The opinion
Filed 10/1/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WESTSIDERS OPPOSED TO B285458
OVERDEVELOPMENT,
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No. BS165955)
CITY OF LOS ANGELES et al.,
Defendants and Respondents;
PHILENA PROPERTIES, L.P., et
al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard A. Fruin, Judge. Affirmed.
Venskus & Associates, Sabrina Venskus, and Elise Cossart-
Daly for Petitioner and Appellant.
Michael N. Feuer, City Attorney, Terry Kaufmann-Macias,
Assistant City Attorney, John Fox and Leonard P. Aslanian,
Deputy City Attorneys; Remy Moose Manley, LLP, Sabrina
Teller, and Nathan George for Respondents.
Alston & Bird, Edward I. Casey, Andrea S. Warran and
Max Rollens for Real Parties in Interest.
__________________________
Appellant Westsiders Opposed to Overdevelopment
(Westsiders) appeals the trial court’s denial of its petition for writ
of mandate seeking to invalidate an amendment to the Los
Angeles General Plan (General Plan). The City of Los Angeles
(City) had amended the General Plan to change the land use
designation of a five-acre development site from Light Industrial
to General Commercial. The project at issue involves a mixed-
use development close to a new light rail station.
Westsiders challenges the denial of its writ petition
contending: (1) the City Charter (Charter) bars the amendment
of the General Plan for a single project site; (2) the Charter also
bars the City from allowing a member of the public to initiate an
amendment; (3) the City failed to make required findings when it
amended the General Plan; and (4) the amendment constituted
impermissible spot zoning. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Project
In August 2013, Dana Martin, Jr., Philena Properties, L.P.
and Philena Property Management, LLC (collectively, Philena)
filed a land use permit application with the City. The project at
issue involved the demolition of an automobile dealership located
at the intersection of South Bundy Drive and West Olympic
Boulevard, and the construction of 516 residential units, 99,000
square feet of retail floor area, and 200,000 square feet of office
floor area.
That same month the City Director of Planning signed a
form “initiat[ing] the plan amendment(s) as requested” by
Philena. Project approval required an environmental impact
report, an amendment to the General Plan changing the land use
designation of the Project site from Light Industrial to General
2
Commercial, a zoning change, several conditional use permits,
and a development agreement between the City and Philena.
The City’s environmental impact report concluded that the
Project was “consistent with applicable land use policies” adopted
by the planning organization for Southern California. Those
policies emphasized “focusing growth in existing and emerging
centers and along major transportation corridors, creating
significant areas of mixed-use development and walkable
communities, targeting growth around existing and planned
transit stations, and preserving existing open space and stable
residential area.”
In December 2015, the City issued its final environmental
impact report. The following spring, the City’s Advisory Agency
certified the environmental impact report. In June 2016, the City
Planning Commission approved the requested land use
entitlements, and recommended that the City adopt an ordinance
authorizing the development agreement between the City and
Philena. In September 2016, the City Council approved the
General Plan amendment and the project.
2. The Petition for Writ of Mandate
The following month, in October 2016, Westsiders filed a
petition for writ of mandate challenging the General Plan
amendment.
Westsiders challenged the amendment under City Charter
section 555 subdivisions (a) and (b) (Sections 555(a) and 555(b)).1
1 Section 555 provides in part:
“Procedures pertaining to the preparation, consideration,
adoption and amendment of the General Plan, or any of its
elements or parts, shall be prescribed by ordinance, subject to the
requirements of this section.
3
Section 555(a) provides, among other things, that the City may
amend the General Plan “by geographic area” when the “area
involved has significant social, economic or physical identity.”
Section 555(b) provides that amendments may be initiated by the
Council, the City Planning Commission or the Director of
Planning.
Westsiders argued that the General Plan could not be
amended for a “single project or single parcel” because such a
small piece of land could not qualify as a “geographic area” with
“significant social, economic or physical identity” as required by
Section 555(a). Westsiders also argued that the City had
effectively allowed Philena to “initiate” the amendment in
violation of the Section 555(b).2
(a) Amendment in Whole or in Part. The General Plan
may be amended in its entirety, by subject elements or parts of
subject elements, or by geographic areas, provided that the part
or area involved has significant social, economic or physical
identity.
(b) Initiation of Amendments. The Council, the City
Planning Commission or the Director of Planning may propose
amendments to the General Plan. The Director of Planning shall
make a report and recommendation on all proposed
amendments. Prior to Council action, the proposed amendment
shall be referred to the City Planning Commission for its
recommendation and then to the Mayor for his or her
recommendation.”
2 The petition also challenged the City’s compliance with the
California Environmental Quality Act (CEQA) and its approval of
the development agreement for the Project. The CEQA cause of
action was dismissed and is not at issue on appeal. Westsiders
does not directly challenge the City’s approval of the development
agreement itself in this appeal, but argues that if the general
4
Following a hearing on the merits, the trial court denied
the petition on the following grounds: “1. The City did not exceed
its authority under L.A. Charter § 555 or abuse its discretion in
approving the General Plan Amendment for the project at issue
in this matter (“Project”). [¶] 2. The City did not exceed its
authority under L.A. Charter Section 555 or abuse its discretion
in the initiation of the General Plan amendment for the Project.”
The court also denied Westsiders’s request for judicial
notice of two items of purported legislative history of Section
555(a): (1) a 1969 sample ballot and voter’s pamphlet “showing
proposed amendments to an earlier provision in the City
Charter,” and (2) “a portion of a Los Angeles City Council official
action referring four motions and a proposal of the Building
Industry Association to the City Planning Commission for
recommendation on a proposed ordinance to halt the issuance of
building permits.” The trial court concluded that the
“interpretation of City Charter section 555(a) does not require [a]
review of legislative history,” and the subject exhibits “refer to
earlier provisions in the City Charter rather than to section
555(a).”
Judgment was entered on August 7, 2017, and Westsiders
timely appealed.
DISCUSSION
1. Applicable Law
a. Writ of Mandate
Westsiders’s appeal challenges the City’s amendment of the
General Plan. The “adoption of any amendment to [a general]
plan or any part or element thereof is a legislative act which shall
plan amendment was invalid so, too, was the approval of the
development agreement.
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be reviewable pursuant to Section 1085 of the Code of Civil
Procedure.” (Gov. Code, § 65301.5.) “A traditional writ of
mandate under Code of Civil Procedure section 1085 is a method
for compelling a public entity to perform a legal and usually
ministerial duty.” (Klajic v. Castaic Lake Water Agency (2001)
90 Cal.App.4th 987, 995, fn. omitted.) By contrast, “the purpose
of an administrative mandamus proceeding, under [Code of Civil
Procedure] section 1094.5, is to review the final adjudicative
action of an administrative body.” (Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802, 808.)
Westsiders contends that its challenge should be reviewed
under Code of Civil Procedure section 1094.5, because the City’s
amendment applied only to Philena’s property and not to the
“entire community.” In support of this argument, Westsiders
cites to several cases that predate the enactment of Government
Code section 65301.5; Westsiders does not address how those
cases can be squared with the more recent statute. (See, e.g.,
Horn v. County of Ventura (1979) 24 Cal.3d 605; Mountain
Defense League v. Board of Supervisors (1977) 65 Cal.App.3d 723;
Patterson v. Central Coast Regional Com. (1976) 58 Cal.App.3d
833.) We agree with respondent that, under Government Code
section 65301.5, a general plan amendment is reviewable under
Code of Civil Procedure section 1085, as a legislative act.
b. General Plan
“The Legislature has required every county and city to
adopt ‘a comprehensive, long-term general plan for the physical
development of the county or city. . . .’ [Citation.] A general plan
provides a ‘ “charter for future development” ’ and sets forth a
city or county’s fundamental policy decisions about such
development.” (Friends of Lagoon Valley v. City of Vacaville
(2007) 154 Cal.App.4th 807, 815.)
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The general plan consists of a “ ‘ “statement of development
policies . . . setting forth objectives, principles, standards, and
plan proposals.” ’ ” (Fonseca v. City of Gilroy (2007)
148 Cal.App.4th 1174, 1182.) “ ‘The adoption or amendment of a
general plan is a legislative act. (Gov. Code, § 65301.5.) A
legislative act is presumed valid, and a city need not make
explicit findings to support its action. [Citations.] A court cannot
inquire into the wisdom of a legislative act or review the merits of
a local government’s policy decisions. [Citation.] Judicial review
of a legislative act under Code of Civil Procedure section 1085
[writ of mandate] is limited to determining whether the public
agency’s action was arbitrary, capricious, entirely without
evidentiary support, or procedurally unfair. [Citations.]’
[Citation.]” (San Francisco Tomorrow v. City and County of San
Francisco (2014) 229 Cal.App.4th 498, 509 (San Francisco).)
c. City Charter
“A ‘charter city may not act in conflict with its charter’
[citation] and ‘[a]ny act that is violative of or not in compliance
with the charter is void.’ ” (Don’t Cell Our Parks v. City of San
Diego (2018) 21 Cal.App.5th 338, 349 (Cell).) “A City Charter
operates as a limitation or restriction over all the municipal
affairs which the City is assumed to possess; it is not a grant of
power, and the enumeration of powers therein does not constitute
an exclusion or limitation on the City’s authority. Restrictions on
the City’s powers may not be implied; unless the Charter
expressly prohibits it from exercising its authority in a manner
not otherwise limited by state or federal law, the City retains the
power to do so.” (Social Services Union v. City and County of San
Francisco (1991) 234 Cal.App.3d 1093, 1101 (Social Services).)
7
“The principles of construction that apply to statutes also
apply to the interpretation of charter provisions. [Citation.] ‘In
construing a provision adopted by the voters our task is to
ascertain the intent of the voters.’ [Citation.] ‘We look first to
the language of the charter, giving effect to its plain meaning.
[Citation.] Where the words of the charter are clear, we may not
add to or alter them to accomplish a purpose that does not appear
on the face of the charter or from its legislative history.’
[Citation.]” (Cell, supra, 21 Cal.App.5th at p. 349.)
Additional rules of statutory construction apply specifically
to the interpretation of city charters. The controlling principle
governing charter cities is “that by accepting the privilege of
autonomous rule the city has all powers over municipal affairs,
otherwise lawfully exercised, subject only to the clear and explicit
limitations and restrictions contained in the charter. . . . All
rules of statutory construction as applied to charter provisions
[citations] are subordinate to this controlling principle. . . . A
construction in favor of the exercise of the power and against the
existence of any limitation or restriction thereon which is not
expressly stated in the charter is clearly indicated. So guided,
reason dictates that the full exercise of the power is permitted
except as clearly and explicitly curtailed. Thus in construing the
city’s charter a restriction on the exercise of municipal power may
not be implied.” (City of Grass Valley v. Walkinshaw (1949)
34 Cal.2d 595, 598–599 (italics added) (Walkinshaw); Domar
Electric, Inc. v. City of Los Angeles (1994) 9 Cal.4th 161, 171
(Domar) [All limitations not explicitly stated in a city’s charter
“are construed in favor of the exercise of the power over
municipal affairs.”].)
8
“Construing a city charter is a legal issue we review de
novo.” (Cell, supra, 21 Cal.App.5th at pp. 349–350.) However, in
“reviewing an agency’s interpretation of law we exercise our
‘ “independent judgment . . . , giving deference to the
determination of the agency appropriate to the circumstances of
the agency action.” ’ ” (Id. at p. 350.) The City’s interpretation of
its own charter is “entitled to great weight and respect unless
shown to be clearly erroneous” and “must be upheld if it has a
reasonable basis.” (Social Services, supra, 234 Cal.App.3d at
p. 1101.)
2. Interpreting Charter Section 555(a)
Westsiders contends that the City’s amendment to the
General Plan—changing the Project site’s land use designation
from Light Industrial to General Commercial—was prohibited by
Section 555(a) of the Charter. Westsiders’s argument hinges on
the following Charter language: “The General Plan may be
amended in its entirety, by subject elements or parts of subject
elements, or by geographic areas, provided that the part or area
involved has significant social, economic or physical identity.”
(§ 555(a), italics added.) Here, the City found that the Project
Site was a “geographic area” with a “unique physical and
economic identity.”
According to Westsiders, the Project site could not qualify
as a geographic area with significant social, economic or physical
identity because it is a “single lot of land.” Westsiders argues
that the plain meaning of “geographic area” is a “region,” and a
“single lot or small lot of land is not a region.”
In interpreting the language of Section 555(a), we start
with the plain meaning, and construe the words in context.
(Domar, supra, 9 Cal.4th at pp. 171–172; Lungren v. Deukmejian
(1988) 45 Cal.3d 727, 735.) Section 555(a) sets forth three ways
9
the General Plan may be amended: (1) in its entirety; (2) by
subject elements or parts of elements; or (3) by geographic area.
The parties and we address only the third of these categories.
The term “geographic area” refers to physical locations governed
by the General Plan: “geography” is the “study of the physical
features of the earth,” and “area” is a “region.” (Oxford English
Dictionary<http://en.oxforddictionaries.com/definition /geography
[as of September 26, 2018]; http://en.oxforddictionaries.com/
definition/area> [as of September 26, 2018].) The term
“geographic area,” therefore, refers to a physical region.
Westsiders argues that the term “geographic area” means a
land area of a certain size larger than a single lot. However,
Section 555(a) does not limit the amendment process to a
minimum area or number of parcels. Mindful of the rule that we
cannot construe a charter to restrict municipal power without
clear mandate in the charter itself (Walkinshaw, supra, 34 Cal.2d
at p. 599), we conclude there are no “clear and explicit limitations
[or] restrictions” in Section 555(a) regarding the size of the
“geographic area” that may be the subject of an amendment. We
are prohibited from implying any such limitation or restriction on
the City’s exercise of its power to govern municipal matters. (Id.
at pp. 598–599.) Because the intent of the voters can be
determined from the plain meaning of Section 555(a), we need
not consider legislative history.3
Westsiders next argues that a single lot cannot qualify as
having a “significant social, economic, or physical identity” within
the meaning of Section 555(a), and, therefore, cannot be the
subject of an amendment to the General Plan. To the extent that
3 Westsiders’s requests for judicial notice are denied except
as to the Charter and General Plan.
10
Westsiders’s argument is based on the proposition that this
phrase implies a size limitation as to the geographic area at
issue, as stated above, we are not empowered to read any
limitation or restriction into the Charter that is not clearly and
explicitly stated.
As to Westsiders’s specific contention that the Project site
“cannot” meet this criteria because a “car dealership in West Los
Angeles is simply not that special,” we disagree. There are no
categorical limitations written into Section 555(a) for car
dealerships in certain parts of the City or any other kind of
development. More fundamentally, this argument fails to
address the City’s analysis of the Project site’s identity based on
the proposed construction: the City found that the site was one of
the largest underutilized sites in the area, and that the Project
would provide the first major transit-oriented development in
West Los Angeles.4 Although Westsiders argues that “the
potential future uses” of the lot are “irrelevant to the
requirements of Section 555,” it does not cite to any authority in
support of this proposition. We conclude the City satisfied the
“significant social, economic, or physical identity” test.
Westsiders suggests that if we affirm the trial court, our
decision would be tantamount to concluding that the General
Plan may as a matter of course be amended on a lot by lot basis.
Our opinion says nothing of the sort. We conclude only that, in
this particular instance, the Project site, which happens to be a
single lot, fell within the definition of a geographic area with
4 The Project is within walking distance (approximately 500
feet) from a Metro line light rail station.
11
significant social, economic or physical identity. Not every lot
will meet the Charter’s requirement.
3. Interpreting Charter Section 555(b)
Westsiders next argue that the City violated Section 555(b)
of the Charter by allowing Philena to initiate the amendment to
the General Plan. Section 555(b) provides: “Initiation of
Amendments. The Council, the City Planning Commission or
the Director of Planning may propose amendments to the
General Plan.” Westsiders points out that Philena’s land use
permit application asked the City to change the designation of
the Project site from Light Industrial to General Commercial.
This, Westsiders contends, violated Section 555(b) because it
amounted to a private party (Philena) “initiating” an amendment
in direct contravention of the Charter.5 However, Section 555(b)
contains no “clear and explicit limitations [or] restrictions” as to
who may request an amendment. After Philena filed a land use
permit application requesting an amendment, the record shows
that the Director of Planning then signed a form “initiat[ing] the
plan amendment(s) as requested by the
Applicant/Representative.”
Section 555(b) does not prohibit the City from receiving
requests for amendments that the City might consider in
deciding whether to initiate the process to amend the General
Plan. The plain language of Section 555(b) states only that the
“Council, the City Planning Commission, or the Director of
5 At oral argument, Westsiders’s counsel accused a City
official of corruption, and argued that the Director of Planning
only initiated the amendment because of a donation to the
official’s favorite charity. Counsel makes this serious accusation
without citing to any supporting evidence in the record.
12
Planning” may “propose” an amendment; it does not place any
limitation on whether a private party may request the City’s
consideration. We decline to read the term “initiation” in the title
of Section 555(b) or “propose” in the body of the section as
meaning that the seed for any proposed amendment must sprout
in the heads of City officials without any input from private
citizens. Any other result would stifle public participation in
public land use decision-making.
Westsiders has not shown that the City violated the
Charter by amending the General Plan for the project.
4. The City Was Not Required to Make Explicit Findings
Westsiders next argues that the City never made the
required findings that the lot constituted a “geographic area” or
that “the lot has a significant economic or physical identity.”
Westsiders does not cite to any authorities in support of this
argument. In fact, the City is not required to make explicit
findings to support the amendment of the General Plan, as the
amendment is a legislative act. (San Francisco, supra,
229 Cal.App.4th at p. 509.) Nevertheless, the City did make
explicit findings that the lot had a “unique physical and economic
identity in that it represents a transit-oriented district that
pursuant to the General Plan should be planned for a higher
density, transit oriented mixed-use development that reduces
vehicle trips and provides greater housing and local amenities to
the neighborhood. The physical identity of the site is unique in
that it is one of the largest, underutilized parcels in the area,
within a quarter mile of a light rail station, with street frontages
at the corner of a major intersection which allows it to serve as a
neighborhood hub unlike other parcels in the area with smaller
areas and less street frontage.”
13
Although the City used “unique” instead of “significant” in
discussing the site’s “physical and economic identity,” its analysis
clearly shows that it found that the proposed development
possessed significant physical and economic characteristics.
Westsiders next argues in one sentence that “the City’s
finding that the Project site has a ‘unique’ economic and physical
identity is not supported by the evidence,” and cites to 8,000
pages of the administrative record. We decline to address this
contention further given that it is supported neither by argument
nor specific citation to the record.6 (See Kim v. Sumitomo Bank
(1993) 17 Cal.App.4th 974, 979.)
5. Westsiders Waived Its Spot Zoning Argument
Westsiders contends the amendment for the project
resulted in unlawful spot zoning because the project “is not the
result of a substantial public need.”7 Specifically, Westsiders
argues there is no evidence supporting the City’s finding that
6 As to Westsiders’s argument that Code of Civil Procedure
section 1094.5 required the City to “ ‘bridge the analytic gap
between the raw evidence and ultimate decision or order,’ ” citing
to Topanga Assn. for a Scenic Community v. County of Los
Angeles (1974) 11 Cal.3d 506, this proposition does not apply to
legislative acts. (See Board of Supervisors v. California Highway
Commission (1976) 57 Cal.App.3d 952, 961 [holding that Topanga
did not apply to the agency’s quasi-legislative action].)
7 The “creation of an island of property with less restrictive
zoning in the middle of properties with more restrictive zoning is
spot zoning. . . . [S]pot zoning may or may not be impermissible
. . . . ‘The rezoning ordinance may be justified, however, if a
substantial public need exists . . . .’ ” (Foothill Communities
Coalition v. County of Orange (2014) 222 Cal.App.4th 1302,
1314.)
14
“the Project will provide housing that is affordable for individuals
who are employed in the majority of jobs in West Los Angeles,” or
“that individuals that would live in the Project would work
nearby.”
Westsiders did not raise this argument in the trial court.
“ ‘It is well established that issues or theories not properly raised
or presented in the trial court may not be asserted on appeal, and
will not be considered by an appellate tribunal. A party who fails
to raise an issue in the trial court has therefore waived the right
to do so on appeal. [Citations.]’ ” (Bhatt v. State Dept. of Health
Services (2005) 133 Cal.App.4th 923, 933 [affirming the denial of
a petition for writ of mandamus].) We, therefore, do not consider
this argument.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. DUNNING, J. *
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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