square foot guest house, a driveway,

swimming pool, tennis court, storage sheds, retaining walls, and

“wine caves” on the property. In connection with the proposed

project, plaintiffs requested approval for 79,700 cubic yards of

grading: 39,850 cubic yards of cut (excavated earth materials)

and 39,850 cubic yards of fill (deposit of excavated materials onsite).



B. The Baseline Hillside Ordinance

The Baseline Hillside Ordinance (BHO), which is codified

at Los Angeles Municipal Code (LAMC)1 section 12.21(C)(10),

sets out the maximum amount of grading allowable on a property

in a designated hillside area. At all times relevant to this appeal,

the maximum grading permitted by the BHO on the property as



1 All subsequent undesignated section references are to the

LAMC.

4

a matter of right was 3,300 cubic yards. (Former

§ 12.21(C)(10)(f)(1).)2

A party may obtain relief from the BHO’s grading

limitations by applying to the Planning Department for a

deviation. A zoning administrator may grant a deviation from

“by-right” grading limitations to allow additional grading up to

an amount no greater than 500 cubic yards plus five percent of

the total lot size. (Former § 12.21(C)(10)(f)(4)(i).) It is

undisputed that plaintiffs’ property is approximately 40 acres, or

1,742,400 square feet, and thus that the zoning administrator

had discretion to grant up to 87,620 cubic yards of grading.

In order to grant a deviation from the by-right grading

limitations, a zoning administrator must hold a public hearing

and make the following findings required by section 12.24(E):

“(1) . . . the project will enhance the built environment in

the surrounding neighborhood or will perform a function or

provide a service that is essential or beneficial to the community,

city, or region;

“(2) . . . the project’s location, size, height, operations and

other significant features will be compatible with and will not

adversely affect or further degrade adjacent properties, the

surrounding neighborhood, or the public health, welfare, and

safety; and

“(3) . . . the project substantially conforms with the purpose,

intent and provisions of the General Plan, the applicable

community plan, and any applicable specific plan.”



2

In March 2017, section 12.21(C)(10)(f)(1) was amended to

allow maximum grading of 1,000 cubic yards, plus 10 percent of

the lot size, not to exceed 6,600 cubic yards.

5

The zoning administrator must also make the following

additional findings required by section 12.24(X)(28)(b)(2):

“[A]pproval . . . is in conformity with the public necessity,

convenience, general welfare and good zoning practice[;] . . . the

action will be in substantial conformance with the various

elements and objectives of the General Plan[;] . . . [¶] . . . [¶] . . .

the increase in the maximum quantity of earth import or export

will not lead to the significant alteration of the existing natural

terrain[;] . . . the hauling of earth is being done in a manner that

does not significantly affect the existing conditions of the Street

improvements and traffic of the Streets along the haul route[;]

and . . . potentially significant impacts to the public health,

safety, and welfare of the surrounding community are being

mitigated to the fullest extent feasible.”

C. The Zoning Administrator’s Determination

On November 19, 2013, Associate Zoning Administrator

Charles Rausch (the zoning administrator) conducted a public

hearing on plaintiffs’ proposed project. Approximately 30 to 40

local residents attended the hearing, the majority of whom

opposed the project.

On about August 8, 2014, the zoning administrator issued a

written determination approving the construction of the

requested single-family home and most of the accessory buildings

and retaining walls. However, the zoning administrator denied

the request for 79,700 cubic yards of grading. In connection with

the denial, the zoning administrator made a number of specific

findings, including the following:

The project will not enhance the built environment in the

surrounding neighborhood or will not perform a function or

provide a service that is essential or beneficial to the community,

6

city, or region (§ 12.24(E)(1)): “One of the intents of the [BHO]

was to control the mass of individual single-family homes in

hillside areas of the city. Along with controls on the size of

homes, an important section of the ordinance controlled grading

which would occur on individual lots. The intent of the grading

restrictions was to control the amount of flat areas on lots that

could be graded in order to include private recreational facilities

such as swimming pools, tennis courts, lawn areas and guest

houses. The construction of such uses often resulted in excessive

grading as well as the construction of retaining walls of excessive

heights in order to manufacture flat areas on hillsides which

could accommodate such uses.

“The plan for the subject property included an extensive

auxiliary 12-foot wide driveway which extended from the main

20-foot wide driveway to the proposed house up the hillside to a

proposed tennis court. The driveway itself would cause extensive

grading in order to flatten the slope to the maximum of a 15%

grade required by the Fire Department for emergency vehicle

access. It would also require extensive grading of the easterly

and westerly slopes adjacent to the tennis court. It was

explained at the hearing that this extensive grading of up to

79,700 cubic yards of earth was needed in order to balance all of

the graded material on the site and avoid the need to haul dirt off

the site on the often narrow streets which surround the site.

“The Zoning Administrator has decided to deny the

requested 79,700 cubic yards of grading and instead permit the

maximum of 3,300 cubic yards of grading permitted by Section

12.21(C)(10)(f) of the Municipal Code for an RE40 lot which is

approximately 40 acres in size. . . . [O]ne of the intents of the

Hillside Standards Ordinance was to control the amount of

7

grading in hillside areas which often marred the views of the

scenic hillsides of the Santa Monica Mountains in the

Los Angeles region. Normally a 40-acre parcel of land is large

enough to accommodate grading because the ridges and valleys

which cross such large lots conceal the grading and other

development of the site. In this particular case, the property sits

on a prominent ridge leading up the side of Cahuenga Peak and

Mount Lee under the iconic Hollywood Sign which is prominent

to the east of the site. The property is famous for a large

vineyard which has been planted on it and is prominently visible

from the flats of Hollywood and very prominent in sight lines up

the hill from the Hollywood (U.S. 101) Freeway. The addition of

a large graded area on the westerly end of this prominent

property would be seen from large areas of the Central

Los Angeles Basin. In addition, the property is also very

prominent to those on the popular walking trail which the City

maintains around Lake Hollywood—especially from Mulholland

Dam at the foot of the lake. Though view protection is normally

not a concern in Individual Community Plan areas, the

Hollywood Community Plan’s objectives include Objective 3a[,]

‘In Hillside residential areas to minimize grading so as to retain

the natural terrain and ecological balance’ and Objective 7[,] ‘To

encourage the preservation of open space consistent with

property rights when privately owned and to promote the

preservation of views, natural character and topography of

mountainous parts of the Community for the enjoyment of both

local residents and persons throughout the Los Angeles region.’

. . . The prominence of the site as well as the grading of the site

well in excess of that permitted by the Zoning Code is contrary to

these objectives of the Hollywood Community Plan.”

8

The project’s size, height, operations and other significant

features will not be compatible with or will adversely affect or

further degrade adjacent properties, the surrounding

neighborhood, or the public health, welfare, or safety

(§ 12.24(E)(2)): “The request to grade 79,700 cubic yards of dirt

on the site would not be compatible with adjacent properties or

the surrounding neighborhood. Surrounding lots on Innsdale

Drive range in size from a quarter to one half acre in size. The

subject RE40 lot is to the north of Innsdale Drive and is 40+ acres

in size. The current development on Innsdale Drive is well

concealed from view from adjacent areas by ridgelines and the

low height of the structures so they do not dominate views from

surrounding areas. The subject development will result in a

graded road extending up a hillside to a private recreation area

. . . . Though the Code requires these graded slopes to be

landscaped to cover the grading scars in the hillside, the cut

slopes will still have an extensive system of concrete or riprap

interceptor channels which will cross the graded slope to channel

Stormwater runoff into a drain at the bottom of the slopes. This

water will be directed down the undeveloped slopes to the west of

the site which ultimately drain into Lake Hollywood or any

intervening storm drains.”

The project does not substantially conform with the purpose,

intent and provisions of the General Plan, the applicable

neighborhood Community Plan and any applicable specific plan

(§ 12.24(E)(3)): “The Hollywood Community Plan includes the

following objective in the Plan text: Objective 3a[,] ‘In hillside

residential areas to . . . [m]inimize grading so as to retain the

natural terrain and ecological balance’; and Objective 7[,] ‘To

encourage the preservation of open space consistent with

9

property rights when privately owned and to promote the

preservation of views, natural character and topography of

mountainous parts of the Community for the enjoyment of both

local residents and persons throughout the Los Angeles region.’

The proposed grading of 79,700 cubic yards of dirt on the site will

occur on a prominent ridge which is viewable from not only

Hollywood proper below the site but from throughout the

Los Angeles Basin in areas with a view of the Hollywood Sign.

“The prominence of the site requires care in the

development of it. The existing vineyard is already prominent in

views. The proposed grading includes moving soil to grade a long

access road directly up a ridge line in order to access a tennis

court which is built into a hillside requiring grading both above

and below the court. Both will be prominent in sight lines from

below and to the sides of the property. The grading in this area is

not for the purpose of building the home and is contrary to the

intent of both Objective 3a and the Hillside Ordinance’s

limitation on grading on hillside lots which was to permit grading

for the home-site but not for extraneous recreation areas beyond

the stated limits of the ordinance. It was stated at the hearing

that the excess grading was requested so that the grading for the

home-site could be balanced on-site. While this is a worthwhile

goal in areas with narrow streets such as those accessing the site

from the south via Beachwood Canyon, the access from the west

from Barham Boulevard is over Lake Hollywood Drive which is a

standard hillside street with parking on both sides of the street

and two travel lanes. In the vicinity of Lake Hollywood, Lake

Hollywood Drive is free of parking except when accessing the

Lake where parking is permitted for hikers accessing the

lakeside walk. The excess grading is not justified in order to

10

avoid a haul route when adequate streets for the hauling of

graded material are available.”

The requested grading in excess of the 3,300 cubic yards

permitted by the Municipal Code is not in conformity with the

public necessity, convenience, general welfare and good zoning

practice and the request will not be in substantial conformance

with the various elements and objectives of the General Plan

(§ 12.24(X)(28) (b)): “The request for 79,700 cubic yards of

grading on the site provides no public necessity . . . . It was

explained at the hearing that the excess grading was requested

in order to avoid the need to haul graded material off of the site.

The requested residence, however, is located and has access to

standard hillside streets leading down to Barham Boulevard

westerly of the site. Though balancing the graded material on

the site and avoiding dump trucks hauling material through

mountain roads may appear to be a public good, the excessive

grading required to balance the graded material on-site is

excessive and creates its own air pollution problems. The

excessive grading would not be in conformance with good zoning

practice as the Zoning Code was amended in 2011 by the Hillside

Development Standards Ordinance to limit excessive grading on

hillsides and to further limit grading and retaining walls which

would be used to create flat areas for further private recreation

areas in the City’s hillside areas. . . . The existing vineyard of the

property owner is already prominent in the viewshed of the

[Hollywood] Sign. The addition of the graded road, retaining

walls, graded slopes with Stormwater runoff channels would be

an additional private improvement, and in this case an

unnecessary one, to the public view.”

11

D. Administrative Appeal to the Area Planning

Commission

The Municipal Code provides that a zoning administrator’s

decision and findings are appealable to an Area Planning

Commission, which is required to hold a public hearing.

(§§ 12.21(A)(2), 12.24(C) & (I)(3).) In reviewing the zoning

administrator’s decision, the APC “shall make its decision, based

on the record, as to whether the initial decision-maker erred or

abused his or her discretion.” (§ 12.24(I)(3).)

On about August 20, 2014, plaintiffs appealed the zoning

administrator’s determination to the Planning Department’s

Central Area Planning Commission (APC). The APC held a

public hearing on the appeal on October 28, 2014.

At the hearing, the zoning administrator testified, among

other things, that when he issued his decision, he misunderstood

the scope of his discretion under the LAMC. However, he said,

even had he correctly understood the scope of his discretion, he

would have made the same decision. He explained that plaintiffs’

proposal called for keeping the fill on-site, which would require a

secondary 12-foot-wide road to transport the fill to a new location.

The proposed road was on a prominent ridgeline that was visible

from the public land surrounding Lake Hollywood, Mulholland

Dam, and the flats of Hollywood. The zoning administrator did

not believe the ridge should be marred to avoid having to remove

fill from the property, noting that the proposed road “may be a

permanent instead of a temporary discomfort.” The zoning

administrator further explained that he had not approved

grading in an amount between 3,300 cubic yards and 79,000 cubic

yards because “all I had before me was 79,000 cubic yards. I did

not have any alternatives to this particular project.”

12

Plaintiffs’ attorney told the APC that her clients had made

several changes to their proposal by eliminating the proposed

tennis court and sheds. Notwithstanding these changes,

plaintiffs did not reduce their grading request. To the contrary,

their counsel stated that the fire road and house pad required

approximately 35,000 cubic yards of cut (21,262 cubic yards for

the fire road and 14,277 cubic yards for the house pad), and

plaintiffs wished to keep all the grading material on site, which

would require an additional 42,239 cubic yards of grading (3,444

cubic yards for the fill road and 38,795 cubic yards for the fill

site).

After further discussion, the Commissioners voted to deny

the appeal and sustain the decision of the zoning administrator.

E. Trial Court Proceedings

1. Complaint and Petition

Plaintiffs filed a complaint and petition for writ of mandate

in January 2015. The first cause of action alleged that the City’s

action was arbitrary and capricious, and it sought a writ of

mandate directing the City to set aside its action and approve the

application “in a manner that will permit the construction of a

single-family home on the Property in a feasible and timely

fashion.” The second cause of action, for inverse condemnation,

alleged that the City had taken plaintiffs’ property by depriving

them of substantially all economically viable or beneficial uses of

the Property. The third cause of action, for violation of civil

rights, alleged that the City had arbitrarily and unlawfully

imposed restrictions on plaintiffs’ use of their property and

treated plaintiffs differently than other similarly-situated

homeowners.

13

2. Mandate Proceedings

Following proceedings before the trial court, the court

denied plaintiffs’ mandate petition, concluding that the City’s

findings and decision were supported by substantial evidence.

Among other things, the trial court found that substantial

evidence supported the City’s finding that the project was

inconsistent with Hollywood’s Community Plan; plaintiffs never

reduced their grading request below 78,500 cubic yards;3

the

APC’s decision did not “prevent[] the construction of any home on

the Property;” plaintiffs received a “fair and impartial hearing;”

and the City was “not required to explain to the Yorks what

amount of grading they could perform for any project they might

build on the Property; the findings only had to explain why the

request for 78,500 cubic yards of grading was denied.”

3. Judgment on the Pleadings

The City subsequently moved for judgment on the

pleadings, urging that plaintiffs’ inverse condemnation and civil

rights claims were not ripe because the City had denied a single

grading request, but had not made a final determination limiting

any potential grading on the property to 3,300 cubic yards. The

City urged that the extent of grading it would approve on the

property was uncertain because plaintiffs never presented the

City with an alternative grading proposal or asked the City to

consider any proposal for less than 79,700 cubic yards. In

support, the City sought judicial notice of various portions of the



3 The trial court’s findings variously refer to plaintiffs’

grading request as for 78,500 and 79,700 cubic yards of cut and

fill. The discrepancy is not material for our purposes.

14

LAMC, the APC’s determination letter, and the zoning

administrator’s determination and findings.

The court granted the request for judicial notice and the

motion for judgment on the pleadings, concluding, among other

things, that “the matter [is] not ripe as plaintiffs have not

proposed plans of reduced scope that would nonetheless allow the

proposed project. Plaintiffs, for instance, could propose plans

that would export all or some of the excavated soil from the site

or propose its deposit elsewhere on the site.”

The trial court entered judgment on August 16, 2016.

Plaintiffs timely appealed.

DISCUSSION

Plaintiffs challenge both the denial of the petition for writ

of administrative mandate and the grant of judgment on the

pleadings. As we now discuss, we find no error, and thus we

affirm.

4



4

In their opening brief, plaintiffs assert that they will not

repeat the arguments they made in the trial court because the

“[t]he documents in the record contain in detail the arguments

Appellants made below and the factual and legal basis for each

argument.” To the extent plaintiffs purport to incorporate by

reference the arguments they made below but have not included

in their appellate briefs, we decline to consider them because “[i]t

is well settled that the Court of Appeal does not permit

incorporation by reference of documents filed in the trial court.

(Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301,

fn. 2 [‘[I]t is not appropriate to incorporate by reference, into a

brief, points and authorities contained in trial court papers, even

if such papers are made a part of the appellate record’]; Estate of

Wiedemann (1964) 228 Cal.App.2d 362, 370–371 [incorporation

by reference of points and authorities filed in the trial court

15

I.

The Trial Court Did Not Err in Denying the

Petition for Writ of Mandate

A. Standard of Review

Under Code of Civil Procedure section 1094.5,

administrative mandamus is available for review of “any final

administrative order or decision made as the result of a

proceeding in which by law a hearing is required to be given,

evidence is required to be taken, and discretion in the

determination of facts is vested in the inferior tribunal,

corporation, board, or officer.”

“ ‘In reviewing an agency’s decision under Code of Civil

Procedure section 1094.5, the trial court determines whether

(1) the agency proceeded without, or in excess of, jurisdiction;

(2) there was a fair hearing; and (3) the agency abused its

discretion. [Citation.]’ [Citations.] ‘Abuse of discretion is

established if the respondent 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.’

(§ 1094.5, subd. (b).) ‘The trial court and appellate court apply

the same standard; the trial court’s determination is not binding

on us. [Citation.]’ [Citation.]” (West Chandler Boulevard

Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th

1506, 1517–1518.)



violates Cal. Rules of Court . . .].)” (Soukup v. Law Offices of

Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 20.)

16

B. The City Did Not Abuse Its Discretion by Denying

Plaintiffs’ Request for a Deviation from the BHO’s

Grading Requirements

Plaintiffs contend that the City abused its discretion by

denying their request for relief from the BHO’s grading

requirements. Specifically, plaintiffs urge the denial (1) was

based on the zoning administrator’s erroneous understanding of

the scope of his discretion, (2) precludes any development of the

parcel, and (3) was unsupported by the evidence. For the reasons

that follow, these contentions are without merit.

1. The Zoning Administrator’s Alleged

Misunderstanding of the Scope of His

Discretion Was Not Prejudicially Erroneous

Plaintiffs contend that the City’s determination must be

reversed because the zoning administrator mistakenly believed

he had only two choices before him—to grant or to deny plaintiffs’

grading request in its entirety—and thus he never exercised his

discretion to grant plaintiffs’ request in part.

5 Plaintiffs urge

that on this record, the APC should have reversed the zoning

administrator’s determination and ordered him “to re-hear the

matter and exercise discretion.” Because the APC did not do so,

plaintiffs suggest, the trial court should have granted the writ



5 As the City correctly notes, the subject of a petition for writ

of administrative mandate is a final decision by the City—in this

case the decision of the APC. (Code Civ. Proc., § 1094.5 [writ may

issue for the purpose of inquiring into the validity of “any final

administrative order or decision”].) Nonetheless, an abuse of

discretion by the zoning administrator could be relevant to our

review if such abuse should have compelled the APC to reverse

the decision of the zoning administrator.

17

and returned the matter to the City for further fact-finding and

decision.

There are many problems with plaintiffs’ contention,

among them that an abuse of discretion results in reversible

error only if it is prejudicial. (E.g., Freeman v. Sullivant (2011)

192 Cal.App.4th 523, 527 [an abuse of discretion results in

reversible error only when it results in the denial of a fair

hearing or otherwise prejudices a party]; Coastside Fishing Club

v. California Fish & Game Com. (2013) 215 Cal.App.4th 397, 428

[abuse of discretion does not require reversal unless the appellant

shows the ruling was prejudicial—i.e., that it is reasonably

probable the appellant would have obtained a more favorable

result absent the error].) In the present case, while the zoning

administrator acknowledged that he had misunderstood the

scope of his discretion at the time he prepared his report, he told

the APC he would have made the same decision in any case. He

explained: “I must make a statement that I made a mistake in

my reading of the Code . . . . [¶] Nonetheless, in admitting the

error, I would have still come to the same conclusion.” (Italics

added.) Because the asserted abuse of discretion did not affect

the decision, it was not prejudicial.

2. The City Did Not Preclude Plaintiffs from

Building a Home on the Property

Plaintiffs contend that the City’s outright denial of their

request for a deviation was an abuse of discretion because it

precludes them from building a home of any size on the property.

In support, plaintiffs suggest that the evidence was “undisputed”

that the proposed home “was located at the least intrusive

location on the Property” and that to build “any home on the

Property would require . . . more than 35,000 cubic yards of

18

‘cut,’ ” or more than 71,000 cubic yards of total (“balanced”)

grading—28,554 cubic yards for a house pad and 42,524 cubic

yards for a fire road.

6

But the portions of the record on which

plaintiffs rely do not support this contention—either by

undisputed evidence or otherwise. Most of plaintiffs’ citations are

to the assertions of their attorneys, which are argument, not

evidence. (See South Sutter, LLC v. LJ Sutter Partners,

L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14 [“We give no weight

to counsel’s statements, as arguments by counsel are

not evidence”]; Gdowski v. Gdowski (2009) 175 Cal.App.4th 128,

139 [“Statements and arguments by counsel are not evidence”].)

The remaining citations are to maps and aerial photographs that

depict the parameters of plaintiffs’ proposed project, but in no

way demonstrate that any alternative project would require as

much, or more, grading. We therefore agree with the trial court’s

assessment: “There’s no evidence that [plaintiffs] cannot build a

home on this property other th[a]n with the 78,500 cubic yards of

cut of fill. There’s no evidence of that.”7



6

In a “balanced grading” plan, earth excavated from one

section of the property is deposited elsewhere on the property.

7 At oral argument, plaintiffs’ counsel urged the court to

consider a declaration submitted by plaintiffs’ civil engineer,

Stephen Smith, as evidence that no house could be built on the

property with less grading than plaintiffs requested. We decline

to consider it. The declaration was submitted for the first time in

opposition to the City’s motion for judgment on the pleadings,

and thus it was not before either of the City’s decision makers

(the zoning administrator or APC) or the trial court reviewing the

petition for writ of mandate. It therefore is not properly before us

in connection with our review of the trial court’s order denying

the mandate petition.

19

Plaintiffs appear to suggest that the City was required to

approve their project in the absence of evidence that the amount

of grading required to build a house on the property could be

reduced by building a smaller house or placing it elsewhere on

the property. But as the trial court correctly noted, the reason

there is no evidence concerning the necessary grading for a

smaller home, a different home location, or a different driveway,

is that plaintiffs failed to present it. Stated simply, the City had

no duty to present evidence concerning the amount of grading

necessary to build a home on plaintiffs’ property, and neither the

zoning administrator nor the APC had a duty to consider any

project other than the one plaintiffs presented to them. Instead,

as the applicants for the land use adjustment, plaintiffs bore the

burden of demonstrating their entitlement to the adjustment.

(See Hauser v. Ventura County Bd. of Supervisors (2018)

20 Cal.App.5th 572–576 [applicant for conditional use permit

bore burden of demonstrating entitlement to the permit];

BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th

1205, 1224 [same].) Accordingly, the absence of evidence

supports, rather than undermines, the City’s decision. If

plaintiffs believe that building a residence on the property

requires an identifiable amount of grading, it is their burden to

make that showing—not the City’s burden to demonstrate to the

contrary.

3. Plaintiffs Have Failed to Demonstrate that the

Zoning Administrator’s Findings Were

Unsupported by the Evidence

Plaintiffs contend that the City’s denial of their grading

request is unsupported by the evidence. But plaintiffs ignore

most of the zoning administrator’s extensive findings, and

20

instead offer just three examples of the purported gap between

the evidence and the decision. None is persuasive.

First, plaintiffs suggest a fatal inconsistency between the

evidence that the project would replace a dead end on Innsdale

Drive with a turnaround for Fire Department emergency

equipment, and the zoning administrator’s conclusion that the

proposed project would not “enhance the built environment in the

surrounding neighborhood and perform a function or provide a

service that is essential or beneficial to the community.” We do

not agree. The evidence that some of the project’s features

benefitted the community did not require the conclusion that the

project, taken as a whole, was beneficial. Nor does the fact that

some of the City’s findings favor plaintiffs suggest, as plaintiffs

do, that the zoning administrator’s findings were incompatible

with the denial.

Second, plaintiffs suggest that the denial “reflected a

misconception that all grading in excess of 3,300 cubic yard[s]

related to the tennis court and associated improvements on and

leading to the Fill Area.” Not so. The zoning administrator

stated—on the very same pages to which plaintiffs direct our

attention—that extensive grading would be needed to create a

driveway from the house to a proposed tennis court, as well as to

accommodate a 20-foot driveway from the property line to the

house and to “balance all of the graded material on the site.”

Finally, plaintiffs suggest that the zoning administrator’s

rejection of “balanced grading” (placing the fill on-site) was

unsupported by the evidence because “there was no evidence to

support a finding that a haul route with thousands of truck trips

running up and down substandard residential streets for months

with dust, noise and vehicle pollution . . . would be preferable to

21

balanced grading.” This assertion misapprehends the burden of

proof. As the applicants, it was plaintiffs’ burden to demonstrate

that balanced grading was superior to removing the “cut” from

the project site—not the City’s burden to demonstrate to the

contrary. (Topanga Assn. for a Scenic Community v. County of

Los Angeles (1974) 11 Cal.3d 506, 521.) Plaintiffs’ unsupported

assertions that removing the excavated earth from the property

would “create[e] much greater environmental impacts” than

leaving it on-site does not satisfy that burden. The absence of

any evidence on this issue supports, rather than undermines, the

denial of plaintiffs’ application.

II.

Motion for Judgment on the Pleadings

A. Standard of Review

“ ‘ “A judgment on the pleadings in favor of the defendant is

appropriate when the complaint fails to allege facts sufficient to

state a cause of action. [Citation.] A motion for judgment on

the pleadings is equivalent to a demurrer and is governed by the

same de novo standard of review.” [Citation.]’ ” (Travelers

Property Casualty Company of America v. Engel Insulation,

Inc. (2018) 29 Cal.App.5th 830, 834.)

“Under the governing legal principles, ‘we take as true the

well-pleaded factual allegations of the complaint.’ (Construction

Protective Services, Inc. v. TIG Specialty Ins. Co. (2002)

29 Cal.4th 189, 193.) We construe the ‘complaint liberally to

attain substantial justice among the parties.’ (Long Beach

Equities, Inc. v. County of Ventura [(1991)] 231 Cal.App.3d

[1016,] 1024.) Nevertheless, we ‘may not consider conclusions of

fact or law, opinions, speculation or allegations which are

contrary either to law or to judicially noticed facts.’ (Ibid.) We

22

thus disregard any allegations of [a] complaint that conflict with

judicially noticed documents as well as those that represent bare

legal conclusions.” (McAllister v. County of Monterey (2007)

147 Cal.App.4th 253, 289; accord Bockrath v. Aldrich Chemical

Co., Inc. (1999) 21 Cal.4th 71, 83 [“a complaint’s allegations may

be disregarded when they conflict with judicially noticed

discovery responses”].)

B. Governing Law

The second and third causes of action (for inverse

condemnation and violation of civil rights) both are premised on

an alleged regulatory taking. A regulatory taking occurs when

government regulation of private property is so onerous that it is

“tantamount to a direct appropriation or ouster.” (Lingle v.

Chevron USA Inc. (2005) 544 U.S. 528, 537.) “Where a regulation

places limitations on land that fall short of eliminating all

economically beneficial use, a taking nonetheless may have

occurred, depending on a complex of factors including the

regulation’s economic effect on the landowner, the extent to

which the regulation interferes with reasonable investmentbacked

expectations, and the character of the government action.

[Citation.]” (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617–

618.)

The United States Supreme Court considered the ripeness

element of a regulatory takings claim in MacDonald, Sommer &

Frates v. Yolo County (1986) 477 U.S. 340 (MacDonald). In

MacDonald, the plaintiffs submitted a tentative subdivision map

to the county planning commission, seeking to subdivide a piece

of property into 159 single- and multi-family residential lots. The

planning commission rejected the subdivision plan, and the

Board of Supervisors affirmed the determination, concluding that

23

the tentative subdivision map was neither “ ‘consistent with the

General Plan of the County of Yolo, nor with the specific plan of

the County of Yolo embodied in the Zoning Regulations for the

County.’ ” (Id. at p. 342.) The plaintiffs filed a petition for writ of

mandate and a complaint for declaratory and monetary relief; the

complaint alleged that the county “ ‘restrict[ed] the Property to

an open-space agricultural use by denying all permit

applications, subdivision maps, and other requests to implement

any other use,’ ” thereby appropriating the “ ‘entire economic

use’ ” of the plaintiffs’ property “ ‘for the sole purpose of

[providing] . . . a public, open-space buffer,’ ” and that any further

application would be futile. (Id. at p. 344.)

The County demurred, asserting that the complaint failed

to plead facts amounting to a regulatory taking. (MacDonald,

supra 477 U.S. at p. 345.) The superior court sustained the

demurrer, and the Court of Appeal affirmed. (Id. at pp. 345–347.)

The California Supreme Court denied review. (Id. at p. 348.)

After briefing and oral argument, the United States

Supreme Court concluded that it was without jurisdiction to

address the merits of the plaintiffs’ regulatory takings claim.

(MacDonald, supra, 477 U.S. at p. 348.) It explained that to

establish a regulatory taking, an appellant must show that a

regulation “has in substance ‘taken’ his property—that is, that

the regulation ‘goes too far.’ ” (Ibid.) Thus, “[u]ntil a property

owner has ‘obtained a final decision regarding the application of

the zoning ordinance and subdivision regulations to its property,’

‘it is impossible to tell whether the land [retains] any reasonable

beneficial use or whether [existing] expectation interests [have]

been destroyed.’ ” (Id. at p. 349.) Similarly “a court cannot

determine whether a municipality has failed to provide ‘just

24

compensation’ until it knows what, if any, compensation the

responsible administrative body intends to provide.” (Id. at

p. 350.) In short, the court said, its cases “uniformly reflect an

insistence on knowing the nature and extent of permitted

development before adjudicating the constitutionality of the

regulations that purport to limit it.” (Id. at p. 351.)

In the case before it, the plaintiffs had “submitted one

subdivision proposal” and “ha[d] yet to receive the Board’s ‘final,

definitive position regarding how it will apply the regulations at

issue to the particular land in question.’ ” (MacDonald, supra,

477 U.S. at p. 351.) As a result, the plaintiffs had been denied

only “only one intense type of residential development.” (Id. at

pp. 351–352 & fn. 8.) Because the possibility existed “that some

development [would] be permitted” on the plaintiffs’ property,

plaintiffs could not establish a regulatory taking. (Id. at pp. 352–

353.)

Applying MacDonald, California courts have held that

property owners “ ‘bear[] a heavy burden of showing that a

regulation as applied to a particular parcel is ripe for a taking

claim.’ [Citation.] The property owner can show that a final

decision has been made for ripeness purposes only when it can

set forth facts that are ‘ “clear, complete, and unambiguous

showing that the agency has “drawn the line, clearly and

emphatically, as to the sole use to which [the property] may ever

be put.” ’ ” (County of Alameda v. Superior Court (2005)

133 Cal.App.4th 558, 567; see also Long Beach Equities, Inc. v.

County of Ventura (1991) 231 Cal.App.3d 1016, 1032 [same].)

Stated differently, “[i]f the governmental agency has not

decisively acted to ban all development of the parcel, an owner’s

ability to use his or her property cannot be said with assurance to

25

have been irretrievably lost. Similarly, until the agency acts with

finality, it will not be known whether the development of

multiple contiguous but differently zoned parcels will be treated

together or separately by the agency.” (Twain Harte Associates,

Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 89; see also

Surfrider Foundation v. Martins Beach 1, LLC (2017)

14 Cal.App.5th 238, 256 [“A takings claim that challenges the

application of regulations to particular property 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.’ ”]; Long Beach

Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016,

1040 [applying ripeness analysis to due process and equal

protection claims based on alleged regulatory taking].)

C. The Trial Court Properly Granted the City’s Motion

for Judgment on the Pleadings Because Plaintiffs’

Claims Are Not Ripe

Having independently reviewed the City’s findings, of

which plaintiffs sought judicial notice, we conclude that the City

has neither rendered a final decision nor precluded all

development of the property. Instead, the City granted plaintiffs

permission to build a single-family home, accessory buildings,

and retaining walls; and while it denied plaintiffs’ request “to

permit a maximum of 79,700 cubic yards of cut and fill grading,”

it neither definitively limited plaintiffs to 3,300 cubic yards of fill

nor precluded plaintiffs from submitting another, more modest,

development proposal.

At the hearing before the APC, plaintiffs made the same

argument they make here, asserting that the zoning

administrator’s findings prevented them from building a home of

26

any size on the property. The APC addressed this issue with the

zoning administrator, asking whether “if we deny the appeal,

then, can’t they come back with a different plan?” The zoning

administrator said that plaintiffs could come back with a

different plan. He also made clear that his findings were not a

final determination limiting plaintiffs to 3,300 cubic yards, but

rather were a rejection of the only plan before him: “[A]s I said

before, all I had before me was 79,000 cubic yards. I did not have

any alternatives to that particular project. So it was either ‘yea’

or ‘nay’ on that particular issue.” Accordingly, the City’s

determination cannot properly be characterized as “ ‘a final

decision regarding the application of the zoning ordinance . . . to

[plaintiffs’] property’ ” (MacDonald, supra, 477 U.S. at p. 349,

italics added), and it therefore cannot form the basis for a

regulatory takings claim.

Similarly, plaintiffs’ due process and equal protection

claims are also not ripe, because the contention that the BHO is

being improperly, inconsistently, or discriminatorily applied,

cannot be evaluated until it is known how the City will apply

them to appellants’ property. Only a final determination by the

responsible agency enables a reviewing court to determine the

constitutional questions plaintiffs purport to raise in this action.

(Long Beach Equities, Inc. v. County of Ventura, supra, 231

Cal.App.3d at pp. 1040–1041; Kinzli v. City of Santa Cruz (9th

Cir. 1987) 818 F.2d 1449, 1455–1456.)

Plaintiffs assert on appeal, as they did in the trial court,

that a determination of this kind cannot properly be made on a

motion for judgment on the pleadings because “it is not for the

trial court to argue with the facts alleged in the complaint.” But

as we have said, although on a motion for judgment on the

27

pleadings we generally take as true the well-pleaded factual

allegations of the complaint, we may not accept as true any

allegations “that conflict with judicially noticed documents.”

(McAllister v. County of Monterey (2007) 147 Cal.App.4th 253,

289.) In the present case, the trial court took judicial notice of

the zoning administrator’s findings. Plaintiffs do not suggest the

trial court lacked discretion to do so—nor, indeed, could plaintiffs

do so, as the trial court took judicial notice at plaintiffs’ request.

As such, it is within our purview to reject the complaint’s

characterizations of the City’s findings that conflict with the

findings themselves. In short, because our independent review of

the City’s findings reveals that the City has not made a final

determination denying plaintiffs the right to build a house on

their property, we need not accept as true plaintiffs’ allegations

to the contrary.8



8 The cases that plaintiffs cite for the proposition that a

landowner need not resubmit an application if it would be futile

to do so are factually distinguishable and, therefore, not

persuasive. In Palazzolo v. Rhode Island (2001) 533 U.S. 606, the

Supreme Court said the landowner’s takings claim was valid

based on futility where the landowners had submitted at least

five development proposals over the course of nearly 20 years,

each of which was rejected. (Id. at p. 619.) In Twain Harte

Associates, Ltd. v. County of Tuolumne, supra, 217 Cal.App.3d at

p. 91, the court found a triable issue as to futility where “the

County, on its own initiative, acted peremptorily to rezone”

appellant’s 8.7 acre parcel from light commercial to open space

specifically in response to appellant’s application to split the lot

into three parcels. In the present case, in contrast, plaintiffs

have submitted just one development proposal, and nothing

suggests that the City has adopted zoning regulations to foreclose

plaintiffs’ development of the property.

28

For the same reason, we reject plaintiffs’ suggestion that

the trial court abused its discretion by not allowing leave to

amend the complaint. We review the denial of leave to amend a

complaint for an abuse of discretion. (City of Dinuba v. County of

Tulare (2007) 41 Cal.4th 859, 865.) “If the court sustained the

demurrer without leave to amend . . . we must decide whether

there is a reasonable possibility the plaintiff could cure the defect

with an amendment. [Citation.] If we find that an amendment

could cure the defect, we conclude that the trial court abused its

discretion and we reverse; if not, no abuse of discretion has

occurred. [Citation.] The plaintiff has the burden of proving that

an amendment would cure the defect.” (Schifando v. City of Los

Angeles (2003) 31 Cal.4th 1074, 1081.)

Plaintiffs contend they could amend their complaint by

“plead[ing] more facts that would support their claim that

additional applications would have been futile” and that the

City’s actions “were arbitrary, capricious, and irrational.”

Plaintiffs have not articulated what those alleged facts are, which

is, alone, a sufficient reason for us to find no abuse of discretion.

(E.g., Fuller v. First Franklin Financial Corp. (2013)

216 Cal.App.4th 955, 962 [“It is the plaintiff’s burden on appeal

to show in what manner it would be possible to amend a

complaint to change the legal effect of the pleading; we otherwise

presume the pleading has stated its allegations as favorably as

possible.”]; Community Cause v. Boatwright (1981)

124 Cal.App.3d 888, 902 [same].)9

But there is another, more



9 Plaintiffs assert that they could have stated a claim had

they been permitted to conduct discovery. Because plaintiffs do

not contend the trial court abused its discretion by denying

permission to conduct discovery, we do not reach this issue.

29

significant reason. As we have said, the City’s determinations

and findings, of which the trial court took judicial notice,

demonstrate that the City has not made a final decision

regarding the scope of development that it will permit on

plaintiffs’ property. Because a court will not accept as true

allegations that conflict with judicially noticed documents, no

amendment could overcome the defects we have identified in the

current complaint. Accordingly, the trial court did not abuse its

discretion by denying plaintiffs leave to amend.

The judgment is affirmed. The City is awarded its appellate costs.