C Scott McCosker vs City of Santa Barbara et al
C Scott McCosker vs City of Santa Barbara et al
Case Number
22CV02455
Case Type
Hearing Date / Time
Fri, 05/17/2024 - 10:00
Nature of Proceedings
Writ of Mandate
Tentative Ruling
C. Scott McCosker v. City of Santa Barbara
Case No. 22CV02455
Hearing Date: 5/17/2024
HEARING: Petition for writ of mandamus
ATTORNEYS: David M. Grokenberger / Nathan C. Rogers of Rogers, Sheffield & Campbell, LLP for Petitioner C. Scott McCosker
Sara J. Knecht / Robin L. Lewis / Tava Ostrenger of City Attorney’s Office for Respondents City of Santa Barbara, City Council of the City of Santa Barbara, and City of Santa Barbara Single Family Design Board.
TENTATIVE RULING: The petition is denied.
BACKGROUND: Procedural background The original verified petition and complaint of petitioner C. Scott McCosker, individually and as Trustee of the McCosker Trust dated December 16, 1996 (McCosker) was filed on June 29, 2022. The operative First Amended Petition and Complaint (FAPC) was filed on September 6, 2022. The FAPC alleges causes of action (1) seeking a writ of mandate for violation of CEQA, (2) seeking a writ of mandate alleging prejudicial abuses of discretion by the City of Santa Barbara Single Family Design Board (SFDB) and City Council; (3) violation of procedural and substantive due process, (4) violation of equal protection, and (5) declaratory and injunctive relief.
The FAPC names as respondents and defendants the City of Santa Barbara, the City Council of the City of Santa Barbara, and the City of Santa Barbara Single Family Design Board. It names as Real Parties in Interest Christopher J. Tracy and Roberta D. Tracy, as Trustees of the Declaration of Trust of Christopher J. Tracy and Roberta D. Tracy of 2020, Dated September 16, 2020, Christopher J. Tracy, and individual, and Roberta D. Tracy, an individual (collectively Tracys).
The FAPC is based upon the provision of Project Design Approval by the SFDB, and the City Council’s denial of McCosker’s appeal of the SFDB’s provision of Project Design Approval, to a project proposed to be undertaken by the Tracys to remove a dilapidated detached garage, and construct a new attached garage with a second-story Accessary Dwelling Unit (ADU) on their residential property.
By stipulation and subsequent order executed on June 30, 2023, the trial of the two causes of action for writ of mandate were bifurcated from the remaining causes of action, with the trial of the mandate claims to take place on the administrative record prior to the trial of the remaining claims. By further stipulation and order executed on November 1, 2023, a briefing schedule was set by the parties, and McCosker advised the Court that he had decided not to pursue the first cause of action for alleged violations of CEQA. No dismissal of the first cause of action has been filed by McCosker.
The original hearing date for the trial of the second cause of action seeking issuance of a writ of mandate, stipulated to by the parties, was continued by the Court to May 10, 2024, and again to May 17, 2024, to provide sufficient time for evaluation of the issues raised by the FAPC.
City of Santa Barbara Design Review Process An understanding of the nature and scope of the City of Santa Barbara’s design review process is important to the resolution of this petition.
Construction and improvement projects which are proposed for single family residential properties within the City of Santa Barbara must go through a design review process prior to the ultimate application for and issuance of a building permit.
The City has created a flow chart which helps to illustrate the process from beginning to end. [See AR 1018] The Santa Barbara Municipal Code and other materials in the Administrative Record also show that the review of a project’s design is an intermediate step in the entire application review process.
A. Submission of Master Application, and Planning staff review for completeness.
As reflected in the flow chart, a Master Application is first submitted to the City. While certain plans and information must be submitted with the Master Application, final construction plans are not required at this time. [AR 969]
Initially, City planning staff will review the application for completeness, which includes compliance with zoning and other city requirements and ordinances, conduct of preliminary environmental review, and determination of the appropriate level of design review required by the City. [AR 1018] The staff’s zoning review would include checking a project’s height and its compliance with solar height limitations. When planning staff finds an application complete for Final Approval, this means staff has confirmed that all appropriate information has been provided. [AR 1504:20—1505:6] A finding of completeness by City Planning staff is a major milestone in a project. [AR 1506:19—1507:5]
For more minor projects, only administrative staff review and approval is required and, once final staff approval is granted and the appeal period has expired, the project proceeds to the building permit stage. [AR 1018; SBMC § 2.69.020.K]
B. Single Family Design Board Review
For single family residential projects of greater size or scope, however, no building permit can be sought or issued for the project unless its design has first been approved by the Single Family Design Board (SFDB). [SBMC § 22.69.020 (identifying types of matters whose designs must be reviewed by the Single Family Design Board); AR 1018] As is apparent from its name, the purview of the SFDB is limited to the overall design of the structure and property. Indeed, according to the City’s General Plan, “Santa Barbara has, as its primary goal, the provision of a particularly desirable living environment.” The City recognizes that single family homes have long contributed to the character of many City neighborhoods. The SFDB is charged with the responsibility to ensure homes are completed with high-quality designs that are compatible with the surrounding neighborhood, preserve the City’s visual resources, promote long-term sustainability, and contribute to a desirable living environment. [AR 929, 1013] It is tasked with ensuring that development is compatible in design, material, and size, bulk, and scale within the neighborhood. [AR 1471:8-10]
The SFDB is comprised of five members appointed by the City Council. At least one member must be a licensed architect. Up to three members may be members of the public at large who possess no professional qualifications in the fields related to architecture. The remaining member(s) must possess professional qualifications in fields related to architecture or landscape architecture. [SBMC 22.69.010.B.]
(1) Single Family Residence Design Guidelines
The City has adopted Single Family Residence Design Guidelines (SFRDG), which are general goals that define the major concerns and objectives in the design review process, designed to ensure high design standards are maintained in development and construction in order to further the City Charter’s direction to consider “the preservation and protection as nearly as practicable of the natural charm and beauty of the area in which the City is located and the historical style, qualities and characteristics of the buildings, structures and architectural features associated with and established by its long, illustrious and distinguished past.” [AR 929, 1014]
The purpose of the guidelines is primarily for use as a guide by the homeowner and related design and construction professionals who are designing new single family homes or changing existing houses, to help design homes compatible with the surrounding neighborhood, preserve visual resources, and promote sustainability, with an understanding that a project’s design is just as important as its size. [AR 1014; emphasis added] The SFRDG also provide a framework for the design review process, and a foundation for project evaluation. [Ibid; SBMC § 22.69.020.M] They are designed to guide the SFDB members and the public, and are not intended to be binding in nature. Although failure to meet the Guidelines could form the basis for denial of the design of a project, non-compliance with the Guidelines “shall not be” grounds to invalidate any action taken by the SFDB, nor shall non-compliance constitute a cause of action against the City or its officers, employees or agents concerning any matter. [AR 929; emphasis added]
Contained within the SFRDG are the Hillside Housing Design Guidelines. [AR 1068-1090] As reflected by the summary of its provisions [AR 1068], the guidelines further the design and aesthetic review of a project by the SFDB with respect to blending a house into its natural surroundings, promoting a building height that is in proportion to the style and size of the house and lot area, limiting grading to avoid erosion and visual and other impacts, and designing a structure to fit in with the existing neighborhood, among other guidelines.
Also contained with the SFRDG are the Good Neighbor Guidelines & Tips [AR 1093-1112], which encourage a project applicant to design their project by giving consideration to concerns which their neighbors might have, particularly with respect to neighborhood compatibility, views, and privacy. The guidelines note that they are not intended to create any right to privacy or views, and merely to highlight that a compromise that advances those goals would be desirable. [AR 1093] The Good Neighbor Guidelines provide guidelines on privacy, landscaping, noise, and lighting, and tips with respect to views, construction impacts, and “managing conflict with comfort.” [AR 1092]
(2) Single Family Design Board General Design Guidelines & Meeting Procedures
The City has also adopted Single Family Design Board General Design Guidelines & Meeting Procedures (DG&MP), which recognize the general goals and define the major concerns and objectives of the SFDB design review process, including, among other things, protecting and promoting historic and architectural qualities, ecological balance, high standards in architectural and landscape design, and neighborhood compatibility, as well as encouraging planning that is orderly, healthful and aesthetically pleasing, encouraging use of water-wise plants, preserving creeks, and ensuring that the review process is fair and consistent. [AR 922]
Substantively, the DG&MP is divided into three parts. Part I addresses architectural design guidelines, and addresses historic significance, sustainable building and site design, outlines which projects are eligible for administrative approval (rather than review by the SFDB), notes that zoning modification is a land use decision not within the SFDB purview, and discusses uncovered parking space exception requests. Part II addresses landscape design guidelines, and notes that the purpose of these guidelines is to use landscaping as a unifying element to help achieve compatibility with existing surroundings while complying with policies and regulations. It notes further that landscape improvements should complement the architecture, provide outdoor privacy areas, provide screening for undesirable views, provide usable and functional open space, and use appropriate water-wise plants, limited turf, and efficient irrigation design principles. It discusses tree and vegetation preservation, and general goals related to hillside areas, watercourses or wetlands, and high fire hazard areas.
Part III addresses meeting procedures. Among other things, it notes that aesthetic issues, design issues, neighborhood compatibility, and compliance with the “Good Neighbor Guidelines” are examples of appropriate comments to be made in SFDB hearings [AR 967], and provides that the SFDB “shall consider” public comments directly related to aesthetic issues involving neighborhood compatibility, architecture and landscaping issues, and “may also consider” neighborhood input regarding Neighborhood Preservation Ordinance compliance findings such as grading, tree removal, and/or mass, bulk, and scale of the development. [AR 968; emphasis added.]
If a single family residential project is triggered for design review by the City’s Municipal Code, then the SFDB reviews all exterior aspects of the project. The scope of SFDB review is how the project is consistent with the SFRDG topics of site planning and structure placement, neighborhood compatibility, two-story design concepts, hillside housing guidelines, and good neighbor guidelines as well as consistency with architectural and landscaping guidelines. [AR 976] The SFDB’s discretion is limited to design aesthetics, site planning, and architecture. [AR 1470:3-4]
(3) Concept Review
The first level of review by the SFDB is “concept review,” which is an informal review process during which no formal action is taken. It considers broad issues, such as site planning, general architectural style, and the project’s relationship to its site and neighborhood. Concept review is required prior to any other City reviews such as any required environmental review or Planning Commission review, and before the SFDB takes any formal action. Because concept review does not result in any formal action by the SFDB, it may not be appealed. [AR 968]
(4) Project Design Approval
After conceptual review and any environmental determination or other required discretionary review, the SFDB provides preliminary review and, ultimately, final review, resulting in Project Design Approval of the project. [AR 1018] Project Design Approval occurs prior to the preparation of any working construction drawings. It is considered the most important approval of plans, and it determines the site plan configuration and design that must be followed in the working drawings which are prepared after project design approval. All significant elements of the architectural appearance, landscaping and site/building orientation must be found consistent with applicable guidelines in order to receive approval at this level of review. For purposes of Government Code section 65950, a project design approval is considered to be the approval of the project by the SFDB, and concludes the discretionary phase of project review. [AR 969; emphasis added]
Planning staff ensures that projects are deemed complete and have sufficient information for the SFDB, before a project will ever be scheduled by staff for design approval before the SFDB. [AR 1506:22—1507:2] Staff tries to do as much as it can in determining that the application is complete and contains all necessary plans and information necessary for Project Design Approval, because if there are any discrepancies at the building permit stage which follows project design approval, those discrepancies could require the project to be kicked back to the SFDB for a new review and Project Design Approval. [AR 1511:14-23]
A. Neighborhood Preservation Findings.
1. Consistency & Appearance: The proposed development will be consistent with the scenic character of the City and will enhance the appearance of the neighborhood.
2. Compatibility: The proposed development will be compatible with the neighborhood, and its size, bulk and scale will be appropriate to the site and neighborhood.
3. Quality Architecture & Materials: The development, including proposed structures and grading, is designed with quality architectural details and quality materials. Proposed materials and colors will maintain the natural appearance of the ridgeline or hillside.
4. Trees: The proposed project will not remove or significantly impact any designated Specimen, Historic and Landmark trees. Also, the proposed project, to the maximum extent feasible, preserves and protects healthy, non-invasive mature trees with a minimum trunk diameter of four inches (4”) measured four feet (4’) above natural grade. The project includes a plan to mitigate the impact of the removal of any healthy, non-invasive mature tree with a diameter of four inches (4”) or more at four feet (4’) above natural grade in compliance with applicable tree replacement ratios.
5. Health, Safety and Welfare: The public health, safety and welfare will be protected.
6. Good Neighbor Guidelines: The project generally complies with applicable privacy, landscaping, noise, and lighting Good Neighbor Guidelines.
7. Public Views: The development, including proposed structures and grading, will preserve any existing significant public scenic views of and from the hillside.
B. Hillside Design District and sloped lot findings. In addition to the findings specified
in subsection A above, prior to approval of any project on a lot within the Hillside Design District described in Section 22.68.060 or on a lot or a building site that has an average slope of 15% or more (as calculated pursuant to Section 28.15.080 or 30.15.030 of this code), the Single Family Design Board shall make each of the following findings:
1. Natural Topography Protection. The development, including the proposed structures and grading, is appropriate to the site, is designed to avoid visible scarring, and does not significantly modify the natural topography of the site or the natural appearance of any ridgeline or hillside.
2. Building Scale. The development maintains a scale and form that blends with the hillside by minimizing the visual appearance of structures and the overall height of structures. [SBMC 22.69.050; AR 973]
Grading findings are required only for projects that meet certain specifications. [See SBMC § 22.69.050.C.] When required, they include only that: (1) The proposed grading will not significantly increase siltation in or decrease the water quality of streams, drainages or water storage facilities to which the property drains; and (2) The proposed grading will not cause a substantial loss of southern oak woodland habitat.
The SFDB needs to have sufficient information to make the findings, which relate largely to the aesthetics and neighborhood compatibility of a project. [AR 1510:6-8; 1518:7-12] It is able to review the whole record presented to it, and is not limited to considering only that information which is presented at any single meeting or hearing. [AR 1491:11-19; 1501:10-18] The guidelines are a tool for the decisionmakers, used in the SFDB’s determination of whether it can make the required findings. Making that determination involves a balancing of the guidelines’ various elements; a project need not meet every single potentially applicable guideline. It is the SFDB’s purview to look at a project and any site constraints it has, try to go through the guidelines, and make sure they feel the project is appropriate with respect to the guidelines and the findings. [AR 1512:12-24]
(5) Appeal of Project Design Approval
Because the SFDB’s grant of Project Design Approval is considered the approval of a project, it may be appealed. [SBMC § 22.69.080] While Section 22.69.080 was amended in 2023 to provide for the appeal of an SFDB project design approval decision to the Planning Commission, in 2022 (when the Tracy project was provided with project design approval), it provided for appeal to the City Council. Former Section 22.69.080 required the City Council to exercise its independent judgment based upon the record of the proceedings of the SFDB, and restricted it from considering new evidence unless it determined that relevant evidence existed that, in the exercise of reasonable diligence, could not have been produced or was improperly excluded at the hearing before the SFDB.
Following final approval of by the SFDB, but before submissions for a building permit, the final construction drawings may be submitted to Building and Safety for a plan check. Final approval of the plans will be made if they are in substantial conformance with the plans given project design approval. [AR 969, 975]
C. Building Permit Application and Review
Upon either the resolution of any appeal in favor of the project design approval of the project, or the expiration of the time for appeal, and following the preparation of final working construction drawings for the project, the project applicant will submit a Master Application for a Building Permit to Building and Safety, which must be accompanied by the final working construction drawings. [AR 975, 1018] The construction drawings ultimately prepared and submitted should reflect all applicable Planning Commission conditions and City Departmental (including SFDB) conditions of approval. Plans which are not part of the SFDB’s aesthetic review, but which are required to obtain a Building Permit, are provided at that time. All plans are reviewed as part of the Building Permit Review, at which time a project must comply with standard Building Permit requirements and the Building Code. [AR 1470:8-15; 1511:22—1512:4] It is at this time that detailed examinations are given to such things as grading plans, in terms of securing a hillside or protecting a slope. There is a distinction between the plans and information required, and the level of review conducted, at different stages of the project, i.e., SFDB Design Review, and that which must be provided for Building Permit Issuance and Approval. [See AR 1509:3-18]
Design Review of the Tracys’ Proposed Project [Information largely taken from the minutes and transcripts of the respective SFDB meetings, as well as other documents within the administrative record.]
The Tracys, through their architect Warner Young, submitted an application in which they proposed to demolish a dilapidated, existing detached two-car garage adjacent to their one-story residence at 1460 La Cima Road, and construct a new two-car garage with an Accessory Dwelling Unit (ADU) on the second story. The ADU would be accessed from an external stairway on the side closest to the property line shared with the McCosker property at 1464 La Cima Road. The Tracy property is directly to the east of the McCosker property. The garage and ADU were proposed to encroach on the 15-foot setback from the street. The property is located in a Hillside Design District, and has an average slope of approximately 34%. La Cima Road is narrow, and houses in the neighborhood tend to be constructed within the 15-foot setback to compensate for the significant slope, which helps to minimize the necessity for retaining walls.
The demolition and reconstruction of the garage brought the matter within the purview of the SFDB. ADUs are subject to the Permit Streamlining Act, and consequently usually proceed through a ministerial application pursuant to an objective list of standards which staff reviews, without discretionary review by a Design Review body. The request for modification to construct within the setback area, and its presence over the garage, brought the project before the SFDB for review.
Cursory Plan Review letters On June 6, 2019, the City of Santa Barbara Planning Division sent Cursory Plan Review—Concept Review letters (regarding Review # 1 and Review # 2) to Mr. Young, related to the Tracy project. It advised that the project had been scheduled for concept review only, and staff had not completed a full zoning plan check, researched permit records, or verified compliance with all applicable codes or development standards. The letters advised of some results from staff’s cursory review of the project plans submitted.
July 8, 2019 SFDB Concept Review meeting The project first came before the SFDB for Concept Review on July 8, 2019. The SFDB noted that the project would require Neighborhood Preservation, and Hillside Design and Sloped Lot findings. Mr. Young presented the project to the SFDB at the hearing, explaining that the new structures were being proposed to be constructed within the 15-foot setback from the street because the slope falls of quickly, and they were trying to minimize retaining walls. It was also pushed forward in recognition that it would have a lesser impact on the neighbor’s views.
Mr. McCosker spoke at the hearing in opposition to the project, describing La Cima Road as a very quiet lane and cul-de-sac. There is a narrow ridge at the top, and houses are close together on the north side of the street. He objected that the new building would impact their private lives, since those walking up the stairs to the ADU would look right into their entryway, and then into their living room. The deck at the top of the stairs would be outside of their bedroom window. He argued that the design is not compatible with the current structure, since it didn’t have any other two-story elements. He expressed concern about the “true intentions” for the second floor space. In response to a SFDB member question, Mr. McCosker acknowledged that his own house is a two-story structure.
In its discussions, the SFDB noted that while they can be concerned with privacy, they are not permitted to guarantee any resident’s views from any window. A member expressly noted that the next door neighbors (the McCoskers) had a commanding view “of everything in the world,” and he was not concerned about their views. The SFDB noted further that it ordinarily did not have the right to deny any person the ability to construct a second story, and has few rights under the state’s ADU law. Their obligation is to look at the compatibility of the neighborhood, and the aesthetics. Given the topography of the site, it recognized that there might be a unique opportunity for the applicant to explore the possibility of placing the ADU under the garage in some manner, and/or behind the setback. It noted that if the client did not want to place the ADU under the garage and wanted to build a second story, it would come back to them for review of a second-story project.
The SFDB continued the proposal indefinitely, with comments that the applicants should study moving the proposed ADU underneath the two-car garage, and explore options for moving the garage. The applicant should return with site and building sections. Finally, the applicant should consider landscaping or other elements for screening between the properties.
September 28, 2020 SFDB Concept Review meeting The proposal returned to the SFDB for continued concept review on September 28, 2020. The SFDB again noted that Neighborhood Preservation Findings and Hillside Design & Sloped Lot Findings would be required.
Mr. Young presented the revised project to the SFDB on behalf of the Tracys. At that time, the project included a larger three-car garage with a one-bedroom second-story ADU. The project had been pushed back out of the front yard setback. While the existing garage had been set at an angle, the new garage was proposed to be in line with the residence. The Tracy’s intent with the ADU was to have a unit for someone who could take care of them as they aged in place in their residence. They proposed including a garden room for storage underneath the garage, since they would be removing an existing shed from the property.
Once again, Mr. McCosker spoke in opposition to the project, expressing that he believed the increased size was excessive, and that its placement on a parcel with a one-story primary structure was contradictory to standard architectural practice. He argued that the proposed structure would be completely blocking the east side of their home, invade their privacy, and shine lights inside their home. He contended that a three-car garage would be incompatible with the neighborhood, which contains only two-car garages in the front setbacks. He supported keeping the two-car garage in the existing footprint and relocating the ADU to below the street level. The SFDB noted further that four letters/emails had been received with respect to the project, two in favor, and two in opposition.
In response to a request to walk the SFDB through the changes which had been made, Mr. Young noted that he had consulted with the civil engineer about putting the unit below the garage, which had issues with respect to the amount of grading, the amount of dirt which would be removed, the necessity of more retaining walls, the creation of more non-permeable area, and the cost. Locating the ADU and garage within the buildable area and outside of the setback was more favorable, and created parking in front of the garage as opposed to on the street, including a separate garage for the ultimate caregiver. In response to Mr. McCosker’s privacy concerns, the entry was switched from the left (west) side of the unit to the right (east) side of the unit.
SFDB comments included that there are many two-story projects on the same stretch of La Cima, and the neighbor who is being impacted (McCosker) also has a two-story residence. Concern was expressed about windows on the west side of the ADU that would look into the McCosker house. The SFDB noted that it had no authority to require the applicant to locate the ADU in a different location, although it could suggest that the applicant consider it. It was noted that, at the time of SFDB review, the property was not in a High Fire Hazard Area, noting that a proposed new ordinance was going to go before the City Council at a future date.
Again in response to SFDB inquiries, Mr. Young noted that the Tracys did not yet have a landscaping plan, but would have one at the time of the next review. The bamboo growth between the Tracy and McCosker properties belonged to the McCoskers. They are proposing installing a rainwater collection system, and are attempting to mitigate storm water runoff and keep water on the site. They are attempting to balance the cut and fill amounts, in order not to remove any dirt from the property. He acknowledged that external lighting had not yet been developed.
A member of the SFDB noted again that there was little they could do about ADUs or the resulting height and size of the building from the second-story ADU. It was noted that grading involved in setting foundations under the footprint of the building is not considered grading. It was suggested that any windows on the west elevation be eliminated, and to be careful with proposed surface lighting on the building. One member opposed the garage as too large.
The SFDB again continued the project indefinitely, with comments that the applicant should: (1) Remove any windows on the garage in order to eliminate privacy issues on the west elevation. (2) Show any surface lighting. (3) Provide a full landscape plan, a Tier 3 Storm Water Management plan, and show any bio swale planting. (4) Explore less invasive solutions for the bamboo screening material. (5) Show how the project relates to the new Grading Ordinance. (6) Show any potential permeable pavers. (7) Return with the previously reviewed plans.
Application completeness letters On April 21, 2021, the Community Development department sent Application Completeness Letters related to Review # 1 and Review # 2 to Mr. Young, advising that the Planning Application had been determined to be incomplete in various respects, and that additional information would be required. The letters specifically checked the boxes advising that the project did not demonstrate compliance or consistency with all applicable plans, policies, ordinances and codes, and that it did not include all required forms, supporting materials, supplemental applications, photos, plans, and fees.
On September 23, 2021, the Community Development Department sent to Mr. Young a further Application Completeness Letter, in which it advised that the Planning Application had been determined to be complete, and was ready for further processing. The letter advised that it had been scheduled for a public hearing before the SFDB on October 25, 2021, tentatively scheduled for project design approval. The letter advised that the application had been reviewed, and determined to be complete, by Planning & Zoning—Planning Division; Access & Parking—Transportation Planning Division; Storm Water (SWMP) & Watercourses—Creeks Division; and Fire Code—Fire Department. The letter further noted that all necessary project plan information and current color photographs had been provided to allow the project to proceed to review.
October 25, 2021 SFDB meeting The proposal returned to the SFDB for possible Project Design Approval on October 25, 2021. The agenda for the meeting noted that the proposal was to demolish the existing garage and driveway, and construct another two-car garage with second story ADU, with a new driveway and walkway area. An existing wood retaining wall and prefabricated shed would be removed, and a new retaining wall constructed. An extension of the existing deck was proposed. The Tracy’s licensed civil engineer provided earthwork calculations and grading sections on the plans presented for the October 2021 hearing.
Mr. Young was asked to address the SFDB and address the matters set forth in the minutes of the last meeting. The garage was reduced back to a two-car garage, all windows were removed from the left/west side of the property, and the stairway to the second story ADU was made an interior stairway. The replacement of paving in the driveway would create off-street parking. Further opportunities for landscaping were created on both sides of the property. With the reduction from a three-car to a two-car garage, the entire structure was moved away from the McCosker property line, to provide a larger (10’ rather than 5’) buffer area between the two structures. The structure was incorporated as part of the existing residence, instead of being separate. Exterior details were consistent with the existing building. Landscape plans were provided. Mr. Young confirmed that the bamboo was located on the McCosker property, not the Tracy Property, but proposed a retaining wall along the property line in order to mitigate its invasiveness. He noted civil engineering drawings, and noted that complete civil plans had been provided, including all civil work and storm water management. They proposed to cut existing concrete that would be removed by cutting it into blocks and using them on the property. He noted the hydrology calculations and the soils report. The siting of the structure was designed to keep as much open space and opportunities for landscaping as possible, as well as management of storm water.
Once again, Mr. McCosker spoke at the meeting in opposition to the project. He objected that the plan is too close, that a long driveway with a garage “hanging off the steep slope” is not compatible with neighborhood preservation, and is out of mass, bulk, and scale with the existing low ranch house. He generically noted that the location of the garage was not compatible with the Hillside Design District guidelines, did not meet the Neighborhood Preservation requirements, and looked “like a disaster waiting to happen.” He objected that building outside their living room would take away their sunlight and shine light into their windows at night, invade their privacy, interrupt the quiet enjoyment of their home, and create a wind tunnel between the two structures, which would make it difficult to get fire insurance. He concluded that “the proposed plan is too much, too close, and not safe.”
McCosker’s former attorney, Douglas Fell, also spoke on McCosker’s behalf in opposition to the project, asserting that because the current project was substantially different from that presented to the board in 2020, that Project Design Approval would not be appropriate. He questioned whether required findings could be made given construction on a steep slope, noted the fire danger of the dead-end street, and asked that the project be carefully reviewed.
Staff noted that the reason the project was before the SFDB for project a design approval was because they had a complete application, but that project design approval did not need to be provided at that time. “As long as we have a complete application its appropriate to bring it for Project Design Approval considerations.”
In SFDB member comments, it was noted that the fact that off-street parking was being provided was favorable given fire concerns. A member had no concern with the two-story structure as it related to the neighborhood, but only as the two-story structure related to the existing one-story residence. Mr. Young responded that given the age of the structure and the nature of the site, they attempted to make it all one, cohesive unit by incorporating the garage and ADU with the existing structure. All windows were removed from the side facing the neighbor, and the structure was moved an additional 5’ from the property line. They looked at various options, including in stepping back the structure. He outlined the bioretention area on the landscape plan.
An SFDB member noted that, from the street, the structure looked very massive. It was suggested that the roof line could be turned so that the gable was not in the front, which could reduce the overall mass and bulk. It was noted by another remember that most homes in the area are significantly larger and taller than this existing home, which is significantly more modest in size, bulk, and scale than anything around it—and as a result the member had no conceptual problem with anything that was being attempted, and only had privacy concerns. The member found it disingenuous for the neighbor to be talking about privacy concerns when their own large living-room windows loomed over the Tracy’s property. The concern was more with how to marry the existing home with the two-story volume, and make them feel less disjointed, including the turning of the gables, and attempting to bring the height down another foot. A member suggested that there could be more uniform windows facing the street. Members noted the complexity of the project, the challenging location, and the need to harmonize the structures.
The SFDB continued the project indefinitely to the full board with the comments: (1) The Board is generally supportive of the bulk and scale of the project, it is in keeping with general context of the neighborhood. (2) The Board appreciates that the applicant has responded to prior comments related to fenestration on the westerly elevation. (3) The applicant is directed to study the fenestration on the south (facing the street) elevation, specifically on the second level where the ADU is; the goal is to achieve some organization or regularity with that fenestration as it relates to the openings and architecture below. (4) The applicant shall consider turning the orientation of the ridge of the gable over the ADU and garage to an easterly-westerly direction in order to minimize the visual discord between the ADU and garage and the one story massing of the primary residence. (5) The applicant shall study the location of the plaster and the use of wood, and the locations where they are used, in order to create a more harmonious relationship between the proposed ADU and garage and the main residence. (6) The applicant shall illustrate in the drawings that the detailing of proposed windows and doors on the ADU and garage are closely related to, if not matching, the detailing of the existing residence. (7) The applicant shall consider reducing size of the plaster trim band . . . and also reduce the size of the roof fascia at the rake of the gable.
March 14, 2022 SFDB Project Design Approval meeting The project came before the SFDB for possible Project Design Approval and Final Approval on March 14, 2022. Mr. Young again presented the project to the SFDB, noting that the windows have been changed to match and be more compatible with those on the residence. The roof configuration was altered to turn the gables to the sides of the structure, and the roof element was continued around the proposed ADU to create a more cohesive design. He had eliminated the wood band that was of concern to the SFDB at the prior meeting. The siding and plaster elements now better related to one another. Overall height was reduced from 23’ to 21’6”, and the garage floor was bumped out slightly to create a more stepped effect, which permitted him to wrap a roof element around the entire structure to connect it with the original residence. Landscape plans and other information typical of Project Design Approval were presented by Mr. Young.
Sarah Bronstad, a land use planner with the Brownstein law firm spoke in opposition to the project on behalf of the McCoskers. She referred the SFDB to her lengthy letter setting forth their concerns about the project. She argued that the mass, bulk, and scale was not consistent with design guidelines, contending that while the board had once suggested reduction of the second story mass, it has come back roughly the same every time. She contended that moving the project back out of the setback created issues because of the topography. She noted the letter had requested that the plans more clearly show that building height conforms to code, and requested that the board review her “list of actions” she encouraged the applicant to consider before granting Project Design Approval. She noted they were concerned about the views from the McCoskers’ living room, stating she thought there were a lot of things that could be done to reduce the impact on the neighbor, who “has felt that these concerns when voiced have been ignored.”
Beth Collins, also from the Brownstein law firm, also spoke to the SFDB in opposition to the project on behalf of the McCoskers. She argued that there is important information detailed in the letter which is missing in the documents submitted by the Tracys, without which the project cannot be sufficiently understood, and without which there is no basis to make the findings or approve the project. She argued that this ADU was the subject of the SFDB’s discretionary review, particularly given its location in a Hillside Design District.
In response to a SFDB member inquiry, Mr. Young noted his solar study, which illustrated the affected areas during particular time of the year, and appeared to impact only the northerly property line, not the western side (where the McCosker residence is located).
In the SFDB comment period, it was noted that this iteration showed significant improvement and was much more cohesive. The two-story element is not out of character for the neighborhood, and the project is modest as it relates to the surrounding parcels. Keeping cars off the street is a good gesture. While there is the potential for some loss of view, views are not within the SFDB purview. The shift from a single double garage door to single doors was described as “a major enhancement.” Moving the gable 90 degrees tied the whole house together. One member noted that owners with existing second stories take the risk that the addition of a second story to a neighbor might impact their views, and those neighbors have just as much of a right to enjoy second stories.
Given the plans and drawings that were before the SFDB, a motion was made to provide both Project Design Approval and Final Approval, which carried by a 6-0 vote. The minutes of the meeting reflect that such Project Design Approval and Final Approval were provided with the following comments and findings:
1. The Board appreciates the applicant’s responsiveness to previous comments in regard to rooflines, the front gable element, and the manner in which exterior siding materials are used. The result is a much more cohesive design that feels well integrated.
2. The project is compatible with the neighborhood in size, bulk, and scale, specifically the two-story element is not contrary to other homes in the neighborhood.
3. The Hillside Design District and Sloped Lot criteria have been met as stated in Subsection 22.69.050 of the City of Santa Barbara Municipal Code.
a. The development, including the proposed structures and grading, is appropriate to the site, is designed to avoid visible scarring, and does not significantly modify the natural topography of the site or the natural appearance of any ridgeline or hillside. The Board finds that the effects on natural topography are justified given the opportunity for off-street parking that the applicant is creating.
b. The development maintains a scale and form that blends with the hillside by minimizing the visual appearance of structure(s) and the overall height of structures. The building scale is commensurate with the neighborhood because of other second-story residences in the neighborhood.
4. The Neighborhood Preservation Ordinance criteria have been met as stated in Subsection 22.69.050 of the City of Santa Barbara Municipal Code.
a. The nature of the architectural materials and appearance of the residence as proposed is consistent with the scenic character of the City and more specifically with the neighborhood.
b. The proposed development is compatible with the neighborhood, and its size, bulk, and scale is appropriate to the site and neighborhood.
c. The proposed buildings and structures are designed with quality architectural details. The proposed materials and colors maintain the natural appearance of the ridgeline or hillside.
d. The proposed project does not include the removal of or significantly impact any designated Specimen Tree, Historic Tree or Landmark Tree. If the project includes the removal of any healthy, non-invasive tree with a diameter of four inches (4”) or more measured four feet (4’) above natural grade, the project includes a plan to mitigate the impact of such removal by planting replacement trees in accordance with applicable tree replacement ratios.
e. The public health, safety, and welfare are appropriately protected and preserved.
f. The project generally complies with the Good Neighbor Guidelines regarding privacy, landscaping, noise and lighting. The applicant has attempted to work with neighbors in regard to Good Neighbor Guidelines. Lighting is conditioned to be night sky compliant.
g. The development, including proposed structures and grading, preserves significant public scenic views of and from the hillside. No public views are affected by the project. [AR 795]
Petitioner McCosker timely appealed the SFDB’s grant of Project Design Approval and Final Approval to the City Council, as permitted by the then-current provision of SBMC § 22.69.080. [See City Request for Judicial Notice at Ex. 4.]
McCosker’s appeal to the City Council of the SFDB’s grant of Project Design Approval to the Tracys’ project
The City Council heard the McCosker appeal of the SFDB’s provision of Project Design Approval and Final Approval of the Tracy’s garage and ADU project on May 24, 2022. At that time, Mayor Rouse noted that the land-use appeal is a quasi-judicial proceeding, subject to specific rules and format different from what they normally do.
The transcript as a whole revealed considerable confusion by Council members on the process, and it appeared that the Council was unfamiliar both with the scope of SFDB review, and with the nature and scope of the Council’s quasi-judicial review of the SFDB’s proceedings. (The Court notes that the former version of SBMC § 22.69.080, which provided for appeal of SFDB decisions to the City Council, had only been adopted in mid-2021; the current version, which provides for appeal instead to the Planning Commission, was adopted in 2023; the City Council apparently only heard appeals from SFDB determinations during that limited period of time, and it is therefore unsurprising that they were unfamiliar with the SFDB and the nature and scope of its determinations, as well as the nature and scope of the City Council’s appellate review, at the time the City Council hearing on the Tracy project was scheduled.)
The project and the SFDB’s proceedings on the project were outlined by the staff liaison to the SFDB. Staff noted that ADUs are typically ministerial in application, without discretionary review by a design review body, but that SFDB review in this case was warranted because the ADU was not constructed exclusively over the garage, and included an interior stairway. Staff noted that the project was reviewed by SFDB on four occasions, the initial two solely for conceptual review, explaining that the project evolved over time. Staff outlined the manner in which the project changed from hearing to hearing in response to SFDB comments, and SFDB’s provision of Project Design Approval and Final Approval at the March 2022 hearing. Staff outlined the general claims made in the appeal.
Staff noted further that as part of the City’s review process for discretionary projects, the plans were reviewed for application completeness. This involves routing the plans to applicable divisions to ensure that the project is consistent with all required ordinances, which can include zoning, transportation, and creeks (for compliance with the storm water management plan). The project went through several completeness reviews before being deemed complete, after which it could be scheduled for Project Design Approval. Staff noted that Final Approval is for final details, involving colors, materials, and landscape improvements which are to be shown on the plans. Staff noted further that the SFDB’s discretion is limited to design aesthetics, site planning, and architecture.
Staff noted that as part of the City’s process, plans will be reviewed again to ensure compliance, as part of the subsequent Building Permit review. At that time, the project will need to comply with standard Building Permit requirements.
Staff noted that the appellant contends the project is not compatible with the neighborhood, and poses consistency issues with the SFRDG, impacting the SFDB’s ability to make the findings required to approve the project. Staff noted that the surrounding neighborhood includes a mix of one- and two-story residences, and the SFDB is tasked with ensuring that development is compatible in design, material, and size, bulk, and scale with the neighborhood. It ultimately found such compatibility, that design impacts on topography were justified, and that the two-story element was commensurate with the neighborhood. Staff described the provision of notices to neighbors for all SFDB hearings.
Beth Collins of the Brownstein firm again spoke in opposition to the project, asserting the City had purview over the ADU because of the Hillside District, the new garage, and other aspects of the project. Ms. Collins spoke to the Council at some length, contending the SFDB acted without key information, including the existing and proposed grade (precluding determination of the actual height of the structure), and grading and structural engineering plans which were required for final approval. She focused extensively on the height of the project, contending that it could not be determined whether the development is of a scale and form that blends with the hillside without knowing its height. She further noted that the grading plan was not included in the plans before the SFDB at the time of its March approval. She contended the lack of “structural” meant that they did not know how the structure would be held onto the hill, and contended that without grading plans it could not be determined whether grading was appropriate for the site. She expressed concern about not knowing whether the lighting was appropriate. She criticized the failure of the project to “step down the existing topography” as suggested by guidelines. She concluded by asking that the Final Approval be rescinded, and the project sent back to the SFDB to consider the project with a full set of information.
Mr. Young was permitted to respond, and noted that most of the neighbor’s concerns had been addressed during the three years of City review, including the placement of the structure and the height requirements, noting that he had provided a set of plans to City in which the height was noted, and was well below the maximum 30’ height limitation. A full set of civil engineering drawings were provided with the previous iteration of the project, which was in the same footprint. Efforts were made to mitigate impacts on the neighbor, by relocating the stairs, eliminating windows, setting the structure further away from the neighbor’s property, doing everything to appease them short of not doing the project. There was no missing information on the plans.
Vice chair of the SFDB made a presentation to provide the Council a sense of what the SFDB is looking for when reviewing projects of this nature. The constraints of the parcel had to be taken into consideration, and while they attempt to adhere to the guidelines, there are tradeoffs that must be made. SFDB depends on staff to determine when the application is complete, and when so advised, they assume it has civil plans, grading plans, and complies with the checklists. They look at larger issues of neighbor privacy and responsiveness to those concerns by the applicant. They believed there were benefits from the alterations that were made. Vice chair noted the SFDB does not have purview over private views, absent a legal restriction (deed restriction or other agreement). They believed all Neighborhood Preservation Ordinance Findings were made. Although there was no lighting plan, they conditioned approval on the lighting being night sky compliant.
In response to questions from the council, vice chair noted they are not permitted to give design approval for a project that had not been deemed completed by staff. With respect to grading, they are typically looking at net export, and general impact to the site. Since the footprint did not move significantly from October 2021 to March 2022 plans, there would not have been a significant shift in civil engineering. They do not look at slope stability; they look at the broader impact of the project for the neighborhood, as part of the Neighborhood Preservation Findings and Compatibility Findings. The earthwork calculations and grading sections were submitted for the October 2021 review, which were not included in the March 2022 set, but the project had not changed significantly related to grading. Civil engineering information would be required for the Building Permit review; the next step after final approval by the SFDB is submission of complete working drawings to determine their compliance as part of the Building Permit application.
Ms. Collins then responded to contend that a lighting plan tells more than just night sky compliant. She disputed that grading plans were provided, although grading information had been provided. She hadn’t heard that the structural plans were there at all. She disputed there was any mention of height with existing and proposed grade. She suggested that the approval resulted from “social promotion,” that there was “something awry,” and urged that the project be sent back for consideration with full plans and all information.
Mr. Young responded that there was a set of civil plans from 2021 that support the general footprint of what they have, and that structural drawings are not required at the design approval stage. Grading, drainage, storm water management, and structural plans are required at the next phase of the project. The SFDB was provided with storm water management, civil drawings, and grading and draining calculations.
Vice chair of the SFDB confirmed a council member’s understanding that the guidelines are a tool, and absolute compliance is not required. In discussing pushing the structure back on the property, she noted that doing so did not increase the overall height relative to the neighboring property, although it may have increased the overall height relative to grade, and there was a clear benefit to the neighborhood in having off-street parking. She clarified that the completeness review conducted by staff ensures compliance with all applicable ordinances, and in the zoning review they would be checking height, and compliance with solar height limitations. She acknowledged that grading information was not included in the plans before the SFDB for final approval, but they had information in the October 2021 set; had SFDB believed they did not have sufficient information to make the required findings, they could have asked for more information.
Another member of City staff confirmed that City ensures the projects are deemed complete and have enough information to present to the SFDB, before they are scheduled for Project Design Approval. Being deemed complete is a major milestone in a project.
City’s Community Development Director clarified the distinction between Design Review Board approval, and Building Permit issuance and approval, noting that detailed grading plans are not part of the aesthetic review, but would be required to get a Building Permit. Grading plans would be in the plans before a Building Permit would be issued by his department.
City’s liaison to the SFDB confirmed that grading plans are included as part of the plans required for final approval, but noted they were in the October 2021 set, and there had not been significant change the grading amount. SFDB had sufficient information to make the findings they had required; had they thought otherwise, they could have requested more information. She noted that if there is a discrepancy at the building permit stage, the project can be returned to the SFDB for further approval.
City staff confirmed that the guidelines are a tool, and not a checklist; they are balanced with the constraints of the specific project. She confirmed that for Project Design Approval, they are looking at grading where applicable, but the final plans will need to be provided to the City for the permit; grading plans are relevant, but not dispositive, to issuing a deemed complete decision. If there is an issue under the ordinance, that will be addressed at the Building Permit stage.
Following councilmember comments, in which they justified their ultimate votes, the City Council voted 5-2 to deny the appeal, and uphold the SFDB provision of Project Design Approval, and to adopt the findings made by the SFDB, including:
Neighborhood Preservation Findings: 1. Consistency and Appearance. The proposed development is consistent with the scenic character of the City and will enhance the appearance of the neighborhood; 2. Compatibility. The proposed development is compatible with the neighborhood, and its size, bulk, and scale are appropriate to the site and neighborhood; 3. Quality Architecture and Materials. The proposed buildings and structures are designed with quality architectural details. The proposed materials and colors maintain the natural appearance of the ridgeline or hillside; 4. Trees. The proposed project does not include the removal of or significantly impact any designated Specimen Tree, Historic Tree or Landmark Tree. The proposed project, to the maximum extent feasible, preserves and protects healthy, non-invasive trees with a trunk diameter of four inches or more measured four feet above natural grade. If the project includes the removal of any healthy, non-invasive tree with a diameter of four inches or more measured four feet above natural grade, the project includes a plan to mitigate the impact of such removal by planting replacement trees in accordance with applicable tree replacement ratios.; 5. Health , Safety, and Welfare. The public health, safety, and welfare are appropriately protected and preserved; 6. Good Neighbor Guidelines. The project generally complies with the Good Neighbor Guidelines regarding privacy, landscaping, noise and lighting; and 7. Public Views. The development, including proposed structures and grading, preserves significant public scenic views of and from the hillside; Hillside District and Sloped Lot Findings: 1. Natural Topography Protection. The development, including the proposed structures and grading, is appropriate to the site, is designed to avoid visible scarring, and does not significantly modify the natural topography of the site or the natural appearance of any ridgeline or hillside; and 2. Building Scale. The development maintains a scale and form that blends with the hillside by minimizing the visual appearance of structures and the overall height of structures.
Petition for writ of mandate In his opening brief, Petitioner McCosker contends that he is entitled to both traditional and administrative mandamus. He argues that the SFDB approved the project even though it lacked required information, including plans showing that the project did not exceed the 30’ height limitation, a full grading plan, a “legally compliant landscaping plan,” and miscellaneous other details. He concludes that, without such information, the SFDB could not have made the findings required by law. He further contends that the City Council abused its discretion by considering evidence that had not been before the SFDB.
The City has opposed the petition, contending that there is no basis for traditional mandamus review in this case, and in fact that as a zoning and planning matter, the action is subject to Government Code section 65010(b), under which no action of a public agency may be found invalid by reason of any error unless that error was prejudicial, the complaining party suffered substantial injury from the error, and a different result would have been probable if the error had not occurred. It further contends that McCosker fundamentally misunderstands the nature, purpose, and function of the SFDB and design review, and that construction plans are not required until after the project has been given Project Design Approval and an application for a Building Permit has been submitted. It is at that stage that many of the issues of which McCosker complains would be subject to review, when the full construction plans are before the City. It further asserts that both the SFDB and City Council decisions were supported by substantial evidence, and any error that might have been made was not prejudicial. Finally, City contends there is no evidence that the City Council considered evidence that had not been before the SFDB, and that McCosker did not exhaust his administrative remedies as to that claim.
ANALYSIS: For the reasons more fully articulated below, the Court will deny the petition.
1. Request for judicial notice
City requests this Court to take judicial notice of various provisions of the current and former (applicable at the time of the underlying proceedings) Santa Barbara Municipal Code. Petitioner does not object to the request, and in fact himself relies on various provisions of the Santa Barbara Municipal Code in his briefs.
The matters are proper subjects of judicial notice, and the Court will grant the request.
2. This proceeding is not subject to traditional mandamus review pursuant to Code of Civil Procedure section 1085, and is only reviewable through administrative mandamus review pursuant to Code of Civil Procedure section 1094.5.
A. Law regarding propriety of Administrative vs. Traditional mandamus.
(1) Administrative mandamus.
A petition for administrative mandamus under Code of Civil Procedure section 1094.5 is appropriate when the party seeks review of a determination, finding, or decision of a public agency, made as a 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 a public agency, on the grounds of noncompliance with the law—which is generally referred to as an “adjudicatory” or “quasi-judicial” decision. (Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559, 567.) An evidentiary hearing is required “by law” within the meaning of Section 1994.5(a), if it is required by a statute, a regulation, or constitutional due process. (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 279.)
It is sometimes not entirely clear whether circumstances giving rise to review pursuant to Section 1094.5 exist. There exist some statutes, such as Water Code section 1126(c), which require that an adjudicatory decision be reviewed under Section 1094.5 even where no evidentiary hearing is required. There also exist some statutes, such as Business & Professions Code section 19870(f), which provide that Section 1094.5 does not apply to review of a decision after an agency hearing that is required by statute. Further, some statutes have been construed by case law to imply a right to an evidentiary adjudicatory hearing, and thus to Section 1094.5 review. Additionally, some cases imply a right to an evidentiary adjudicatory hearing where the statute calls for an administrative appeal. (See, e.g., California Practice Guide—Administrative Law (The Rutter Group 2023) Chapter 13, §§ 13:200, et seq.).
Where Section 1094.5 applies, the trial court reviews the agency’s decision for abuse of discretion, which is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).) Factual disputes are reviewed in the light most favorable to the judgment, on a substantial evidence review. (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 256-257.) The petitioner has the burden of proof in an administrative mandamus proceeding, because it is presumed that the agency regularly performed its official duty. (Evid. Code, § 664; Save Laurel Way v. City of Redwood City (2017) 14 Cal.App.5th 1005, 1011.) A writ of mandate will not issue unless the court is persuaded that an abuse of discretion prejudicially affected the petitioner’s substantial rights. (See Pinheiro v. Civil Service Commission for the County of Fresno (2016) 245 Cal.App.4th 1458, 1464; Cal. Administrative Mandamus (3d ed Cal. CEB) § 6.47.)
If an agency relies on evidence received outside the hearing and the parties are given no notice or opportunity to rebut the evidence, the agency’s action generally constitutes a denial of due process and consequently a failure to proceed in the manner required by law. (English v. City of Long Beach (1950) 35 Cal.2d 155, 158-159; Doe v. Univ. of Southern California (2016) 246 Cal.Apap.4th 221, 247-248; Pinheiro v. Civil Service Commission for County of Fresno (2016) 245 Cal.App.4th 1458, 1463-1464.) To void a decision based on evidence received outside the record, it must be shown that the irregularity was prejudicial. (See Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 192.)
Agency decisions that do not meet the requirements of Section 1094.5 may be reviewable through a writ of traditional mandamus under Section 1085 if they involve a ministerial duty or an abuse of discretion when carrying out a discretionary function. (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279; Cal. Administrative Mandamus (3d ed Cal. CEB) § 5.30.)
(2) Traditional mandamus
A traditional writ of mandate will issue to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station (Code Civ. Proc., § 1085), where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. (Id., § 1086.) Such writ will issue against a county, city or other public body or against a public officer. (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
Traditional mandamus under Section 1085 is the proper form of action to challenge the reviewable ministerial or quasi-legislative acts of a public agency. (California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1483.) A trial court must determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference. (Weinstein v. County of Los Angeles (2015) 237 Cal.App.4th 944, 965, quoting County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653.)
A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. (Kavanaugh v. West Sonoma County Union High School District (2003) 29 Cal.4th 911, 916.) Ministerial acts involve no judgment or discretion by the public official as to the wisdom or manner of carrying out the activity. The public official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. (Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 489.) A ministerial decision involves only the use of fixed standards or objective measures, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out. (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 117.) Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion. (Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022, 1035.)
Agency decisions that do not meet the requirements of Section 1094.5 (i.e., where no hearing was required to be given, or where no evidence was required to be taken) may be reviewable through a writ of traditional mandamus under Section 1085 if they involve a ministerial duty or an abuse of discretion when carrying out a discretionary function. (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279; Cal. Administrative Mandamus (3d ed Cal. CEB) § 5.30; Cal. Practice Guide: Administrative Law (The Rutter Group 2023) ¶ 17:651.)
B. Traditional mandamus is not available under the circumstances of this case.
The nature of McCosker’s claims that he is entitled to a writ of traditional mandamus under Section 1085 make clear that he has a fundamental misunderstanding of what constitutes a ministerial duty, and the circumstances under which traditional mandamus involving a ministerial duty is available.
In both his opening brief and his reply, McCosker cites to County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 653, and SN Sands Corporation v. City and County of San Francisco (2008) 167 Cal.App.4th 185, 191, in support of his contention that he is entitled to a writ of traditional mandamus. Those cases are unremarkable, and merely reflect the definition of a ministerial duty (County of Los Angeles), and the standard of review under Section 1085 applicable to a quasi-legislative decision (SN Sands Corporation). Of course, no quasi-legislative acts (i.e., an act in which an agency adopts or amends laws, policies, or regulations of general application; see 20th Century Ins. Co. v. Garamendi, supra) by either the SFDB or the City Council are alleged to form the basis for any of McCosker’s claims underlying his petition. Rather, the actions by SFDB and City Council in applying standards and guidelines to the Tracy project, making findings, and providing Project Design Approval to the project, were all quasi-adjudicative in nature, i.e. applying existing rules and guidelines to existing facts. Quasi-adjudicative acts are subject to administrative mandamus, not traditional mandamus. (See, California Water Impact Network v. Newhall County Water District, supra.)
The crux of McCosker’s arguments is that the SFDB, first, and then the City Council on appeal, made findings he contends they could not have made based upon the information before it, and which they were required to consider. He articulates specific information that he does not believe was provided by the Tracys to the City, and which the City did not in turn require them to provide before SFDB review.
This is a classic example of a claim in administrative mandamus, i.e., that the SFDB and City Council abused their discretion by failing to proceed in the manner required by law, and/or that the decision was not supported by the findings, or the findings were not supported by the evidence, in the course of making a discretionary decision in a matter where a hearing was required to be given, evidence was required to be taken, and the discretion to determine the facts was vested in the agency. (See Code Civ. Proc., § 1094.5, subds. (a) and (b).) Of course, as noted above, in determining whether an abuse of discretion existed under administrative mandamus, the court performs a substantial evidence review, in which the petitioner has the burden of proof because it is presumed that the agency regularly performed its official duty, and all factual disputes are resolved in the light most favorable to the agency’s decision. Even more importantly, even if an abuse of discretion is established, no writ will issue unless the court is persuaded that the abuse of discretion prejudicially affected the petitioner’s substantial rights. (See Pinheiro v. Civil Service Commission for the County of Fresno (2016) 245 Cal.App.4th 1458, 1464; Cal. Administrative Mandamus (3d ed Cal. CEB) § 6.47.)
It appears to this Court that McCosker is attempting to convert what should properly be this Court’s deferential administrative mandamus review of the SFDB’s discretionary decision, into a claim that the SFDB violated mandatory, ministerial duties, for which he is seeking this Court’s direct enforcement, by merely pointing out things that he claims are subject to SFDB consideration and review, for which he believes insufficient information was before the SFDB at the time it considered and granted Project Design Approval.
It does not appear to this Court that anything alleged in McCosker’s petition or argued in his briefs truly invoke a ministerial duty by the SFDB or by the City Council, as that term is defined and understood in the context of Section 1085 review. As set forth by the court in County of Los Angeles v. City of Los Angeles, supra, relied upon by McCosker:
“A ministerial duty is one which is required by statute. ‘A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.”
As noted above, a ministerial decision involves only the use of fixed standards or objective measures, and the public official cannot use personal, subjective judgment or discretion in deciding whether or the manner in which the project should be carried out. The statute or ordinance must clearly define the specific duties or course of conduct that the governing body must take, in order for that course of conduct to become mandatory.
A common example of a truly ministerial duty, subject to enforcement through issuance of a writ of mandate, exists where a statute or ordinance makes mandatory the public agency’s issuance of a particular type of permit when certain articulated requirements are met. If an application is presented which meets all of those requirements—i.e., presents the required “given state of facts”—the agency then has no discretion to do anything other than issue the permit, i.e., it has a ministerial duty to issue the permit. If it fails or refuses to do so, the applicant may seek a writ of mandate to compel the agency to specifically do what the law requires it to do, i.e., issue the permit.
From his mere recitation of the definition of a ministerial duty, McCosker concludes: “In other words, a local agency is compelled to follow its own laws and procedures, and if it does not do so, its action is subject to being overturned.” [Opening Brief @ p. 10, lines 11-12.] However, the Court does not find that either McCosker’s petition or his briefs describe anything that SFDB was required to do in a prescribed manner without regard to its own judgment or opinion, when a given state of facts existed, such that it could constitute a breach of a ministerial duty with which the court could compel compliance. Nor does McCosker provide any argument or authority to explain to this Court how any of the claimed failures by the SFDB or City Council were in actuality violations of ministerial duties, their compliance with which could permissibly be compelled by this Court’s direct enforcement.
Certainly, issues of ministerial and mandatory duties can sometimes arise in the greater context of a discretionary process. For example, in CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, the City of Chula Vista established a multi-phase application process in order to determine which applicants would receive license to operate retail cannabis businesses within the City. In the first phase, applicants would submit applications with required information. Under the City’s ordinance, all applications which met minimum requirements were deemed complete; applications could only be rejected for reasons articulated in the ordinance. All applicants approved in Phase One were qualified to participate in Phase Two, except that if the number of applicants deemed qualified in phase one exceeded the number of licenses available, a discretionary merit-based system would be established to determine which of the qualified applicants would be invited to submit a Phase Two application. The somewhat complicated merit-based system was described in the regulations. The petitioner applicant’s Phase One application had met all minimum requirements, but was rejected by the City in Phase One and not deemed qualified to participate in Phase Two, contrary the requirements of the ordinance. The court found that the applicant had been wrongly precluded from staying in the running to obtain a Phase Two application slot under the procedures, and the City’s failure to follow its own procedures (which precluded rejection of Phase One applications on bases not articulated in the ordinance) provided the basis for issuance of a traditional writ of mandate for violation of a ministerial duty, and compelling the City to process the Phase One applications in the manner required by the ordinance. (CV Amalgamated LLC, supra, 82 Cal.App.5th at pp. 282-283.)
The current case, however, provides no similar basis for a claim of violation of a ministerial duty, in the course of the greater discretionary process undertaken by the SFDB in providing Project Design Approval to the Tracy project.
These conclusions are further confirmed by the fact that, as a writ proceeding arising from a planning decision, this action is also governed by Government Code section 65010(b) [Title 7. Planning and Land Use; Div. 1 Planning and Zoning; Ch. 1 General Provisions], which provides:
(b) No action, inaction, or recommendation by any public agency or its legislative body or any of its administrative agencies or officials on any matter subject to this title shall be held invalid or set aside by any court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect, or omission (hereafter, error) as to any matter pertaining to petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, or any matters of procedure subject to this title, unless the court finds that the error was prejudicial and that the party complaining or appealing suffered substantial injury from that error and that a different result would have been probable if the error had not occurred. There shall be no presumption that error is prejudicial or that injury was done if the error is shown. [Emphasis added.]
This is fully consistent with the standard of judicial review applicable in administrative mandamus to the SFDB’s quasi-adjudicative decision in granting Project Design Approval to the Tracy’s garage/ADU project, and to the City Council’s quasi-adjudicative decision to deny McCosker’s appeal of that approval.
In attempting to couch the alleged failures by the SFDB to consider certain information or to require full plans as violations of ministerial duties—essentially conflating a “failure to proceed in a manner required by law” (within administrative mandamus) with a “ministerial duty” (subject to traditional mandamus)—McCosker is seeking to obtain an immediate vacation of all approvals, and a remand of the entire matter to the SFDB, merely upon his assertion of a perceived violation and without any showing of prejudice. Such a result would be contrary to binding law.
The Court notes that with respect to the City Council, McCosker’s contention that it had violated a ministerial duty was based solely upon his contention that it considered evidence that he claimed had not been before the SFDB when it provided Project Design Approval. [Reply @ p. 3, lines 24-26.] As this Court noted above, even where an agency relies on evidence received outside a hearing to make a decision, such decision will not be voided unless it is shown that the irregularity was prejudicial. (See Pinheiro v. Civil Service Commission for the County of Fresno, supra, 245 Cal.App.4th at pp. 1463-1464; Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 192.) Since the City Council’s decision cannot be voided without establishing that the irregularity was prejudicial, it cannot be found to have violated a ministerial duty capable of direct enforcement, even if it has relied on such evidence.
The Court will proceed to evaluate McCosker’s petition under standards applicable to administrative mandamus (Code Civ. Proc., § 1094.5) and planning decisions (Gov. Code, § 65010, subd. (b)), both of which place a burden on petitioner not only to establish error or abuse of discretion, but that petitioner suffered prejudice to his or her substantial rights from that error or abuse of discretion.
3. To the extent that any errors occurred in the SFDB design review process, or the City Council’s appeal of SFDB’s provision of Project Design Approval, McCosker has failed to establish that any such errors were prejudicial.
In its Respondent’s Brief, City explained in detail McCosker’s fundamental misunderstanding of the City’s design review process, and the nature and scope of the review conducted by the SFDB in the course of that review. In his Reply Brief, McCosker castigated City for taking that position. This Court has concluded, however, that City is correct.
As noted above, the SBMC provides that the SFDB have 5 members, only two of which need to have any relevant professional training in architecture or landscape architecture, i.e., essentially design professionals. The SBMC does not require that any member have engineering expertise of any manner. The remaining three SFDB members can be members of the public at large, with absolutely no technical construction-related expertise at all.
The reason why technical construction expertise is not required for members of the SFDB is apparent from the materials setting forth its purpose. In order to preserve Santa Barbara’s “particularly desirable living environment,” the SFDB is charged with the responsibility of ensuring that homes are completed with “high quality designs” that are compatible with the surrounding neighborhood, preserve the City’s visual resources, promote long-term sustainability, and contribute to a desirable living environment. [AR 929, 1013] The Guidelines developed by City for use by the SFDB were designed “to ensure high design standards are maintained” and to preserve and protect the “natural cham and beauty” of the area. [AR 929, 1013]
In other words, the SFDB is concerned with the design of a project—its aesthetically pleasing nature, and the manner in which it fits in with the surrounding neighborhoods—in order to preserve to the extent possible Santa Barbara’s “particularly desirable living environment”—something which is well within the knowledge and experience of general members of the Santa Barbara community. That is why construction level plans are not required until after a project has achieved design approval. The technical Building Code compliance issues are matters for City’s planning professionals, not for the SFDB. City planning staff performs the initial plan check to determine whether sufficient information has been presented for the SFDB to be able to perform its review of a project’s design elements. Once the design has been approved, construction plans are prepared and submitted by the applicant, after which City planning once again performs detailed evaluations of the construction plans to determine their compliance with Building Code and other technical construction-related requirements necessary for a Building Permit to issue.
To the extent that any technical plans are provided to the SFDB, it is so that they have sufficient information to make the findings required for a project’s design approval. The findings which the SFDB must make to approve a project’s design are not technical in nature. Rather, the required Neighborhood Preservation Findings attempt to preserve Santa Barbara’s “particularly desirable living environment” by requiring developments to be consistent with the character of the City, fit in with the neighborhood in terms of size, bulk, and scale, use “quality” architectural details and materials, and maintain the natural appearance of ridgelines and hillsides. They protect specimen, historic, and landmark trees, as well as other mature trees. They generally seek to protect public health, safety and welfare, generally comply with privacy, landscaping, noise and lighting Good Neighbor Guidelines, and preserve existing public (not private) views.
The Hillside Design District and sloped lot findings do not involve the geology of a site, the engineering of the development, or any other technical aspects of hillside construction, but rather only require that the proposed structures and grading be appropriate to the site, be designed to avoid visible scarring, and do not significantly modify natural topography of the site or natural appearance of any ridgeline or hillside. They further require that the scale and form of the development blend with the hillside, by minimizing the visual appearance of structures and the overall height of structures.
Grading findings, when even required, do not address the amount of grading, or any technical aspects of grading, but rather only require a finding that the proposed grading will not significantly increase siltation in or decrease water quality of streams, drainages, or water storage facilities to which the property drains, and not cause a substantial loss of southern oak woodland habitat.
Upon provision of Project Design Approval, construction plans are then prepared and submitted to City, in the course of applying for a Building Permit. It is at this point that the construction plans are reviewed by City staff to ensure compliance with City’s Building Permit and other construction requirements—including whether the proposed construction exceeds the maximum height limitation, whether the civil engineering underlying grading and construction on a hillside are sufficient to ensure the stability of the slope in supporting the project, etc.
Keeping in mind that, in applying the appropriate standard of review to the actions of the SFDB and City Council, all factual disputes are reviewed in the light most favorable to the judgment, the agency is presumed to have regularly performed its official duty, and no writ will issue—even when an abuse of discretion has been established—unless the court is persuaded that such abuse of discretion prejudicially affected the petitioner’s substantial rights, the Court cannot find that any of McCosker’s claims of error support the issuance of a writ of mandate against either the SFDB or the City Council. The Court will, however, address some of McCosker’s specific contentions:
Structure height McCosker’s first contention was that there were no plans before the SFDB that determined that the height of the project was below the 30’ maximum limitation (SBMC § 30.20.030.B), as measured in the manner required by SBMC § 30.15.090 (measuring height from every point on the top of a building roof to a warped plane directly below connecting all points where existing or finished grade, whichever is lower, contacts the exterior building walls or foundations), and that the SFDB therefore could not have determined whether the project exceeded the limitation—which he argued was a required finding. More specifically, he contended that the revised plans submitted to the SFDB in October 2021 showed the same grade as the original plans reviewed by the SFDB, despite the structure having been moved back (toward the sloped area) on the lot, and that those grades therefore could not be correct, and the height could not be ascertained from them. (The original plans had shown the garage and ADU within the front setback area, because of the steep slope of the lot; the revised plans had pushed the structure back out of the front setback area, thereby permitting permit off-street parking in the driveway area.)
City staff had determined compliance with the overall height maximum prior to the submission of the matter to the SFDB for design review. SFDB itself had suggested moving structure back out of the front setback area, and therefore was clearly aware of any impacts that might have had on the overall height of the project, and had the authority to request further information if it had any question about the structure’s overall compliance with the height restriction. Further, given that the Tracy’s architect turned the gables 90 degrees in those final plans, in compliance with SFDB suggestions, that meant that the roof sloped downward on the downhill side of the structure. Given the manner in which height is measured, that lowered roofline would necessarily have a significant impact on reducing (or at least maintain, and not increasing) the overall height of the structure relative to the slope as it dropped off to the rear of the structure.
Further, the SFDB is not required to make a finding that the project does not exceed the 30’ height limitation, McCosker’s contention to the contrary notwithstanding, but is only required to address a proposed structure’s height in terms of whether the size, bulk, and scale of the proposed development will be appropriate to the site and compatible to the neighborhood (Neighborhood Preservation Finding, No. 2), and that the proposed development maintains a scale and form that blends with the hillside by minimizing the visual appearance of structures and the overall height of structures (Hillside Design District and sloped lot findings, No. 2.)
In fact, during the design review process before the SFDB, the overall height of the proposed structure was reduced by some 18 inches (from 23’ to 21’6”) in response to SFDB member concerns [AR 1441:11-13], by turning the direction of the gables, which also reduced the visual appearance of the height of the structure and create a more cohesive look. [AR 1441:11-19] The SFDB had ample information before it that would permit it to determine whether the size, bulk, and scale of the proposed development were appropriate to the site and compatible with the neighborhood. Indeed, the very fact that McCosker’s residence itself is a two-story structure acts to confirm that the size, bulk, and scale of the Tracy’s limited ADU/garage structure was appropriate to the site and compatible with the neighborhood.
McCosker contended further that because the overall height of the structure could not be determined from the plans before the SFDB, it could also not be determined whether the City’s solar access height limitations were met. However, a solar access study was provided by the applicant which illustrated the impacts of the proposed development upon solar access, and fully illustrated that the development would not impact McCosker’s solar access in any way. [AR 243] The fact that he claims this study did not itself reflect certain dimensions does not alter that it constitutes substantial evidence to support the finding by the SFDB, and the lack of any prejudice to him from any abuse of discretion which might conceivably have existed.
Further, there is evidence before the court that, during the planning review process, a full set of civil plans was presented showing the building height below the 30’ maximum, and that the SFDB considered both the solar study and the proposed height, in reaching its findings and in providing Project Design Approval. [AR 1446:3—1447:7; 1469:12-7; 1470:2; 1498:1-9] This constitutes further substantial evidence to support the findings which were made.
The various complaints made by McCosker and his representatives at the SFDB and City Council hearings make fairly apparent that his primary frustration related to “height” is that he had enjoyed an unobstructed view from his two-story hill-top home for many years, and he was fighting to prevent the removal of even a very small part of that view through the construction of the second story ADU to the side of his home. [See FAPC @ ¶ 3, p. 3, lines 8-9 (“Petitioner has been adversely impacted by the Project’s approval where the Project will degrade Petitioner’s scenic views and quiet enjoyment of Petitioner’s property.”).]
The SFDB made quite clear, however, that it is not within their authority to prevent or preclude second story improvement projects, nor do they have the authority to protect private views from being interfered with by such second story improvement projects. Rather, their authority extends solely to ensuring that the privacy of the neighbors is preserved and protected to the greatest extent possible—and in fact the SFDB and the applicant’s architect worked diligently to address the McCoskers’ legitimate privacy concerns throughout the design review process. Alterations included moving the project building another 5’ away from the property line with the McCoskers, removing all windows on the side of the structure facing the McCoskers, relocating the stairway to the second-story ADU unit from an outside stairway on the wall closest to McCoskers to an internal stairway on the opposite side of the proposed structure, adjusting the proposed deck, etc. Nothing appeared to satisfy McCosker, and it became increasingly clear he was only interested in preventing any interference with the views from his property, by preventing any second story from being constructed—something the SFDB cannot do.
Grading McCosker contends further that the SFDB could not have provided Project Design Approval to the proposed project without a grading plan, that the Final Approval Checklist confirmed that there was no grading plan, and that the staff report to the City Council admitted that grading plans were not included in the plan set reviewed by the SFDB in March 2022, when the project was given Project Design Approval. McCosker refers to SBMC § 22.69.020.E in contending that the SFDB was supposed to review the grading, and concludes that since it had no grading plan to review, its provision of Final Approval could not have complied with City law.
It is not entirely clear from the record that a full grading plan—as opposed to the earthwork calculations and grading sections which had been provided to the SFDB for the October 2021 hearing and considered by the SFDB—was required. Section 22.69.020.E applies to applications for grading permits which are not submitted in connection with an application for a building permit for the construction or alteration of a building or structure on the same lot. Under that circumstance, the application for grading permit is to be referred to the SFDB for a review of the proposed grading. Here, however, the grading was to be conducted in connection with an application for a building permit for the construction or alteration of a building on the same lot. Consequently, the import of Section 22.69.020.E to support McCosker’s contention that the SFDB absolutely had to have and review a full and final grading plan, is less than clear.
As noted, the civil engineer for the applicant presented earthwork calculations and grading sections to the City prior to the October 2021 SFDB hearing. While City staff did not present those calculations and sections to the SFDB again for its March 2022 hearing at which Project Design Approval was provided, the SFDB is not limited to that which is before it at any particular time, in determining whether a project should receive design approval.
As noted above, the findings which the SFDB must make related to grading are quite limited. Specific grading findings, when required to be made, only require that the grading not increase siltation or decrease water quality in water courses into which the property drains, and that any grading will not cause a substantial loss of southern oak woodland habitat. Additionally, grading information would be relevant to Neighborhood Preservation Finding No. 3 (“Quality Architecture and Materials: The development, including proposed structures and grading, is designed with quality architectural details and quality materials. Proposed materials and colors will maintain the natural appearance of the ridgeline or hillside.”), No. 7 (“Public Views: The development, including proposed structures and grading, will preserve any existing significant public scenic views of and from the hillside.”); and Hillside Design District and sloped lot finding No. 1 (“Natural Topography Protection. The development, including the proposed structures and grading, is appropriate to the site, is designed to avoid visible scarring, and does not significantly modify the natural topography of the site or the natural appearance of any ridgeline or hillside.”)
As is clear from these findings, the SFDB’s review of grading is, like its other findings, related to the appearance and aesthetics of the proposed project, and do not address technical aspects of grading. Petitioner has met his burden of showing that the information which was before the SFDB and City Council was insufficient to permit them to make these findings. To the extent that Petitioner’s contention related to the absence of a grading plan is based on his belief that construction of the garage/ADU will destabilize the hillside [see FAPC @ ¶ 3, p. 3, lines 3-11 (“Petitioner has been adversely impacted by the Project’s approval where the Project will . . . , on information and belief, create potential and unknown risk to the stability of the hillside adjacent to Petitioner’s property.”)], that is certainly a significant concern—but not one that is within either the authority or the expertise of the SFDB. Rather, once again, the sufficiency of the civil engineering plans in addressing the stability of the hillside is an issue to be addressed by City staff, once all construction-level plans have been submitted to the City in conjunction with an application for a Building Permit.
Landscaping Petitioner contends that the SFDB and City Council could not have approved the project without having a full “legally compliant” landscape plan. He argues that the project is located in the “coastal interior” high fire area, and landscaping plans for high fire areas must show landscaping consistent with the City’s Fire Hazard Area Landscape Guidelines, in detailing existing native vegetation, noting which plants will be removed, indicating the method used to remove vegetation, follow defensive space restrictions, and be fire resistant. He contends further that SFDB’s own guidelines include numerous provisions to be applied in approval of landscaping, and there are rules particular to the Hillside Design District. He argues that the landscaping plans that were provided do not identify existing vegetation or disclose the means by which it will be removed, and the record contains no discussion about application of the guidelines to the project. He concludes that the lack of information violates the law and constitutes an abuse of discretion.
The SFDB is not required to “discuss” at every hearing each and every aspect that it believes supports its findings, so long as there is sufficient information before it to permit it to make the findings. A landscape plan was submitted in support of the project, and was before the SFDB at the time that it provided Project Design Approval. What McCosker does not seem to appreciate is that the proposed Tracy project had very little impact on the landscaping on the property, the vast majority of which would remain untouched and unaltered—and only that landscaping that was part of the project was before the SFDB for design review.
The plans that were provided to the SFDB [AR 385-386] reflect that there are only four very small areas where the Tracys have proposed to put in new plants, all in small, well-defined beds or planters. The plans reflect that Area 1 is a step planter that follows the contour of the land, directly beside the proposed garage; Area 2 is a small bed area between the driveway and the Tracy residence (on the opposite side of the driveway from the McCosker area, partially in the Tracy’s front setback); Area 3 is a small set of planter beds along the property line on the opposite side of the Tracy residence from the McCosker property, and Area 4 is a buffer between the two properties (adjacent to the bamboo which the McCoskers maintain on their adjacent property). [AR 385] The types of plants which the homeowner proposed to plant in the beds were identified on the next page. [AR 386]
McCosker was free to establish that the identified proposed plantings were insufficiently fire resistant, identify what the defensive space restrictions were and explain how these small planter beds could possibly have violated such restrictions, etc., but made no effort to do so. He further did not identify any finding that was made by the SFDB or City Council that was unsupported by the evidence, as a result of the landscaping plans which were provided to the SFDB. Instead, he simply contends that because a plan was provided that did not include information that was largely irrelevant to the proposed project, its absence constitutes sufficient reason to vacate design approval of the project, and return it to the SFDB for further consideration.
McCosker has not met his burden of showing that the SFDB or City Council abused their discretion either by acting in a manner not authorized by law, or because their decisions were not supported by their findings, or their findings were not supported by the evidence. On its own, this requires denial of the petition to the extent it is made on this basis. Further, to the extent that approval of project design in the absence of a full “legally compliant” plan which contained the information he claims was missing constituted an abuse of discretion, he has not met his burden of establishing that he sustained any legally cognizable prejudice.
Other information claimed to be absent, and other miscellaneous issues McCosker further argues that the SFDB could not have provided Project Design Approval to the Tracy project, because the Final Approval Checklist submitted by the Tracys showed the absence of information that was required for Final Approval, including electrical, mechanical, structural and plumbing sheets, details related to retaining walls, decks, trellises, stairs and handrails, and skylights, and rooftop architectural details. The only feature he specifically addresses, however, are the retaining walls, in arguing that the lack of retaining wall details is “particularly important” given the steep topography of the Project site. While the plans depict new retaining walls, he contends that the “complete lack of engineering details exists to ascertain whether the retaining walls are structurally significant for their intended purpose.” He refers to Hillside Design Guidelines that set forth rules with which the retaining walls would need to comply, and concludes that the existing record makes it “untenable” for anyone to determine whether the project’s retaining walls adhere to the guidelines.
The Hillside Design Guidelines to which McCosker only generically referred [AR 1086-1090] actually do not set forth any technical, engineering requirements for retaining walls. Rather, they provide suggestions for how to design retaining walls to blend into their surroundings in various ways, including through minimizing their length, minimizing their length unless they undulate or are broken up by buttresses or pilasters, are constructed of appropriate materials such as stone or adobe, follow the topography, use earth tone colors to blend with the surrounding natural colors of the hillsides, integrate with vegetation and other landscaping, consider stepped terraces rather than a tall retaining wall, suggests maximum exposures for exposed retaining wall faces, etc.
As noted repeatedly above, the SFDB’s purview is not to review the technical, engineering aspects of a proposed project, but rather its design and aesthetics. Rather than refuting that fact, McCosker’s reference to and reliance upon the Hillside Design Guidelines in his petition and briefs actually confirms that fact. The sufficiency of the engineering for the retaining walls will be evaluated once the full engineering plans are submitted to the City when the Tracys apply for a Building Permit for their project.
McCosker also contends that SBMC Section 22.75.050 requires the SFDB to review a project for consistence with the City Outdoor Lighting Design Guidelines, contends that they did not do so, and that their approval of the Project therefore constituted an abuse of discretion. The SFDB did, however, address outdoor lighting, in conditioning its approval upon all exterior lighting being “night sky compliant.” [AR 795 (Neighborhood Preservation Ordinance criteria findings, subd. (f)); AR 1458:21-23] McCosker has not provided any argument or evidence explaining how or why conditioning the approval upon the project being night sky compliant constituted an abuse of discretion, or how or why he has suffered cognizable prejudice from that finding.
Throughout his arguments, McCosker has treated the various guidelines as requirements, when the guidelines themselves emphasize that they are only to be used for guidance and are not binding on any project. Rather, in applying the guidelines and making the required findings, the SFDB necessarily has to balance the circumstances and restrictions of any particular site with the various guidelines, to make sure that the design of the proposed development will achieve the preservation of Santa Barbara’s desirable living environment to the greatest extent possible, while still acknowledging that it has no power or authority to prohibit development or to overly restrict or control the design features proposed by the applicant.
McCosker argued that it appeared that the SFDB believed it had virtually no authority over the project since it involved an ADU, given the restrictive state ADU law. Certainly, comments were made by SFDB members with respect to the restrictive nature of the State ADU law. However, the SFDB ultimately assumed full responsibility for review of the project’s design, and made all findings it was required to make in providing Project Design Approval to the project. McCosker’s speculation that the state law resulted in the SFDB failing to require the project applicant to provide further information does not in any way require the conclusion that the SFDB’s actions in any way prejudicially abused its discretion in its decision to provide Project Design Approval.
McCosker claims that the City Council, in denying his appeal, relied upon information that was not before the SFDB. He claims that the fact that an email chain between City representatives and Tracy representatives prior to the appeal hearing asking for certain information to be provided prior to the City Council hearing “proves” the City Council considered information that was not before the SFDB, and establishes that the City Council therefore abused its discretion in denying his appeal. City disputes that the City Council considered evidence that was not before the SFDB during the period of its review of the design of the Tracy project.
Whether or not the City abused its discretion by considering evidence outside the record that was before the SFDB, as this court noted above, no writ will issue to void a decision based upon evidence received outside the record unless it is shown that this irregularity was prejudicial. (See Pinheiro v. Civil Service Commission for the County of Fresno, supra, 245 Cal.App.4th at pp. 1463-1464; Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 192.)
McCosker’s FAPC alleged that he suffered prejudice given that his property is adjacent to the project site, and approval of the project will adversely impact him because it will degrade his scenic views and the quiet enjoyment of his property, and on information and belief will create potential and unknown risk to the stability of the hillside adjacent to Petitioner’s property. [FAPC @ ¶ 3.] His opening brief did not directly address prejudice, instead appearing to contend that his claims of error, alone, required that Project Design Approval be voided and the matter sent back to the SFDB for re-review. McCosker’s reply brief again recited the allegations of his FAPC as constituting the prejudice he contends he sustained through the provision of Project Design Approval to the Tracy project. It noted further that prejudice exists where it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error, citing Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.
This Court has already addressed the hillside stability issues, and how the existence of any such issues was beyond the purview of SFDB design review and is instead a matter for City review of engineering plans, once they are submitted with the Building Permit application. With respect to views, the SFDB and the City Council made quite clear that in the absence of a restrictive deed or other legal prohibition, private views within the City are not legally protected, although public views have protection under City ordinances. With respect to neighboring private parties, the SFDB is only concerned with protection of privacy to the greatest extent possible. [AR 1344:21—1345:4; 1452:18-22; 1455:24—1456:5; 1489:16-20; 1499:15-18; 1515:6-8] The lack of protection of private views is also reflected in the inability by the SFDB to deny private parties the ability to construct second story additions [AR 1345:6-7; 1455:24—1456:5], and in fact SFDB members found that the two-story element of the Tracy project was wholly within the character of the neighborhood, which included other two-story structures—including McCosker’s home. [AR 1452:13-22; 1515:15-19] Consequently, the purported “adverse impact” upon McCosker by “degrading” his views do not constitute legally cognizable prejudice.
Further, as this Court noted above, the SFDB worked diligently with the Tracys to address any legitimate privacy concerns the McCoskers might have had through the construction of the garage and ADU. Neither McCosker’s FAPC nor his briefs in support of his petition establish any legitimate, legally cognizable prejudice to him that resulted form the provision of Project Design Approval.
4. Conclusion.
For all of the foregoing reasons, the Court cannot find that McCosker has established any prejudicial abuse of discretion by either the SFDB or the City Council, requiring that his petition for writ of mandate be denied in its entirety. In reaching this conclusion, the Court fully considered and evaluated the briefs and arguments made by the parties, relevant provisions of the Santa Barbara Municipal Code, and the matters contained in the Administrative Record. The Court fully considered all contentions made by the Petitioner, including those to which no express reference was made in this analysis and ruling.