Venice Coalition to Preserve Unique Community Character

Appellants Venice Coalition to Preserve Unique

Community Character and Celia R. Williams alleged in a

complaint filed in Los Angeles County Superior Court that the

City of Los Angeles engaged in a pattern and practice of illegally

exempting certain development projects in Venice from

permitting requirements in the Venice Land Use Plan and in the

California Coastal Act. The trial court granted summary

judgment as to all causes of action, and Venice Coalition, et al.,

appeal. As we find that the City is entitled to judgment as a

matter of law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2016, appellants Venice Coalition to Preserve

Unique Community Character and Celia R. Williams (Venice

Coalition) filed a complaint for declaratory and injunctive relief

against respondents the City of Los Angeles and Department of

City Planning for the City of Los Angeles (City). The complaint

alleged violations of due process under the California

Constitution, and violations of the California Coastal Act (Coastal

Act), the Venice Land Use Plan (LUP), and the California Code of

Civil Procedure. The first cause of action alleged the City

engaged in a pattern and practice of approving development

projects without affording the community an opportunity for

notice and a hearing. The second cause of action alleged the City

failed to ensure all development projects complied with the

requirements of the LUP. The third cause of action alleged the

City acted in excess of its authority by issuing exemptions from

the California Coastal Act’s requirement that development

projects obtain Coastal Development Permits (CDP’s). The

fourth cause of action alleged the exemptions granted by the City

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were unauthorized under Public Resources Code section 306101 of

the Coastal Act. The fifth cause of action asked the court to

enjoin the City from using taxpayer funds to illegally issue

permitting exemptions.

The City filed a motion for judgment on the pleadings,

which the trial court denied. The City then filed a motion for

summary judgment, which the trial court granted.

Venice Coalition timely appealed the court’s grant of

summary judgment as to the first, second, fourth, and fifth

causes of action. Venice Coalition is not challenging the grant of

summary judgment as to the third cause of action.

DISCUSSION

A. Standard of review

We review a trial court’s grant of summary judgment de

novo, “considering all the evidence set forth in the moving and

opposition papers except that to which objections have been made

and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th

317, 334.) We liberally construe the evidence in support of the

party opposing summary judgment and resolve doubts concerning

the evidence in favor of that party. (Miller v. Department of

Corrections (2005) 36 Cal.4th 446, 460.)

Summary judgment is warranted if all the papers

submitted show that there is no triable issue as to any material

fact such that the moving party is entitled to judgment as a

matter of law. (Code Civ. Proc., § 437c, subd. (c).) A motion for

summary adjudication shall be granted only if it completely



1 All further statutory references are to the Public Resources

Code unless otherwise indicated.

disposes of a cause of action, an affirmative defense, a claim for

damages, or an issue of duty. (Id., subd. (f)(1).)

The moving party “bears the burden of showing the court

that the plaintiff ‘has not established, and cannot reasonably

expect to establish, a prima facie case.’ ” (Miller v. Department of

Corrections, supra, 36 Cal.4th at p. 460.) The burden then shifts

to the plaintiff to show the existence of a triable issue; to meet

that burden, the plaintiff “ ‘ “may not rely upon the mere

allegations or denials of its pleadings . . . but, instead, shall set

forth the specific facts showing that a triable issue of material

fact exists as to that cause of action.” ’ ” (Lyle v. Warner Brothers

Television Productions (2006) 38 Cal.4th 264, 274.)

B. Regulatory Background

The City employs two different, but parallel, processes to

approve or deny all development projects in the Venice

community. One involves the Venice specific plan which governs

all development in Venice. The other process is pursuant to the

Coastal Act, with which all development in Venice must also

comply. To comply with the specific plan, all development

projects in Venice must either undergo a project permit

compliance review, or a determination that a review is not

required. To comply with the Coastal Act, all development

projects in Venice must obtain a CDP or an exemption from the

CDP requirement.

1. The Coastal Act

The California Coastal Act of 1976 is a comprehensive

scheme governing land use planning for the entire coastal zone of

California. (Pacific Palisades Bowl Mobile Estates, LLC v. City of

Los Angeles (2012) 55 Cal.4th 783, 793 (Pacific Palisades).) The

broad goals of the Coastal Act are permanent protection of the

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state’s natural and scenic resources; protection of the ecological

balance of the coastal zone; and regulation of existing and future

developments to ensure consistency with the policies of the

Coastal Act. (§ 30001.) With certain exceptions, “any person

wishing to perform or undertake any development in

the coastal zone must obtain a coastal development permit ‘in

addition to obtaining any other permit required by law from any

local government or from any state, regional, or local

agency. . . .’ ” (Pacific Palisades, at p. 794; § 30600, subd. (a).)

The Coastal Act authorizes exemptions from the CDP

requirement for certain minor developments such as

improvements to existing single family residences and other

structures. (§ 30610.)

The Coastal Act requires local governments to develop local

coastal programs,which consist of a land use plan and a local

implementation plan. (Pacific Palisades, supra, 55 Cal.4th at p.

794.) “Once the California Coastal Commission certifies a local

government’s program, and all implementing actions become

effective, the commission delegates authority over coastal

development permits to the local government.” (Ibid.) Prior to

the certification of its local coastal program “ ‘a local government

may, with respect to any development within its area of

jurisdiction . . . , establish procedures for the filing, processing,

review, modification, approval, or denial of a coastal development

permit.’ ” (Ibid.) Actions pursuant to a locally issued CDP are

appealable to the Coastal Commission. (Ibid.)

In 1978, the Coastal Commission granted to the City the

authority to issue both CDP’s for development within the Coastal

Zone and exemptions for development projects that do not require

a CDP under the Coastal Act. The City’s CDP program is

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codified in section 12.20.2 of the Los Angeles Municipal Code. In

2001, the Coastal Commission certified the Venice LUP. The

City submitted a Venice local implementation plan to the Coastal

Commission in 2004; as of yet, the implementation plan has not

been certified.

2. The Venice Land Use and Specific Plans

The certified Venice LUP is a part of the City’s general

plan, which guides the City’s use of land and the design and

character of buildings and open space. One of the goals of the

LUP is to control building heights and bulks to “preserve the

nature and character of existing residential neighborhoods.”

In 2003, the City Planning Commission approved the

amended Venice specific plan at a public hearing. The specific

plan is an ordinance developed to implement the policies of the

LUP; specifically, the specific plan regulates “all development,

including use, height, density, setback, buffer zone and other

factors in order that it be compatible in character with the

existing community and to provide for the consideration of

aesthetics and scenic preservation and enhancement, and to

protect environmentally sensitive areas.” The specific plan sets

forth two processes by which a development project may be

evaluated and approved. For many small-scale development

projects, such as construction and demolition of four unit or

smaller residential projects not located on walk streets,2 the

Director of Planning may issue a “Venice Sign-Off” (VSO), which



2 A “walk street” is a “public street in the Coastal Zone

and/or beach area that has been improved for public pedestrian

use over part of its width and is landscaped . . . over the

remainder, but which has not been improved for vehicular

access.”

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exempts the project from a project permit compliance review. All

other projects must be evaluated for project permit compliance.

C. First Cause of Action: The VSO Process is Ministerial

The first cause of action alleged the City denied Venice

residents due process by issuing VSO’s without notice and a

hearing. The City countered that the VSO process is ministerial

and therefore does not trigger due process protections. The trial

court agreed with the City, as do we.

Local governments take three types of actions in land use

matters: legislative, adjudicative, and ministerial. (Calvert v.

County of Yuba (2006) 145 Cal.App.4th 613, 622.) Legislative

actions “involve the enactment of general laws, standards or

policies, such as general plans or zoning ordinances.” (Ibid.)

Adjudicative actions “involve discretionary decisions” that apply

laws to specific development projects such as zoning permits.

(Ibid.) “Ministerial actions involve nondiscretionary decisions

based only on fixed and objective standards, not subjective

judgment; an example is the issuance of a typical, small-scale

building permit.” (Ibid.)

The federal and state Constitutions prohibit the

government from depriving persons of property without due

process of law. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 7,

subd. (a).) Adjudicative governmental actions that implicate

significant or substantial property deprivation generally require

the procedural due process protections of reasonable notice and

an opportunity to be heard. (Calvert v. County of Yuba, supra,

145 Cal.App.4th at p. 622.) Legislative action generally does not

require due process protections because “it is not practical that

everyone should have a direct voice in legislative decisions;

elections provide the check there.” (Ibid.) Ministerial actions do

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not generally trigger due process protections because they are

“essentially automatic based on whether certain fixed standards

and objective measurements have been met.” (Id. at p. 623.) In

other words, land use decisions that require a public official to

exercise judgment are discretionary and require notice and a

hearing. Actions which require a public officer to perform “in a

prescribed manner in obedience to the mandate of legal

authority” without regard to his or her own judgment are

ministerial and do not trigger due process protections.

(Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501.)

Here, section 8A of the Venice specific plan provides that

the Director of Planning may issue a VSO to certain projects

upon a determination that they are exempt from project permit

compliance review. Section 8A lists several types of projects

eligible for VSO’s, including improvements to existing single- or

multiple-family structures not located on a walk street; new

construction of one single-family unit and not more than two

condominium units not located on a walk street; new construction

of four or fewer rental units, not located on a walk street; and

demolition of four or fewer units. Once the Director of Planning

determines that a project is eligible under one of these categories,

he or she must then determine whether it meets certain fixed

development requirements applicable to the neighborhood in

which the proposed project lies. These requirements include

maximum height, maximum density, and minimum yard setback

measurements. The Director of Planning uses forms that are

essentially checklists requiring only a determination that the

proposed project does or does not meet objective measurement

criteria.

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Sections 8B and 8C of the Venice specific plan, however,

govern development projects not subject to VSO approval and

therefore subject to project permit compliance review. Under

section 8C, the Director of Planning must make certain findings,

including that the project “is compatible in scale and character

with the existing neighborhood, and . . . not be materially

detrimental to adjoining lots or the immediate neighborhood.”

We agree with the City and the trial court that the VSO

process is ministerial. The Director of Planning is not required to

exercise independent judgment; he or she only reviews a set of

fixed, objective construction measurements. In contrast, the

project permit compliance review in section 8C requires the

Director of Planning to exercise independent, subjective judgment

as to whether the project is generally compatible with the

character of the existing neighborhood.

Venice Coalition also argues that, by its nature, the VSO

process cannot be ministerial because each project must be

reviewed for compliance with the LUP. As discussed in the next

section, Venice Coalition contends that the LUP mandates that

all projects, including those granted a VSO, must conform to the

character of the existing community; as such, project approval

must involve a discretionary decision that cannot be adequately

captured in a checklist. Because we agree with the court and the

City that VSO projects do not need to be separately reviewed for

compliance with the LUP, and because we agree that the VSO

process is ministerial, we conclude that for VSO projects the

Venice Coalition is not entitled to notice and a hearing.

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D. Second Cause of Action: The Director of Planning is

Not Required to Review VSO Projects for Compliance

with the LUP

Venice Coalition argues that the Director of Planning must

conduct a discretionary analysis of every VSO to ensure it is

compliant with the LUP. Venice Coalition points to language on

the cover of the Venice specific plan stating “[p]lease refer to the

certified Venice Coastal Land Use Plan for other development

standards that may apply to your project” and language in the

LUP stating new development must respect the “scale and

character of community development,” the “massing and

landscape of existing residential neighborhoods,” and must

identify, protect, and restore the “historical, architectural and

cultural character of structures and landmarks.”

Venice Coalition has not identified any ordinance,

municipal code provision, or statute requiring the Director of

Planning to independently review small-scale VSO projects for

compatibility with the LUP. Moreover, in 2003, the City

Planning Commission previously determined that the amended

specific plan complies with the LUP. The amended Venice

specific plan was developed in response to the City Council’s

direction to the planning staff to update the specific plan to

ensure consistency with development standards in the LUP,

including lot consolidation, roof structures, maximum height,

yard setback, and parking.

Accordingly, we agree with the City that VSO projects that

are consistent with specific plan standards are necessarily

consistent with LUP policies.

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Furthermore, any challenge to the VSO process as

embodied in the specific plan is time-barred. Section

65009(c)(1)(A) of the Government Code sets a 90-day statute of

limitations to “attack, review, set aside, void, or annul the

decision of a legislative body to adopt or amend a general or

specific plan.” Venice Coalition claims it is not attacking the

Venice specific plan itself, its adoption, or the City’s

determination that the specific plan is consistent with the LUP.

Rather, Venice Coalition claims it is only challenging the City’s

ongoing failure to ensure that VSO projects “respect the scale,

massing, character, and landscape of existing neighborhoods” as

required by the LUP.

This argument, however, is an attempt to recast what is

essentially a challenge to the specific plan itself as being

inconsistent with the LUP. In 2003, the City previously

determined that the ministerial process outlined in the specific

plan was consistent with the LUP. Thus, as set out above,

compliance with the specific plan is compliance with the LUP.

Consistent with that 2003 determination, the specific plan

contains no language requiring the Director of Planning to

independently review specific plan projects for compliance with

the LUP. Arguing that the Director of Planning must

nonetheless conduct such an independent review is tantamount

to arguing that the City was wrong. This argument should have

been brought to the attention of the City within the statutory

time limitation.

Moreover, besides being unnecessary, it would not be

feasible to impose a duty on the City to review VSO projects for

compliance with the LUP without altering the specific plan itself.

Venice Coalition is essentially aiming to convert the ministerial

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VSO process, which the City already authorized as compliant

with the LUP, into a discretionary one by imposing an additional

duty on the Director of Planning that the City did not

contemplate. In other words, the remedy Venice Coalition urges

would require an alteration of the specific plan, which is

tantamount to an attack on the specific plan itself. Again, any

attempt to do so should have been presented within the statutory

time limitation.

Finally, if a project receives VSO approval, it still must get

a CDP. Venice Coalition does not dispute that the City applies

LUP policies as part of the CDP process, which is discretionary.

The Municipal Code requires the City to find that development

projects conform to Chapter Three of the Coastal Act. (L.A. Mun.

Code, § 12.20.2(G)(1)(a).) Among the requirements in Chapter

Three is the mandate that development be “sited and designed to

protect views to and along the ocean and scenic coastal areas, to

minimize the alteration of natural land forms, to be visually

compatible with the character of surrounding areas, and, where

feasible, to restore and enhance visual quality in visually

degraded areas. (§ 30251.) Therefore, the City ultimately does

end up evaluating specific plan projects for compliance with the

LUP. We see no reason why the City should be compelled to

undergo this process again and again.

E. Fourth Cause of Action: Additions to Existing

Structures are Eligible for Exemptions Under the Coastal

Act

Venice Coalition alleged in the fourth cause of action that,

in violation of the Coastal Act, the City was issuing exemptions

from the CDP process for additions to existing buildings and

demolitions ordered as part of a nuisance abatement order.

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Venice Coalition argued that section 30610 only allows for

“improvements” to existing structures, not additions. On appeal,

Venice Coalition argues not that all additions are disallowed by

the Coastal Act, but that improvements that increase the existing

height or floor area by more than 10 percent are impermissible in

all areas of the Coastal Zone. Not so.

Venice Coalition points to sections 13250, subdivision (b)(4)

and 13253, subdivision (b)(4) of title 14 of the California Code of

Regulations for the proposition that no improvements to existing

structures that increase floor area or height by more than 10

percent are allowed in the entire coastal zone. The language of

these regulations, however, is as follows: “[o]n property not

included in subsection (b)(1) above3 that is located between the sea

and the first public road paralleling the sea or within 300 feet of

the inland extent of any beach or of the mean high tide of the sea

where there is no beach, whichever is the greater distance, or in

significant scenic resources areas as designated by the commission

or regional commission,” CDP’s are required for improvements

that would increase the internal floor area of an existing

structure by 10 percent or more, improvements of 10 percent or

less where an improvement to the structure had previously been

undertaken pursuant to section 30610, subdivisions (a) or (b), and

increases in height by more than 10 percent of existing



3 Subdivision (b)(1) of sections 13250 and 13253 of title 14 of

the California Code of Regulations provides that CDP’s are

required for all improvements to a single-family structure located

on a beach, wetland, seaward of the mean high tide line, on

environmentally sensitive habitat area, an area designated as

highly scenic in a LUP, or within 50 feet of the edge of a coastal

bluff.

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structures. (Italics added.) With respect to existing single-family

residences in the specific areas described above, CDP’s are also

required for any significant non-attached structures such as

garages, fences, shoreline protective works, or docks. (Cal. Code

Regs., tit. 14, § 13250, subd. (b)(4).) The plain language of the

regulation makes clear that the 10 percent limitation applies only

to property within a certain proximity to the sea or in a

designated scenic resource area. Venice Coalition points to no

language in the regulations or elsewhere limiting the size of

improvements to structures in other parts of the coastal zone.

Furthermore, the language of these regulations, which

were enacted to carry out the provisions of section 30610,

subdivision (a), confirms that the Coastal Act contemplates that

improvements to existing structures would include additions.

Were it otherwise, the regulations would disallow all

improvements that increase the size of an existing structure

rather than limiting those in certain specified coastal areas to

less than 10 percent. Finally, Charles Posner, Supervisor of

Planning for the Coastal Commission, stated in a sworn

declaration that Commission staff approves the City’s issuance of

exemptions for additions to existing structures.

With respect to demolitions ordered as part of a nuisance

abatement order, Venice Coalition does not argue this issue on

appeal. Nonetheless, we agree with the trial court’s

determination that no provision of the Coastal Act limits the

City’s power to abate nuisances and order demolition of unsafe or

substandard conditions. To the contrary, the Coastal Act

explicitly provides that no provision in the Act can limit “the

power of any city or county or city and county to declare, prohibit,

and abate nuisances.” (§ 30005, subd. (b).)

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Venice Coalition also argues on appeal that the City fails to

provide notice of many of the exemptions in violation of the

Coastal Act. Venice Coalition did not, however, raise this issue in

the trial court, nor did they include the underlying facts to

support this allegation in their separate statement of facts

opposing summary judgment. We therefore decline to address

the issue here. (City of San Diego v. Rider (1996)

47 Cal.App.4th 1473, 1493 [a party waives a new theory on

appeal when it fails to include the underlying facts in the

separate statement of facts in opposing summary judgment.].)

F. Fifth Cause of Action: Venice Coalition is Not

Entitled to Injunctive Relief

The trial court granted summary judgment as to the fifth

cause of action for injunctive relief because it was predicated on

the success of the other claims. An injunction is a remedy, not a

cause of action. Therefore, it may not be issued if the underlying

causes of action are not established. (Allen v. City of Sacramento

(2015) 234 Cal.App.4th 41, 65.) As we affirm the court’s grant of

summary judgment as to the first, second, and fourth causes of

action, we also affirm the court’s grant of summary judgment as

to the fifth cause of action.

The judgment is affirmed. The parties are to bear their

own costs on appeal.