Greg Smith, et al. v. City of Santa Barbara, et al.
Case No: 18CV01590
Hearing Date: Mon Jun 03, 2019 9:30

Nature of Proceedings: Motion Augmenting Administrative Record/Writ of Mandate

CASE:

Greg Smith and Judith Smith v. City of Santa Barbara, et al., Case No. 18CV01590 (Judge Sterne)

HEARING DATE: June 3, 2019

MATTER:

Motion for Order Augmenting Administrative Record and/or Admitting Extra-Record Evidence; Petition for Writ of Mandate

ATTORNEYS:

Sabrina D. Venskus for Petitioners and Plaintiffs Greg Smith and Judith Smith

Robin L. Lewis, Assistant City Attorney, for Respondents City of Santa Barbara and Brian D’Amour

Janet K. McGinnis for Real Parties in Interest Herbert Barthels and Herbert E. Barthels Trust

TENTATIVE RULING: The motion for order augmenting the administrative record and/or admitting extra-record evidence is granted. The petition for writ of mandate challenging the determination by City Engineer Brian D’Amour that the conditions of the 1999 Conditional Certificate of Compliance have been satisfied is denied. The court finds that D’Amour’s decision was reasonable, not an abuse of discretion, and in compliance with the Subdivision Map Act.

BACKGROUND:

This writ petition concerns real property and whether the property has sufficient legal access to allow for development. In 1958, Gertrude Eaton, the owner of real property located at 1837 El Camino De La Luz, Santa Barbara, California 93109, requested that the City of Santa Barbara (“City”) approve the division of her property into two parcels. During public hearings on the matter, City expressed concern that the existing easement to the property was not wide enough for public safety purposes, specifically police and fire. A map of the property showed that the access easement was 15 feet wide near the top of the easement, just off El Camino De La Luz, but just 10 feet wide in the area adjacent to the Eaton property. Ms. Eaton represented that the easement was 15 feet wide and, in some locations, close to 17 feet wide. The City Planning Commission denied the lot split, finding that the access easement was too narrow. However, Ms. Eaton appealed the decision to the City Council, which approved the division of the property into two parcels, the first located at 1837 El Camino De La Luz and the second, an unimproved parcel, located at 1837 1/2 El Camino De La Luz (the “Property”).

In 1976, real party in interest Herbert Barthels (“Barthels”) purchased the Property. In 1989, Barthels filed an application with City for a single-family home on the Property, but during the permitting process he learned that the width of the access easement varied from 7.5 feet to 15 feet and that City would not issue a building permit without a 15-foot easement. In 1999, Barthels applied for, and City granted him, a Conditional Certificate of Compliance, which stated that development of the Property was conditioned upon Barthels, or the owner of the Property, providing evidence, satisfactory to the City Engineer, that the Property possessed the amount of required legal access that formed the basis of City’s approval of the lot split in 1958. Barthels subsequently initiated litigation with his neighbors in an attempt to increase the width of the access easement. In September 2009, the parties agreed to a stipulated judgment that the amount of access easement possessed by the Property was 15 feet at the northern end of the easement, 7.5 feet at the southern 7.14 feet of the parcel just north of 1837 El Camino De La Luz, and 10 feet at the southern end of the easement.

Following the court settlement, Barthels continued his attempts to develop the Property. In response, City prepared a Draft Environmental Impact Report (“DEIR”) in 2012 and a subsequent DEIR in 2016. In late 2017, City issued a proposed Final Environmental Impact Report (“FEIR”) for the proposed development of the Property. At the same time, City solicited public comments and on February 1, 2018, a public hearing was held before the Planning Commission. At the public hearing, City Engineer Brian D’Amour (“D’Amour”) stated, and also presented by way of a written memorandum, that he had determined that Barthels could satisfy the Conditional Certificate of Compliance for the Property because the Property did possess the amount of legal access that formed the basis of the originally approved lot split in 1958.

Petitioners Greg Smith and Judith Smith are the owners of real property located at 1839 El Camino De La Luz, immediately across from the Property. Petitioners contend that D’Amour erred in his determination that the Property possesses sufficient legal access to allow for development and seek an order overturning D’Amour’s decision and barring any future development.

ANALYSIS:

1. Motion to Augment Administrative Record

Petitioners seek admission of the following documents, either as part of the administrative record or as extra-record evidence:

1. February 21, 2018 email from City attorney Scott Vincent to petitioners’ counsel regarding the unavailability of an appeal from respondent City Engineer’s challenged determination. (Venskus Dec., ¶2, Ex. A.)

2. Email exchange between petitioners’ counsel and Sarah Gorman of the City of Santa Barbara, dated February 14, 2018 to February 21, 2018, regarding the availability of an appeal from respondent City Engineer’s challenged determination. (Venskus Dec., ¶3, Ex. B.)

3. Email exchange between petitioners’ counsel and City attorney Scott Vincent, dated February 6, 2018 to February 8, 2018, regarding respondent City Engineer’s challenged determination. (Venskus Dec., ¶4, Ex. C.)

4. Email exchange between petitioners’ counsel and City attorney Scott Vincent, dated October 10, 2017 to October 25, 2017, regarding petitioners’ counsel’s request for a meeting with Mr. Vincent about the subject development. (Venskus Dec., ¶5, Ex. D.)

5. Email exchange between City attorney Scott Vincent and attorney Richard Monk, dated October 4, 2017, with copy to respondent City Engineer, regarding the issuance of a Certificate of Compliance for the subject property. (Venskus Dec., ¶6, Ex. E.)

6. Email from Kathleen Kennedy, Associate Planner for Respondent City, to Respondent Brian D’Amour and City attorney Scott Vincent regarding a Certificate of Compliance for the subject property. (Venskus Dec., ¶7, Ex. F.)

Exhibits A, B, and C reflect communications between petitioners and City regarding the appealability of the February 1, 2018 decision by D’Amour and, though dated after the decision, are relevant to petitioners’ exhaustion of administrative remedies. Exhibits D, E, and F concern discussions among city officials, D’Amour, and attorneys for both the petitioners and the real parties in interest regarding the Conditional Certificate of Compliance and are properly part of the complete record in the case since they are dated prior to D’Amour’s February 1, 2018, decision.

City and Barthels do not oppose the documents being included as extra-record evidence and therefore the court grants petitioners’ motion and admits Exhibits A-F.

2. Petition for Writ of Mandate

Request for Judicial Notice

Barthels requests that the court take judicial notice of various facts and propositions relating to the parties in the case, their ownership interests, and previous lawsuits. The court declines to take judicial notice of any of these matters as they are not judicially noticeable under Evidence Code Section 450 et seq.

Petition for Writ of Mandate

Judicial review of administrative decisions by writ of mandate is specifically authorized by statute. Code of Civil Procedure Section 1085, subdivision (a), provides:

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . .”

In traditional mandamus actions, the agency’s decision must be upheld upon review unless it constitutes an abuse of discretion. O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568, 585. An agency abuses its discretion when its decision is not supported by the law or the findings, the findings are not supported by the evidence, or the decision is arbitrary and capricious or lacking in evidentiary support. American Board of Cosmetic Surgery v. Medical Board of California (2008) 162 Cal.App.4th 534, 547. “When reviewing the exercise of discretion, ‘[t]he scope of review is limited out of deference to the agency’s authority and presumed expertise: ‘The court may not reweigh the evidence or substitute its judgment for that of the agency.’ [Citation.] In general . . . the inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support. . . .” Ibid.

Petitioners contend that D’Amour’s determination that Barthels satisfied the conditions of the Conditional Certificate of Compliance was an abuse of discretion because it is contrary to the law and not supported by the evidence. Specifically, petitioners assert that D’Amour’s interpretation of the City Council’s 1958 lot split was unreasonable because it is undisputed that the access easement to Barthels’s property is not 15 feet wide for the full length of the easement, and thus, the property located at 1837 El Camino De La Luz was never effectively divided in 1958 and the undeveloped parcel is not a legal lot under the Subdivision Map Act. In June 1997, then City Attorney Steven Wiley sent a letter to Barthels’s attorney regarding development of the Property, stating that “City does not believe it is appropriate to process an application to develop a parcel where the parcel does not appear to satisfy a fundamental condition of its original creation, the existence of the 15 foot wide access easement for the full length necessary for vehicular access from the public street to the parcel.” (AR1051)

The court disagrees that the City Council in 1958 conditioned the lot split at 1837 El Camino De La Luz on a 15-foot wide access easement, though that was the common belief for many years. Ms. Eaton’s request to approve the lot split first came before the City Planning Commission in May 1958. During a May 6, 1958 meeting, members of the Planning Commission expressed concern that the existing easement to the property was not wide enough for public safety purposes. (AR1098) Although Ms. Eaton stated that the property was not difficult to get to, the Planning Commission elected to continue the matter to allow Ms. Eaton time to submit a map of the area showing all rights-of-way and buildings. (AR1099) In a subsequent meeting on May 20, 1958, members of the Planning Commission continued their discussion of the proposed lot split, at which time the access easement was described as “15 ft. wide.” (AR1101) At the conclusion of the meeting, the Planning Commission denied the lot split on the ground that there were already “four existing dwellings served by [the] 15 ft. easement . . . [and] the hazard of serving this many residences by the narrow easement is too great.” (AR1102) The Planning Commission confirmed its recommendation of denial in a written report to the Mayor, dated May 26, 1958. (AR1103)

On May 29, 1958, Ms. Eaton appealed the denial of the lot split to the City Council. (AR1103) The appeal documents included an April 17, 1958 proposed lot split map that showed all of the parcels off El Camino De La Luz that were served by the easement. (AR1107) Ms. Eaton attended the City Council hearing and stated that, according to actual measurements, the easement was 15 feet wide and, in some locations, close to 17 feet wide. (AR1106) This claim, however, was contradicted by the lot split map that Ms. Eaton had submitted, which clearly showed that the access easement was 15 feet wide at the top of the easement, just off El Camino De La Luz, and 10 feet wide at the bottom, in the area adjacent to the Eaton property. (AR1107) At the conclusion of the hearing, the City Planning Director noted that several neighbors had written letters to the Planning Commission urging approval of the lot split. (AR1106) A member of the City Council (Wilson) then moved to approve the lot division “as submitted by the applicant.” (Ibid.) The motion was approved unanimously, with full knowledge of the denial recommendation of the Planning Commission. (Ibid.)

Petitioners contend that the City Council granted Ms. Eaton’s lot split on the condition that she, in fact, owned a 15-foot wide access easement beyond the northern property line of her parcel, but that is not borne out by the record. While members of the City Council expressed concern that a 15-foot easement was too narrow, ultimately, the City Council approved the division of 1837 El Camino De La Luz into two parcels based on the documents “submitted by the applicant.” (AR1106) Those documents included the April 1958 proposed lot split map. (AR1107) The City Council never conditioned the lot split on proof that the access easement that connected the Eaton property to the street was 15 feet wide for the full length of the easement.

In December 1999, Barthels applied for, and City granted him, a Conditional Certificate of Compliance, which stated that development of the Property was conditioned upon Barthels, or the owner of the Property, providing evidence, satisfactory to the City Engineer, that the Property possessed the amount of required legal access that formed the basis of City’s approval of the lot split in 1958. (AR1052-54) Specifically, the Conditional Certificate of Compliance stated that development of the Property was subject to the following condition:

“Provide evidence, satisfactory to the City Engineer that the owner of the parcel described herein substantially possesses the required amount of legal access that formed the basis of the originally approved lot split.”

(AR1053)

The Conditional Certificate stated further:

“All permits of the City of Santa Barbara needed by the owner of the real property described herein for the development of improvements, including any development of improvements to implement the above condition, and permits and other grants of approval for the development of the real property in the future shall be subject to the condition listed above.”

(Ibid.)

Importantly, the Conditional Certificate of Compliance did not condition development of the Property on the existence of a 15-foot wide access easement. Rather, it conditioned development on proof that the parcel “substantially possesses the required amount of legal access that formed the basis of the originally approved lot split.” In a February 1, 2018 memorandum regarding the Conditional Certificate, D’Amour concluded that “the owner of parcel 045-100-065 [the Property] did possess the amount of legal access that formed the basis for the originally approved lot split.” (AR1037-38) D’Amour based his finding on the following documents:

● May 6, 1958 Planning Commission Minutes re proposed Eaton lot split

● May 20, 1958 Planning Commission Minutes re proposed Eaton lot split

● May 26, 1958 Planning Commission report to the Mayor

● May 29, 1958 City of Santa Barbara Council Action

● 1958 Lot Split Map

● December 2, 1958 Record of Survey

● Court Documents from 2009

(AR1038)

As D’Amour explained, the condition specified in the Conditional Certificate was that the owner must demonstrate that he has the legal access that formed the basis for the City Council’s approval of the lot split in 1958. (Ibid.) The Conditional Certificate did not require that the owner demonstrate that the Property satisfied any particular access standard. (Ibid.) Indeed, the minutes of the May 29, 1958 City Council hearing make clear that council member Wilson’s motion was to approve the “request of Mrs. Fred Eaton Sr. to divide into two parcels lot 7T and 11H located at 1837 de la Luz, as submitted by the applicant.” (AR1106) Based on the language of the motion, D’Amour concluded that the City Council approved the lot split on the basis of the access shown on the 1958 lot split map. (AR1107) That map plainly shows that the access easement is 15 feet wide at the upper part of the easement, just off El Camino De La Luz, and just 10 feet wide at the lower part, in the area leading to the Eaton property. (Ibid.)

Among the court documents that D’Amour reviewed was the stipulated judgment entered on September 8, 2009, in the matter of Herbert E. Barthels v. Rafael Franco, et al., Santa Barbara Superior Court Case No. 1268293. (AR1055-58) Barthels had filed the action against his neighbors in an attempt to obtain a wider access easement to his parcel. After extensive litigation, the parties stipulated, and the court entered as a judgment, that the Property possesses the following easements: (1) a combined 15 feet along the easterly boundary of parcel 045-100-045 and the westerly boundary of parcel 045-100-017, (2) 7.5 feet along 7.14 feet of the westerly boundary of parcel 045-100-018, and (3) 10 feet along the westerly boundary of parcel 045-100-064. (AR1057) Because these access easements essentially match what was presented to the City Council when it approved the lot split as shown on the 1958 proposed lot split plan (AR1107) and the 1958 Record of Survey (AR1085), D’Amour concluded that Barthels “substantially possesses the required amount of legal access that formed the basis of the originally approved lot split.” (AR1039)

The court agrees with D’Amour’s finding. The City Council approved the lot split in 1958 based on the information before it. That information included the April 1958 proposed lot split plan, which accurately showed the various widths of the access easement leading from El Camino De La Luz to the Eaton parcel. Petitioners argue that “[f]or over 50 years, the City of Santa Barbara has determined that the lot has not been legitimately split from its parent lot due to the failure of the owner(s) to present evidence that the legal access to the lot is a least 15 feet wide, a condition of its original creation by the City Council in 1958” (Petition, p. 6:3-6), but petitioners are mistaken. There has never been a determination that the lot split was illegal. On the contrary, the administrative record shows that the Property has been under development review for many years. In 1999, Barthels applied for, and was issued, a Conditional Certificate of Compliance, which, as discussed above, set forth the conditions for development of the parcel. (AR1052-54) Such certificates “are limited to legitimizing divisions of property that have already occurred, such as divisions covered by the [Subdivision Map] Act’s grandfather clauses or divisions resulting from a property’s illegal conveyance.” Save Mount Diablo v. Contra Costa County (2015) 240 Cal.App.4th 1368, 1389. In 2017, City issued a proposed FEIR for the Property. (AR 1088)

Lastly, petitioners argue that D’Amour illegally waived a requirement of the Subdivision Map Act in finding that the Property “substantially possesses” the required amount of legal access. However, no such error of law occurred. As stated in Mount Diablo, supra, 240 Cal.App.4th at 1377:

“The [Map] Act grants to local governments the power to regulate the manner in which their communities grow. Although the Act itself contains few, if any, substantive growth regulations, it requires every landowner who wishes to divide a single parcel of land into smaller parcels for individual sale – thereby increasing the density of settlement on the land – to obtain the approval of the local government before doing so. [Citations.] At the same time, the Act vests ‘[r]egulation and control of the design and improvement of subdivisions’ in city and county governing bodies, requiring them to adopt ordinances regulating the manner in which growth will occur.”

Here, D’Amour conducted a reasonable analysis and selected appropriate information to support his conclusion that the condition of the 1999 Conditional Certificate of Compliance has been satisfied. Accordingly, the court will deny the Smiths’ petition for writ of mandate. Petitioners have failed to show that D’Amour’s decision is not supported by the law or the findings or that the decision is arbitrary and capricious or lacking in evidentiary support.