Filed 1/24/20 Jones v. City of San Marino CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KEVIN F. JONES et al.,

Plaintiffs and Appellants,

v.

CITY OF SAN MARINO et al.,

Respondents,

PERFECT DESIGN,

Real Party in Interest.

B290667

(Los Angeles County
Super. Ct. No.BS164087)

APPEAL from a judgment of the Superior Court of Los Angeles County, Amy D. Hogue, Judge. Dismissed.

Kevin F. Jones, in pro. per., and for Plaintiffs and Appellants Kevin Jones and Jeffrey Jones.

Glazier Yee, Guy P. Glazier for Plaintiffs and Appellants.

Richards, Watson & Gershon, Ginetta Giovinco for Respondents.

Ensberg Law Group, Nancy J. Skovholt for Real Party in Interest.

Petitioners and appellants Kevin Jones, Louise Jones, Thomas Jones, and Jeffrey Jones are longtime San Marino property owners and residents. Their property abuts and overlooks what was for many years an undeveloped forested lot. Over petitioners’ objection, real party in interest Perfect Design (Rosalind), LLC (RPI) in 2008 obtained from respondents City of San Marino, City Council of San Marino, California, and the Planning Commission of City of San Marino, California (collectively respondents or the City) a conditional use permit and variances to build a house and related structures on the previously undeveloped lot. RPI obtained building permits and extensions thereof without objection over the next several years.

In March 2016, petitioners challenged the Planning Commission’s further extension of RPI’s building permits. The Planning Commission upheld the extension in May 2016 after two lengthy public hearings. Petitioners then filed a petition for writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5. The trial court concluded petitioners’ challenge to the extension was moot because construction on the lot was largely complete.

Petitioners contend writ relief was and is warranted. They argue their challenge is not moot, because RPI admitted that certain aspects of the project, including its landscaping, could be adjusted even after construction was complete. Petitioners further argue the trial court’s mootness finding improperly rested upon evidence outside the administrative record. Petitioners request that we admit two documents into evidence in the interest of justice; respondents and RPI oppose this request. Petitioners do not oppose respondents’ request for judicial notice of other documents, a certificate of occupancy and a final sign-off on all inspections and building permits related to the project.

We deny petitioners’ request to admit additional documents but grant respondents’ unopposed request for judicial notice. We conclude the appeal is moot and dismiss it as such.

FACTUAL AND PROCEDURAL BACKGROUND

I. Project and Initial Approval

The lot at issue in this case is rectangular in shape and 67,082 square feet (approximately 1.5 acres) in size. One of the short sides of the lot abuts the street, while the other short side abuts the rear of petitioners’ lot. The lot contains a storm drain easement that runs diagonally from one long side of the lot to the other. The topography “quickly descends in grade elevation from the street to a low point where the storm drain easement is located. It then gradually rises to the rear property line and becomes steeper the closer one gets to the rear property line.” The lot and surrounding properties are zoned single-family residential; surrounding properties, including petitioners’, are improved “with single-family residences and related accessory structures.”

On May 20, 2008, the Planning Commission approved RPI’s requests for a conditional use permit, variances, and design review for the lot. These approvals, collectively referred to by the parties and herein as “entitlements,” authorized RPI to construct “a 10,911 square-foot single-family residence exceeding the maximum height limit; a tennis court that would partially encroach in the front yard; and retaining walls exceeding five feet in height.” A landscaping plan (the 2008 landscaping plan) for the lot also was approved at this time. The 2008 landscaping plan called for removal of some of the mature oak trees on the lot and relocation of others.

Petitioners appealed RPI’s entitlements to the City Council. The City Council upheld the entitlements in July 2008. Neither the contents of the entitlements nor the basis of petitioners’ appeal is documented in the record.

II. Issuance and Reissuance of Building Permits

On August 8, 2011, after plan check review and approval, and without objection from petitioners, the City issued building permits for the various structures on the lot. After those permits expired, the City issued new building permits on May 6, 2013. The new permits were scheduled to expire on August 6, 2015.

Despite receiving the extensions and new building permits, RPI did not begin construction on the lot for some time because it needed to design and construct an access bridge over the storm drain. RPI obtained permits to build the bridge, along with grading and retaining walls, on April 2, 2015. These bridge permits were scheduled to expire January 2, 2016.

III. Permit Extensions

A. Interim Extensions

RPI requested extension of both the building and bridge permits in June 2015; the permits were treated collectively from this point forward. In advance of the Planning Commission meeting at which the request was to be considered, City Planning and Building Director Aldo Cervantes prepared a report noting the project was “taking longer than ‘the norm’” due to “its unique characteristics.” The report recommended the Planning Commission extend the permits for 15 months, but “require review of this matter and ‘fine tune’ existing mitigation measures and determine whether any additional measures should be taken to extend the project completion further. This will recognize that this is an unusual project that will take longer than normal yet at the same time provide a good monitoring system to ensure that it will not harm the neighborhood.”

At its July 22, 2015 meeting, the Planning Commission unanimously voted to extend the project completion date to August 26, 2015. In conjunction with the extension, it required RPI to provide “detailed information regarding construction, tree preservation and traffic mitigation. In addition, the applicant was required to return with the architectural drawings and grading plans.”

On August 11, 2015, RPI requested another extension of the permits, this time to August 2017. In a report assessing this request, Cervantes wrote: “Recent and on-going improvements include the comprehensive re-landscaping of the property. Mature specimen Oak trees are in the process of being replaced. . . . As stated earlier, the bridge approved by the Planning Commission and the City Council is being constructed. [¶] The approved plans specified the removal of several trees on the property. A majority of these trees were located within the building pad of the proposed house. Although the [2008 landscaping] plan included the relocation of several trees, the site arborist and the City arborist confirmed that the trees would not survive a relocation. In addition, several other Oak trees not within the building pad were removed due to declining health. This analysis was performed by the site arborist and confirmed by the City arborist.” The arborists’ analysis resulted in a revised version of the 2008 landscaping plan, referred to hereafter as the 2014 landscaping plan.

The report outlined two alternative courses of action for the Planning Commission. (1) “The Planning Commission can extend this project for 15 months and require periodic updates. This will recognize that this is an unusual project that will take longer than normal yet at the same time provide a good monitoring system to ensure that it will not harm the neighborhood.” (2) “The Planning Commission has the option to deny the request. If the Planning Commission denies the request, the applicant and owner may appeal the decision to City Council. If the applicant/owner decide not to appeal, the owner will be required to submit new plans for plan check and then pull new permits for the project and pay the appropriate fees. The new permit will have an expiration date of 15 months.” The report recommended the Planning Commission continue the matter for further analysis. The Planning Commission agreed and continued the matter to October 28, 2015.

Prior to the October 28 meeting, Cervantes reported that RPI had “cleaned the property, resubmitted new plans and details and provided evidence that the same details were delivered to the residents.” RPI also “indicated that the trees have been purchased based on the recommendations of their arborist,” and submitted a construction schedule with an anticipated completion date of June 2017. Cervantes set forth the same two options for the Planning Commission, and recommended it approve the extension with “periodic updates on a quarterly basis until project final.”

At the October 28, 2015 meeting, petitioner Louise Jones for the first time “objected to the fact that the owners have not followed the approved tree restoration plan”—the 2008 landscaping plan. The Planning Commission nevertheless unanimously voted to extend the project completion date to April 22, 2016 subject to several conditions, including RPI’s acquisition of a $1 million performance bond to cover possible damage to neighboring properties and removal or relocation of all 36-inch to 48-inch oak trees “for the proper placement of 84[-inch] Oak trees, per approved plan.”

Prior to the next meeting at which the request was discussed, RPI’s arborist sent a letter to the City arborist noting that certain trees were not healthy enough to be relocated and the portion of the 2008 landscape plan calling for 84-inch box trees could not be implemented. The letter assured the City arborist that the “total number of mitigation trees required will be thoughtfully planted on the site so that they do not conflict with existing trees,” and would “grow to screen the rear property.”

At the January 27, 2016 meeting, no transcript of which is in the record, eight people, including petitioner Jeffrey Jones and petitioners’ counsel, “presented information about the project [a]nd/or presented concerns regarding the project.” The Planning Commission voted 3-1 to extend the permits for one month, to February 24, 2016.

Cervantes’s report for the February 24, 2016 meeting included a detailed section entitled “Landscaping and Trees.” It stated: “In June of 2013 a report was submitted by Terry Chesbro, Certified Arborist, regarding the 31 trees . . . that were located within the building pad of the proposed new house. . . . The evaluation/report determined that the conditions of the trees and the physical location of the trees (hillside) made them poor candidates for relocation. After performing the site visit, [City arborist] Ron Serven that [sic] the trees were not suitable candidates for relocation and the trees were approved for removal[.]”

Cervantes further reported that after Serven’s assessment, the City “imposed strict requirement [sic] of the homeowner in moving forward,” including hiring an arborist to conduct a site survey and oversee the property for the next 10 years—the 2014 landscaping plan. RPI complied with the requirements. Cervantes again recommended that the Planning Commission approve the permit extension.

According to the minutes of the February 24, 2016 Planning Commission meeting, a city attorney answered Commission members’ questions about the project. RPI’s landscape architect presented a “conceptual landscape plan” (referred to hereafter as the proposed 2016 landscaping plan), its arborist “discussed the project as it relates to proposed trees,” and its contractor assured the Planning Commission that the project could be finished by May 2017. Petitioner Jeffrey Jones, petitioners’ counsel, and three other neighbors “presented concerns and/or objections regarding the project.” RPI responded to the comments. The Planning Commission unanimously voted to extend the permits, subject to certain conditions, including requiring RPI to hire a project manager, obtain $5 million of general liability insurance, and complete a final landscape plan. The Planning Commission placed the project on its March 23, 2016 meeting agenda for further discussion of the penalties to be imposed if the conditions were not satisfied.

B. Extension at Issue

Cervantes’s report for the March 23, 2016 meeting observed that the new 2016 landscape plan increased the number of trees planted from 50 to 60, and increased the sizes of some of the trees, but overall was “not significantly different than the [originally] approved 2008 plan.” He and City staff recommended that the Planning Commission extend the permits to May 31, 2017, with numerous conditions, including a requirement to complete and share with neighbors a final landscape plan with three-dimensional modeling or rendering. The Planning Commission unanimously approved the recommended extension with modified conditions on March 23, 2016 after hearing comments from numerous individuals, including petitioners Jeffrey Jones and Louise Jones, their counsel, and RPI’s landscape architect and arborist.

C. Petitioners’ Appeal

Petitioners and another family with property adjacent to RPI’s lot timely appealed the Planning Commission’s decision to the City Council. The City Council held two public meetings at which the appeal was extensively discussed, on May 11 and May 27, 2016. Transcripts of these meetings are in the record.

At the May 11, 2016 meeting, Cervantes recommended that City Council uphold the Planning Commission’s decision. He opined that extending the permits with conditions was “within the best interest of everyone at this point.” Petitioners’ counsel argued against the extension, referencing a letter he drafted that is the subject of petitioners’ request to admit additional evidence. He emphasized that “landscaping is a key part” of petitioners’ objection to the extension, because the lot “is kind of set down below the Jones’ home. . . and they’re building this massive new project and so tree coverage or a tree umbrella or a tree canopy was critical.” Petitioners Jeffrey Jones and Louise Jones echoed their counsel’s comments, telling City Council that “the cutting down of the mature oak trees and the property owner’s refusal to replace them with mature oaks has opened up direct view into our house” and that they would “like to see the project reduced in scale, subjected to today’s building code, and screened from us.”

RPI’s new landscape architect, Kate Harvey, stated that she met with the lot’s neighbors twice to address their concerns about “the screening of the house and the fact that all of these oaks were removed that were once there.” She also informed City Council that she did not think either the original 2008 landscaping plan or the 2014 landscaping plan would meet current City landscape and water use standards. Additionally, Harvey pointed out that neighbors had made conflicting requests—petitioners wanted the screening afforded by a tree canopy, while other neighbors did not want a tree canopy overhanging their property—and the approved retaining walls already built on the lot limited the space available for additional trees. City arborist Serven stated that he had personally approved every tree removed from the lot and reiterated that the proposed 2016 landscaping plan was more “user-friendly as far as water usage.” Serven acknowledged that it would “take time” for the landscaping to provide “shading and shielding between the properties.”

At the conclusion of the May 11, 2016 meeting, City Council continued the matter to May 27, 2016 “to allow Staff to review the conditions in order to make them as stringent as possible,” and to require RPI to produce a three-dimensional model of the proposed 2016 landscaping plan.

At the May 27, 2016 City Council meeting, Cervantes reported that RPI “appear[ed] to be working with” the conditions imposed on its permits, including adhering to the most recent construction schedule and the 2014 landscaping plan, which remained in effect at that time. Cervantes recommended increasing the proposed monetary penalties for noncompliance with the City’s increasingly long list of conditions, and granting the extension request. Harvey provided an extensive summary of the landscaping history, as well as an overview of the proposed 2016 landscaping plan. A city attorney noted that the only issue before City Council was whether the building and bridge permits should be extended. He emphasized that “the approval or changes to the . . . landscaping plan are not before the Council today,” and City Council likewise could not revoke the entitlements without further process.

After these speakers and others made their presentations, the mayor remarked, “For me, it’s quite obvious that the owner has caused major destruction in the neighborhood. And, what I believe also the owner has no intention in the past to finish the project at least at their own speed, which is not acceptable. . . . [B]ut I think having them go back through the Planning Commission or the design review will only make the neighbors look at the hole in the ground for another additional 9 months. If results could be obtained now at this Council, I would rather see it that way. Let’s don’t look back, let’s look forward and solve the problem. That’s how I feel.” Another City Council member made similar comments that extending the permits was “the lesser of two evils.” City Council ultimately voted to extend the permits with the conditions recommended by Cervantes and City staff.

IV. Writ Petition

Petitioners filed a petition for writ of mandate on August 12, 2016. In their first cause of action, they alleged respondents did not comply with provisions of the San Marino City Code (SMCC), including section 25.01.05, and sought a writ of mandate compelling compliance. In their second cause of action, petitioners alleged respondents failed to comply with additional SMCC provisions. They sought a writ of mandate requiring the City to find that RPI’s entitlements “have expired, are null and void, and are of no further force or effect,” and “there is and would be no basis for any extension of any building permit (project completion date), pursuant to [SMCC 25.01.05], and therefore to order that construction at the . . . project immediately stop.” In petitioners’ third cause of action, they sought a temporary restraining order and preliminary injunction enjoining RPI from proceeding with the project.

Petitioners also filed an ex parte application for a stay and temporary restraining order enjoining further construction of the project. After receiving briefing and holding a hearing, the trial court denied the requested ex parte relief on October 19, 2016. However, the trial court cautioned RPI that “the construction in question continues at their own peril.” Petitioners did not seek writ relief from this ruling, and RPI continued working on the project.

As an exhibit to its answer to the writ petition, in support of its affirmative defense of laches, RPI filed a declaration from Peter Zhong, one of its managing members. In that declaration, dated November 14, 2017, Zhong stated, “As of today, construction of the residence is essentially complete.” He further stated, “The only additional work to be performed is paving of the driveway and installation of the entrance gate, expected to be completed by Thanksgiving.” Zhong anticipated that the permits would be closed and a certificate of occupancy would be “issued forthwith,” after the home was connected to the electrical grid and inspected. Zhong also stated that the “landscaping is also nearing completion,” and the final trees to be planted had been scheduled for delivery.

RPI also included with its answer declarations from Cervantes and Serven. Both declarations stated, based on the declarants’ respective positions and experience with the project, “the Project’s tree canopy and the Project’s height and size can be adjusted or modified at any point during or after construction because these physical modifications can be physically implemented should such a need arise. Such modifications may require the removal, reduction, or modification of certain Project features.” Petitioners did not object to the trial court’s consideration of any of the three declarations.

The trial court issued a tentative decision denying the petition on alternative grounds. First, the trial court concluded the petition was moot. It reasoned, “the Petition seeks a writ compelling Respondents to (1) comply fully with certain sections of the San Marino Municipal Code; (2) declare null and void the Project’s design review approval, conditional use permit, and variances; and (3) set aside the City Council’s extension of the Project’s building permits and ‘order that construction . . . immediately stop.’ As discussed more fully below, Petitioners’ challenges to the Project’s design review approval, conditional use permit, and variances are untimely. With respect to Petitioners’ appeal of the Project’s building permit extensions, the evidence suggests that the Project is already complete. In a declaration dated November 14, 2017, Peter Zhong declared that ‘construction of the residence is essentially complete’ and that a Certificate of Occupancy would issue once the residence was connected to the electrical grid which Z[h]ong declared would occur within 4 weeks. Peter Zhong also declared that landscaping would be completed between December 2017 and February 2018. Thus, it appears that no construction work remains for the Court to enjoin.” The court accordingly concluded that any relief it could award “would have no practical effect.” The court also found that RPI had a vested right to complete the project in accordance with the building permits, as it had performed substantial work including excavation, grading, and landscaping.

In the alternative, the court concluded that even if the petition were not moot, City Council’s decision to extend the permits was not arbitrary, capricious, or entirely lacking in evidentiary support under section 1085. The court found that the Planning Commission and City Council heard comments from interested parties before rendering a decision. It further found that the City imposed conditions on the permit extensions “designed to ensure that the Project would be completed expeditiously and would accommodate neighboring properties.” In light of these findings, as well as evidence that “Project delays were largely due to the unique nature of the property,” the court concluded that extending the permits was not arbitrary, capricious, or lacking in evidentiary support.

At the March 21, 2018 hearing on the petition, petitioners argued the petition was not moot because they were “not asking for the 10,000-square-foot house that’s existing to be torn down,” but rather were seeking “a modification of one of the features, namely, the landscaping.” They further reiterated, “at issue here is really . . . shielding the Jones’ house from the Zhongs’ house and providing the Joneses the privacy that they had.” Petitioners pointed to the Cervantes and Serven declarations as evidence that the landscaping could be modified, and contended that construction would be ongoing for the entire 15 to 20 years it would take the newly planted trees to mature. Petitioners also challenged the court’s tentative ruling on the merits, arguing there was no evidence that permit extensions were warranted under SMCC section 25.01.05 because RPI “dragged their feet” on the construction from 2008 to 2015 and the conditions City Council imposed suggested RPI was not acting in the expeditious fashion SMCC section 25.01.05 required. The City argued that the petition was moot and that it acted within its discretion to issue and extend the permits. RPI did not make any arguments.

The court adopted its tentative without change. A judgment denying the petition was filed on April 14, 2018. Petitioners timely appealed. They lodged the certified administrative record with the court on September 6, 2019.

DISCUSSION

I. Judicial Notice and Additional Evidence

A. Petitioners’ Request for Judicial Notice

Shortly after filing their opening brief, petitioners filed a motion requesting judicial notice of nine items: seven sections of the SMCC; the letter to City Council their former counsel prepared in May 2016 and referenced at the May 11, 2016 meeting; and documents pertinent to a February 27, 2019 Planning Commission meeting. RPI opposed the request as to the letter and Planning Commission documents, and petitioners filed a reply in support of the request. After considering all the submissions, we granted the request as to the SMCC sections and denied it as to their former counsel’s letter and Planning Commission documents.

B. Respondents’ Request for Judicial Notice and Admission of Additional Evidence

In conjunction with their response brief, respondents filed a motion requesting judicial notice of two documents: the March 27, 2018 final inspection of the project, and the certificate of occupancy issued on April 9, 2018. In the alternative, respondents requested that we admit the documents as new evidence under section 909, which permits this court to “take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal” to make factual determinations in non-jury cases or generally in the interests of justice. We filed an order deferring ruling on the motion until the matter was fully briefed and assigned to a panel.

C. Petitioners’ Non-Opposition and Section 909 Request

After we issued our order on respondents’ request, petitioners filed a “non-opposition” to the request. Petitioners clarified that they did “not concede the relevance of the evidence,” but nevertheless did not oppose its admission because the Cervantes and Serven declarations proved the petition was not moot. In the same document, petitioners requested that we take into evidence under section 909 the same letter and Planning Commission documents we previously declined to judicially notice. Petitioners further requested that we find under section 909 that their “challenges based on the expiration of the Project’s entitlements and the violation of the 2008 Landscaping Plan were timely asserted,” “the Project’s entitlements had expired as a matter of law,” and the City “recognizes the mandates of the San Marino City Code on all projects.” Respondents and RPI filed oppositions to petitioners’ section 909 request.

D. Analysis

We have the discretion to grant requests for judicial notice (Evid. Code, §§ 452, 459, subd. (a)) or admission of evidence not adduced at trial. (§ 909.)

We exercise that discretion in favor of noticing the inspection document and certificate of occupancy respondents proffer here.

Both documents are relevant to the question of whether any effective relief may be awarded to petitioners. (See AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313, fn. 2.) Moreover, petitioners expressly declined to oppose judicial notice of these documents.

We deny petitioners’ request to admit additional evidence. We previously denied petitioners’ request to take judicial notice of their former counsel’s letter and 2019 Planning Commission documents, and their repetition of the request on section 909 grounds in a “non-opposition” filing is not well-taken. This case does not present “exceptional circumstances” in which findings based on evidence external to the current record are warranted. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Moreover, “‘[f]or this court to take new evidence pursuant to statute (§ 909) . . ., the evidence normally must enable the Court of Appeal to affirm the [order], not lead to a reversal.’” (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1227, fn. 4; accord, Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.) Petitioners ask that we take new evidence in order to reverse the judgment. Finally, we generally do not admit or take judicial notice of evidence such as the letter, which could have been but was not made part of the administrative record (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1192), or the 2019 Planning Commission documents, which significantly post-date the City’s action at issue and have no connection to the case at hand.

II. Mootness

The trial court denied writ relief on mootness grounds after finding that construction on the lot was complete. Petitioners contend their writ petition was not and is not moot, because the Cervantes and Serven declarations are judicial admissions “establish[ing] that relief requested by the Petition can be ordered despite the completion of construction.” Petitioners further argue that the trial court’s mootness ruling improperly rested “on evidence that was outside of the administrative record and admitted without necessary legal foundation in violation of CCP Section 1094.5,” namely, the Zhong declaration. Respondents, who are joined by RPI, argue that the Cervantes and Serven declarations were not judicial admissions and do not support petitioners’ position in any event. They also argue the trial court properly relied on the Zhong declaration, to which petitioners did not object. Respondents further contend petitioners impermissibly have altered their relief request in an effort to create a justiciable controversy.

“A case is moot when any ruling by this court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) Moot cases generally should be dismissed. (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547.) “There are three discretionary exceptions to the rules regarding mootness allowing a court to review the merits of an issue: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination.’ [Citation.] (Id. at p. 1548.) We review rulings on mootness de novo. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 319.)

Petitioners have not been clear or consistent with regard to the relief they are seeking. In their writ petition, they requested that the trial court order the City to revoke the building permits and entitlements and stop construction of the project. In their brief in support of their request for injunctive relief, petitioners stated “they are willing to withdraw their objections to the project if it is modified either to conform to the requirements of the now-expired original approvals . . . or is otherwise modified slightly to remove the obstruction of Petitioners’ view and the loss of Petitioners’ privacy.” By the time they filed their trial brief, however, petitioners shifted their position back to a request for writ of mandate revoking the permit extension due to the City’s failure to comply with city statutes. They mentioned landscaping only in the context of arguing that RPI had no vested right to complete construction because the entitlements and building permits “were issued in reliance on a landscaping plan submitted by RPI that RPI itself later admitted was ‘unworkable.’”

At the hearing on the petition, petitioners changed their position again, informing the court that they were “asking for a modification of one of the features, namely, the landscaping,” and arguing that the case was not moot because “the issue here was that shielding.” Here, they assert they seek a writ requiring the City and RPI “to adhere to the landscaping plan that was a condition of the building permit issued” and “seek implementation of the landscaping plan submitted in 2008 that was always a condition of the Project’s approval and any necessary modifications.”

Whether petitioners want revocation of the permits or modification of the landscaping plan, we agree with the trial court’s conclusion that their petition is moot. Construction of the project, including the landscaping, was then mostly and is now fully complete; we reject the contention that construction will be ongoing until the trees reach a size acceptable to petitioners. Revocation of the building permits or the extension thereof would offer little in the way of relief to petitioners, given that RPI received a certificate of occupancy for the home almost two years ago. The record indicates that the consequence of expired or invalid building permits is that the permit holder must apply for and obtain new building permits, which would not be subject to the numerous conditions the City imposed on the previous building permits. Petitioners have not indicated how that would afford them any relief, particularly if RPI were to resume construction on the lot.

Petitioners also claim to seek implementation of the 2008 landscaping plan. The record indicates that the proposed 2016 landscaping plan is “not significantly different than the approved 2008 plan.” It is thus unclear how reversion to the 2008 plan—which is not in the record—would afford petitioners any relief. To the extent that petitioners want additional trees planted, the record demonstrates that the proposed 2016 landscaping plan increased the number of trees planted from 50 to 60, and that more trees cannot be added without adverse effects on the trees currently located on the property. Moreover, the record suggests that the 2008 landscaping plan does not meet current City landscape and water standards, and petitioners asserted at the May 11, 2016 meeting that they wanted the project to conform to “today’s building code.” Multiple arborists concluded that the mature oak trees that originally stood on the property could not be relocated, and those trees have long since been removed. No practical relief is available at this time and the petition accordingly is moot. (See Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378.)

Petitioners’ arguments about the Zhong, Cervantes, and Serven declarations do not convince us otherwise. Although they now object to the Zhong declaration on foundational grounds, petitioners failed to do so below. Petitioners accordingly have forfeited any challenges to the court’s consideration of the Zhong declaration, which supports the court’s conclusion that the petition is moot. (See Evid. Code, § 353, subd. (a).) The Cervantes and Serven declarations (which, like the Zhong declaration, were not before the City and are absent from the administrative record) do say that that the “tree canopy . . . can be adjusted or modified at any point during or after construction.” They do not establish, however, that the specific modification petitioners purport to request, a return to the 2008 landscaping plan, is feasible or achievable.

This case is not one in which we are inclined to exercise our discretion in favor of reaching the merits. It does not present an issue of broad public interest; “the views from a private residence affecting only those directly interested . . . is not an issue of public interest.” (Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1042.) The controversy over extending building permits for a project that is complete is unlikely to recur, and no material questions remain for our determination. We therefore dismiss the appeal.

DISPOSITION

Respondents’ request for judicial notice is granted. Petitioners’ request for the admission of additional evidence is denied. The appeal is dismissed as moot. Real party in interest and respondents are awarded their costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.