Filed 11/18/14 W. Chandler Blvd. Neighborhood Assn. v. City of Los Angeles CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
WEST CHANDLER BLVD. B253639
NEIGHBORHOOD ASSOCIATION et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BS139559)
v.
CITY OF LOS ANGELES,
Defendant and Respondent;
CHABAD OF THE VALLEY; CHABAD
OF NORTH HOLLYWOOD,
Real Parties in Interest.
APPEAL from a judgment of the Superior Court of Los Angeles County,
James C. Chalfant, Judge. Affirmed.
Law Offices of Noel Weiss and Noel W. Weiss; Law Offices of Mark Shipow
and Mark S. Shipow for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Terry P. Kauffman-Macias and
Tayo A. Popoola, Deputy City Attorneys, for Defendant and Respondent City of Los
Angeles.
Jeffer, Mangels, Butler & Mitchell, Benjamin M. Reznik and Matthew D.
Hinks for Real Parties in Interest.
This is the second time these parties are before us in an appeal by the West
Chandler Boulevard Neighborhood Association, Mitchell Ramin and Jeff Gantman
(collectively appellants) from a denial of a petition for writ of administrative
mandate (Code Civ. Proc., § 1094.5). 1 In the prior appeal (West Chandler
Boulevard Neighborhood Assn. v. City of Los Angeles (2011) 198 Cal.App.4th
1506 (West Chandler I)), we held that in overturning the decisions of a zoning
administrator that imposed restrictions on a conditional use permit (CUP) and
parking variance for a proposed expansion of a synagogue owned by real parties in
interest Chabad of the Valley, Inc., and Chabad of North Hollywood (collectively
Chabad), respondent the City of Los Angeles (the City) failed to comply with the
Los Angeles City Charter (L.A. Charter), the Los Angeles Municipal Code
(LAMC or Municipal Code), and Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506 (Topanga). We therefore reversed the
trial court’s denial of appellants’ petition for writ of administrative mandamus, and
remanded the matter with directions that the “city council . . . comply with the
requirements of the Municipal Code and Topanga in reviewing the zoning
administrator’s decisions on the CUP and variance.” (West Chandler I, supra, 198
Cal.App.4th at p. 1523.)
Following remand, the city council again overturned the zoning
administrator’s decisions on the CUP and variance, and granted Chabad permission
to build an extensive expansion of the synagogue. The trial court denied
appellants’ petition for writ of mandate challenging the City’s action, finding that
the city council did not abuse its discretion. In this second appeal from a denial of
administrative mandate, appellants contend that: (1) the City had no jurisdiction to
1
Any undesignated statutory references are to the Code of Civil Procedure.
2
approve a project that was not first presented to the zoning administrator;
(2) substantial evidence does not support the City’s reversal of the zoning
administrator’s factual findings; (3) the City failed to “set forth findings to bridge
the analytical gap between the raw evidence and the ultimate decision or order,” as
required by Topanga, supra, 11 Cal.3d at page 515 and West Chandler I, supra,
198 Cal.App.4th at pages 1521-1522; and (4) the City improperly refused to
remand the matter to the zoning administrator to consider new evidence offered by
appellants. We are not persuaded by these contentions, and affirm the trial court’s
denial of the writ.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Prior Appeal
The following facts are taken from our prior opinion.
“Chabad has operated a synagogue since 1981 in a 1,500-square-foot one-
story building, located at 13079 West Chandler Boulevard, in an R-1 zoned
residential community. The property is triangular, bounded by three streets, and is
approximately 9,568 square feet in area.
“In 1981, the City granted Chabad a CUP and parking variance, allowing it
to use the property to operate a Jewish synagogue with a congregation of
approximately 45 people and to maintain only seven parking spaces instead of the
20 spaces that would have been required based on the size of the assembly space.
By 2007, the congregation had grown to about 200 people.
“In March 2007, Chabad applied to the City for permission to demolish the
one-story building and build a 16,100-square-foot three-story building. Chabad
sought a variance to allow a building height of 45 feet instead of 36 feet and a
3
parking variance to allow five parking spaces instead of the requisite 83 spaces.
[¶] . . .
“On November 25, 2008, the City zoning administrator approved aspects of
Chabad’s proposal, under numerous terms and conditions. As pertinent here, the
zoning administrator approved a CUP for Chabad to build a religious facility in the
R-1 zone, but she limited the facility to 10,300 square feet and required a minimum
of 40 percent of the square footage to be at basement level. She denied a variance
to permit a building height of 37 feet rather than 33 feet, or 28 feet for a roof with a
slope less than 25 percent. She limited the assembly space to 2,400 square feet and
so approved a parking variance to provide five parking spaces instead of the 68
required for an assembly space of that size. Chabad had proposed an assembly
space of 3,654 square feet, which would have required 104 parking spaces. The
zoning administrator imposed numerous other conditions, such as limiting the
hours of operation to 7:00 a.m. to 10:00 p.m.
“Appellants appealed to the South Valley Area Planning Commission
(Planning Commission), raising concerns such as the size of the building, the
exacerbation of already existing problems with traffic, noise, and parking, and the
inconsistency of the proposed building with the residential neighborhood. Chabad
also appealed, asking for permission to build a building totaling 18,049 square feet,
with hours of operation from 6:30 a.m. to 11:00 p.m., and seeking other
modifications to the project.
“The Planning Commission held a hearing on February 12, 2009, at which it
granted appellants’ appeal and denied Chabad’s appeal. At the hearing, the
commissioners expressed concern with parking and with the size of the building
relative to the lot. The Planning Commission found that the project was much too
large for the size of the lot, would be materially detrimental to the character of the
4
neighborhood, and would not be in harmony with the City’s general plan. It
further found that there was insufficient parking for the facility, despite the
religious ban on driving on certain days, noting that there would be numerous
events with high attendance and no driving restrictions. The Planning Commission
found that the parking variance was not necessary for the preservation and
enjoyment of the use, reasoning that other Chabad facilities in the area were much
smaller but had more parking spaces than the five allowed in this case. The
Planning Commission also expressed concern that the proposal for offsite parking
was inadequate.
“On June 16, 2009, the Los Angeles City Council voted to assert jurisdiction
over the Planning Commission’s decision under sections 245 and 562 of the L.A.
Charter and scheduled a hearing. (See L.A. Charter, §§ 245, 562.) Prior to the
June 19, 2009, hearing, Chabad worked with Councilmember Jack Weiss to
develop a compromise proposal.
“At the city council hearing, after the public comment portion was closed,
Councilmember Weiss set forth the proposal and circulated it to the other council
members. . . . The city council voted to approve the proposal, thus denying
appellants’ appeal to overturn the zoning administrator’s decision and granting
Chabad’s appeal to modify the zoning administrator’s decision. Although the city
council members asked a few questions of the Chabad representative, there was no
opportunity at the hearing for appellants to address the proposal. The proposal
approved by the city council granted Chabad a CUP to build a 12,000 square foot
building, 28 feet high, with 20 percent of the building in the basement, and five
parking spaces. The assembly space was now 3,370 square feet instead of 2,400
square feet, with a maximum occupancy of 200 people.” (West Chandler I, supra,
198 Cal.App.4th at pp. 1509-1511.)
5
Appellants filed a petition for writ of mandate in the superior court, which
was denied. On appeal, we concluded that the city council abused its discretion by
failing to follow the requirements of the Municipal Code that it “base its decision
only on the evidence and findings of the zoning administrator and to modify the
zoning administrator’s decision only by setting forth specifically the manner in
which the zoning administrator erred. [Citation.]” (West Chandler I, supra, 198
Cal.App.4th at p. 1518.) We further held that the city council failed to fulfill the
requirement that it “‘set forth findings to bridge the analytic gap between the raw
evidence and ultimate decision or order.’ [Citation.]” (Ibid., citing Topanga Assn.
for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506
(Topanga).) We therefore reversed the denial of the writ petition.
2. The Current Appeal
On remand, the trial court issued a writ of mandate, directing the City to set
aside its June 2009 decision and reconsider its decision in compliance with the
Municipal Code and Topanga. The City filed a return to the writ, stating that it
had set aside its decision and referred the matter to the Planning and Land Use
Management Committee (PLUM Committee), pursuant to L.A. Charter section
245. The return indicated that a public hearing by the PLUM Committee was
scheduled for June 26, 2012, and the city council was scheduled to consider the
matter on June 27, 2012.
At the public hearing, the PLUM Committee adopted additional findings
submitted by Chabad. The findings adopted by the PLUM Committee were that
the zoning administrator abused her discretion in four aspects in modifying
Chabad’s proposal: “1. The massing of the facility; [¶] 2. The size of the
requested assembly/worship space; [¶] 3. The requested yard adjustments; and
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[¶] 4. The parking variance associated with the reduced facility and
assembly/worship space.”
The PLUM Committee recommended that the city council grant in part and
deny in part Chabad’s appeal and deny appellants’ appeal from the zoning
administrator’s decision. The city council conducted a public hearing and adopted
the recommendation of the PLUM Committee in full, with one modification.
Appellants filed another petition for writ of mandate and a complaint to
abate an ongoing public nuisance. At the hearing on these matters, the trial court
expressed its belief that the zoning administrator’s decision was correct. The court
further reasoned that the zoning administrator and the Planning Commission were
“the experts, and we don’t want politics to intrude in City Council review of these
decisions.” Nonetheless, the court reasoned that it was not entitled to “substitute
[its] judgment that the Zoning Administrator was right for the City Council’s
judgment.” The court therefore denied the petition. Appellants dismissed their
cause of action regarding a public nuisance, and the trial court entered judgment in
favor of Chabad.
DISCUSSION
I. Standard of Review
Given the administrative procedural context in which this case arises, it is
important to focus on the decision that is the subject of our review. That decision
is not the decision of the zoning administrator. Rather, it is the decision of the city
council – the final administrative decision-maker. (See City of Fillmore v. Board
of Equalization (2011) 194 Cal.App.4th 716, 726 [“A court may review only a
decision by the final administrative decision maker.”]; § 1094.5, subd. (a) [writ
review inquires “into the validity of any final administrative order or decision
7
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” (italics added).]
As we have explained, the zoning administrator made the initial decision to
grant a CUP and parking variance, albeit on terms more limited than those sought
by Chabad. (West Chandler I, supra, 198 Cal.App.4th at p. 1510.) Following an
appeal to the planning commission, which overturned the zoning administrator’s
decision and denied a CUP and variance (id. at p. 1510-1511), the city council
assumed jurisdiction over the matter as permitted by section 245 of the City
Charter. (Id. at p. 1511.) The city council then reversed the zoning administrator,
and issued a less restrictive CUP and variance than granted by the zoning
administrator.
Under section 245 of the City Charter, the city council had the same
authority as the planning commission to reverse or modify the zoning
administrator’s decision. (West Chandler I, supra, 198 Cal.App.4th at pp. 1515-
1516.) As to both the CUP and the variance, that authority was, in substance, to
determine whether the zoning administrator abused her discretion, and to reverse
or modify the zoning administrator’s decision, based on factual findings supported
by evidence in the record presented to the zoning administrator. Thus, as to the
CUP, the Municipal Code gave the planning commission, and hence the city
council, the power (1) to determine, based on a review of the record, whether the
zoning administrator abused her discretion (id. at p. 1514, citing LAMC, § 12.24,
subd. I.3), and (2) to reverse or modify the zoning administrator’s decision, with
the limitation that “‘any resolution to approve [a CUP] must contain the same
findings required to be made by the initial decision-maker [here, the zoning
administrator], supported by facts in the record’” (id. at p. 1515, quoting LAMC,
8
§ 12.24, subd. I.5).2 Similarly, as to the variance, the Municipal Code gave the
planning commission, and thus the city council, the authority to review the
decision of the zoning administrator, with the limitation (as here relevant) that the
city council’s decision must be based on the evidence presented to the zoning
administrator (West Chandler I, supra, 198 Cal.App.4th at p. 1515, citing LAMC,
§ 12.27, subd. K), and that a reversal or modification of the zoning administrator’s
decision must be supported by “‘written findings setting forth specifically the
manner in which the action of the Zoning Administrator was in error or constituted
an abuse of discretion’” (ibid., quoting LAMC, § 12.27, subd. L).
Given the nature of the city council’s decision-making authority under the
Charter and Municipal Code, the focus of our review is the city council’s factual
findings that reversed the zoning administrator (finding an abuse of discretion) and
that modified her decision by granting the CUP and variance at issue. The level of
our review of the city council’s findings is circumscribed by established law. We
do not examine the record to determine whether the city council’s decision was
more or less reasonable than that of the zoning administrator. Rather, we
determine only whether substantial evidence in the record supports the city
council’s findings that reversed and modified the zoning administrator’s decision.
“[A] court reviewing the grant of a zoning variance ‘must determine whether
substantial evidence supports the findings and whether the findings support the
conclusion that all applicable legislative requirements for a variance have been
2
As here relevant, the findings required to grant a CUP are “‘that the proposed
location will be desirable to the public convenience or welfare, is proper in relation to
adjacent uses or the development of the community, will not be materially detrimental to
the character of development in the immediate neighborhood, and will be in harmony
with the various elements and objectives of the General Plan.’” (Id. at p. 1514, fn. 4,
quoting LAMC, § 12.24, subd. E.)
9
satisfied.’ [Citation.] ‘“In determining whether the findings are supported, ‘[w]e
may not isolate only the evidence which supports the administrative finding and
disregard other relevant evidence in the record. [Citations.] On the other hand,
neither we nor the trial court may disregard or overturn the . . . finding “‘for the
reason that it is considered that a contrary finding would have been equally or
more reasonable.’”’”’ [Citation.] We ‘must afford a strong presumption of
correctness’ to administrative findings. [Citation.] ‘Under the substantial evidence
test, the agency’s findings are presumed to be supported by the administrative
record and the appellant challenging them has the burden to show they are not.’
[Citation.]” (Eskeland v. City of Del Mar (2014) 224 Cal.App.4th 936, 942.)
In short, because we review the findings of the city council for substantial
evidence, we may not overturn the council’s grant of the CUP and variance merely
because the evidence might also support the zoning administrator’s initial decision,
or even because the zoning administrator’s decision seems more reasonable.
Rather, we examine only whether substantial evidence in the record supports the
city council’s findings reversing and modify that decision. (See West Chandler I,
supra, 198 Cal.App.4th at p. 1518 [a court may not overturn an agency’s findings
simply because a contrary finding would have been equally or more reasonable].)
II. Failure to Resubmit the Project to the Zoning Administrator
Appellants contend that the city council exceeded its jurisdiction and abused
its discretion by reapproving the project proposed by Councilman Weiss without
resubmitting it to the zoning administrator. They assert, in substance, that this
process violated our decision in West Chandler I by again relying on matters
10
outside the findings made by, and record presented to, the zoning administrator.3
(See West Chandler I, supra, 198 Cal.App.4th at p. 1518 [explaining that the
relevant portions of the Municipal Code required the city council’s decision to be
based on the record before the zoning administrator]; LAMC, § 12.24, subd. I.3
[“When considering an appeal from the decision of an initial decision-maker [the
zoning administrator], the appellate body [here, the city council] shall make its
decision, based on the record, as to whether the initial decision-maker erred or
abused his or her discretion.”]; LAMC, § 12.27, subd. K [requiring the decision on
appeal to be based only upon evidence introduced at the hearing before the zoning
administrator].)
Appellants misunderstand our prior decision in West Chandler I. We did not
hold that the City was required to resubmit the proposal to the zoning administrator
before approving it. As we explained, the city council assumed jurisdiction over
the Planning Commission’s decision in the appeal from the zoning administrator’s
decisions on the CUP and the variance. In doing so, the city council also assumed
the same authority as the Planning Commission to reverse or modify the zoning
administrator’s decisions on the CUP and variance.4 We held that the Municipal
3
We disagree with respondents’ contention that appellants waived any argument
regarding the sufficiency of the evidence by failing to submit a complete record. The
administrative record contains the relevant evidence, including Chabad’s application and
the decisions of the zoning administrator, the South Valley Area Planning Commission,
the PLUM Committee, and the city council.
4
As we explained, in an appeal to the Planning Commission from a zoning
administrator’s decision on a CUP, the Planning Commission has the authority under
LAMC section 12.24, subdivision I.5, to “reverse or modify the decision of the zoning
administrator, and ‘any resolution to approve [a CUP] must contain the same findings
required to be made by the initial decision-maker, supported by facts in the record.’”
(West Chandler I, supra, 198 Cal.App.4th at p. 1515, citing LAMC, § 12.24, subd. I.5.)
The Planning Commission has similar authority when considering an appeal from a
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Code required the City to base its decision to overturn the zoning administrator’s
findings on the record submitted to the zoning administrator, and also required the
City to set forth specifically how the zoning administrator erred. (198 Cal.App.4th
at pp. 1520-1521.) Further, we held that the City violated Topanga, supra: “By
approving a proposal materially different from that addressed by the zoning
administrator, the city council acted on evidence not in the record before the
zoning administrator and acted without any reference to the zoning administrator’s
findings. The city council’s conclusory findings did not show how the city council
traveled from evidence to action nor indicate how the zoning administrator erred or
abused her discretion.” (198 Cal.App.4th at p. 1522.) We therefore directed that
“[o]n remand, the city council is to comply with the requirements of the Municipal
Code and Topanga in reviewing the zoning administrator’s decisions on the CUP
and variance.” (Id. at p. 1523.) We did not question the authority of the City to
overturn the zoning administrator’s findings and approve a modified project, so
long as the City followed these legal requirements. Thus, appellants are incorrect
in asserting that the City was without authority to overturn the zoning
administrator’s findings and approve the current project without first resubmitting
it to the zoning administrator.
zoning administrator’s decision on a variance; it can “‘reverse or modify the ruling or
decision appealed from only upon making written findings setting forth specifically the
manner in which the action of the Zoning Administrator was in error or constituted an
abuse of discretion.’” (West Chandler I, supra, 198 Cal.App.4th at p. 1515, citing
LAMC, § 12.27, subd. L.) As we also explained, “[u]nder L.A. Charter sections 245,
526, and 563 . . . the city council had authority to review the Planning Commission’s
decision on the CUP and the variance. In doing so, the city council’s authority was the
same as that originally held by the Planning Commission” (West Chandler I, supra, 198
Cal.App.4th at p. 1516), namely, to reverse or modify the zoning administrator’s
decisions on the CUP and variance.
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Appellants contend that the city council did not actually review the
underlying evidence because it simply adopted verbatim the findings proposed by
Chabad. However, the city council’s decision states that the findings are those of
the city council. That Chabad prepared and submitted the proposed findings that
were adopted does not mean that the findings are not the findings of the City. To
the contrary, we presume that the city council made the findings itself. (See Hoitt
v. Department of Rehabilitation (2012) 207 Cal.App.4th 513, 521 (Hoitt) [“It is
presumed that an administrative agency regularly performed its duty.”].)
Moreover, while the City ultimately approved a proposal identical to that
previously approved in West Chandler I, the City’s findings now address the
zoning administrator’s findings and delineate the City’s reasons for disagreeing
with her decision. In doing so, the City relied on the staff report prepared by a
zoning administration staff investigator and the zoning administrator’s decision,
and it specifically stated that it considered the record before the zoning
administrator in making its decision. Thus, appellants’ contention that the City
violated our prior decision by reapproving the same proposal and relying on
evidence not before the zoning administrator is unavailing.
III. Sufficiency of the Evidence to Support the City’s Findings
Appellants contend that the record is insufficient to support the city
council’s findings. We disagree.
A. The City’s Findings
1. Reduction of Square Footage
The city council concluded that the zoning administrator abused her
discretion in three ways. First, the city council found that the zoning administrator
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erred in reducing the square footage of the facility to 10,300 square feet and
requiring 40 percent of the structure to be constructed below grade. The city
council reasoned that the zoning administrator considered inappropriate factors in
deciding to reduce the facility’s square footage, such as the size of nearby single-
family residences and the size of other Chabad facilities in the San Fernando
Valley. The city council found fault with the zoning administrator’s failure “to
sufficiently consider her own finding that institutional structures and single-family
residential homes are not directly comparable.” The city council also cited
evidence that the facility would not abut any private property in finding the zoning
administrator abused her discretion.
The city council further found that the zoning administrator erred in
comparing the requested facility to other nearby Chabad facilities without
considering “the location of the other facilities, the congregations of the other
facilities, or the size and demographics of the areas served by the other Chabad
facilities.” The city council listed the sizes of the other facilities and noted that the
proposed facility was comparable in size to the others. The city council further
pointed out that the size of the other facilities was irrelevant to the needs of the
proposed facility, stating that the proposed facility “is located within an established
Orthodox Jewish neighborhood, which necessarily requires a larger assembly
space.”
The city council found that the zoning administrator also abused her
discretion in requiring that 40 percent of the approved floor area be provided below
grade because this requirement would place too great a financial burden on Chabad
and was unnecessary to “minimize the impact of massing and scale on nearby
neighbors.” The city council cited testimony by Chabad’s representative that
requiring such a large proportion of the requested habitable space to be below
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grade “would represent too great a cost to allow development of the site.” The city
council also reasoned that the impact on the neighborhood was ameliorated by
limiting the height of the proposed structure to 28 feet and by the “unique location
and configuration of the project site.”
2. Size of the Assembly Area
Second, the city council found that the zoning administrator erred in relying
on the size of the assembly area to try to restrict future growth of the congregation,
rather than limiting the maximum number of people allowed to assemble at the
proposed facility. The city council cited the zoning administrator’s findings that
“characteristics of Chabad’s operation would typically not require the number of
parking spaces required by code;” ample street parking was available during hours
observed by staff; the staff report stated that the congregation usually would not
exceed 150-200 people, even though the space could accommodate 338 people; the
staff report indicated that there were off-site parking arrangements with Los
Angeles Valley College. The city council thus found that a modification of the
proposal to allow an assembly area of 3,370 square feet with an occupancy limit of
200 people was warranted. The city council further found that a parking variance,
allowing only five parking spaces, was warranted.
3. Setback
Third, the city council found that the zoning administrator erred in requiring
a 10-foot setback along Ethel Avenue. The city council explained that the location
was a triangular island bounded by two wide streets and by the Los Angeles
County Metropolitan Transportation Authority Orange Busway Line right-of-way,
which “is 100 feet wide and buffered by a 12-foot-tall sound wall.” Because
15
“[t]hese rights-of-way provide significant spatial buffers from residential uses,” the
city council found that the zoning administrator abused her discretion to failing to
take these into account in requiring a 10-foot buffer. The city council further
explained that the residences across Ethel Avenue are separated from the project
site by more than 40 to 60 feet, and those across Chandler Boulevard by more than
150 feet. The nearest structures therefore “already have significant spatial buffers
and access to light and air.” Given the site’s unusual configuration and location, as
well as the denial of the requested height variance, such that the height of the
proposed structure was reduced by nine feet, the city council found that a
shallower setback was warranted. The city council thus permitted varying building
setbacks from 2 to 11 feet along Ethel Avenue and Chandler Boulevard.
4. Modifications of the Project
In order to address the errors it found in the zoning administrator’s decision,
the city council modified the proposed project by: (1) approving 12,000 square
feet of floor area; (2) limiting the height of the proposed structure to 28 feet;
(3) requiring construction of 20 percent of the floor area below grade; (4) requiring
setbacks ranging from 2 to 11 feet on the Ethel Avenue and Chandler Boulevard
frontages; (5) approving a combined worship/assembly space of 3,370 square feet;
(6) limiting the maximum permitted assembly to 200 persons; and (7) maintaining
the parking variance approved by the zoning administrator to allow five on-site
parking spaces rather than the required 96 spaces.
B. Appellants’ Challenges to the City’s Findings
Appellants challenge the City’s findings on several bases. First, appellants
contend that there is no factual support for the City’s finding that the zoning
16
administrator erred in considering the size of nearby residences. True, the facility
is in a residential neighborhood and therefore it is not surprising that the zoning
administrator considered the size of neighborhood residences in assessing the size
of the facility to approve. But in questioning the zoning administrator’s restriction,
the city council cited the zoning administrator’s remark that “any institutional
facility . . . is likely to be approved with a greater square footage than a typical
home,” and found that she had failed to give sufficient consideration to this
observation in restricting the size of the proposed facility. The city council’s point
was that a facility such as the proposed synagogue would typically (and by
necessity) be larger than most neighboring residences by some degree, and the
zoning administrator failed to give adequate weight to that consideration in
restricting the size of the project. The city council further supported its finding that
the zoning administrator abused her discretion by relying on the project site’s
unique location as an “island” bounded on the south by Chandler Boulevard, on the
west by Ethel Avenue, and on the north by a right of way of the Los Angeles
County Metropolitan Transportation Authority for the Orange Line busway. The
city council found it significant that these rights of way provide spatial buffers
from residences and that the project site accordingly was not directly adjacent to
any private property.
The council’s conclusion is not unreasonable. In any event, we may not
overturn the city council’s criticism of the zoning administrator merely because
“‘“a contrary finding would have been equally or more reasonable.”’ [Citations.]”
[Citation.]’ [Citation.]” (West Chandler I, supra, 198 Cal.App.4th at p. 1518.)
Second, appellants contend that the zoning administrator correctly relied on
the size of other Chabad facilities, pointing out that the zoning administrator
carefully analyzed the events at the proposed facility, including factors such as the
17
likely attendance and the ensuing parking and space needs. The City’s finding,
however, was that in relying on the size of other Chabad facilities, the zoning
administrator did not take into consideration the location, congregation size, and
demographics of the other facilities. Considering those factors, the City
determined that the proposed project was not out of line with other Chabad
facilities. It is not unreasonable for the city council to conclude that these factors
are important in comparing other facilities to the proposed project, and that the
zoning administrator’s failure to consider them undercut her comparison between
those facilities and the proposed project. Further, the city council reasonably
pointed out that the size of the other facilities was irrelevant to the needs of the
proposed facility, which “is located within an established Orthodox Jewish
neighborhood, which necessarily requires a larger assembly space.” The city
council concluded that the proposed facility would be “desirable to the public
convenience and welfare, the facility’s location is proper in relation to adjacent
uses, and that the use will not be materially detrimental to the character of the
development of the immediate neighborhood.”
Next, appellants contend that the city council erred in relying on Chabad’s
“need” as a consideration in granting the CUP and the variance, citing sections
12.24, subdivision E and 12.27, subdivision D of the Municipal Code. It is true
that the need of the applicant is not a requisite finding that must be made before
granting a variance or CUP. (See LAMC, §§ 12.24, subd. E, 12.27, subd. D.)5
5
Section 12.24, subdivision E of the Municipal Code sets forth the findings that
must be made before granting a CUP: “1. that 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. that 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. that the
18
However, the Municipal Code does not preclude the consideration of the
applicant’s need in the determination, and we find no legal basis on which to fault
the city council for considering it.
Appellants argue that the record belies the City’s finding that the zoning
administrator’s requirement that 40 percent (approximately 4,000 square feet) of
the structure be below grade would impose a financial hardship on Chabad.
Appellants note that Chabad’s counsel stated at the PLUM Committee hearing that
6,000 square feet already had been built below ground.6 However, that Chabad
was ultimately able to comply with the requirement by building 6,000 square feet
below ground does not mean that the cost to do so was not a hardship in light of
other factors. The City found also that the requirement was unnecessary to
project substantially conforms with the purpose, intent and provisions of the General
Plan, the applicable community plan, and any applicable specific plan.” (LAMC,
§ 12.24, subd. E.)
Section 12.27, subdivision D requires the following findings before approving a
variance: “1. that the strict application of the provisions of the zoning ordinance would
result in practical difficulties or unnecessary hardships inconsistent with the general
purposes and intent of the zoning regulations; [¶] 2. that there are special circumstances
applicable to the subject property such as size, shape, topography, location or
surroundings that do not apply generally to other property in the same zone and vicinity;
[¶] 3. that the variance is necessary for the preservation and enjoyment of a substantial
property right or use generally possessed by other property in the same zone and vicinity
but which, because of the special circumstances and practical difficulties or unnecessary
hardships, is denied to the property in question; [¶] 4. that the granting of the variance
will not be materially detrimental to the public welfare, or injurious to the property or
improvements in the same zone or vicinity in which the property is located; and [¶]
5. that the granting of the variance will not adversely affect any element of the General
Plan. [¶] A variance shall not be used to grant a special privilege or to permit a use
substantially inconsistent with the limitations upon other properties in the same zone and
vicinity. The Zoning Administrator may deny a variance if the conditions creating the
need for the variance were self-imposed.” (LAMC, § 12.27, subd. D.)
6
It appears that the project has been in the midst of construction during these
proceedings.
19
“minimize the impact of massing and scale on nearby neighbors,” and that the
impact on the neighborhood was ameliorated by limiting the height of the proposed
structure to 28 feet and by the “unique location and configuration of the project
site.”
Appellants contend that the facility approved by the zoning administrator
was sufficient to accommodate Chabad’s needs. Perhaps so, but that is not the
standard by which we review the City’s decision. As noted above, we may not
overturn the city council’s finding “‘“for the reason that it is considered that a
contrary finding would have been equally or more reasonable.”’ [Citations.]”
[Citation.]’ [Citation.]” (West Chandler I, supra, 198 Cal.App.4th at p. 1518.)
Similarly, appellants’ contention that the zoning administrator “had good reasons
to impose a size limitation rather than an occupancy limitation,” does not comport
with our standard of review. While the zoning administrator may have had good
reasons to impose a size limitation, the City found that an occupancy limitation
was “[a] more efficient and effective way to control intensification of the use of the
project site.” Considering the facts in the light most favorable to the city council
and resolving all conflicts in its favor (Hoitt, supra, 207 Cal.App.4th at p. 522),
there is no basis to overturn the city council’s finding in that regard.
Finally, appellants take issue with the City’s findings regarding the 10-foot
setback. They contend that the City’s findings presume that the zoning
administrator erroneously failed to consider the shape of the site and the streets
surrounding it. However, appellants misconstrue the City’s finding. The zoning
administrator considered factors such as the shape of the site, the surrounding
streets, the MTA property, and sight lines affected by the setback. In its review,
the City also considered these factors, but came to a different conclusion: that a
smaller setback was sufficient. The city council relied on the widths of the streets
20
bounding the property: Chandler Boulevard is 150 feet wide with a 50-foot-wide
center parkway; Ethel Avenue is 40 feet wide north of Chandler Boulevard and 60
feet wide south of Chandler Boulevard; and the Orange Line busway right-of-way
is 100 feet wide and buffered by a 12-foot-tall sound wall. The City further
reasoned that the setback requirements are “intended to provide adjoining
structures with visual relief, light, and air,” and that these requirements are already
adequately met. The City also found that the zoning administrator abused her
discretion by failing to take into consideration the fact that the triangular shape of
the project site rendered the narrow portion of the property unusable for building.
The City’s conclusion that a smaller setback was sufficient is not unreasonable and
is within the City’s purview to make.
III. Requirements of Topanga
Appellants contend that the City failed under Topanga to bridge the
analytical gap between the limitations imposed by the zoning administrator and the
specifics of its own decision. The contention rests on a misreading of Topanga and
West Chandler I.
Topanga requires that “the agency which renders the challenged decision
must set forth findings to bridge the analytic gap between the raw evidence and
ultimate decision or order.” (Topanga, supra, 11 Cal.3d at p. 515, italics added.)
Topanga does not require the agency to bridge the gap between the initial
factfinder’s decision and the reviewing agency’s decision. Thus, in the prior
appeal, we observed that “the city council’s CUP findings set forth the details of
the project and state that the permit has been granted, with no indication of the
reason for the ultimate decision.” (West Chandler I, supra, 198 Cal.App.4th at p.
1521.) The City merely adopted the proposal with no reference to the evidence
21
discussed by the zoning administrator and no explanation of why it disagreed with
the zoning administrator’s decision. Because we could not “discern the analytic
route the city council traveled from evidence to action,” we held that the City
failed to follow the requirements of Topanga. (Id. at p. 1522.)
The City’s decision now sets forth its specific reasons for disagreeing with
the zoning administrator’s decision, which in turn justify its approval of the project
as modified. We thus are not presented with “‘“mere conclusory findings without
reference to the record . . . . [Citation.]” [Citation.]’ [Citation.]” (West Chandler
I, supra, 198 Cal.App.4th at p. 1521.) Neither Topanga nor West Chandler I
requires the City to justify each specific detail of its decision, such as why it chose
a 12,000 square foot building rather than the 10,300 square foot building approved
by the zoning administrator, or 3,370 square feet of assembly space rather than
2,400 square feet. Rather, the agency’s finding need only be adequate “to enable
the parties to determine whether and on what basis they should seek review and, in
the event of review, to apprise a reviewing court of the basis for the [agency’s]
action.” (Topanga, supra, 11 Cal.3d at p. 514.) Moreover, “‘“where reference to
the administrative record informs the parties and reviewing courts of the theory
upon which an agency has arrived at its ultimate finding and decision[,] it has long
been recognized that the decision should be upheld if the agency ‘in truth found
those facts which as a matter of law are essential to sustain its . . . [decision].”’”
[Citation.]’” (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170
Cal.App.4th 956, 971.) Here, the City’s findings, which refer to the record and
delineate the City’s reasoning process, are clearly sufficient to apprise the parties
and this court on review of the City’s theory for approving the project as modified.
Finally, we acknowledge Topanga’s admonition that “courts must
meaningfully review grants of variances in order to protect the interests of those
22
who hold rights in property nearby the parcel for which a variance is sought. A
zoning scheme, after all, is similar in some respects to a contract; each party
foregoes rights to use its land as it wishes in return for the assurance that the use of
neighboring property will be similarly restricted, the rationale being that such
mutual restriction can enhance total community welfare. [Citations.] If the
interest of these parties in preventing unjustified variance awards for neighboring
land is not sufficiently protected, the consequence will be subversion of the critical
reciprocity upon which zoning regulation rests. [¶] . . . Vigorous judicial review
thus can serve to mitigate the effects of insufficiently independent decision-
making.” (Topanga, supra, 11 Cal.3d at pp. 517-518.)
Nonetheless, we may not overturn the city council’s decision simply because
a contrary decision would have been equally or more reasonable. (West Chandler
I, supra, 198 Cal.App.4th at p. 1518.) Rather, in determining whether the agency’s
findings are supported by substantial evidence and whether these findings support
the agency’s decision, we “‘must resolve reasonable doubts in favor of the
administrative findings and decision.’” (Stolman v. City of Los Angeles (2003) 114
Cal.App.4th 916, 922.) Because the City addressed the evidence before the zoning
administrator and set forth its specific reasons for finding that she abused her
discretion, we conclude that the City’s findings are supported by substantial
evidence and meet the requirements of the Municipal Code and Topanga.
IV. Consideration of Appellants’ New Evidence
Appellants contend that the city council improperly refused to remand the
matter to the zoning administrator for her to consider new evidence. Section
12.27, subdivision K of the Municipal Code allows any aggrieved person to
present new evidence on appeal by filing “a statement as to why that evidence
23
could not reasonably have been presented to the Zoning Administrator. If the [city
council] determines that the evidence could not reasonably have been presented to
the Zoning Administrator and the evidence is of such a nature as might reasonably
have led to a different decision by the Zoning Administrator, the [city council]
shall remand the matter to the Zoning Administrator.”7 (LAMC, § 12.27, subd. K.)
Here, a remand was inappropriate because the proposed new evidence would
not reasonably have led the zoning administrator to a different decision. Indeed,
she already had approved a smaller project than that approved by the city council.
Appellants submitted evidence that, after receiving approval from the city
council, Chabad began advertising new activities to be held at the facility,
including monthly lectures, emergency food and shelter, and street festivals. They
also submitted evidence that, in August 2011, Chabad’s lease of property owned
by the Metropolitan Transportation Authority, which was to be used for an outdoor
playground and daily recreation, changed from a three-year lease to a monthly
lease that can be revoked at any time. They also submitted evidence that, after the
project was approved by the City, Chabad revised its application to include a
request to use publicly-owned property adjacent to its property for a children’s
playground. Chabad also began advertising a rooftop terrace, which had not been
mentioned previously. Appellants presented evidence that Chabad had begun
violating the approved operation hours of 7 a.m. to 11 p.m., advertising a start time
of 6:30 a.m. for some activities and holding events that continued until 1:30 or
2:00 a.m. They presented evidence that Chabad violated construction permit and
7
This section of the Municipal Code addresses an appeal to the Area Planning
Commission, but, pursuant to L.A. Charter, section 245, subdivision (e), the city council
here “steps into the shoes of the planning commission in reviewing the zoning
administrator’s decisions regarding the CUP and the variance.” (West Chandler I, supra,
198 Cal.App.4th at p. 1516.)
24
safety requirements, as well as the off-site parking requirement, submitting
photographs of numerous cars parked on nearby streets during various days of the
week.
In addressing this evidence during the PLUM Committee hearing, the
original zoning administrator stated that she had reviewed the proposed new
evidence, and she concluded that it “really had to do with the scope of the project.
And so what I considered was a much larger project and I think what [the
evidence] is alluding to is the fact that the project that resulted from City Council
was a different project than what I had, but it is within the range of the scope. So,
there’s nothing in there that would have convinced me to change any decision. I
would have probably still . . . proceeded with a smaller scope project.”
Thus, the record shows no basis on which to remand the matter to consider
the new evidence. The evidence was merely cumulative to the evidence already
considered by the zoning administrator in her decision limiting the scope of the
project, and was thus was not “of such a nature as might reasonably have led to a
different decision by the Zoning Administrator.” (LAMC, § 12.27, subd. K.)
25
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
26
W. Chandler Blvd. Neighborhood Assn. v. City of Los Angeles CA2/4
Combined Opinion