Rose Wills and Michael Marzolla, Petitioners v. Respondent City of Santa Barbara; Real Party in Interest Jarryd Neil Commerford

Case Number

25CV00944

Case Type

Hearing Date / Time

Wed, 11/19/2025 - 10:00

Nature of Proceedings

Petitioners’ Request for a Writ of Mandate

Tentative Ruling

Petitioners Rose Wills and Michael Marzolla [“Petitioners”] by William M. Dillon.

Defendant City of Santa Barbara [“City”] by Sarah J. Knecht, Tava Ostrenger, Delaney Satz.

Real Party in Interest Jarryd Neil Commerford, [“Real Party”] by Beth A. Collins, Matthew L. Hofer, Cameron J. Gable.

Acknowledgements

The Court acknowledges and appreciates the professional work done by counsel in the case.[1] The submitted documentation is very extensive; exhaustive; thorough; thoughtful; robust. The case has been contentious; acrimonious at times.

Issue

Petitioners’ Request for a Writ of mandate.

RULING

For the reasons set out below Petitioners request for a Writ of Mandate is DENIED with prejudice. Real Party’s request for attorneys’ fees and costs and City’s request for costs shall be filed pursuant to the applicable timelines.

Analysis

This case was filed 2/11/25; an amended Petition was filed 6/27/25 and is Petitioners’ operative pleading; seeks a Writ of Mandate; request that this Court grant the following relief:

1. Issue a declaratory relief judgment that:

a. Permit Streamlining Act.  City did not violate the Permit Streamlining Act in any manner that would cause the Design Board final approval of the plans for 1269 Ferrelo Road, Santa Barbara, CA., to be deemed approved by operation of law.

b. Permit Streamlining Act; Notice.  Even if City failed to act within the timelines of the Permit Streamlining Act, City’s action is invalid as it did not provide the Constitutionally required public notice under Horn for a project to be deemed approved.

c. Government Code Section 65905.5.  If the five-hearing limit was exceeded, City’s action is invalid as there is no remedy in Section 65905.5 or other applicable law to deem a project approved by operation of law.

d. Section 65905.5; Notice.  Even if City exceeded the five-hearing limit and there is a “deemed approved” remedy available, City’s action is invalid as it did not provide the Constitutionally required public notice under Horn for a project to be deemed approved by operation of law. 

e. City Attorney Letter. City Attorney’s Office does not have authority under the City Charter or Municipal Code to take actions set forth in its January 13, 2025, letter.

2. Issue a writ of mandate ordering City to return Petitioners’ administrative appeal to the Planning Commission and shall be heard and decided in accordance with City’s Municipal Code and the Single Family Design Board Guidelines and all other applicable law.

3. Issue a declaratory relief judgment that the building permit issued on or about January 14, 2025, and any subsequent building permit issued for the Project since that date, are void for Applicant’s failure to obtain a Final Approval from the Planning Commission prior to City’s issuance of the building permit.

4. Issue injunctive relief ordering City to not issue any further building permits for the Project until the City, through either the Design Board or Planning Commission, has taken final action to issue Final Approval for the Project in accordance with the Board’s Guidelines and City Municipal Code.  

5. A stay enjoining any demolition or construction at 1269 Ferrelo Road in reliance on any building permit issued by the City on or about January 14, 2025, pending resolution of this case.

6. Award Petitioners reasonable attorney’s fees in accordance with Code of Civil Procedure section 1021.5.

Petitioners Amended Petition for a Writ of Mandate

Filed 6/27/25; 29 pages; summarized: This case concerns the termination of a land use appeal regarding a single-family design approval for a proposed new house at 1269 Ferrelo Road, Santa Barbara, CA (“Project”). The appeal was pending before the City Planning Commission as of January 13, 2025; set for a hearing on January 16, 2025.  The Commission had already held a hearing on the merits on December 19, 2024, and continued the matter. The issue in this lawsuit is whether City Attorney acted improperly when it issued a letter on January 13, 2025, declaring City violated the Permit Streamlining Act (“PSA”) (Gov. Code §65920 et seq.) and the limit of five-hearings on any “housing development project” set forth in Government Code section 65905.5 and, therefore, declared the project had been “deemed complete by operation of law.” 

Petitioners dispute these findings and further object that the notice required for a project to be “deemed approved” has not met the constitutional requirements for due process espoused by the California Supreme Court in Horn v. County of Ventura (1979) 24 Cal.3d 605.  Further, there is no “deemed approved” statutory remedy available for City exceeding the five-hearing limit of Section 65905.5; rather, if this occurs, the appropriate remedy is for an aggrieved person to seek a traditional mandamus writ pursuant to Code of Civil Procedure section 1085 to order the City to fulfill a mandatory duty to make a decision to approve or deny the project application.

The City Attorney letter was issued early on Monday morning, January 13, 2025, responding to a Friday, January 10, 2025, letter from an applicant’s attorney. The City

Attorney’s letter stated “City acknowledges that it did not meet the deadlines set forth in

Permit Streamlining Act and that the project has had nine hearings since it was deemed

complete which, [sic] exceeds the limit of five permissible hearings as set forth in

Government Code §65905. 5.  Therefore, pursuant to your request, the project is deemed

complete by operation of law and there shall be no further public hearings for this project.

The appeal hearing scheduled before the Planning Commission on January 16th has been

canceled.”  The letter further stated, “the City accepts the conditionally approved plans from the October 21, 2024, Single Family Design Board Final Approval meeting as the approved plans and will proceed to process your client’s building permit application. The October 21st plans accepted by City Attorney were the exact plans that were the subject of Petitioners’ appeal pending before the Commission that had just been terminated. The City Attorney terminated the pending appeal just 3 days before the Commission was scheduled to hold a second (continued) hearing on the appeal.

Petitioners file this suit to overturn the City action on five grounds [identified in the complaint as “First through Fifth Causes of Action”]:

1) [First Cause of Action] the time limits of Permit Streamlining Act were not exceeded; and

2) [Second Cause of Action] even if the PSA deadline had been missed, City did not provide the constitutionally required public notice under Horn for a project to be deemed approved; and

3) [Third Cause of Action] unlike the PSA, there is no statutory remedy under Section 65905.5 or any other applicable statute to deem the project approved for exceeding the five-hearing limit; and

4) [Fourth Cause of Action] even if the Section 65905.5 five-hearing limit is exceeded and the statute did provide for a deemed approved by operation of law remedy, City did not provide the constitutionally required notice under Horn for the project to be deemed approved; and

5) [Fifth Cause of Action] the City Attorney exceeded its authority under the City Charter when it unilaterally deemed a project approved, ordered an item on the published Planning Commission agenda “canceled,” and decreed there shall be no further public hearings for this project.  

The City Attorney’s letter is especially misguided when it improperly relies on Government Code section 65905.5 as a ground to deem the Project approved. This reliance is significant error because the PSA “deemed approved” remedy of Government Code section 65956(a) is explicitly limited to where an “agency fails to act to approve or disapprove a development project within the time limits required by this article . . .” 

The PSA is in Article 1 of Chapter 4 of the Government Code, which includes the time limits listed in Government Code section 65950(a)(1) - (4).  Conversely, Section 65905.5 is not part of the PSA.  Rather Section 65905.5 is in Article 3 of Chapter 4.  Therefore, Section 65905.5 is not one of the “time limits required by this Article,” i.e., Article 1 of Chapter 4. 

Petitioners Rose Wills and Michael Marzolla are residents at 1265 Ferrelo Road, Santa Barbara, CA, immediately next door to the proposed Project.  Petitioners’ property interests will be harmed by the Project due to impacts from its size, bulk and scale. 

Petitioners’ right to due process was violated when City Attorney unilaterally ended the

administrative process and allowed final permits to be issued.  

Jarryd Commerford is the Project applicant, real party in interest (“Applicant”).  He proposes to demolish the existing house and build a substantially larger structure.

City of Santa Barbara has land use jurisdiction over the project and acts through its Single Family Design Board, Planning Commission and Building Department. 

The Design Board is governed by the “Single Family Design Board General Design

Guidelines & Meeting Procedures” (“Guidelines”).

Planning Commission is the administrative appellate body of Design Board, and the Commission’s “decision on appeal shall be final subject only to judicial review as provided in Section 1.30.020.”  When the design approval process is complete, City also acts through its Building Department to issue a building permit. 

City’s Answer

Filed 8/18/25; 12 pages; summarized: thorough; specific; raises 6 affirmative defenses [Estoppel; Statutory Authority; Unclean Hands; Mootness; Failure to State a Cause of Action; Right to Assert Additional Defenses]; requests:

1. That the Petition be dismissed in its entirety with prejudice; and

2. That judgment be entered against Petitioner and in favor of Respondent; and

3. That Respondent be awarded costs of suit; and

4. That the Court award Respondent such other and further relief as it deems appropriate. 

Real Party’s Answer

Filed 8/18/25; 16 pages; summarized: thorough; specific; raises 11 affirmative defenses [Waiver; Laches; Estoppel; Statute of Limitations; Unclean Hands; Mootness; Acts and Omissions; Failure to Exhaust Administrative Remedies; Failure to Satisfy Issue Exhaustion Requirement; Failure to State a Cause of Action; Right to Assert Additional Defenses]; requests

1. That Petitioners take nothing by way of its Petition; and

2. That the Court enter judgment in favor of Respondent and RPI; and

3. That the Court award RPI reasonable attorneys’ fees and costs; and

4. That RPI be granted such other and further relief as the Court deems just and proper.

Briefs

Petitioners’ Amended Opening Brief

Filed 10/6/25; 19 pages; summarized; CEQA and the PSA.  The PSA deadlines are measured from specific actions under CEQA.  (Gov. Code § 65950.) Where it can be determined based on the record or matters that may be judicially noticed, that none of the required CEQA actions have occurred, then the time for approval or disapproval of the project has not yet begun. (Eller Media Co. v. City of Los Angeles (2001), 87 Cal. App. 4th 1217.  Government Code section 65950(a)(5) provides: “Sixty days from the determination by the lead agency that the project is exempt from [CEQA], if the project is exempt from that act.” 

In short, the PDA application was submitted January 6, 2022, deemed complete December 1, 2022, Design Board hearing December 5, 2022, and approved PDA January 17, 2023.  The PSA does not apply to

“Administrative appeals.”  (Gov. Code § 65922(b).)   Therefore, City met the PSA deadline

when the Design Board approved the PDA on January 17, 2023.  Oddly, since City did not

make a CEQA determination at this point, the PSA timeline had not begun.  Still, Board

Guideline § 3.2.6(C)(5) provides the PDA for “purposes of Government Code §65950, . . . 

shall be considered to be ‘approval’ of the project . . .”  City Attorney fails to consider

Section 3.2.6(C)(5).  City’s failure to consider its own Guidelines is a basis to disapprove

City Attorney’s determination. 

Final Approval; First Application. “Final Approval” is to review the “working

construction drawings” to determine if these are in “substantial conformance” with the Plans that receive approval under the PDA.  (Guidelines §3.2.6.E.) “Any substantial changes after project design approval will require a new review and approval.” (Id, §3.2.6.C.2.)  

Obviously, over seven months passed since the August 19, 2023, application until the

Design Board approval on April 8, 2024.  The public was not privy to this process; however, the record shows Real Party applied for a building permit that showed the project had been modified from a “remodel” to a “demolition” and construction of a new single family building.  Applicant did not submit the new architectural drawings until March 18, 2024, 7 months after application submittal. The record shows staff proposed a new CEQA exemption per Guidelines Section 15302. The CEQA “update” was not presented to the Design Board or the Commission and was only mentioned on the Agenda for Commission’s December 19, 2024, appeal hearing (AR 2056) but no document was included in the record.

It cannot be ignored that Real Party filed a building permit application for a complete

demolition on January 18, 2024 and submitted revised plans on March 18, 2024. 

City did not require a modified application; rather, the project was placed on the Design

Board April 8, 2024, agenda and granted Final Approval. There was delay, but it was caused by the applicant.

Petitioners appealed to the Planning Commission and won on a 7-0 vote. City sent notice pursuant to Code of Civil Procedure section 1094.6.  

Real Party never pursued any claim re the delay on the Design Board’s approval or

Commission’s denial of the application.  Having failed to sue, Real Party is barred raising

such claims.  

Final Approval; Second Application. The second application went quickly.  As stated above, application was filed September 27, 2024, and approved by Design Board on

October 21, 2024, which was 23 days after submittal.  The appeal to the Commission is not

subject to the timelines of the PSA. (Gov. Code §65922(b).) The Commission held appeal

hearing on December 19, 2024, and continued hearing to January 16, 2025.  On January 13, 2025, City Attorney canceled the scheduled January hearing and deemed the project

“complete” as a matter of law.  The PSA was not even running, as Design Board

approved the application on October 21. On these facts, there is no violation of the PSA.  

Petitioners therefore request the Court find City Attorney’s determinations in its

January 13th letter was wrong as a matter of law and be set aside.  

SECOND CAUSE OF ACTION. CITY DID NOT GIVE “REQUIRED NOTICE.”

Petitioners do not concede City did not meet the PSA timelines; however, City’s

action to deem the project approved by operation of law is invalid for failure to give

“required notice.”  In particular, notice is Constitutionally required to protect neighbor’s

rights to “due process” as espoused by the California Supreme Court in Horn v. County of

Ventura (1979) 24 Cal.3d 605.  

As alleged in the Paragraph 22 of the Amended Petition, Petitioners did not receive

prior notice of City’s intent to deem the project approved by operation of law. 

“22.  During the administrative processes . . . no agenda or staff report identified the PSA as a possible issue and at the numerous hearings neither the City Attorney nor staff verbally stated an exceedance of a PSA deadline was imminent and, unless final action was taken, the project could be deemed approved by operation of law.”

Under Horn v. County of Ventura, (1979) 24 Cal. 3d 605, constitutional rights to due

process require notice and an opportunity to be heard before approval of a discretionary land use project that will cause a substantial or significant deprivation of property rights of neighboring landowners. (Id. at p. 612.)  Horn holds that the “general application of due process principles is flexible, depending on the nature of the competing interests involved.”  And “where . . . prior notice of a potentially adverse decision is constitutionally required, that notice must, at a minimum, be reasonably calculated to afford affected persons the realistic opportunity to protect their interests.” Further, “Notice must, of course, occur sufficiently prior to a final decision to permit a ‘meaningful’ predeprivation hearing to affected landowners.”  (Id. at p. 618, emphasis added, citations omitted.). These principles have been applied by the federal Courts.  (Am. Tower Corp. v. City of San Diego 763 F.3d 1035, 1049 (9th Cir., 2014.) due process requires notice and an opportunity to be heard before important property rights are impacted by discretionary land use decisions, citing Horn.)

Horn stated, “notice must, at a minimum, be reasonably calculated to afford affected persons the realistic opportunity to protect their interests.”  In Linovitz Cap Shores LLC v. California Coastal Commission (2021) 65 Cal.App.5th 1106, the Court stated: “‘Due process noticing requirements are not formulaic; they vary depending on the competing interests involved in each situation. (Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 895 [“The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation”]; Horn, supra, 24 Cal.3d at p. 617; Drummey v. State Bd. of Funeral Directors (1939) 13 Cal.2d 75, 80.  Linovitz at p. 1123.) The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.’ (Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 453.)” Linovitz reviewed a case where an applicant claimed a project was deemed approved under the PSA.  “The Coastal Commission had maintained that the applications were not deemed approved under the Streamlining Act because the requisite notice was not given.” Linovitz at p. 1114.)  However, the Court found the Coastal Commission had made the public aware of the PSA issue.  “The Coastal Commission made the public aware of the approaching Streamlining Act deadline well before the public hearing.  The Coastal Commission staff report concerning the applications, which is dated three weeks before the public hearing date and which public notice indicated would be available no later than 10 days before the hearing, state in bold lettering: ‘Due to Permit Streamlining Act requirements, the Commission must act upon these permit applications at the JULY 2016 Commission meeting unless they are withdrawn by the applicants.’” 

Unlike the case at bar where the Planning Commission January hearing was canceled, in Linovitz the Coastal Commission hearing was held.  Linovitz concluded the “Coastal Commission's legal counsel and others made clear that the Streamlining Act deadline was approaching and that appellants possessed the sole authority to withdraw the applications.” 

In contrast, City never made the public aware of an approaching PSA deadline. City Attorney’s actions were therefore without proper notice and should be set aside.

THIRD CAUSE OF ACTION. THERE IS NO “DEEMED APPROVED” REMEDY FOR SECTION 65905.5.

City Attorney’s letter is especially misguided when it improperly relies on Government Code section 65905.5 as a ground to deem the Project approved.  This reliance is significant error because the PSA “deemed approved” remedy of Government Code section 65956(a) is explicitly limited to where an “agency fails to act to approve or disapprove a development project within the time limits required by this article . . .” The PSA is in Article 1 of Chapter 4 of the Government Code, which includes the time limits listed in Section 65950(a)(1) - (4).  Conversely, Section 65905.5 is not part of the PSA.  Rather Section 65905.5 is in Article 3 of Chapter 4.  Therefore, Section 65905.5 is not one of the “time limits required by this Article,” i.e., Article 1 of Chapter 4. If City exceeded the five-hearing limit of Section 65905.5, Real Party’s remedy was to seek a traditional writ of mandate pursuant to Code of Civil Procedure section 1085 for City’s failure to perform a mandatory duty.  It was error for City Attorney to rely on Section 65909.5 as grounds for the project to be deemed approved by operation of law and, therefore, that determination should be set aside.  

FOURTH CAUSE OF ACTION. CITY DID NOT EXCEED SECTION 65905.5 FIVE-HEARING LIMIT.

Gov. Code Section 65905.5 five-hearing limit; PDA. The purpose of Section 65905.5 is to require local government to decide on residential projects in five-hearings or less.  In sum, for the PDA, not including the “concept review” hearing which occurred before the application was deemed complete, the Design Board held a total of 3 hearings and City Council held 2 appeal hearings, one of which was solely to approve the resolution of decision.  This is a total of 5 hearings and does not exceed the hearing limit of Section 65905.5.  

Final Approvals.  The first Final Approval application was filed August 19, 2023, and heard by the Design Board on October 23, 2023.  Then there was no hearing activity until approved on April 8, 2024. The Planning Commission heard an appeal on June 4, 2024, voting to denying the project.  A hearing was held July 11, 2024, to adopt Resolution 009-24. The Commission’s decision was a final action.  This is a total of 5 hearings. This was a final decision on the project.  Applicant could reinitiate the process through a new application. The process was reinitiated when the second Final Approval application was filed September 27, 2024, approved by Design Board on October 21, 2024, and heard on appeal by the Commission on December 19, 2024.  This is three hearings, with a fourth scheduled for January 16, 2025, which was canceled. The five-hearing limit of Section 56909.5 was not exceeded for the second Final Approval application.

In any event, if the five-hearing limit was exceeded and if this was grounds to deem

the project approved by operation of law, then the same principles in Horn that require

predeprivation notice for exceeding the PSA time limits would also apply to any deemed

approved remedy invoked pursuant to Section 65905.5.  This notice is Constitutionally required to protect the due process rights of the neighbors affected by the project.  (Horn at pp. 617-618.) 

FIFTH CAUSE OF ACTION. City Attorney Exceeded Authority. City Attorney exceeded its authority when it issued the January 13, 2025 letter declaring the project “complete;” attempting to deem it “approved.”  City Attorney’s powers and duties are delineated in Section 703 of Article VII of the City Charter.  These duties include to “Represent and advise the City Council and all City officers in all matters of law pertaining to their offices.”  (Charter §703(a).)  And to attend “all meetings of the City Council, unless excused, and give his [or her] advice or opinion orally or in writing whenever requested to do so by the City Council or by any of the commissions, boards or officers of the City.”  (Id., §703(d).)  And City Attorney has the traditional powers to “represent and appear for the City in any or all actions or proceedings in which the City is concerned or is a party.”  (Id. §703(d).)  Nothing in the City Charter authorizes City Attorney to unilaterally declare a project “deemed approved,” cancel an item on the Planning Commission agenda, and declare “there shall be no further public hearing for this project.”  

Petitioners asked City for an explanation of how our City government works on this issue and have not received an answer.  Who is responsible?  Petitioners and all City residents are entitled to transparency in how our local government works.     

In conclusion, in issuing the January 13, 2025, letter, City Attorney exceeded its powers and duties under the City Charter and, therefore, such action should be set aside.

For the reasons stated above, Petitioners request the Court grant the declaratory relief, writ of mandate and injunctive relief requested in the Amended Petition and grant such other relief as the Court deems appropriate. 

Real Party’s Brief in Opposition

Filed 11/4/25; 21 pages; summarized: Real Party submits that the Petition for Writ of Mandate should be denied in its entirety. They argue as follows:

Petitioners’ arguments rest on fundamental misunderstandings of how the relevant legal schemes operate, dooming their case.

On January 6, 2022, Real Party in Interest applied to City for a permit for his home at 1269 Ferrelo Road (the “Project”). Petitioners, Real Party’s next-door neighbors, opposed the application at every turn, including filing three appeals. After more than three years and thirteen hearings, on January 10, 2025, Real Party’s counsel sent a letter to the City that noted the City had exceeded the time limits imposed by the Permit Streamlining Act (“PSA”), and that the City had exceeded the five-hearing limit established by Gov. Code § 65905.5.

On January 13, 2025, the City Attorney responded by letter (“Letter”), agreeing that these laws were violated and stating that the Project had been deemed approved by operation of law, that the scheduled hearing on Petitioners’ appeal to the Planning Commission (“PC”) was canceled, and that the City accepts the conditionally approved plans and would process Real Party’s building permit application. Petitioners filed this lawsuit in response.

Petitioners allege five causes of action (“CoAs”) under Code Civ. Proc. § 1085 (1) the City did not exceed the PSA’s time limits, (2) the City denied Petitioners due process by failing to give advance notice and a hearing that the PSA time limits were exceeded, (3) “deemed approved” is not a remedy for violation of the “five-hearing” rule under Gov. Code § 65905.5, (4) the City did not violate the “five-hearing” rule, and (5) the City Attorney exceeded her authority by issuing the Letter. None have merit.

Background. On January 6, 2022, Real Party submitted an application for the Project, paid the required fees, and was assigned Application No. PLN2022-00036. On September 12, 2022, the City’s Single Family Design Review Board (“SFDB”) held a “concept review” hearing on the Project, which was continued indefinitely. Petitioners submitted comments objecting to the Project before, during, and after the hearing.

On December 1, 2022, City staff determined that Real Party’s application was “complete” and exempt from the California Environmental Quality Act (“CEQA”), which advanced the Project to the “project design” stage of the review process.

On December 5, 2022, the SFDB held a hearing (the first after the Project was deemed complete), which was continued until January 17, 2023. Petitioners submitted comments beforehand and spoke at the December 5, 2022, hearing.

Petitioners submitted additional written comments on January 13th and January 15th.

Petitioners also delivered oral comments at the January 17, 2023, hearing.

At the January 17, 2023, hearing (the Project’s second), the SFDB granted Project Design Approval (“PDA”).

On January 26, 2023, Petitioners appealed that decision.

On April 11, 2023, the City Council held a hearing (the Project’s third) and denied the appeal, directing City staff to prepare a resolution.

On August 1, 2023, the City Council held a hearing (the Project’s fourth) and approved Resolution No. 23-101, which included findings to deny Petitioners’ appeal and for exemptions from CEQA.

On October 9, 2023, the SFDB held a hearing (the Project’s fifth) on Real Party’s request for Final Approval. Petitioners again opposed the Project through written comments and orally at the hearing. The SFDB continued the hearing to October 23, 2023.

At the October 23, 2023, hearing (the Project’s sixth), the SFDB found that the Project “substantially conformed to the plans that received [PDA]…”, but the SFDB continued the matter indefinitely and did not grant Final Approval for the Project.

On December 7, 2023, the Street Tree Advisory Committee (“STAC”) held a hearing (the Project’s seventh), which Petitioners attended and approved the Project’s proposed replacement of certain trees.

On December 13, 2023, the Parks and Recreation Commission held a hearing (the Project’s eighth) and concurred with the STAC’s recommendation.

On April 8, 2024, the SFDB again held a hearing (the Project’s ninth) to determine whether to grant Final Approval. Petitioners again submitted written comments and spoke at the hearing. The SFDB voted to grant Final Approval.

On April 17, 2024, Petitioners appealed the SFDB’s decision to the PC. Petitioners’ counsel and Petitioners submitted written comments to the PC that reiterated their objections.

On June 6, 2024, the PC held a hearing (the Project’s tenth) and voted to uphold Petitioners’ appeal and overturn SFDB’s determination of Final Approval.

On July 11, 2024, the PC held a further hearing (the Project’s eleventh) to approve the resolution that memorialized this decision.

On September 27, 2024, Real Party uploaded a Resubmittal form for the Project to the

SFDB.

On October 7, 2024, the SFDB’s scheduled hearing was not held due to loss of a quorum, and it was rescheduled to October 21, 2024. Again, Petitioners submitted written comments before the hearing.

At the October 21, 2024, hearing (the Project’s twelfth), the SFDB granted Final Approval. Again, Petitioners submitted written comments and spoke at the hearing.

On October 24, 2024, Petitioners again appealed the SFDB’s determination to the PC.

On December 19, 2024, the PC held a hearing (the thirteenth for the Project) on Petitioners’ appeal, which was continued to January 16, 2025. Again, Petitioners submitted written comments and spoke at the hearing.

On January 10, 2025, Real Party’s counsel submitted a letter to the City Attorney, noting that the City had failed to act within the applicable deadlines under the PSA and had exceeded the allowable number of hearings, resulting in the Project being deemed approved by operation of law.

On January 13, 2025, the City Attorney responded with the Letter, agreeing that these laws were violated, that the Project had been deemed approved by operation of law, and stating that the pending hearing on Petitioners’ appeal would be canceled.

On January 16, 2025, the PC issued a notice that the hearing scheduled for that day had been cancelled and that the Project “is deemed approved per the [SFDB] action taken October 21, 2024.”

While the title of Petitioners’ Opening Brief refers to Code Civ. Proc. § 1085, Petitioners otherwise fail to argue what legal standard the Court should apply to their claims. Petitioners thereby waive the argument. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418–419 [“Holden”] [issues not raised or supported by argument and authority are waived].) For example, § 1085 is often used to compel the performance of a ministerial act, but Petitioners do not identify any ministerial duty in their briefing. 

Petitioners’ claims are properly understood as allegations that the City abused its discretion by failing to follow proper legal procedures in (1) finding that PSA deadlines were exceeded, (2) allegedly violating Petitioners’ due process rights, (3) finding that the Project was deemed approved by operation of law, (4) finding the Project had improperly received more than five-hearings, and (5) issuing the Letter. (Manderson-Saleh v. Regents of Univ. of Cal. (2021) 60 Cal.App.5th 674, 693 [“An abuse of discretion occurs if an agency did not apply or properly interpret the governing law or consider all relevant factors, or if there was no rational connection between the relevant factors, the choice made, and the purposes of the enabling statute or regulation”].) In reviewing these claims, the Court must presume that (1) the City and City Attorney’s official duties were regularly performed (Evid. Code, § 664), and (2) the decisions of the City and City Attorney were correct. (California Teachers Ass’n v. Ingweson (1996) 46 Cal.App.4th 860, 865.)

Appellants’ Opening Brief violates cardinal rules of briefing. Courts decline to consider “loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument.” (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.) Litigants must also avoid an “argumentative presentation” of the facts. (Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531.)

Further, when a party fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, [the Court] treats the point as waived…. Issues do not have a life of their own: if they are not raised or supported by substantive argument or citation to authority, [the Court] considers the issues waived. (Holden, 43 Cal.App.5th at 418–419.)

These rules “are not mere technicalities. They ensure that opposing parties are fairly apprised of contentions so as to afford a full and fair opportunity to respond.” (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 555.)

The Opening Brief repeatedly violates these rules.

In many instances Petitioners fail to support their argument with citations to legal authority, to the administrative record, or both. Petitioners fail to organize their brief with appropriate headings corresponding to their arguments. Instead, stray arguments crop up in the “Statement of Facts” or are buried in a section of the argument that, based on the section heading, pertain to different issues.

Despite Petitioners’ failure to follow the rules, Real Party refutes each of Petitioners’ substantive arguments.

Petitioners’ fundamental error is their mistaken belief that state law allows the City’s entitlement process for a single family home to be chopped into many little pieces, restarting state law deadlines with the completion of each piece. That is not how the PSA or the City’s review process work.

Rather, the City’s entitlement process for a single family home entails three main phases—“concept review,” “project design approval [PDA],” and a “final review”—all of a single entitlement application, with a single application number.

PDA is not approval of the “project” because it does not support any entitlement to build—that only happens with Final Approval. (See Guidelines § 3.2.6.) After Final Approval, an applicant can proceed to the building department for a building permit. That is consistent with the PSA, which says the agency must approve or disapprove “the development project”—not a mere review phase of the project—within the applicable timeframe. (Gov. Code, §§ 65956(b) [requiring approval of the “permit application for the development project” within the time limits in the PSA], 65928(a) [defining “development project” to mean “any project undertaken for the purpose of development,” including “a project involving the issuance of a permit for construction or reconstruction….”].) 

This interpretation is underscored by AB 2234’s recent amendments to the PSA, which added provisions to streamline “post entitlement phase permits” for housing projects, defining those to be “[a]ll nondiscretionary permits and reviews that are required or issued by the local agency after the entitlement process has been completed…, excluding discretionary and ministerial planning permits, entitlements, and other permits and reviews that are covered under Chapter 4.5 (commencing with Section 65920 [including § 65950 and § 65956 cited above])…”, listing examples such as demolition, grading, and building permits. (Gov. Code, § 65913.3(k)(3)(A)(i).)

This makes sense because the PSA’s purpose is “to relieve applicants from protracted and unjustified governmental delays in processing their permit applications….” (Linovitz Capo Shores LLC v. California Coastal Com. (2021) 65 Cal.App.5th 1106, 1120 [quotes omitted] [“Linovitz”].)

Petitioners’ reading of the PSA would eviscerate this purpose, allowing a government agency to avoid these state law restrictions and endlessly delay permit processing by dividing a single entitlement review process into many miniature processes, with the PSA deadlines resetting upon completion of each one. This would render the PSA deadlines practically meaningless, and the Court cannot adopt such an interpretation. (California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 593 [“California School Employees”] [statutory interpretation cannot “frustrate the legislative intent…”].)

Petitioners improperly rely on the Guidelines’ statement that “[f]or purposes of Government Code § 65950, a project design approval shall be considered to be ‘approval’ of the project by the SFDB and concludes the discretionary phase of project review.”

The “Guidelines” are not binding or enforceable. Page one of the Guidelines states: These Guidelines 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 can form a basis for denial of the design of a project, non-compliance with these Guidelines shall not be grounds to invalidate any action taken by the SFDB, nor shall such non-compliance constitute a cause of action against the City or its officers, employees or agency concerning any matter.

Even if the Guidelines were enforceable, the Guidelines’ statement that PSA is “approval” and “concludes the discretionary phase of project review” is plainly incorrect. As discussed above, PSA is preliminary only and an applicant must obtain “Final Approval” (which requires the SFDB to decide whether the final construction drawings are in “substantial conformance” with the plans that received PSA, a determination that is appealable to the Planning Commission) before it can proceed to a post entitlement building permit. Thus, the “substantial conformance” determination is a discretionary approval, calling for “the exercise of judgment” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 615 [“Horn”]) rather than ministerial application of rigid criteria.

The City confirmed this in a recent City Council staff report, which proposes revisions to the City’s process. (Kokinda Exh. A at 17 [“Final Approval is the last discretionary action by SFDB prior to building permit submittal”].)

It is inescapable that the City exceeded the PSA deadlines for the Project. PSA time limits begin running when the agency first makes a CEQA determination. (Gov. Code, § 65950(a)(1)–(5).)

The City’s Municipal Code provides that for projects where the decisionmaker is a design review board, such as the Project, City staff make the final CEQA decision. (Kokinda Exh. B [City Municipal Code § 22.100.080].)

On December 1, 2022, City staff determined the Project was exempt from CEQA, which started a 60-day period for the City to approve or disapprove the Project (expiring on January 30, 2023). (Kokinda Decl. ¶ 2; Gov. Code, § 65950(a)(5).)

Petitioners appealed the SFDB’s PSA decision on January 26, 2023, which paused the clock with four days to go. Gov. Code, § 65922(b) [PSA does not apply to administrative appeals].) The City Council adopted a resolution denying Petitioners’ appeal on August 1, 2023, restarting the clock. Thus, the 60-day period expired on August 5, 2023.

Even if the 60-day period started on August 1, 2023, when the City Council formally adopted the resolution again finding the Project exempt from CEQA, the PSA’s 60-day limit lapsed on September 30, 2023.

Petitioners received all the due process they were entitled to; they submitted written objections to the Project, orally presented those objections at public hearings on the Project and filed three administrative appeals.

Petitioners do not claim that any of the hearings were improperly noticed, nor that they were deprived of an opportunity to present their objections to the Project. That is a far cry from the situation in Horn, 24 Cal.3d at 617–618, where the notice provided was limited to the posting of environmental documents at central public buildings, and mailings of notice to those persons who specifically request it, thus “placing the burden of obtaining notice solely on the concerned individuals themselves.”

Petitioners selectively and misleadingly quote Linovitz as if that case supports their position. To the contrary, Linovitz specifically rejected Petitioners’ argument. Linovitz, 65 Cal.App.5th at 1124 held that “[w]hile providing information about potential scenarios that could occur depending on the Coastal Commission’s chosen action or inaction at the public hearing, including potential deemed approval under the Streamlining Act, might be informative, it is unnecessary to safeguard a person’s property interests.” Linovitz went on to note that the Coastal Commission in that case went above and beyond what due process requires by “making the public aware of the approaching Streamlining Act deadline well before the public hearing,” explaining that this extra notice regarding the PSA deadline was “unnecessary” to satisfy due process. Petitioners’ out-of-context quotation of the latter discussion, while ignoring Linovitz’s actual holding that this notice was not required by due process, is misleading at best.

Petitioners also fail to mention that the Legislature updated Gov. Code § 65956 this year in AB 130, omitting all but the first sentence in subdivision (b), making clear that if an agency misses the 60-day deadline, the application is “deemed approved” without question or notice. 

Petitioners’ argument fails for an additional reason: procedural due process principles “apply to governmental land use decisions which are adjudicative in nature, not those which are ministerial or legislative in nature.” (Linovitz, 65 Cal.App.5th at 1122.) While the City’s decision on Final Approval is discretionary, application of the PSA’s “deemed approved” remedy is not. Rather, once the PSA deadlines are exceeded, the applicant is “automatically granted a development permit by operation of law….” (Id. at 1120; Gov. Code, § 65956(b).) The agency has no choice in the matter—issuance of the permit after the PSA deadline expires is a ministerial function.

Moreover, the Project would be deemed approved even if the City Attorney had never issued the Letter because the approval happens “automatically” “by operation of law.” Petitioners have no due process right to notice and a hearing before a ministerial duty is performed, particularly where (as here) such notice could not have changed the outcome—once the PSA deadline was exceeded, the City had no choice under the law but to approve the Project.

Resolution of the First CoA in favor of the City and Real Party necessarily moots the Third CoA. A housing development project is deemed approved if the Agency exceeds the five-hearing limit. Should the Court reach the issue, the following disproves Petitioners’ argument that “deemed approval” is not the remedy for violation of the “five-hearing rule.” Gov. Code § 65905.5(a) provides in relevant part that, after a proposed housing development project is deemed complete, the local agency “shall consider and either approve or disapprove the application at any of the five-hearings allowed under this section consistent with the applicable timelines under the Permit Streamlining Act….”

The statute does not explicitly state what remedy is available if the five-hearing limit is exceeded, but a remedy must be available for the statutory language to have any meaning. (Civ. Code, § 3523 [“For every wrong there is a remedy”]; Bermite Powder Co. v. Franchise Tax Bd. (1952) 38 Cal.2d 700, 703 [“Under fundamental legal principles, a statute may not be construed as creating a right without a remedy”]; Klein v. United States of America (2010) 50 Cal.4th 68, 80 [“Klein”] [“Courts must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous”].)

If there were no consequence for an agency violating the five-hearing rule, then the “rule” would be unenforceable and freely ignored by agencies. Again, the Court cannot read the statute in a way that frustrates the Legislature’s clear intent to limit the number of hearings an agency holds for a housing development project. (California School Employees, 124 Cal.App.4th at 593.)

Because the statute is ambiguous as to a remedy, statutory construction is needed to determine the Legislature’s intent. (Klein, 50 Cal.4th at 77.) The fact that § 65905.5 explicitly invokes the PSA and its time limits strongly suggests an intent to apply the PSA’s “deemed approved” remedy for violation of those time limits to violation of the “five-hearing” rule as well.

That interpretation is supported by the two statutes’ usage of very similar language to describe the agency’s mandatory duty to approve or deny the project with the required parameters. (Compare Gov. Code, §§ 65950(a) [“A public agency that is the lead agency for a development project shall approve or disapprove the project within whichever of the following periods is applicable”] [emphasis added] and 65905.5(a) [“The city, county, or city and county shall consider and either approve or disapprove the application at any of the five-hearings allowed under this section”] [emphasis added].) “[U]nless a contrary intention clearly appears, [Courts] presume the Legislature intends that a statute based on another statute covering a similar subject and using substantially similar language be similarly construed.” (Singh v. Lipworth (2005) 132 Cal.App.4th 40, 45.)

The Court should also consider, if not “deemed approval,” what other remedy could possibly be available here? As discussed above, there must be an effective remedy under principles of statutory construction, but no other remedy would be both effective and consistent with the statutory text, especially in a circumstance like this where the City did not realize the “five-hearing” rule was violated until Real Party raised the issue.

For example, Petitioners argue the remedy is for the applicant to seek a writ of mandate to compel the City to perform its ministerial duty to either approve or disapprove the application. But that interpretation fails because it would require the City to hold a hearing to act on the application—thereby further violating the “five-hearing” rule.

In fact, the correct remedy is what occurred here—the applicant informs the agency of the violation, and the agency deems the application approved. Thus, the City has a right to avoid liability by agreeing that the “five-hearing” rule has been violated and deeming the application complete. That remedy is effective and complies with legislative intent: The “five-hearing” rule was created by the Housing Crisis Act, the purpose of which is to remove barriers to approval and construction of housing development projects. (See Gov. Code, § 65589.5(a)(1)–(2).)

Petitioners absurdly contend that applying the “deemed approved” remedy to violations of the “five-hearing” rule would mean that “a defective application could be processed 5 times, all for denial, and then apply a sixth time and demand project approval because the five-hearing limit had been exceeded.” Nonsense. As Petitioners note, the applicant is entitled to a decision within five-hearings. If the application is denied within five-hearings, that is a decision on the application and the “five-hearing” rule is satisfied. Only re-submitting the same application following a final denial would restart the count of hearings for purposes of the rule.

Here, although the Project’s first request for Final Approval failed, that did not start a new application, it merely required Real Party to seek Final Approval again to show substantial conformance of the revised plan set with the plans that received PDA.

Petitioners fail to show that “deemed approval” is not an available remedy for violation of the “five-hearing” rule, and thus Third CoA should be resolved in favor of the City and Real Party.

More than five-hearings were held on the Project (4th CoA). Much of the discussion above applies equally here to demonstrate that Petitioners misunderstand how Gov. Code § 65905.5 works. As with the PSA, § 65905.5 does not allow an agency to chop its review process up into many small pieces, with up to five-hearings allowed for each piece—that interpretation is both at odds with the statutory text and would render the requirement of only five-hearings meaningless. § 65905.5(a) plainly states that “after the application is deemed complete, a city, county, or city and county shall not conduct more than five-hearings…in connection with the approval of that housing development project.”

Thus, the five-hearing limit applies to any hearings in connection with the approval of the project, regardless of what “phase” those hearings occur in. Petitioners’ theory that there can be five-hearings on PDA, and then another five-hearings on Final Approval, and even more hearings if the project’s initial attempt at Final Approval receives a preliminary denial, is utterly unsupported by the statutory text or any other legal authority. 

The statutory definition of “hearing” is extremely broad: it “includes any public hearing, workshop, or similar meeting, including any appeal, conducted by the city or county with respect to the housing development project….” (Gov. Code, § 65905.5(b)(2).)

There were a total of 13 noticed hearings on the Project: (1) December 5, 2022 before the SFDB (AR0244–46); (2) January 17, 2023 before the SFDB when the Project received PDA (AR0451–54); (3) April 11, 2023 before the City Council on Petitioners’ appeal of PDA (AR1239–40); (4) August 1, 2023 before the City Council adopting a resolution to deny the appeal and adopt a CEQA exemption (AR1256); (5) October 9, 2023 before the SFDB on Real Party’s request for Final Approval (AR1416–17); (6) October 23, 2023 before the SFDB where it found that the Project “substantially conformed to the plans that received [PDA]…” (AR1447–48); (7) December 7, 2023 before the STAC (AR1457); (8) December 13, 2023 before the Parks and Recreation Committee (AR1466); (9) April 8, 2024 before the SFDB, when the Project received Final Approval (AR1598); (10) June 6, 2024 before the PC on Petitioners’ appeal of Final Approval (AR1742–43); (11) July 11, 2024 before the PC where it upheld the appeal and rescinded Final Approval (AR1793); (12) October 21, 2024 before the SFDB, when the Project again received Final Approval (AR2043–45); and (13) December 19, 2024 before the PC, on Petitioners’ appeal of the second SFDB decision to grant Final Approval (AR2329).

Supported by the Declaration of Ellen Kokinda; 45 pages: summarized: I am the Design Review and Historic Preservation Supervisor, and am currently serving as the Acting City Planner, for Respondent City of Santa Barbara. I am not a party to this action or proceeding. I submit this declaration in support of the Real Party in Interest’s opposition to Petitioners’ Opening Brief for Writ of Mandate. I am aware of the facts stated herein of my own knowledge, and if called to testify, I could and would competently so testify. On December 1, 2022, City staff determined that Application No. PLN2022-00036 was complete and qualified for the following exemptions from the California Environmental Quality Act:  Cal. Code Regs., tit. 14, §§ 15301 (“Existing Facilities”) and 15303 (“New Construction or Conversion of Small Structures”). Attached hereto as Exhibit A is a true and correct copy of a City of Santa Barbara Council Agenda Report dated June 17, 2025 titled “Single-Family Development Streamlining.” Attached hereto as Exhibit B is a true and correct copy of City of Santa Barbara Municipal Code § 22.100.080.

City’s Brief in Opposition

Filed 11/4/25; 3 pages; summarized: Government Code section 65905.5(a) provides that after an “application is deemed complete, a city, county, or city and county shall not conduct more than five-hearings…in connection with the approval of that housing development project.”  The definition of a “hearing” is very broad and “includes any public hearing, workshop, or similar meeting, including any appeal, conducted by the city or county with respect to the housing development project….”  (Gov. Code, § 65905.5, subd. (b)(2).) 

The City has held more than five-hearings on the Project since the Project's application was deemed complete.  After the applicant's new attorney wrote a letter to the City raising this concern, the City cancelled the scheduled Planning Commission appeal hearing to avoid further violating state law.    

Petitioners assert that the Assistant City Attorney exceeded her authority when cancelling the Planning Commission hearing, limiting the City's potential liability. 

The City disagrees. The City Attorney and Assistant City Attorney have the authority and obligation to protect the City from incurring liability associated with violations of laws such as the Housing Crisis Act.  Holding another hearing would have resulted in the City knowingly violating state law and would have subjected the City to potential liability by the Project’s property owner.

Petitioner’s Reply Brief

Filed 11/12/25; 14 pages; summarized; Petitioners request the Court grant the Petition for Writ of Mandate and such other relief as requested in the Amended Petition.  

Petitioners argue as follows:

Petitioners believe City’s review process has been far too casual regarding basic project review and permitting procedures, including application completeness determinations, California Environmental Quality Act (“CEQA”) determinations, and Project modifications that have resulted in a process that was not transparent and very frustrating to Petitioners and the public.  Petitioners believe a stricter adherence by City to its own procedures and applicable law would have dramatically expedited this entire process and resulted in a more appropriate, factually informed outcome. 

That this case is ready for a hearing on the petition for writ of mandate filed pursuant to Code of Civil Procedure section 1085.  The petition seeks to have this Court order City to have the Planning Commission fulfill its mandatory duty to hold a hearing and exercise its discretion on an appeal regarding a “Final Approval” of construction plans approved by the Single Family Design Board.  When final, Final Approval allows for issuance of a building permit for the “project,” which would be a completely new residential structure to be located at 1269 Ferrelo, in Santa Barbara, CA.   

On December 19, 2024, Planning Commission held a hearing on Petitioners’ administrative appeal and continued it to January 16, 2025.  Instead of completing the process, City Attorney by all appearances to the public collaborated with Real Party’s attorney to

unilaterally issued a letter on January 13, 2025, that declared City had violated the Permit

Streamlining Act, (Gov. Code § 65920 et. seq. (“PSA”)) and exceeded the five-hearing limit

of Government Code section 65905.5 for a “housing development project.” On that basis, City Attorney declared the project was “deemed complete by operation of law,” canceled the scheduled Commission January 16 appeal hearing and further declared City could proceed with issuing building permits for the project.  

Petitioners were absolutely stunned by the declaration, as it was issued without any prior notice to Petitioners or the public.  And, true to the casual and even sloppy manner the process has been managed, City Attorney declared the Project “complete” rather than “approved” by operation of law.

Ironically, Commission could have taken final action on the appeal at the scheduled January 16, 2025, hearing by denying Petitioners’ appeal and granting Final Approval, which could have imposed conditions on the Project to ameliorate Petitioners’ objections and concerns.  Alternatively, Commission also had discretion to uphold Petitioners’ appeal and DENY THE PROJECT. By deeming the project approved by operation of law, City Attorney denied Commission the opportunity to condition or deny the Project. 

First Cause of Action

The Project Design Approval (“PDA”) process authorizes the Design Board to review

the “size, bulk and scale” of certain single-family projects to ensure compatibility with the

surrounding neighborhood.  Regarding the PSA, Guidelines §3.2.6(C)(5) provides

“For purposes of Government Code §65950, a project design approval shall be considered to be ‘approval’ by the SFDB and concludes the discretionary phase of project review.”   Once granted, a PDA is valid for 3 years.  (Guidelines § 3.2.9(A).)

In contrast to PDA, the Final Approval process is not a design review, rather it is to

review “working construction drawings” which must be found in substantial conformance with the plans that received PDA in order for Final Approval to be granted.

Given the different purposes of PDA and Final Approval, it is not accurate to say these are part of the same process.  An applicant may not have completed the construction plans

until well after PDA.  Indeed, there is nothing to review until an applicant submits a Final

Approval application.  And because the PDA is valid for 3 years, approving the PDA and Final Approval within 60 days is possible but hardly a certainty.  And City has no control over when an applicant will return with construction drawings for Final Approval review.  

This type of design review is used in other jurisdictions, such as San Diego City.

Petitioners made references to the San Diego Guidelines in the administrative process. 

The PSA time limits run from the date of the CEQA determination (Gov. Code § 65950) and do not apply to administrative appeals (Gov. Code §65922(b)).  The PSA time limits were not exceeded because Design Board granted PDA for the Project on January 17,

2023.

Although not relevant to the PSA analysis, this decision was within 60 days of the application being deemed complete. 

During this process, City allowed to occur or took many irregular steps. A primary

example is City failed to make any CEQA determination for the Project until August 1, 2023, when Council adopted Resolution 23-101 denying Petitioners’ administrative appeal of the PDA.  Council’s decision was based on CEQA exemptions Sections 15301

(“existing facilities”) and 15302 (“new construction or conversion of small structures”).

From the outset, the Project application was for a “remodel” of an existing structure

and Council’s PDA appeal decision was based on a CEQA determination for a

remodeled project.  After City accepted the first application for Final Approval on

August 19, 2023, it failed to make determinations for application completeness or

CEQA. The Design Board held a hearing on the Final Approval application

on October 23, 2023, and continued it “indefinitely.”

On January 18, 2024, Real Party applied for a building permit where the “permit type” was for “demolition”, which was inconsistent with the “remodel” application.  Staff prepared a CEQA exemption “update” on March 5, 2024, that cites the exemption in CEQA Guidelines section 15302 “replacement or reconstruction.” However, this form was never presented to the Design Board or Planning Commission in any subsequent proceeding.  

After Design Board’s indefinite continuance, almost 5 months passed until Real Party

submitted new architectural drawings on March 18, 2024.  Just 3 weeks later, Design Board granted Final Approval on April 8, 2024. There was no staff report and the agenda did not mention CEQA or indicate the project description had been revised from a “remodel” to a complete “demolition” and construction of a new structure.

The agenda project description read: “Proposal for substantial redevelopment of the

existing non-conforming residence involving partial demolition for a new 3,764-square-foot

three story residence conforming to the required setbacks with a 442-square foot garage.”  This same agenda project description continued to be used for subsequent hearings, including the December 19, 2025, hearing and scheduled but canceled January 16,

2025, hearing. 

In a January 3, 2025, comment letter to the Planning Commission for the scheduled January 16, 2025, hearing, neighbor Derek Booth stated “the applicant was quite clear during concept design that existing portions of the structure were to be preserved

as a cost-saving measure . . . [but] . . .despite assertions to the contrary, there has been no

indication of this change in development type provided to the public in any venue (including the current agenda).” 

This record strongly indicates Real Party did not have final project plans for the Design

Board October 23, 2023, hearing.  City should have required the application be withdrawn or Design Board should have denied the application because final plans were not provided. 

Instead, the hearing was continued “indefinitely.”  When revised plans were submitted almost 5 months later on March 18, 2024, City should have treated this as a revised application for Final Approval, done an application completeness determination and determined if a new CEQA exemption was required.

The March 5, 2024, CEQA “update” shows staff concluded the previously exemptions were no longer appropriate.  The updated CEQA exemption was not presented to Design Board when it granted on April 8, 2024.

CEQA 15302 exemption is inconsistent with City Council’s final decision on the PDA

that relied on Sections 15301 “existing facilities” and 15303.  The nine-page staff

report for Commission’s December 19, 2024, hearing had no discussion of CEQA, even though the exemption was inconsistent with the exemptions relied on by the City

Council when it approved the PDA.

Although omitted from the Staff Report, the Commission agenda for December 19,

2024, asked Commission to “Confirm the Environmental Analyst’s determination that the

project is categorically exempt . . . pursuant to the [CEQA] Guidelines Section 15302,

Replacement or Reconstruction.”  Since that hearing was continued to January

16, 2025, and then canceled, Commission never acted on the proposed CEQA exemption. 

Therefore, the PSA timeline never started on the amended project. (Eller Media Co. v. City of Los Angeles (2001) 87 Cal. App. 4th 1217).  Therefore, the PSA was not violated.  

Second Cause of Action

Notice. Real Party’s Opening Brief noted Petitioners did not mention SB 130, which was signed by the Governor on June 30, 2025, and effective July 1, 2025.  Section 25 of SB 130 deleted the notice requirements of Section 65956(b) regarding deeming an application complete by operation of law.  This change in law does not affect the case at bar. 

First, the City Attorney’s letter deemed the project approved on January 13, 2025; when the notice requirements of Gov. Code §65956(b) were still the law. 

Second, SB 130 did not repeal Section 65956(d), which states: “Nothing in this section shall diminish the permitting agency’s legal responsibility to provide, where applicable, public notice and hearing before action on a permit application.” 

Third, Petitioners’ two notice causes of action are based on the due process principles stated by the California Supreme Court in Horn v. County of Ventura (1979) 24 Cal 3d 605.

Since Horn is based on constitutional principles of due process, the Legislature’s statutory amendment does not apply to this case. 

Real Party argues Petitioners were afforded due process because they filed an appeal to

the Commission, presented evidence and argument, and heard Commission’s initial deliberation, (which Petitioners believe were favorable to their appeal).  This process is worthless, however without Commission making a final decision on the appeal. The cancelation nullified the appeal, and all issues raised therein, thereby depriving Petitioners and the public of due process. 

“[W]here . . . prior notice of a potentially adverse decision is constitutionally required, that

notice must, at a minimum, be reasonably calculated to afford affected persons the realistic

opportunity to protect their interests.” (Horn at p. 617, emphasis added.)  Further, “Notice

must, of course, occur sufficiently prior to a final decision to permit a ‘meaningful’

pre-deprivation hearing to affected landowners.”  This type of due process was not provided. 

Real Party also argues that “once the PSA deadlines are exceeded, the applicant is automatically granted a development permit by operation of law.” This position is not the law.  In Save Lafayette v. City of Lafayette (2022) 85 Cal. App. 5th 842; (“petition for review denied; request for an order directing depublication of the opinion is denied.”) Petitioner Save Lafayette argued that when the Legislature amended the PSA to specify its time limits cannot be waived, (overturning the Supreme Court’s holding in Bickel v. City of Piedmont (1997) 16 Cal.4th 1040), the Legislature meant for “the agency to lose the power to act on an application after the statutory time limits have passed.”  The Court disagreed, stating: “We reject this logic. Certainly, the City should comply with the PSA. If it refuses, a writ might be in order.”  

But Save Lafayette points us toward no statutory or case authority for the proposition that, by failing to comply with the time limits of the PSA, the City loses the power to act on a project application entirely. Indeed, the default rule is that unless the Legislature clearly expresses a contrary intent, an agency does not lose jurisdiction to act even after a statutory deadline passes.”

As pled in the Amended Verified Petition, paragraph 22, and ADMITTED by City’s Answer, Paragraph 22, “during the administrative process . . . no agenda nor staff report

identified the PSA as a possible issue and at the numerous hearings neither the City Attorney nor staff verbally stated an exceedance of the PSA deadline was imminent and unless final action was taken, the project could be deemed approved by operation of law.”  This is in sharp contrast to Linovitz Capo Shores LLC v. California Coastal Com. (2021) 65 Cal. App. 5th 1106, where the Court noted that notwithstanding notice regarding the PSA was not on the Coastal Commission’ hearing agenda, the Commission provided “public notice required by law.” “[T]he Commission made the public aware of the approaching Streamlining Act deadline well before the public hearing.” And “Coastal Commission’s legal counsel and others made clear that the Permit Streamlining Act deadline was approaching and that appellants possessed the sole authority to withdraw the

applications.” 

Real Party ignores all of this and essentially argues that “public notice required by law”

is limited to the statutory and regulatory agenda posting requirements, and due process

concerns are thereby met.  The context, however, is that Lenovitz stated “an agency must have provided whatever public notice is required by statutory, constitutional and decisional law for the circumstance.”  The Court noted it was “undisputed” the Commission gave notice required by statutes and regulations and then went on address constitutional concerns.  The Court noted the Commission had made the public aware of the PSA issue. Under these circumstances, and following the guidance of Horn that “due process negates any concept of inflexible procedures . . .”  Linovitz concluded “the Coastal Commission provided the ‘public notice required by law’ through its public hearing notice which satisfied applicable state law and due process requirements.”

Additional notice beyond the statutory and regulatory requirements was “unnecessary” because “Notably” the Commission had also made the public aware of the PSA issue. 

Linovitz did not accept Coastal Commission’s argument that “due process requires

more under the circumstances” of that case.  The Commission had argued “no member of the public would have had reason to understand permits were deemed approved as a matter of law.”

The Court, however, pointed out the “Coastal Commission’s legal counsel and

others made clear that the [PSA] was approaching and that appellants possessed the sole

authority to withdraw the applications.” In that context, under the circumstances, the regular posted agenda notice was adequate.  It should also be stressed that Real Party’s interpretation of Linovitz would effectively overturn the Supreme Court’s holding

in Horn, which of course is not possible.

Under Save Lafayette, the Planning Commission still had jurisdiction over Real Party’s

application even if the PSA timeline had expired.  Additionally, the Planning Commission

hearing was noticed for a potential final decision just 3 days after City Attorney’s letter. Deeming the project approved is at this point is especially harsh. 

Further, the question should be asked why the City Attorney did not inform the Planning Commission of the PSA issue at the December 19, 2024, hearing so the Planning Commission could have taken final action on that date?  

Third Cause of Action

“Deemed Complete.”  City Attorney’s letter deemed the project “complete” rather than “approved.”  On its face, the letter did not deem the project approved.  Neither City nor Real Party addressed this issue in their response briefs.  In their answers, City’s Answer, paragraph 11, states this is Petitioners’ speculative interpretation and that “The letter . . . speaks for itself.” That is Petitioners’ point, as the letter states the project was deemed “complete.”  

Section 65905.5 & “Deemed approved” remedy. Real Party argues the Court need

not address this issue if the Court finds the project was deemed approved for exceeding the

PSA time limits. Petitioners disagree.  If City Attorney had realized there was no deemed approved remedy regarding Section 65905.5, the letter may not have been issued, especially considering Save Lafayette, supra, which holds the public agency does not loose jurisdiction over a project after the PSA timelines expires.  Commission already held a full hearing on the merits, including public testimony, on December 19, 2024. 

It should not be assumed City Attorney’s action would have been taken had City Attorney

realized the deemed approved remedy was not available for Section 65905.5.  

Real Party concedes Section 65905.5 does not reference any “deemed approved” remedy but argues “a remedy must be available.”  This ignores Code of Civil Procedure section 1085 Writ of Mandate. “Traditional mandate will lie to compel administrative agencies or their officials or employees to exercise discretion when they are required, but have refused, to do so.”  (CEB Civil Writs, § 2.30 c. Duty to Exercise Discretion.”)  Of course, this remedy would not be initiated by City as it would not sue itself; rather, Real Party could have initiated the action.  Alternatively, City was days away from completing this administrative appeal and could have decided on January 16, 2025.  

Fourth Cause of Action

City did not exceed the 5-hearing limit of Section 65905.5. PDA and Final Approval are conducted for two different purposes. The PDA was for “design review” approval and Final Approval to review “working construction drawings” to determine conformance with the PDA.  Guidelines §3.2.6(C)(5) (AR 0540) provides that “For purposes of Government Code § 65950, [PDA] shall be considered to be ‘approval’ of the project . . .”  

Further, Real Party all but wasted the Design Board’s time on October 23, 2023, when a

hearing was held even though Real Party did not submit final demolition plans for the project until March 18, 2024.  Petitioner characterizes the Planning Commission June 4,

2024, denial as a “preliminary denial”; however, the word “preliminary” is not used in Commission Resolution 009-24 nor in City’s CCP §1094.6 final action noticed issued on July 18, 2024. Commission’s decision was a denial. 

Real Party argues hearings before the Tree Advisory Committee are covered by Section

65905.5 five-hearing limit on any “housing development project.” This is not accurate as the Committee conducts no review of the residential project.  Rather, review is of removal of “Historic Trees,’ Official Trees, Parkway Trees,” and the like.  (City Ordinance, Ch. 15.20.020 “Definitions.”)   As shown by the Committee December 7, 2023, minutes, review was for “SET BACK TREES.”

The Parks and Recreation Committee December 13, 2023, Agenda also shows the review was limited to a “setback tree removal request.”  These reviews are required regardless of whether a homeowner is doing remodel work on his or her home. This is not a hearing on a “housing development project.” 

Prejudice to Petitioners; Standing. Real Party questioned Petitioners standing in this

case.  This point has no merit.  Ever since Horn v. County of Ventura, the standing and due process rights of neighbors of a proposed land use project have been recognized.  Such property interests are pled in paragraph 6 of the Amended Petition.  Federal Courts have recognized and adhered to this due process analysis in these circumstances. (Am. Tower Corp. v. City of San Diego (2013) 763 F.3d 1035, 1049.)

Fifth Cause of Action

Petitioners’ Fifth Cause of Action pled City Attorney exceeded its authority when it

issued its January 13, 2025, letter declaring “the project is deemed complete by operation of law and there shall be no further public hearings for this project.” Further, City Attorney declared the “appeal hearing scheduled before the Planning Commission on January 16th has been canceled.”  And “City accepts the conditionally approved plans from the October 21, 2024, Single Family Design Board meeting as the approved plans, and will proceed to process your client’s building permit application.” 

Accepting the October 21, 2024, plans was especially hard for Petitioners as their appeal asserted these plans raised identical issues that were considered by the Commission on June 4, 2024, where Petitioners prevailed.  Neither brief even mentions this issue. City’s Answer (Pars. 26 & 27) offers no substantive response to authority issue.  Real Party’s Answer (Pars. 26 & 27) offers nothing more.  

The actions of City Attorney through its January 13, 2025, letter was more than attending “all meetings of the City Counsel” per City Charter section 703(a) or provide “advice or opinion” when requested by City Council or by any of the City commissions, boards or officers per Charter section 703(d).  City fails to cite any authority for City Attorney to assume a management role to cancel a Commission hearing, declare there shall be no further hearings, and decide which plans shall be used for issuance of building permits.  

The burden should be on City to identify authority for City Attorney’s actions. In light

of City’s failure to respond, Petitioners request the Court to issue the Writ of Mandate on this cause of action.

The Court’s Conclusions

The PSA and the five-hearing rule cannot be interpreted to require a further hearing to announce that the Project was deemed approved by operation of law. That would further violate the time and hearing limits imposed by those laws. The City Attorney did the only thing she could by providing the City’s legal conclusion and cutting off further legal violations.

Petitioners erroneously believe that the City’s permitting process can be chopped up for purposes of the PSA time limits and the five-hearing rule, such that the limitations in these laws repeatedly reset. That is not how these laws work, especially considering the plain legislative intent to reduce unnecessary delays and to streamline project applications. The City exceeded the limitations under both laws for the Project.

Petitioners’ due process argument ignores that due process does not give Petitioners a right to advance notice and a hearing before the PSA’s deadlines are triggered; and due process does not apply to the PSA’s deemed-approved remedy because that remedy kicks in automatically by operation of law, not by discretion and not as the result of an adjudicatory proceeding. Petitioners received all the due process they were entitled to when they submitted written comments, appeared at hearings, and filed three appeals to voice their objections. 

The Court need not decide what the remedy is for violation of the five-hearing rule because the PSA’s deadlines were violated, so the Project was deemed approved regardless of how many hearings were held.

Should this Court reach the issue, it notes that Petitioners fail to grapple with the fact that the five-hearing rule would be meaningless without an effective remedy that does not result in the agency holding yet another hearing. The only such remedy is for the application to be deemed approved by operation of law.

Petitioners also overlook the rules of statutory construction, especially considering § 65905.5’s explicit reference to the PSA’s time limits, which demonstrates the Legislature’s intent to apply the PSA’s deemed approved remedy. 

Petitioners’ challenge to the City Attorney’s Letter lacks merit, where the City Attorney did not deem the Project approved, but rather agreed with Real Party’s legal conclusion that this had already occurred by operation of law. The City Attorney has a duty to avoid further legal violations by the City that would result if additional hearings were held. Petitioners were not prejudiced by the Letter because the Project was deemed approved by operation of law, whether the Letter was sent or not.

The City correctly determined that PSA deadlines were violated, and the Project was therefore approved by operation of law (1st Cause of Action). Petitioners misunderstand the PSA and the City’s Review Process. The PSA mandates that the lead agency for a development project shall approve or disapprove the project within sixty days from the determination by the lead agency that the project is exempt from CEQA. If the lead agency fails to act to approve or disapprove a development project within the time limits required by this article, the failure to act shall be deemed approval of the permit application for the development project.

Petitioners received due process on their objections to the Project (2nd Cause of Action). Petitioners also misunderstand their due process rights when they argue that they were entitled to prior notice and a hearing before the Project was deemed approved by operation of law.

It is true that land use decisions which substantially affect the property rights of owners of adjacent parcels may constitute deprivations of property within the context of procedural due process. But the general application of due process principles is flexible, depending on the nature of the competing interests involved.

Due process is satisfied so long as notice is provided that apprises interested parties of the pendency of the action affecting their property interest and an opportunity to present their objections.

The City Attorney’s Letter correctly found that the Project was deemed approved by operation of law (3rd Cause of Action). The City Attorney was correct because PSA deadlines were exceeded. Petitioners argue that the Letter was improper because, in agreeing with Real Party that the Project was deemed approved by operation of law, the Letter also referenced the City’s violation of the five day hearing rule.

But the Letter also referenced the City’s violation of the PSA’s time limit, and Petitioners concede that deemed approval is the remedy for this violation. Since the Court agrees that the PSA deadlines were exceeded, then it is unnecessary to decide Petitioners’ argument that deemed approval is not a remedy for violation of the five-hearing rule because the Project was independently deemed approved by the PSA. The Project received far more than five-hearings, in violation of Gov. Code § 65905.5. The 4th Cause of Action should be resolved in favor of the City and Real Party.

The Letter was legally issued and did not prejudice Petitioners (5th Cause of Action). The Project was approved by operation of law, not the City Attorney. Petitioners contend that the City Attorney has no power to deem a project approved, but this misses the point. The Project was deemed approved by operation of law, regardless of what the City Attorney did. The Letter did not cause the Project to be deemed approved; rather, the City Attorney agreed with Real Party as to the legal consequence of the City violating these laws. Taking a position on a legal issue is clearly part of the City Attorney’s core function, and Petitioners do not argue otherwise. 

The City Attorney legally prevented further violations of Law by the City. Petitioners’ focus on the City Attorney’s enumerated powers under the City Charter ignores the City Attorney’s more fundamental obligations as an attorney and officer of the Court. Once she concluded that the PSA deadlines and the five-hearing rule had been violated, it was apparent that holding further hearings or other proceedings on the Project would be additional violations of these laws. It was incumbent upon the City Attorney to avoid increasing City’s potential liability and to prevent her legal services from in any way enabling such violations. It was appropriate for the City Attorney to direct City staff to cancel the illegal further hearings on the Project that had been scheduled.

Assuming arguendo that the City Attorney’s Letter was more than her authority or otherwise improper, Petitioners are not entitled to relief because they were not prejudiced by the Letter and have no beneficial interest in a writ compelling the City Attorney to rescind the Letter. It is an essential element of a writ petition that the Petitioner be beneficially interested in its issuance, and the writ must be denied if the Petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied.

Here, the Project was deemed approved by operation of law, regardless of whether the City Attorney issued the Letter saying so. Petitioners would gain nothing from a writ or judgment saying the Letter was improper; the Project would remain approved by operation of law even if the Letter were rescinded. Because Petitioners lack standing to obtain a writ challenging the Letter, Petitioners’ 5^th Cause of Action must be resolved in favor of the City and Real Party.

The Writ should be denied.

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[1] The Court apologizes for any grammatical and typographical errors in this ruling and for the length of the decision. The Court needed several days to finish it and thus stored its notes here.