ROBERT SCHWOB V. COUNTY OF SANTA BARBARA, ET AL
ROBERT SCHWOB V. COUNTY OF SANTA BARBARA, ET AL
Case Number
23CV02404
Case Type
Hearing Date / Time
Wed, 11/20/2024 - 10:00
Nature of Proceedings
Motion for judgment on second cause of action for mandate
Tentative Ruling
James F. Scafide of Figueroa Law Group, LLP for petitioners Robert and Christine Schwob
Rachel Van Mullem / Christine M. Monroe of County Counsel’s Office for Respondent County of Santa Barbara
RULING
The motion for judgment on the cause of action for mandate is denied; County is entitled to entry of judgment in its favor on the Schwobs’ petition. The trial date of 2/19/25 and the MSC date of 1/31/25 are vacated.
BACKGROUND
Petitioners/Plaintiffs Robert Schwob and Christine Schwob (the Schwobs) filed their original petition and complaint on June 6, 2023. That pleading purported to state claims for both traditional (Code Civ. Proc., § 1085) and administrative (Code Civ. Proc., § 1094.5) mandamus against Respondent/Defendant County of Santa Barbara (County), and alleged causes of action for conspiracy and declaratory relief against all defendants, and a cause of action for private nuisance against defendants Jeff Crosby and Susan Crosby (the Crosbys).
In order to provide context to the current matter, the allegations of the complaint petition will be summarized: It alleged, on information and belief, that in 2020, the Crosbys constructed a pickleball “Sports Court” on their property, without a permit. The 31’x 60’ court is located in the rear setback of the Crosby property, about 8 inches from the rear lot line, and 7’8” from the northern side lot line. The southeasterly corner was raised more than 30” so that the court sits level, and a 10’ fence was constructed around the court, with a permanent basketball hoop and backboard and pickleball net installed. It was later painted with lines for pickleball play. The Schwobs alleged that through 2020, 2021, and into 2022, the Crosbys and their family and guests played pickleball at all hours of day and night, the noise from which caused the Schwobs great disturbance, particularly given that their bedroom is located less than 30’ from the court.
In January 2022, after complaints to the County of Santa Barbara (County) by the Schwobs and others, County staff visited the Crosby property. On February 11, 2022, County issued a Notice of Violation to the Crosbys, arising from their construction of a pickleball court in their back yard that exceeded the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback. The Notice also found that the fence around the court violated provisions of the Santa Barbara County Code, Montecito Land Use and Development Code (MLUDC), which required that any such fence be no higher than six feet. The Notice provided that the Crosbys could remedy the court violation by removing the court, or moving the court out of the rear setback area so that it and the ADU which the Crosbys had under construction combined totaled less than or equal to 30% of the rear setback, and could remedy the fencing violation by removing the fence, reducing its height, or applying for a permit. The Notice of Violation was attached to and incorporated into the complaint/petition, and showed that it was issued by County’s Planning and Development Department.
In response to the Notice of Violation, the petition alleged that the Crosbys removed the permanent pickleball net, painted over the stripes on the court, and lowered the fence height to 6’, but continued to play pickleball by placing tape on the surface in lieu of the painted lines. At some point they apparently restriped the court and reinstalled the permanent net.
The Schwobs again complained to the County about the continued pickleball play on the Crosby’s court. In response, the County conducted a site inspection on September 9, 2022, after which it issued a second Notice of Violation, which provided that the Crosbys could remedy the violation by removing the court, relocating the court, or converting the court into a patio, through removal of all lines from the surface indicative of use as a sports court, and removal of the permanent net. In response, the Crosbys removed the permanent lines and net, but continue to play pickleball by again placing tape where the pickleball court lines should be, and using a “professional grade moveable Pickleball net.”
The September 9, 2022 Notice of Violation was also attached to and incorporated into the petition/complaint. Certain of its contents were not the subject of express allegations in the petition/complaint, including that the County had determined that the February 11, 2022 Notice of Violation had been abated by the removal of the tennis net and sports court lines, which converted the sports court into a patio area, which does not count as a structure and therefore did not contribute toward the 30% encroachment into the setback. Because the Crosbys had reconverted the patio into a sports court, the County determined them to be in violation of MLUDC Chapter 35, §§ 35.400.040.A, 35.420.040.A, and 35.442.020.4.a.(1).(c). The notice provided the Crosbys with the abatement options of either (a) removing the sports court, or (b) converting the sports court into a patio, by removing all lines from the surface indicative of use as a ports court, and removal of the permanent net.
The petition contended that in issuing the Second Notice of Violation, which hung on the “thin distinctions between a fixed and moveable net, and taped or painted lines,” County colluded with the Crosbys and worked with them in an attempt to find a way around what the Code permitted. The petition alleged that County arbitrarily redefined what constitutes a sports court, “and is now playing make-believe that this pickleball court is just a funny looking patio.” It alleged that nothing the Crosbys had done abated the cumulative square foot maximum of 30% of the area of the rear setback of all structures in a rear setback, and that violation still exists.
The Schwobs alleged that they continued to be subjected to regular noise and disturbance from the playing of pickleball seven days a week, and that such noise and disturbance unreasonably interfered with their use and enjoyment of their property.
County demurred to the petition/complaint on August 8, 2023. At a hearing conducted on September 20, 2023, the Court sustained the demurrer in part, and overruled it in part. Specifically, the Court found that the cause of action which combined claims for traditional and administrative mandamus did not state a claim for administrative mandamus because there was no relevant hearing requirement in the MLUDC, nor were there any allegations that would permit the Court to conclude that any of the exceptions to the hearing requirement existed, nor any circumstances to make review pursuant to Section 1094.5 otherwise appropriate in any way. With respect to the portion of the cause of action for traditional mandamus pursuant to Section 1085, the Court found that no ministerial duty existed, and the cause of action failed to state a claim in mandamus based upon the existence of a ministerial duty. However, the Court found that the arguments raised by the demurrer did not preclude a limited claim for traditional mandamus challenging County’s actions as an abuse of discretion, arising from the facts as alleged on the face of the petition/complaint. Since a portion of the mandamus cause of action was not defeated by the demurrer, the demurrer to that claim was overruled.
The Court sustained County’s demurrer to the conspiracy cause of action, since there is no separate cause of action for conspiracy. The Court also sustained County’s demurrer to the cause of action for declaratory relief, given that mandamus is legally the sole remedy where a challenge is to a statute or regulation’s application to the lands of the complaining party, rather than a challenge to an overarching, quasi-legislative policy set by an administrative agency. To the extent that the demurrer was sustained, leave to amend was provided to plaintiffs/petitioners, to provide them with an opportunity to attempt to state valid claims.
While County’s demurrer was pending, the Crosbys also demurred to the Schwobs’ petition/complaint. The Court ruled on County’s demurrer, and the Schwobs filed their First Amended Petition and Complaint, prior to the hearing date on the Crosbys’ demurrer, thereby mooting that demurrer.
The Schwobs filed their First Amended Petition and Complaint (FAPC) on October 11, 2023. The FAPC continued to allege causes of action for both traditional and administrative mandamus against County, and a cause of action for declaratory relief, but added causes of action for private nuisance and public nuisance against the Crosbys, and set forth causes of action for conspiracy to commit private nuisance, and conspiracy to commit public nuisance against all defendants.
County filed a demurrer and motion to strike directed to the FAPC on November 13, 2023. The Crosbys filed a declaration of demurring party in support of automatic extension, pursuant to the terms of Code of Civil Procedure section 430.41 on November 14, 2023, and followed it with a demurrer filed on November 28, 2023. All matters were set for hearing on December 20, 2023. The Schwobs did not oppose the demurrers or the motion to strike, and on December 13, 2023, the Schwobs filed a motion for leave to file a Second Amended Petition and Complaint (SAPC), setting the hearing for January 10, 2024. At the hearing, and in light of the Schwobs’ pending motion, the Court sustained the demurrers and granted the motion to strike, and granted the Schwobs leave to file their proposed SAPC. The SAPC was separately filed on January 5, 2024.
The Schwobs’ SAPC ballooned into a fourteen cause of action pleading, including claims for: (1) administrative mandamus (Code Civ. Proc., § 1094.5) against County, (2) traditional mandamus (Code Civ. Proc., § 1085) against County, (3) failure to enforce law (grading) against County; (4) failure to enforce law (sports court) against County; (5) failure to enforce law (noise) against County; (6) private nuisance—illegal sports court, against the Crosbys; (7) private nuisance—pickleball play, against the Crosbys; (8) public nuisance—illegal sports court, against the Crosbys; (9) public nuisance—playing of pickleball, against the Crosbys; (10) conspiracy to commit private nuisance—illegal sports court, against all defendants; (11) conspiracy to commit private nuisance—playing of pickleball, against all defendants; (12) conspiracy to commit public nuisance—illegal sports court, against all defendants; (13) conspiracy to commit public nuisance—playing of pickleball, against all defendants, and (14) declaratory relief, against all defendants.
County demurred to each cause of action alleged against it in the SAPC, with the exception of the second cause of action, on February 28, 2024, setting the hearing on its demurrer for April 17, 2024, the same date that the Crosbys’ demurrer to the SAPC was set. The Court, on its own motion, continued the hearing on the demurrers to May 1, 2024.
At the May 1, 2024 hearing on the demurrers, the County’s demurrer was sustained in its entirety. (The Court incorporates by reference its May 1, 2024, Minute Order from the demurrer hearing, which explains the legal reasons for the ruling.) As noted in that Minute Order, a private agreement among the parties that the Schwobs would not further amend their pleading regardless of any ruling demurrer if the defendants would agree to the filing of the SAPC, likely precluded the Schwobs from identifying any specific facts they could allege to state viable causes of action, without which there was no basis for permitting leave to amend. (See Amy’s Kitchen, Inc. v. Fireman’s Fund Ins. Co. (2022) 83 Cal.App.5th 1062, 1073.) It concluded that “[a]ssuming, without deciding, that the parties’ agreement is valid and enforceable, this action will move forward on the second cause of action for traditional mandamus against the County, and the seventh through ninth causes of action for nuisance against the Crosbys.”
At a Case Management Conference held on May 22, 2024, this Court set the Crosby’s mandate claim against the County for hearing on November 13, 2024. At a September 4, 2024, Case Management Conference, the Court confirmed that hearing date.
No motion for judgment on the cause of action in mandate was filed in advance of the November 13, 2024, hearing date. For a hearing on that date, such motion would need to have been filed no later than October 21, 2024, 16 court days prior to the hearing (noting that Monday, November 11, 2024, is a court holiday for Veterans Day).
On October 25, 2024, however, the Schwobs filed a single-page notice that the hearing on the petition for writ of mandate would be held on November 13, 2024, when they would ask the court for mandamus against County pursuant to Code of Civil Procedure section 1085. It concluded by simply stating “Good cause exists for the relief sought as set forth herein.”
The Notice was unaccompanied by any argument, any citation to authorities, or any evidence in support of the petition.
On October 30, 2024, County timely filed its opposition to the issuance of any writ of mandate against it.
Opposition
First, after introductory comments, a statement of the case, a statement of facts, and a discussion of the applicable legal standards, County’s legal argument commences by noting that the Court, in its ruling on demurrer, already addressed the legal question of whether the MLUDC imposes discretionary function or a mandatory duty, finding that the relevant portions of the code vest the County with discretionary authority.
Second, County asserts that while traditional mandamus may be employed to compel an agency to exercise its discretion if it is legally required to do so, the court may not compel the exercise of that discretion in any particular manner, citing Hollman v. Warren (1948) 32 Cal.2d 351, 354-356. Since the Schwobs do not dispute that County enforced the Code by issuing notices of violation, the Schwobs cannot meet their burden of showing that the County failed to enforce the provisions of the Code. The exact provisions their SAPC identified as not having been enforced, were the subjects of the notices of violation.
Third, County argues that its manner of enforcing the MLUDC was not an abuse of discretion. It first describes the nature of a public agency’s discretion, including that “discretion” is “the power conferred on public functionaries to act officially according to the dictates of their own judgment,” citing AIDS Healthcare Foundation v. Los Angeles County Department of Public Health (2011) 197 Cal.App.4th 693, 700. Further, Article XI, Section 7 of the California Constitution permits a county or city to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general law. This includes the power to zone land use in accordance with local conditions (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151-1152). Under principles of separation of powers, a court cannot command a county to enact specific regulations or direct the county’s exercise of discretion to enforce them.
County asserts that the NOVs and its enforcement relate to the cumulative percentage of structures in the rear-setback of the Crosby Property. Only “structures” are subject to rear-setback encroachment limitations. While a sports court is defined as a “structure” subject to setback requirements, a patio is not a “structure” under the MLUDC, and is therefore not subject to the setback requirements. The Schwobs argue that the hardscape surface is subject to the rear-setback requirements because it is either a “sports court’ or a “private residential recreation facility” within the meaning of the code. The nature of their argument makes clear that the development is open to interpretation, which supports that County should be given deference.
County’s argument regarding how its enforcement actions were not an abuse of discretion is divided into two subsections:
(A) County contends that its interpretation of the MLUDC is valid and correct, first because the definition of a “sports court” is clear and unambiguous. The MLUDC defines a “sports court” as a “structure which consists of a hardscape or other surface having a minimum size of 20 feet by 50 feet that is utilized in connection with a flat game court structure devoted to recreational purposes including basketball, handball, tennis, and volleyball but excluding bocce ball courts, lawn bowling courts and similar facilities, patios, and areas used for driveways or parking of vehicles.” (Emphasis added by County.) Under its terms, there are three distinct elements—(1) minimum 20’x 50’ size, (2) “devoted to recreational [flat game sport] purposes, and (3) does not fall within an excluded classification.
County contends that the Schwobs focus on the size element, to the exclusion of the other elements. It argues that a sports court must be “devoted” to recreational flat game purposes, and the ordinary definition of the term means “to use a space or area for a particular purpose.” Therefore, if the hardscape meets minimum size requirements, but is not devoted to exclusive court game purpose, it is not a “sports court” under the MLUDC. Further, “sports court” expressly excludes patios, driveways, and similar hardscapes, irrespective of their dimensions. The ordinary meaning of “patio” is “a recreation area that adjoins a dwelling, is often paved. . . .” Therefore, a patio can have similar recreational uses as a sports court, and the distinction is that it is not “devoted to” that sports use. The MLUDC does not limit the dimensions of patios or driveways, and the inclusion of that express exception shows that County contemplated that they could have similar or greater dimensions, and may at times be used for sports purposes. If any surface on which a person could at any time play sports was deemed to be an “accessory structure,” that would mean that the MLUDC would prohibit driveways, because “accessory structures” cannot be placed in front setbacks. County concludes that a “sports court” requires that a hardscape be devoted solely to sports game court use.
The County next contends that its interpretation of the MLUDC is valid and correct, because even if the court finds the definition ambiguous, it should give great weight to County’s interpretation. It asserts that, to the extent there is any ambiguity as to what the MLUDC requires, its view of the meaning and scope of its own ordinance is entitled to great weight unless it is clearly erroneous or unauthorized. (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.) The amount of deference given by the court depends on factors such as expertise in the subject of the regulation, the longevity and consistence of the interpretation, and whether the entity is authorized by law to make such interpretations. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11 (Yamaha).)
Here, County asserts that the Legislature gave it authority to enact zoning ordinances and regulations. (Gov. Code, §§ 65800, 65850.) Through its planning Director and staff, County has authority to interpret and resolve questions about the meaning or applicability of any part of the MLUDC. (MLUDC, §§ 35.400.030(B) [when the division refers to the “Director,” it is expressly understood that department staff are acting under the direction and control of the Director], 35.402.020 [Director has authority to interpret any provision of the code].) It asserts that it has expertise and technical knowledge of the MLUDC, which is technical, obscure, complex, open-ended, and entwined with issues of fact, policy and discretion, and is intimately familiar with the MLUDC and sensitive to the practical implications of one interpretation over another. (Yamaha, supra, 19 Cal.4th at p. 12.).
It reasonably and carefully interpreted the MLUDC, and distinguished between permanent fixtures that demonstrate a space is intended to be “devoted” for a particular recreational sport purpose, from removable, temporary equipment that may be utilized on the hard surface only when the space is utilized for that activity and does not preclude other uses of the space. The Schwobs’ interpretation would have broader consequences, and County evaluated it and determined it cannot be harmonized with other portions of the MLUDC. That a resident may use a patio or driveway for recreation does not transform that development into a sports court.
Finally, the County contends that its interpretation of the MLUDC is valid and correct, because the Schwobs’ alternative argument that the development is a “private residential recreation facility” within the meaning of the MLUDC shows that County is entitled to deference in its interpretation of the complexities of the MLUDC. The MLUDC defines a “private residential recreation facility” as a “privately-owned, non-commercial recreation facility provided for residential project or neighborhood residents, including outdoor facilities such as swimming pools, swim and tennis clubs, park and sport court facilities, and indoor facilities (e.g., recreation rooms). Does not include golf courses and country clubs, which are separately defined.” It is not in the section entitled “residential,” and the definition makes clear it does not apply to individual private residential uses. Rather, it contemplates private, but communal, facilities for a particular neighborhood—while non-public, it is of broader application than to a single residential property.
(B) County contends that it did not abuse its discretion when it investigated and enforce the MLUDC with respect to the complaints. It argues that when an agency’s decision is reviewed for abuse of discretion, the limited inquiry focuses on whether it adequately considered all relevant factors, and demonstrated a rational connection between those factors, the choices made, and the purposes of the enabling statute. (Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 232.) The factors supporting the agency’s interpretation include indications of careful consideration by senior officials, evidence that the agency has consistently maintained the interpretation in question, especially if it is long-standing, and indications that the agency’s interpretation was contemporaneous with enactment of the statute being interpreted. (Yamaha, supra, 19 Cal.4th at pp. 12-13.)
County asserts that it exercised appropriate enforcement to address the MLUDC violations. Senior staff and division directors carefully considered whether, and under what circumstances, the development might be in violation of the MLUDC. It considered the implications of the interpretation promoted by the Schwobs, determining that it could not be harmonized with other portions of the code, and would be a deviation from the longstanding and consistent application of the code provisions regarding setbacks. County urges that it is tasked with evaluating the development, not to use the MLUDC to achieve a specific result. It cannot regulate hypothetical uses, and must instead apply the code to existing uses.
County asserts that it conducted several site visits to evaluate the development, and determine whether the MLUDC had been violated. Senior leaders were directly involved in the enforcement matters. When the Crosbys converted the sports court into a patio, it met all requirements of the MLUDC, and County therefore determined there was no basis for further enforcement. Because a patio is not a structure subject to setback requirements, the patio is exempt from a permit because it meets all regulations, and the development does not violate the MLUDC. County contends that even if the Court were to accept the Schwobs’ interpretation, it did not abuse its discretion because the MLUDC authorizes, but does not require, the director to investigate reported violations, and only if a violation is “determined to exist” is the director authorized to take measures the director “deems necessary.” County’s determination that there is no violation must be upheld because it is within County’s discretion under the MLUDC.
Fourth, county asserts that its decision that the fence does not violate the MLUDC is a legally permissible conclusion, is supported by evidence, and is the result of its reasonable exercise of discretion. It contends the provisions of the MLUDC regulating fences are clear. MLUDC § 35.430.070.C is unambiguous as to when a fence requires a permit, and irrespective of location within the rear setback, a fence is exempt from a permit requirement if it 6’ or less in height. The MLUDC also includes an exception to the height requirement to account for topographic conditions (§ 35.430.070.C.1.)
County argues further that it did not abuse its discretion when it determined that the current fence does not violate the MLUDC. The first NOV shows that staff determined the height of the fence by measuring it from its natural grade, which included the height of the retaining wall. The Crosbys abated the violation by lowering the height of the fence. Upon inspection, County determined the fence was less than 6’ in height from natural grade. The fence is within the property’s boundaries, in which there are fences that are taller in height along the rear boundary. County correctly concluded that the fence does not violate the MLUDC, and does not require a permit, because it is subject to the exemption under Section 35.430.070.C (i.e.¸ it is less than 6 feet in height.
Based on all these arguments, County requests that the Court deny the writ in its entirety. Since the Schwobs are not entitled to any relief, County should be deemed the prevailing party entitled to seek all applicable fees and costs. If the Court finds that County’s finding that the paved hardscape was unreasonable, County contends that it is entitled to consider additional evidence and make findings to reach a new determination.
Evidence The opposition is supported by the declarations of Paul Hannah (an Enforcement Officer with the County of Santa Barbara, Planning and Development Department, Planner II), Errin Briggs (currently Deputy Director of the Energy, Minerals, & Compliance Division with the County, who prior to May 2024 held the position of Supervising Planner), and Deputy County Counsel Christine M. Monroe.
The Hannah declaration states that the County Planning and Development Department is responsible for implementing/enforcing zoning and land use standards adopted by the Board of supervisors, and he is responsible for enforcement of the MLUDC. He investigates complaints of noncompliance, makes determinations regarding the validity of the complaint and whether a violation exists on the property, and takes steps to enforce MLUDC provisions to the extent necessary. On 1/11/22, County processed a confidential complaint regarding a pickleball court within the setback of property at 551 Santa Angela Lane in Montecito, and he sent a letter to the Crosbys that day (authenticated) to notify them of the complaint and set up a site investigation. Case No. 22ZEV-00000-00005 was opened. On 1/26/22, he conducted a site investigation, and determined a MLUDC violation existed. On 2/11/22, he issued a notice of violation to the Crosbys (authenticated). As part of the investigation, he had conversations with his superiors to discuss the interpretation and application of the MLUDC based upon questions raised by Robert Schwob. County provided the Crosbys extensions of time to complete an abatement plan proposed by their contractor, Becker Studios, involving removal of nets, capping of holes, removal of hoop and backboard from the post, removal of court striping, and reducing fence height (email exchange authenticated). On 6/16/22 he inspected the site with James Wright, Grading inspector (authenticates email confirming inspection), after which he received a copy of an email from Schwob informing County that Wright had confirmed that the cubic yards of fill was less than the amount to prompt application of Grading Code provisions, that filling post holes and removal of court markings were a resolution, and he hoped the situation was resolved (email exchange authenticated). On 6/30/22, Hannah inspected the site and confirmed the violation was abated and in compliance with the MLUDC. The matter was closed on April 3, 2023, after the cost recovery process was completed (letter sent to Crosbys authenticated).
Mr. Hannah declared further that on August 7, 2022, County received a confidential complaint that the patio had again been converted into a pickleball court at the Crosby Property. Case No. 22ZEV-00000-00165 was opened. On September 9, 2022, he inspected the site, observed that the patio had been converted into a sports court, and determined that an MLUDC violation existed. That same day, he prepared, received supervisor approval, and issued NOV-2 to the Crosbys (authenticated). On October 11, 2022, he inspected the site, and observed that all permanent sports court fixtures were removed and the development had been converted to a patio. He determined the violation had been abated, and the patio was not in violation of the MLUDC. The matter was closed on April 18, 2023 (letter sent to Crosbys authenticated).
Mr. Hannah declared further that on July 3, 2024, County received a confidential complaint regarding a pickleball court within the setback of the Crosby Property, and prepared, received supervisor approval, signed on behalf of Errin Briggs, and sent a letter to the Crosbys to notify them of the complaint and set up a site investigation (letter authenticated). Case No. 24ZEV-00000-00144 was opened. On July 19, 2024, he conducted a site investigation of the property and determined a MLUDC violation existed. He prepared a notice of violation which was reviewed by his supervisor, Errin Briggs, and on July 26 signed and issued a notice of violation of the MLUDC to the Crosbys (notice authenticated). On September 24, 2024, he conducted a site investigation and observed that all permanent sports court fixtures were removed and the development had been converted into a patio. He determined the MLUDC violation had been abated and the patio was not in violation. The case remains open because the Cost Recovery portion of the process is still underway.
The Briggs declaration states that that the County Planning and Development Department is responsible for implementing/enforcing zoning and land use standards adopted by the Board of supervisors, and she is s responsible for enforcement of the MLUDC, and investigates complaints of noncompliance, makes determinations regarding the validity of the complaint and whether a violation exists on the property, and takes steps to enforce MLUDC provisions to the extent necessary. She was directly involved in the enforcement matters related to all three notice of violation in this case, as well as other complaints and inquiries about the existence of a pickleball court within the setback of the property at 551 Santa Angela Lane in Montecito. She regularly oversaw the work of Paull Hannah, has reviewed his declaration, and is familiar with the documents attached to his declaration. His declaration and documents accurately represent County’s enforcement actions in which she was involved as his direct supervisor.
The Briggs declaration also states that she also took direct actions, including communicating with Mr. Schwob and analyzing and discussing interpretation of the MLUDC with the department and leadership. On January 7, 2022, she received an email from Mr. Schwob regarding his interpretation of the MLUDC, and those issues were carefully and thoroughly analyzed within the County at a supervisor and division director level (authenticates the email, without enclosure). On January 13, 2022, she confirmed with Schwob that County would conduct a thorough review of his inquiries and the MLUDC and provide a response (email exchange authenticated). On January 18, 2022, she spoke with Donna Senauer, Montecito Planning Commissioner, explaining the interpretation of the MLUDC as to why pickleball courts are exempt, but that they are required to meet setback and zoning requirements (email summarizing call authenticated). On February 2, 2022, she had an email exchange with Schwob confirming that the County’s determination would be based on the MLUDC, and that addressing the regulation of an emerging issue would be a legislative function outside the purview of the enforcement function (email authenticated).
The Briggs declaration states further that she received an email from Schwob on February 9, 2022, with inquiries about additional provisions of the MLUDC. She reviewed Mr. Hannah’s analysis as to why Section 35.442.020.B.6.a did not apply to a “sports court,” including the square foot limitations identified, and agreed with his conclusion that it would not logically apply because a “sports court” would never be possible under that scenario (email analysis authenticated). On February 16, 2022, she had an email exchange with Schwob, informing him that after significant consideration, County had concluded that pickleball courts are exempt from permitting requirements, but as with any other exempt development, must comply with setback and other requirements (email authenticated). On February 23, 2022, Travis Seawards, Deputy Director for the Development Review Division of Planning & Development, emailed Schwob at Briggs’ request to respond to his inquiries why a permit was not required for a pickleball court (email, on which she was “cc’d”, authenticated).
Briggs declared further that she sent Schwob an email on March 11, 2022, advising him that the abatement options identified in the Notice of Violation were not exhaustive (email authenticated). She kept Schwob apprised of the status or directed others to do so, throughout the process. She authenticates March 30, 2022 and October 14, 2022 emails to Schwob regarding status.
Briggs declared further that she had an email exchange with Schwob on July 2, 2024, wherein he identified the County’s determination that a “temporary use of the patio area for recreational uses does not constitute a violation of the [MLUDC], but permanent placement of lines and net could indicate the area is designated as a “sports court” (her email authenticated). She declares that this email is consistent with the determinations reached by John Zorovich at the time he was Deputy Director of the Energy, Minerals & Compliance Division of planning and Development, during which he oversaw the enforcement division (his December 19, 2022, and January 6, 2023, emails, on which she was “cc’d” authenticated).
Finally, she declares that Planning and Development interprets and applies the pertinent part of the code, as follows:
a. While a “sports court” is defined as a “structure” subject to the setback requirements, a patio is merely a flatwork, which is not subject to the rear-setback requirements of MLUDC §§ 35.442.020 and 35.500.020.
b. A patio or other flatwork is measured from “finished grade,” which is the measurement of the patio above the dirt upon which the paved area rests, irrespective of the use of fill or retaining walls. “Finished grade” is distinguished from “natural grade,” in which the measure is from the natural contour of the land that is unaltered by human intervention. The issue of how much fill was used would be a question of whether the grading code applies, and not whether the paved patio should be measured from something other than “finished grade.” (MLUDC § 35.500.020 (“Grade, Finished”).
c. A Private Residential Recreation Facility within the meaning of the MLUDC must be a facility that is for the exclusive use of a group of residents of a neighborhood or complex, and might apply to an open space or community center through a homeowners’ association. It is generally part of a larger project, and does not apply to a single private residence for that individual use.
The Monroe declaration sets forth the post-demurrer procedural history of the case, including the setting of the November 13, 2024, hearing date on the writ, and the Schwobs’ counsel’s confirmation that he would file paperwork for that hearing date. While she received the Notice of hearing, she has not received any memorandum of points and ;authorities or other evidence, and the time for the Schwobs to file and serve them has passed. She attaches and incorporates excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code, and the Santa Barbara County Code, Grading Code, of which judicial notice is requested. She further declares that she accessed the websites for the definitions cited in the opposition at footnotes 1-4 (p. 15) on October 28, 2024.
Finally, the County’s opposition relies on its request for judicial notice of: 1. Excerpts from the Santa Barbara County Code, Montecito Land Use and Development Code; and 2. Excerpts from the Santa Barbara County Code, Grading Code.
Late-Filed Reply
In spite of not filing any arguments, authorities, or evidence in support of their petition, the Schwobs filed reply papers on November 7, 2024, one day after reply papers were legally required to be filed pursuant to the Code of Civil Procedure. The reply erroneously referred to the County’s opposition papers as an opposition to a demurrer, and to the reply’s own contents as “allegations.”
Objection
On November 8, 2024, County filed an objection to the reply brief. In the objection, County asserts that the Schwobs waived their right to file a reply brief by failing to file a memorandum in support of their petition. Further, County asserts that evidence and arguments raised for the first time in a reply may be disregarded by the trial court, and may be stricken. County further objects that the factual statements in the reply are unsupported by admissible evidence, rendering the reply unreliable hearsay without any foundation, and fails to meet the Schwobs’ burden on their writ. Finally, County asserts specific, individual objections to ¶¶ 4-6, 15, 28-29, 35-45, 48-59 of the reply.
Continuance
On the Court’s own motion, the hearing on the writ was continued from November 13, 2024, to November 20, 2024.
ANALYSIS
For the reasons more fully articulated below, the Court will deny the motion for judgment on the petition for writ of mandate. County is entitled to entry of judgment in its favor on the Schwobs’ petition.
1. Request for judicial notice.
In support of its opposition to the motion for judgment on the writ, County has requested that the Court take judicial notice of excerpts form the Santa Barbara County Code, Montecito Land Use and Development Code (MLUDC), and excerpts form the Santa Barbara County Code, Grading Code, under the authority of Evidence Code sections 452(b) and 453. The request attaches copies of the provisions of which judicial notice is requested.
Evidence Code section 452(b) permits the court to take judicial notice of the regulations and legislative enactments of any public entity. Pursuant to Evidence Code section 453, the trial court must take judicial notice of any matter specified in Section 452 if a party requests it and: (a) gives each adverse party sufficient notice of the request, through pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter.
County has fully complied with the provisions of Section 453. The Schwobs have not objected to the request, and in fact have themselves relied on some of the same provisions in their reply papers. It is appropriate for this Court to judicial notice the specified provisions of the County Code, and the Court will grant the request for judicial notice.
2. Standard of judicial review for writs of mandate pursuant to Code of Civil Procedure section 1085.
A. Review of agency’s resolution of questions of law.
When a statute (or ordinance) delegates discretionary authority to an agency, courts review whether the agency’s choice is legally permissible as a question of law. If the choice is legally permissible, courts then proceed to determine whether the agency’s discretionary choice is an abuse of discretion. (Rutter, § 17:636; see 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.) Since discretionary decisions often involve a balancing of factors, whether the agency took account of all relevant factors or took account of irrelevant factors is a question of law on judicial review. (See Rutter, § 17:637, citing Morrison v. State Board of Education (1969) 1 Cal.3d 214, 220-230; Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control District (2008) 168 Cal.App.4th 535, 542-549.)
Questions of law are ordinarily determined by a reviewing court under an independent judgment test, under which the court can substitute its judgment on a question of law for that of an agency even though the agency’s interpretation is reasonable. (Rutter, §§ 17:10, 17:20, 17:369.) However, in the course of exercising independent judgment over questions of legal interpretation, the court gives “variable deference” to the agency’s interpretation. (Yamaha Corporation of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7-8 [“Yamaha”].) Yamaha requires the reviewing court to take account of various factors in determining how much weight to give to an agency’s legal interpretation of a statute it administers. (Yamaha, supra, 19 Cal.4th at ¶ 12.)
If the reviewing court determines that the language being interpreted is unambiguous, it gives no deference to the agency’s contrary interpretation, and should not make use of any other extrinsic aid to interpretation. Rather, in the process of judicial interpretation of a statute, deference to the agency’s opinion comes into play only if the language is ambiguous. (Bonnell v. Medical Board of California (2003) 31 Cal.4th 1255, 1264-1265.)
Further, application of the variable deference factors is fundamentally situational, and the degree of deference owed to the agency’s interpretation depends on the facts and circumstances of the particular case. (Yamaha, supra, at p. 12.) The factors fall into two broad groupings: (1) those concerned with whether the agency has a “comparative interpretive advantage” over courts, and (2) those indicating that the interpretation in question is probably correct. (Ibid.)
B. Review of the agency’s factual determinations.
Once the reviewing court has resolved issues of law, it then proceeds to review the factual determinations underlying the adjudicatory decision. In traditional mandamus review of an agency’s factual determinations, the standard is whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. The court must ensure that the agency adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. (Golden Drugs Co., Inc. v. Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1466, citing American Board of Cosmetic Surgery v. Medical Board of California (2008) 162 Cal.Apap.4th 534, 547-548.) In each case, the court must satisfy itself that the order was supported by the evidence, although what constitutes reasonable evidentiary support may vary depending on the nature of the action, and a proceeding which has determined individual rights in a factual context will warrant more exacting judicial review of the evidence. Otherwise, courts will tend to defer to the presumed expertise of the agency acting within its scope of authority. (Ibid, quoting Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218, 232.)
3. Motions for judgment on a petition for writ of mandate.
A. Applicable procedures
Because the trial on a petition for writ of mandate is in the nature of a law and motion hearing, its calendaring usually occurs by noticed motion, or is set in an alternative writ. (Cal. Practice Guide: Administrative Law (The Rutter Group 2024) ¶ 20:230.) When it proceeds by noticed motion, petitioners obtain a hearing on the merits by filing a motion for judgment on the writ. (Code Civ. Proc., § 1094.) Petitioners proceeding by noticed motion must file and serve a notice of motion, motion, and supporting memorandum. (Cal. Practice Guide: Administrative Law (The Rutter Group 2024) ¶ 20:245; California Rules of Court, Rules 3.1110, 3.1112, 3.1113.) Except with respect to the motions listed in Rule 3.1114, a party filing a motion must file and serve a supporting memorandum, and the failure to do so may be construed by the court as an admission that the motion is not meritorious and constitute cause for its denial. (Cal. Rules of Court, Rule 3.1113, subd. (a).) The memorandum must contain a statement of facts, a concise statement of the law, evidence, and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. (Cal. Rules of Court, Rules 3.1113, subd. (b).)
B. Petitioners’ failure to file a moving memorandum or provide any supporting evidence is contrary to law and has violated County’s due process rights, requiring both that the Schwobs’ reply papers be disregarded, and that their petition be denied for failure to meet their burden in this writ proceeding.
Petitioners have long know the date upon which the writ of mandate trial was to be heard. Rather than filing a proper motion for judgment on the writ, the Schwobs chose to proceed without the filing of a motion for judgment on the petition. Rather, they filed only a Notice of Hearing, which neither contained nor referred to any evidence, arguments, or relevant authorities in support of the merits of the petition. Further, they did so late, filing the Notice of Hearing four (4) days after the motion was due, based upon the November 13 hearing date.
However, as noted above, the petitioner has the burden of establishing that the agency—here the County—abused its discretion in acting as it did. In failing to provide any evidence, argument or authority, and in apparently relying solely upon its verified SAPC, the Schwobs have necessarily failed to meet that burden, requiring that their petition for writ of mandate be denied.
To further aggravate these circumstances, the Schwobs proceeded to file reply papers which (1) were filed two days late, given that reply papers for a November 13, 2024, hearing were due no later than November 5, 2024, as a result of the November 11, 2024, court holiday (Code Civ. Proc., §§ 10, 135 [designating court holidays to include every day designated as a holiday by Government Code section 6700]; Gov. Code, § 6700(a)(16) [Veterans Day as state holiday]; 1005, subd. (b) [reply papers due 5 court days before the hearing]); (2) erroneously referred to its contents as “allegations” (¶¶ 23, 34, 39, 46), and made statements “on information and belief” (¶¶ 5, 9, 28), despite the fact that this action is well beyond the pleading stage, and the current hearing is considered to be the trial of the mandate action; (3) provided no evidence in support of the Schwobs contentions (although some references were made to evidence submitted by County), (4) made new factual arguments (given that none were made in the initial Notice of Hearing), many of which were unsupported by reference to any evidence before the court; (5), made arguments related to issues which are beyond the scope of those raised in the SAPC, of which County appears to have had no notice prior to the improper filing of the reply papers (see, e.g., Reply @ ¶¶ 54-59, related to “Tree Protection”); and (6) cited no authorities other than various provisions of the MLUDC to support their burden to establish that County’s actions were “arbitrary, capricious or entirely lacking in evidentiary support.”
The Schwobs’ approach to the trial on their writ petition gives every appearance to this Court of an attempt to sandbag the County and manipulate these proceeding to obtain an unjust legal advantage, by deliberately failing to submit any substantive moving papers setting forth any argument or evidence in support of their writ petition, waiting to see what the County would argue in opposition, and only then for the very first time presenting argument in support of their petition, thereby depriving the County of its due process right to respond to the Schwobs arguments. To the extent that the Schwobs or their counsel suffered some infirmity that might have prevented them from providing substantive moving papers, their recourse was to come to the court and explain such circumstances and request a brief continuance of the hearing to permit them to prepare a proper motion for judgment on the writ. Their failure to do so leads the Court to conclude that their filing only of a non-substantive “notice of hearing” was a tactical and deliberate choice.
The Court will not tolerate such manipulation and game playing. If the Schwobs had filed proper moving papers which provided the Court and County with the arguments, authorities, and evidence in support of their petition, and merely presented in their reply new arguments which had been prompted by and were in response to issues raised in County’s opposition papers, the Court would simply continue the hearing, and permit County an opportunity to respond to the new matter contained in the reply. However, that is not what occurred. The Schwobs failed to present any argument or authority in support of their motion for judgment on the writ until the time of their reply, and have failed to present any evidence at all.
Under such circumstances, the Court has determined that the only proper course of action is for it to disregard the reply papers in their entirety. (See Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227-228 [new arguments submitted for the first time in reply papers may be disregarded by the trial court, where the circumstances giving rise to the argument were known to the party when the motion was filed].)
Having done so, the Court finds that the Schwobs have failed to meet their burden of establishing that the actions taken by the County were action was arbitrary, capricious or entirely lacking in evidentiary support, requiring that the petition for writ be denied. County is entitled to judgment on the second cause of action for mandate, which is the only cause of action which survived demurrer.
4. County’s Opposition Papers Support the Conclusion that County’s Interpretation of the MLUDC is Entitled to Deference, and that It Did Not Abuse Its Discretion in Investigating and Enforcing the MLUDC With Respect to the Crosby’s Hardscape
Even though the Court has denied the motion for judgment on the writ because of the conduct of the Petitioners, the Court also believes that the evidence and arguments presented by the County in its opposition papers affirmatively establishes that County did not abuse its discretion in the manner it chose to respond to and resolve the Schwobs’ complaints regarding violation of the MLUDC.
The sole remaining claim by the Schwobs against County is their second cause of action for mandamus pursuant to Code of Civil Procedure section 1085. After incorporating the previous allegations of the SAPC, the cause of action alleges that the Schwobs are entitled to have portions of the MLUDC enforced to protect them against nuisances, that the County failed or refused to identify obvious MLUDC violations which occurred at the Crosbys’ property, and that in failing to do so, County abused its discretion. The claim alleges that County failed to enforce provisions of the code including Chapter 35, § 35.400.040.A; § 35.420.040.A, and § 35.442.020.4.a.(1).(c) as to the Sports Court, and Chapter 35, § 35.400.040.A, § 35.430.070.C, and §35.430.070 Table 3-2, as to the Fencing. Its failure to enforce these provisions is alleged to have permitted a continuing nuisance to occur.
In its prayer with respect to this cause of action, the SAPC seeks “injunctive relief, including a declaration that the Schwobs are the prevailing party and that the Crosbys are directed to remove the Sports Court and related fencing, abate the nuisance herein complained of, and restoration to the prior permitted use.”
The Court has previously found that the SAPC did not state a claim for mandate based upon a ministerial duty, nor did it state a claim in administrative mandamus because of the lack of a relevant hearing requirement, and that therefore the only claim in mandate before the court is a cause of action for mandate pursuant to Code of Civil Procedure section 1085 based upon a claim that the County abused its discretion in enforcing the terms of the MLUDC in the manner it did.
Certainly, MLUDC section 35.402.020 provides the Director of the County Planning Department to interpret any of the MLUDC provision. Section 35.498.020 provides that the Director of the with authority to investigate all reported or apparent violations of any of the provisions of the MLUDC, and if a violation is determined to exist or be impending, to take such measures as the Director deems necessary or expedient to enforce and secure compliance with the provisions of the MLUDC.
Further, it is undisputed that the County in fact exercised its discretion, in the manner in which it responded to the complaints made with respect to the Crosbys’ property. The current task for this Court is to determine whether the County abused its discretion in acting as it did, determined pursuant to the appropriate standards articulated above.
A. Interpretation of MLUDC terms
Since the MLUDC provides the Planning Department and its Director with the discretion to determine whether violations of the MLUDC exist, and to take measures it deems necessary or expedient to enforce compliance with the MLUDC, the applicable standards first require the Court to determine whether County’s interpretation of the MLUDC is legally permissible. While the Court applies the “independent judgment” test, the Court gives “variable deference” to the County’s interpretation of the MLUDC, in which no deference is given is the language being interpreted in unambiguous, and the degree of deference when language is ambiguous is situational, and depends on the facts and circumstances of the case.
1. “Sports Court”
(a) Are the terms of the MLUDC unambiguous?
County contends that the definition of a “sports court” under the MLUDC is unambiguous, in defining a “sports court” as “structure which consists of a hardscape or other surface having a minimum size of 20 feet by 50 feet that is utilized in connection with a flat game court structure devoted to recreational purposes including basketball, handball, tennis, and volleyball but excluding bocce ball courts, lawn bowling courts and similar facilities, patios, and areas used for driveways or parking of vehicles.” As such, County contends a hardscape surface must have all three elements to constitute a “sports court” under the MLUDC, including: (1) a minimum 20’ x 50’ size, (2) “devoted” to recreational purposes, and (3) which does not fall within an excluded classification. County contends that the Schwobs have focused on the size of the hardscape, to the exclusion of the other factors, and the facts that the hardscape was not used exclusively for flat game purposes, and could be considered a “patio,” require the conclusion that once the permanent indicia of pickleball usage were removed, the hardscape did not constitute a “sports court” and as a patio was not subject to the rear setback restrictions.
While the Court fully understands County’s argument, it cannot find that the terms of the MLUDC are completely unambiguous in this respect. In particular, County’s conclusion that the hardscape was or was not “devoted” to recreational purposes if it did or did not contain some permanent indicia of sports usage, and that this necessarily resolved the issue of whether a hardscape which met the dimensions set forth in the definition was or was not a “sports court” subject to the rear setback percentage restriction, does not appear unambiguous to this Court. Indeed, the mere fact that the County’s first Notice of Violation issued to the Crosbys indicated that their abatement options included either (a) removing the sports court or (b) relocating it out of the rear setback, is an indication even the County, in its initial evaluation of the Crosbys’ hardscape, appears to have considered the hardscape to be a sports court, and only a sports court, and did not appear to even contemplate—at that time—that it could constitute a “patio” not subject to the rear setback restrictions if the fixed net and striping were removed. Rather, that determination came later, even under County’s articulation of the events, upon it further consideration of the terms of the MLUDC, and the issues and problems which could arise with respect to the residential use of similar hardscape surfaces (patios, driveways, etc.) for occasional sports usage, that County appears to have arrived at the conclusion that the removal of the permanent sports court indicia resulted in the hardscape no longer constituting a “sports court” subject to the rear setback percentage restriction.
The definitions within and express provisions of the MLUDC do not unequivocally require the Court to reach any particular resolution of the manner in which the MLUDC is properly applied to the surface installed on the Crosby’s property. As a result of the existing ambiguity, the Court must proceed to the next step of the analysis, and determine whether County’s interpretation of the MLUDC in that manner is entitled to deference and, if so, the appropriate level of deference which it should be accorded.
(b) Is the County entitled to deference in its interpretation of the MLUDC?
To the extent the Court has found the definition to be ambiguous, County asserts further that the circumstances present here require that the Court give great weight to its interpretation of the MLUDC.
Specifically, County asserts that the Legislature has given counties authority to enact zoning ordinances and regulations (Gov. Code, §§ 65800, 65850), and County, through the Planning Director and her staff, has authority to interpret and resolve questions about the meaning or applicability of any part of the applicable zoning ordinances. (MLUDC §§ 35.400.030(B), 35.402.020, 35.500.020 [“Director”]). County contends that it has “expertise and technical knowledge” of the MLUDC, which is “technical, obscure, complex, open-ended, [and] intertwined with issues of fact, policy, and discretion,” within the meaning of Yamaha, supra. It further contends it is “intimately familiar” with the MLUDC, and is “sensitive to the practical implications of one interpretation over another.”
In the context of the current dispute, County contends that its interpretation of the MLUDC to exclude the Crosby’s hardscape from consideration as a “sports court” (subject to the rear setback percentage limitations) through removal of the permanent indicia of a sports court (i.e., no permanent net structure, and no permanent court marking), and to consider the resulting hardscape to instead be a “patio” which the Crosbys could use for other non-sports recreational and other activities (not subject to the rear setback percentage limitations), is a legally permissible conclusion. It further contends that in addition to being an objectively and legally permissible interpretation, that its interpretation avoids the untoward consequences that the Schwobs’ broader interpretation would have, which County cannot harmonize with other portions of the MLUDC. It provides the example that sports (presumably such as basketball or pickleball) could easily be played on driveways or other similar hardscape surfaces, but that the Schwobs’ interpretation of the MLUDC would result in the prohibition of driveways, since accessory structures cannot be placed in front setbacks. It concludes that the fact that a resident may use a patio, driveway, or other hardscape surface for recreation does not convert that surface into a “sports court.”
The declaration of Errin Briggs, who was the County’s Supervising Planner during the relevant periods of time (and currently is the Deputy Director of the Energy, Minerals, & Compliance division within the County’s Planning and Development department), establishes that she participated in, and had oversight over, the investigation and resolution of the complaints made about the Crosby property in 2022 by the Schwobs. She declares that the issues raised by Mr. Schwob were “carefully and thoroughly analyzed within the County at a supervisor and division director level.” The County’s resolution of the complaints could only be based upon the MLUDC as an enforcement function, and to the extent the regulation of an emerging issue was implicated, that would be a legislative function, presumably meaning that it would require amendment of the MLUDC to address the issue.
As noted above, application of the variable deference factors is fundamentally situational, and the degree of deference owed to the agency’s interpretation depends on the facts and circumstances of the case. (Yamaha, supra, 19 cal.4th at p. 12.) The factors fall into two broad groupings: (1) those concerned with whether the agency has a comparative advantage over courts, and (2) those indicating the interpretation on question is probably correct. (See discussion at Section 2.A., above, for a more detailed articulation of the two groupings of factors.)
In this case, the Court finds that, at a minimum, the County has a comparative interpretative advantage over the courts with respect to the proper interpretation of the terms of the MLUDC. First, the specific terms of the MLUDC at issue in this case are open-ended, and clearly entwined with issues of fact, policy and discretion. Further, County is interpreting its own ordinance, and is likely to be intimately familiar with the regulations it has authored and is tasked with interpreting and enforcing, including the necessity to be highly sensitive to the practical implications of one interpretation over another, in the context of attempting to apply the MLUDC’s terms uniformly to all properties to which it applies, rather than on an ad hoc basis to individual properties.
The Planning Department is tasked with investigating complaints of noncompliance with the MLUDC, determining whether a violation in fact exists, and if a violation is found to exist, determining the appropriate means of enforcing the MLUDC, and, determining whether the actions taken by the property owner in response to a notice of violation have in fact abated the violation, or whether further actions are necessary in order to do so. While the terms of the MLUDC are only moderately technical, the Planning Department, through its long experience interpreting, applying, and enforcing the MLUDC, is much better situated to be able to reconcile proffered interpretations with the actual terms of the MLUDC in a manner that permits it to achieve relative uniformity in application.
The Court therefore finds that County’s interpretation of the MLUDC is entitled to some deference, and that the manner in which it has interpreted the MLUDC in the context of the current dispute is a legally permissible interpretation. The Court therefore moves forward in its analysis, to determine whether County abused its discretion in the manner in which it chose to enforce the terms of the MLUDC, and its ultimate determination that the zoning violation was abated by the removal of the permanent indicia of a sports court. (See Section 4.B, below.)
2. “Private Residential Recreation Facility”
The Schwobs have alternately claimed that the Crosbys’ hardscape surface is a “private residential recreation facility” within the meaning of the MLUDC, apparently in support of their contention that the hardscape is a “structure” subject to the rear setback percentage restriction, or in support of a contention that a permit was required for its construction. Since the term is used and discussed only in ¶ 21 of the Schwobs’ SAPC as an alternative to the hardscape being a “sports court”, their intention in raising it is not clear to the court.
In any event, the MLUDC defines a “private residential recreation facility” as “[a] privately-owned, non-commercial recreation facility provided for residential project or neighborhood residents, including outdoor facilities such as swimming pools, swim and tennis clubs, park and sport court facilities, and indoor facilities (e.g., recreation rooms). Does not include golf courses and country clubs, which are separately defined.” (MLUDC § 35.500.020) As noted by County’s opposition brief, Table 2-4 of Section 35.423.030 identifies a private residential recreational facility as a “RECREATION, EDUCATION & PUBLIC ASSEMBLY” use, not a “residential” use.
As such, County contends that the terms of the MLUDC with respect to a “private residential recreation facility” are unambiguous in not applying to individual private residential uses/homes, but instead applies to private (not open to the general public) but communal facilities for a particular residential neighborhood or development.
The Court agrees. The definition of a “private residential recreation facility,” read in context with the remaining provisions of the MLUDC, is unambiguous to this Court in applying only to communal recreational facilities which are not open to the public for general use (and therefore are “private”), but rather are open for use only to residents within a particular neighborhood through some means. As such, the hardscape constructed by the Crosbys on their own property does not constitute a “private residential recreation facility” as a matter of law, and the term is irrelevant to the current dispute.
B. County acted within its discretion in investigating and enforcing the MLUDC with respect to the complaints about the Crosby hardscape.
County notes that the MLUDC does not prohibit sports courts in residential zones, nor does it restrict a landowner’s ability to play sports or games on their property but has rules about the minimum distance that “structures” must be set back from property lines, and restrictions on the size of “structures” which may invade that setback area. Since County does not consider the Crosby hardscape to be a “sports court,” and therefore not a “structure” subject to the setback restrictions, it views the current dispute as one between neighbors about noise, rather than a claim that County has failed to enforce the MLUDC.
County asserts that it exercised appropriate enforcement to address the violations of the MLDUC. Senior staff and division directors carefully considered whether, and under what circumstances, the Crosbys’ hardscape might be in violation of the MLUDC. It considered the implications of the interpretation advanced by the Schwobs, and determined that it could not be harmonized with other portions of the MLUDC. That interpretation would result in a deviation from longstanding and consistent application of the MLUDC provisions governing setbacks, including front setback restriction issues not present at the Crosby property. County asserts that it is tasked only with evaluating a development to determine whether it violates the MLUDC, and cannot use or mis-apply the MLUDC to achieve a particular end result. County must apply the MLUDC to existing uses, not hypothetical ones.
County asserts that it conducted several site visits to evaluate the development and determine whether it violated the MLUDC. Senior Planning Department leaders were directly involved in the enforcement matters, and determined that the conversion of the hardscape from a “sports court” (a “structure” subject to setback regulations under the MLUDC) to a “patio” (not a “structure” and therefore not subject to the setback regulations of the MLUDC) through removal of the permanent indicia of a sports court, caused the hardscape to meet all applicable regulations, including setback regulations, and it no longer violated the terms of the MLUDC. As County advised the Schwobs, a property owner’s temporary use of a patio or other hardscape for recreational uses such as pickleball, basketball, or some other sport, is not a violation of the MLUDC. To find otherwise would lead to absurd and untoward results across the properties to which the MLUDC applies.
County emphasizes that under the terms of the MLUDC, it is permitted, but not required, to investigate reported violations, and is authorized to take whatever measures the Director “deems necessary” only if a violation is determined to exist. Its determination that a violation no longer existed once the permanent indicia of a sports court were removed was a determination within County’s discretion. County cites Blankenship v. Michalski (1957) 155 Cal.App.2d 676, for the proposition that where it is reasonably debatable whether a violation has occurred, a determination that no violation had occurred was within discretion, and such discretion should not be controlled by mandamus.
The Court agrees with County. County had full discretion to investigate the Schwobs’ complaints regarding the Crosby hardscape, and to determine whether a violation of the existing provisions of the MLUDC existed. It made that determination, finding that as it existed, the Crosbys’ hardscape constituted a “sports court” within the meaning of the MLUDC. Because a “sports court” is considered by the MLUDC to be a “structure,” because “structures” are subject to the restriction on the total percentage of the required rear setback that can be encroached upon by accessory “structures,” and because the “sports court,” along with an existing ADU accessory structure, exceeded that permissible percentage, the hardscape at that time was in violation of the MLUDC.
Upon making that determination, however, and after considerable discussions among senior department staff with respect to the proper application of the existing terms of the MLUDC to the hardscape, County also determined that if the permanent indicia of the hardscapes’ use as a “sports court” were removed, it could be used for non-sports-court purposes and would qualify as and constitute a “patio” under the terms of the MLUDC. Because a “patio” is not considered a “structure” under the MLUDC, the hardscape would no longer be in violation of the MLUDC limitation on the percentage of the rear setback that can be encroached upon by accessory structures; the temporary use of the patio area for recreational uses would not constitute a violation of the MLUDC.
The County proceeded to make follow-up site inspections of the Crosby property, and upon determining that the permanent indicia of a sports court had been removed, determined that the MLUDC violation which had previously existed had been abated.
On this petition by the Schwobs for issuance of a writ of mandate, the standard to be applied to the County’s discretionary decision to find the MLUDC had been abated by removal of the permanent indicia of a sports court, is whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. Under the circumstances present here, and even though a different result could conceivably have been reached, the Court cannot find that decision which the County actually made was arbitrary, capricious, or entirely lacking in evidentiary support. Consequently, the petition must be denied.
While the Schwobs are undoubtedly disappointed by the manner in which the County interpreted and enforced the terms of the MLUDC with respect to the Crosby property, it needs to be emphasized that the County’s Planning and Development Department is charged with interpreting and enforcing the existing terms of the MLUDC. It cannot make new law or change existing law—those are legislative functions beyond the authority of the Planning and Development Department, which presumably must be addressed to the Board of Supervisors—and the Department can only enforce the terms of the MLUDC as they currently exist. It has done so to the best of its ability, reconciling the varying possible interpretations and applications of the existing MLUDC terms in an effort to achieve uniformity of application and avoid absurd results.
5. County’s Opposition Papers Support the Conclusion that the relevant MLUDC provisions regarding fences are unambiguous, and that County did not abuse its discretion in investigating and enforcing the MLUDC with respect to the Crosby’s fence.
Under the MLUDC, a fence is exempt from a permit if it is six feet in height or less, regardless of whether it is located within the rear setback. (MULDC, § 35.430.070.C, Table 3-2). The height of a fence is measured from the natural grade upward. (MULDC, § 35.430.070.B.) The MLUDC provides an exception to the height limit, to account for topographic conditions, which allows a maximum of 10% of its total linear length to exceed the maximum height specific for exemption from a permit. (MLUDC, § 35.430.070.C.1.)
County contends that the MLUDC provisions regarding the permissible height of fences which may be constructed without first obtaining a permit, are unambiguous. The Court agrees. Consequently, the Court’s inquiry proceeds to ascertain whether County abused its discretion in its investigation and enforcement of the MLUDC’s fence provisions with respect to the fence erected by the Crosbys around their hardscape.
As reflected by the initial Notice of Violation, County Staff investigated the site and determined that fence itself was approximately 8 feet in height, and had been constructed on top of a retaining wall which exceeded 2 feet in height, for a total of more than 10 feet in height. The fence therefore exceeded the maximum permit-exempt fence height of six feet.
The Notice of Violation provided the Crosbys with three abatement options, which included (a) removing the fence, (b) reducing the height of the fence to no more than 6 feet, or (c) if the Crosbys wished to retain the fence at its current height, they would be required to apply for a Conditional Use Permit and a Building Permit.
In response to the Notice of Violation, the Crosbys lowered the fence height to six feet. County Staff investigated and measured the fence, to ensure that it was compliant with the MLUDC height restriction for fences constructed without a permit. The County thereby concluded that the violation had been abated, since the fence did not exceed six feet in height, and therefore did not require a permit.
The standard to be applied to the County’s discretionary decision to find the MLUDC had been abated, is whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. Clearly, finding that the violation had been abated by the reduction of the height of the fence to the standard clearly reflected by and in compliance with the MLUDC, is neither arbitrary nor capricious, and is in fact entirely supported by the evidence. Consequently, there is no basis for issuance of a writ based upon the presence of the fence in the Crosbys’ back yard.
6. Conclusion.
In any writ proceeding, the petitioner bears the burden of establishing entitlement to issuance of the writ. In failing to submit any substantive moving papers in support of their petition—including any argument, any citation to applicable authorities, and any evidence in support of the claims made in the petition—the Schwobs failed to meet their burden from the outset, requiring that their petition be denied. The Court had already reached this preliminary conclusion prior to the Schwobs’ filing of their reply papers, or the County’s filing of its objection to the Court’s consideration of those reply papers.
Further, while the Court could have ended its evaluation at that point and entered judgment, it conducted a substantive evaluation of the showing made by the County in its opposition papers. Upon doing so, the Court has found that County has sufficiently established that its interpretation of the MLUDC is legally permissible, and that it did not abuse its discretion in the manner in which it investigated and resolved the Schwobs’ zoning complaints about the Crosby property.
For all of the foregoing reasons, the Court finds that the Schwobs have failed to meet their burden of establishing that County abused its discretion in the manner in which it investigated and resolved their complaints against the Crosbys, and the County is entitled to entry of judgment in its favor on the Schwobs’ petition.