Opinion
A162387
07-21-2022
GREEN TREE HEADLANDS, LLC et al., Plaintiffs and Appellants, v. CITY OF SAUSALITO, Defendant and Respondent; TSERENPUNTSAG TSEDENDAMBA et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. 1904567
MARGULIES, J.
Plaintiffs Green Tree Headlands, LLC (Green Tree Headlands) and Bruce T. McMillan appeal from an order denying their petition for writ of mandate against defendant City of Sausalito (the City). Plaintiffs sought the writ to compel the City to set aside a resolution designating property lines on a neighboring parcel and to instead require the City to determine the property lines during design review in connection with new construction on that parcel. Plaintiffs contend the City violated their procedural due process rights by designating the property lines with no prior notice to affected parties as required both "constitutionally and by the City's principal land use ordinance," and misinterpreted the relevant ordinances which require that property line designations be made during design review. We will affirm.
I. BACKGROUND
Real parties in interest, Tserenpuntsag Tsedendamba and Oigonjargal Bazarsad (RPIs), are the owners of an undeveloped residential parcel of land in the Wolfback Ridge Estates Subdivision (Wolfback Estates) of the Marin Headlands. The parcel, purchased by RPIs in 2017, is identified as "Lot 5." RPIs are planning to build a single-family residence on Lot 5.
Lot 5 is an irregularly shaped parcel, roughly in the shape of a "C," which wraps around a previously developed residence owned by plaintiff McMillan. McMillan's property, which sits outside Wolfback Estates, is commonly known as "1 Canto Gal."
Plaintiff Green Tree Headlands, which is managed by Steven McArthur (McArthur), owns real property identified as "Lot 3" of the Wolfback Estates. Lot 3 has the street address 51 Wolfback Ridge Road, and is a family residence of McArthur and his wife, Joan. Lot 3 enjoys sweeping views of the San Francisco skyline, Angel Island, Alcatraz Island, Belvedere Island, the Sausalito hills, and the Golden Gate Bridge. When McArthur purchased Lot 3 in 2008, he negotiated view easements with the developer over Lots 4 and 5, and a right of first refusal on Lot 4. The agreements are memorialized and recorded in Marin County.
Lot 5 is also subject to a settlement agreement entered into by the subdivider of Wolfback Estates and the City in 1997 (settlement agreement), which singles out Lot 5 in particular to increase its setbacks 10 feet over and above that which is otherwise required by the City's Zoning Ordinance. In addition, the Lot 5 declaration restricts the height of a permitted building to one-story (14 feet) with an exception for a second story (total 26 feet) provided the building footprint is located within a rectangle on the northwest portion of the flat building site on Lot 5.
The settlement agreement states: "The Design Review Board's review and consideration of the design of any structure built on this lot shall assure satisfaction of this requirement."
On November 4, 2017, RPIs' architect, Scott Couture, wrote a letter to the City's community development director (CDD), requesting a "written front property line determination" for Lot 5, pursuant to Sausalito Municipal Code section 10.88.040. Under section 10.88.040," 'Front property line' means the line separating the parcel from the street. In case a lot abuts on more than one street, the parcel owner may elect any street parcel line as the front parcel line; provided, that such choice in the opinion of the Community Development Director will not be injurious to adjacent properties." Couture's letter posited three locations "where 'the property line separates the parcel from the street,'" but stated only one of them, "Property Line A," would result in a suitable location for a home, and indicated a desire to elect that line as the front property line.
All subsequent statutory references are to the Sausalito Municipal Code unless otherwise indicated.
Shortly thereafter, the CDD, Danny Castro, and then Senior Planner, Calvin Chan, conducted a site visit at Lots 4 and 5 to evaluate the request. On November 22, 2017 the CDD issued a planning division memorandum (Memorandum Decision) designating the "front property line" of Lot 5 as the western property line denoted as property line "A" on an exhibit attached to the Memorandum Decision. The Memorandum Decision also stated the CDD had determined the property line choice would not be injurious to adjacent properties.
After it learned of the Memorandum Decision, Green Tree Headlands appealed. On March 13, and April 3, 2019, the planning commission held public hearings. Plaintiffs appeared at the hearings through counsel and provided written submissions. At the second hearing, the planning commission granted the appeal, concluding that the CDD's determination of the front property line at Lot 5 was void. The planning commission found that the property line selected by the CDD, Line "A," did not meet the definition of a street parcel line because the line was actually two lines that could not be combined to meet the definition of "front property line" in section 10.88.040.
The City initially determined that the decision could not be appealed, but after Green Tree Headlands filed a petition for writ of mandate in the superior court, the City "agreed to permit this de novo appeal of the Memorandum Decision."
RPIs appealed the planning commission decision to the city council. The city council conducted a de novo review of the matter, during which it held two public hearings and considered extensive written submissions and verbal testimony. Three of the city council members conducted individual site visits at Lot 5 and met with the parties and neighbors. At the conclusion of the second hearing on August 27, 2019, the city council granted RPIs' appeal. The city council determined the RPIs' selected front property line met the statutory definition in section 10.88.040, was consistent with the pattern of development in the neighborhood, and was not injurious to adjacent properties. Specifically, the city council found (1) no injury to adjacent properties, including light, air, open space, circulation, or access; (2) no other unusual circumstances; and (3) that "[o]ther types of impacts, such as impacts to views," were speculative and would be assessed in the Design Review process. The city council attached the "Lot 5 Front Property Line Map" as an exhibit to the resolution, a copy of which is attached as an appendix to the end of this opinion.
The city council also found that Green Tree Headlands's property, 51 Wolfback Ridge Road, was not adjacent to Lot 5 because it was separated from Lot 5 by Lot 4, but nonetheless, the city council specifically found the designation of the front property line was not injurious to 51 Wolfback Ridge Road for the same reasons it gave regarding the adjacent properties.
Two months later, plaintiffs filed a first amended petition for writ of mandate with the Marin County Superior Court. Plaintiffs alleged that the city council's August 27, 2019 decision was an abuse of discretion and lacked the required notice and hearing. Plaintiffs sought a peremptory writ directing the City to set aside the August 27, 2019 decision. Plaintiffs also asserted two causes of action for declaratory relief, seeking relief concerning "when and by whom the setbacks and property lines for new home construction can be set" under the Sausalito Municipal Code, and the "proper interpretation of 'injurious to adjacent properties'" in section 10.88.040.
After briefing and a hearing, the trial court denied plaintiffs' first amended petition in its entirety. The court rejected the plaintiffs' argument that the City was required to determine property lines and setbacks during the design review process, and found the front property line could be properly determined by the CDD rather than during design review, under section 10.88.040. The court rejected plaintiffs' argument that section 10.88.040 was unconstitutional facially and as applied, concluding that such a claim was not pled in the petition, and that an "as applied" constitutional claim would be "moot and/or unsupported by the record" in light of the de novo review of the CDD's decision by the city council.
Plaintiffs timely appealed.
II. DISCUSSION
A. Standard of Review
On review of a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5, we have the same role as the trial court: we determine whether (1) the agency proceeded without, or in excess of, jurisdiction; (2) there was a fair hearing; and (3) the agency abused its discretion. (McAllister v. California Coastal Commission (2008) 169 Cal.App.4th 912, 921-922.) An abuse of discretion is established if the respondent has not proceeded in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b); McAllister, at p. 921.)
As to pure questions of law, our review is de novo. (Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1339.) As relevant here, when interpreting municipal ordinances, we exercise our independent judgment as we would when construing a statute. (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434.) Nonetheless, a city's interpretation of its own ordinance"' "is entitled to great weight unless it is clearly erroneous or unauthorized." '" (Ibid., quoting Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193.)
B. Plaintiffs' Procedural Due Process Claim
In their petition for writ of mandate, plaintiffs challenge the "legality and validity" of the city council's August 27, 2019 resolution designating property lines for Lot 5. They allege the city council's decision "was an abuse of discretion and lacked the required notice and hearing," a claim they characterize on appeal as "a denial of basic procedural due process."
1. The Nature of Plaintiffs' Constitutional Challenge
Plaintiffs did not address in their opening brief on appeal whether the procedural due process claim they raise in their petition presents a facial or as-applied constitutional challenge to section 10.88.040. However, because both parties argue the issue in the respondents' brief and appellants' reply brief, and the issue was raised in the trial court, we will address it.
Our Supreme Court has explained the difference between facial and as-applied constitutional challenges. "A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.
[Citation.]' "To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute ....Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." '" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 (Tobe); accord, California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 338.) Our Supreme Court has at times "applied a more lenient standard, asking whether the statute is unconstitutional 'in the generality or great majority of cases.'" (Gerawan Farming, Inc. v. Agricultural Labor Relations Board (2017) 3 Cal.5th 1118, 1138 (Gerawan Farming).)
"An as applied challenge," on the other hand, "may seek (1) relief from a specific application of a facially valid statute or ordinance to an individual . . . who [is] under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied, or (2) an injunction against future application of the statute or ordinance in the allegedly impermissible manner it is shown to have been applied in the past. It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right." (Tobe, supra, 9 Cal.4th at p. 1084.)
Plaintiffs have made no showing that their petition challenged section 10.88.040 on the ground the ordinance "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions," or is unconstitutional" 'in the generality or great majority of cases.'" (Tobe, supra, 9 Cal.4th at p. 1084; Gerawan Farming, supra, 3 Cal.5th at p. 1138.) Nor do they seek any relief invalidating the ordinance. (See, e.g., Tobe, at pp. 1086-1087 [only relief sought in the petition was a writ of mandate enjoining any enforcement of the ordinance by respondents; "the kind of relief sought in a facial attack"].)
Plaintiffs also concede that they cannot assert a "stand-alone" facial attack on the ordinance because it would be time barred.
A liberal reading of plaintiffs' claims as alleged in the first amended petition for writ of mandate reveals that plaintiffs have asserted at best an as-applied constitutional challenge to section 10.88.040, asking the court to consider the particular facts of their case and provide relief from the specific application of section 10.88.040 to them in the city council's August 27, 2019 resolution. Plaintiffs allege that their petition seeks to "rescind [the] City Council's August 27, 2019 decision regarding a 'front line property determination,' which was an abuse of discretion and lacked the required notice and hearing," and that the CDD's Memorandum Decision, was issued without "any notice" or "any sort of hearing." The general allegations of the petition sets forth five pages of issues identified by their counsel regarding aspects of the CDD decision that were erroneous, and asserts that the "action is brought to challenge and adjudicate the legality and validity of [the] City Council's August 27, 2019 decision"; it does not seek to challenge the legality or validity of section 10.88.040. The cause of action for writ of mandate specifically alleges that it was the city council's August 27, 2019 decision that is, among other things, "legally erroneous, unreasonable, arbitrary, unconstitutional, and contrary to law" and sought only reversal of that decision. (Italics added.)
The trial court, in its ruling on plaintiffs' petition for writ of mandate, concluded plaintiffs had failed to allege a constitutional challenge with respect to their petition for writ of mandate and declaratory relief claims, though the court also "note[d]" that plaintiffs' argument that section 10.88.040 is unconstitutional as applied to them due to the lack of notice and hearing before the CDD was "moot and/or unsupported by the record." For purposes of deciding this appeal, we will assume plaintiffs sufficiently pled a cause of action for writ of mandate asserting an as-applied procedural due process challenge.
Plaintiffs attempt to rely on Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, in which our Supreme Court held that a plaintiff could bring an otherwise time-barred facial attack on an ordinance together with a claim the ordinance was unconstitutional as applied to him. But the Travis court's holding concerned only the timeliness of the plaintiff's claim under the relevant statute of limitations, not as here, its merits. (Id. at p. 762.) Moreover, in Travis, unlike in this case, the petitioner's legal challenge was aimed at least in part at the text of the measure and challenged the validity of the ordinance itself. (Travis, at pp. 767-769.)
In their reply brief, plaintiffs also rely on Horn v. County of Ventura (1979) 24 Cal.3d 605 and Selinger v. City Council (1989) 216 Cal.App.3d 259, in support of their claim they have asserted a facial attack on section 10.88.040, but neither of those cases analyzed facial versus as applied challenges.
Because plaintiffs failed to allege a cognizable facial constitutional challenge to section 10.88.040 and failed to demonstrate the ordinance is unconstitutional in the "generality or great majority" of cases, we now turn to consideration of their as applied claim.
2. Plaintiffs' Procedural Due Process Claim Is Moot
California courts decide only actual controversies. (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.) "[M]oot cases 'are "[t]hose in which an actual controversy did exist but, by the passage of time or a change in circumstances, ceased to exist." '" (Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 722.) "The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief." (Wilson &Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 ["A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief.' "].)
Here, plaintiffs assert the city council's decision under section 10.88.040 violated their procedural due process rights and must be set aside because no notice or hearing was provided regarding injuries that may result to neighboring properties from its front line property determination. But any due process violation with respect to notice and a hearing was remedied in this case when the city council held the de novo hearings on the front line property determination. Although the initial Memorandum Decision by the CDD was made without notice and a hearing, the city council made the final front property line determination in a de novo hearing, following notice to interested neighbors, including plaintiffs. Plaintiffs appeared by counsel at both meetings and provided multiple written submissions to the city council (including a PowerPoint presentation by counsel for Green Tree Headlands) regarding their concerns about impacts to their properties from the front property line determinations. A majority of city council members also visited the site and met with plaintiffs and other neighbors. Thus, we cannot provide plaintiffs with an effective remedy because they have already received the notice and public hearing to which they would be entitled.
Moreover, even if an actual controversy did exist when the appeal was filed, it has been rendered moot by subsequent events. (See Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866 [" 'an action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events' "].) Here, plaintiffs ask this court to "reverse the Superior Court's decision, grant the writ they sought, and order [the City] to determine Lot 5's property line designations in the context of design review." But it is undisputed that design review of the proposed new residence has concluded and plaintiffs have filed another petition for writ of mandate challenging that decision. As we discuss further below, the City was required in that proceeding to consider the location, size, and scale of the building RPIs actually intend to construct and how, among other things, it would impact the views, privacy, light, air and noise for adjacent properties. Plaintiffs do not dispute that they had notice and an opportunity to be heard at those proceedings. Because design review is already complete, we cannot grant plaintiffs the relief they seek.
Plaintiffs filed a new petition for writ of mandate in October 2021, seeking to set aside the design review approval. Plaintiffs included their petition for writ of mandate challenging the approval in the appellants' appendix filed with this appeal. We take judicial notice of the document, though not the truth of the matter therein. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Plaintiffs assert in their reply brief that the remedy requested in this case is still available because "[t]hough design review has ostensibly been completed, that decision is subject to another legal challenge by [plaintiffs] and can be reopened." Plaintiffs do not explain why their complaints regarding injuries to their views are not more appropriately addressed in their legal challenge to the design review proceedings, in which, as plaintiffs concede, the City would have had the actual plans for the project before them.
In arguing their procedural due process claim is not moot, plaintiffs rely on Horn v. County of Ventura (1979) 24 Cal.3d 605 (Horn). In Horn, the plaintiff challenged a county's approval of a tentative subdivision map by petition for writ of mandate. The county had issued a negative declaration under CEQA and approved the tentative map on condition that the real party in interest developer install sewers for the lots. (Horn, at p. 610.) After the tentative approval, the plaintiff purchased property adjacent to the proposed subdivision. Meanwhile, the developer had appealed the imposition of the sewer condition and a hearing was held on that issue. The plaintiff learned of the hearing by chance, and appeared to complain that no notice or opportunity for hearing had been provided to affected property owners. The board of supervisors refused to consider any issue other than the sewer condition, and twice denied the plaintiff's requests for a public hearing. (Id. at pp. 610-611.)
California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).
Our Supreme Court recognized that the approval of a subdivision involves "the application of general standards to specific parcels of real property," and as such, is" 'adjudicatory'" in nature. (Horn, supra, 24 Cal.3d at p. 614.) The court held that the plaintiff's allegations that the subdivision plan would substantially interfere with access to his parcel and would increase air pollution and traffic congestion adequately pled a deprivation of property rights sufficient to invoke his constitutional right to notice and a hearing before the approval occurred. (Id. at pp. 614-616.) The court further concluded that the notice and hearing procedures provided by the CEQA regulations in that case were insufficient to allow a" 'meaningful' predeprivation hearing" to affected landowners. (Horn, at pp. 617-619, italics added.) Thus, the Supreme Court remanded for the court to overrule the demurrer to the petition for writ of mandate. (Id. at p. 620.)
Plaintiffs argue Horn shows they "were entitled to prior notice and hearing, not a hearing only on appeal after [the City] made a decision without Petitioner's input regarding injury to their property." In Horn, however, the property owner had no opportunity to present his grievances to the county because it granted a hearing only as to developer's appeal of the sewer condition imposed with the approval of the tentative subdivision map and refused entirely to provide a hearing to the affected property owners. (Horn, supra, 24 Cal.3d at pp. 610-611.) Moreover, the county's environmental evaluation process was not adequate to satisfy the demands of due process because the available, but not mandatory, public hearings under CEQA procedures were "intended only to evoke and record a public response limited to the general environmental aspects of a proposed project" as opposed to the "specific objections to the threatened interference with [the property owner's] property interests." (Horn, at p. 619, italics added.)
Here, by contrast, plaintiffs had not one, but two hearings at which they had the opportunity to present their specific objections to the designation of property lines on Lot 5 before a final determination. The city council heard the issue de novo, and issued a decision after due consideration. Although plaintiffs argue the city council's decision was essentially an adoption of the CDD's Memorandum Decision, that conclusory assertion is unsupported by the record and plaintiffs' own petition. In plaintiffs' petition for writ of mandate, for example, they allege the "CDD could not properly have considered whether the selection of 'Property Line A' as Lot 5's 'front property line' is injurious to adjacent properties as staff made no findings or analysis on that point, failed to even speak to any neighbors, to go onto 51 Wolfback Ridge, or to notify anyone that such a consideration was even underway ...." With respect to the city council's de novo review, plaintiffs had notice of the city council hearings, attended and presented their concerns through counsel, city council members visited the properties and spoke with interested parties, and the city council made specific findings about the lack of injury to light, air, open space, circulation and access. The mere fact that the city council ultimately chose the same front property line as the CDD does not demonstrate they failed to consider the issue anew, and despite plaintiffs' conclusory assertion that the city council merely adopted the CDD's conclusions, the lengthy transcripts of the public hearings and findings regarding absence of impacts to light, air, open space, circulation, and access belie that claim.
Plaintiffs also complain that their "due process rights have not been meaningfully vindicated because of the artificially narrow scope of Sausalito's 'injury' inquiry." Specifically, plaintiffs contend that the Horn court "treats views as a constitutionally protected property right" and the hearings held by the City without consideration of how the front property line determination would affect 51 Wolfback Ridge Road's views was "not a 'meaningful' vindication" of their due process rights.
Horn does not discuss this principle. The property owner in Horn raised concerns about the topographic suitability of lots for residential development, traffic, parking congestion, access to his property, and the environmental effects of the proposed subdivision. (Horn, supra, 24 Cal.3d at p. 611.)
While plaintiffs are correct that cases such as Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 545, 549 and American Tower Corp. v. City of San Diego (9th Cir. 2014) 763 F.3d 1035, 1050, discussed impacts to views as a protected property interest, those courts were considering views in the context of permit approval proceedings. (Scott, at pp. 544-545 [conditional use permit for construction of planned development on land formerly zoned for single family, single story residences abutting the plaintiff's property]; American Tower, at p. 1041 [conditional use permit for three cell tower facilities].) Similarly, here, design review provides the opportunity for neighboring landowners to present their concerns about view impacts from the proposed construction of a new residence on Lot 5 to the City. (§ 10.54.050.D.4 [requiring finding that the "proposed project has been located and designed to minimize obstruction of public views and primary views from private property"].) Plaintiffs cannot show that the City's refusal to consider the entirely speculative impact of a potential building that had not been designed on views from 51 Ridgeback Road violated their constitutional right to due process given the undisputed opportunity to be heard on those very issues during design review.
3. Plaintiffs' Due Process Claim Lacks Merit
Even if the claim were not moot, plaintiffs are entitled to notice and a hearing when a significant or substantial deprivation of property rights is at issue. (Horn, supra, 24 Cal.3d at p. 616.) "Constitutional notice and hearing requirements are triggered by governmental action that will result in significant or substantial deprivations of property, and this category does not include an agency decision having only a de minimis effect on land." (Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1435.) "Land use decisions that 'substantially affect the property rights of owners of adjoining parcels may constitute deprivations of property for purposes of procedural due process' [citations], and those landowners are entitled to notice and an opportunity to be heard before a project's approval [citations]. Due process requires an opportunity to be heard '"' "at a meaningful time and in a meaningful manner." '" '" (Cal. Renters Legal Advocacy &Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 853, italics added.)
Here, plaintiffs have not shown a significant or substantial deprivation of their property rights occurred without notice and a hearing. The only issue decided by the CDD and in the de novo city council hearing was the designation of Lot 5's front property line. The evidence in the record about the significance of the front property line designation is that it prescribes minimum setbacks for the proposed residence. Plaintiffs briefing seems to assume we will agree the determination of minimum setbacks will result in a substantial deprivation of a property right, but they do not cite or discuss authority supporting such a conclusion.
We address below plaintiffs' argument that the city council erred in designating rear and side property lines in its resolution as well.
RPIs persuasively explain that the front property line determination was a necessary preliminary determination in order for their architect to obtain the minimum setbacks to begin a design review application. As noted by the City's senior planner, Calvin Chan, "You can't design for zoning compliance if you don't know your zoning metrics." Indeed, counsel for McMillan agreed that "the architect can't design, in my view, a project properly until he knows or she knows where the setbacks are and how that property and the project is to be oriented."
The City's design review ordinance, on the other hand, provides notice and an opportunity to be heard about injuries to plaintiffs' property rights prior to authorization of new construction. Among other things, the design review ordinance requires the City to make the following specific findings prior to design review approval: (1) the "proposed project is consistent with the general plan, any applicable specific plans, any applicable design guidelines, and this chapter" (§ 10.54.050.D.1.); (2) the "proposed project is consistent with the general scale of structures and buildings in the surrounding neighborhood and/or district" (§ 10.547.050.D.3.); (3) the "proposed project has been located and designed to minimize obstruction of public views and primary views from private property" (§ 10.54.050.D.4.); (4) the "proposed project will not result in a prominent building profile (silhouette) above a ridgeline" (§ 10.54.050.D.5.); (5) the "proposed landscaping provides appropriate visual relief, complements the buildings and structures on the site, and provides an attractive environment for the enjoyment of the public" (§ 10.54.050.D.6); (6) the "design and location of buildings provide adequate light and air for the project site, adjacent properties, and the general public" (§ 10.54.040.D.7); (7) "[e]xterior lighting, mechanical equipment, and chimneys are appropriately designed and located to minimize visual, noise, and air quality impacts to adjacent properties and the general public" (§ 10.54.050.D.8); (8) the "project provides a reasonable level of privacy to the site and adjacent properties, taking into consideration the density of the neighborhood, by appropriate landscaping, fencing, and window, deck and patio configurations" (§ 10.54.050.D.9); and (9) the "project has been designed to ensure on-site structures do not crowd or overwhelm structures on neighboring properties" (§ 10.54.050.D.13). Moreover, the ordinance provides that the "approved size, setbacks, or other physical conditions of a proposed new home . . . shall be at the discretion of the Planning Commission. In order to meet the findings of design review . . . the Planning Commission may approve a home smaller, or with greater setbacks, or otherwise impose requirements that are more restrictive than those set forth" in the ordinance. (§ 10.54.050.E.)
Plaintiffs acknowledge in their reply brief that the design review ordinance requires the planning commission to ensure during design review that" '[t]he proposed project has been located and designed to minimize the obstruction of public views and primary views from private property,'" but argue the planning commission "cannot do so if its hands are tied by a predesign review proceeding wherein property lines and minimum setbacks have already been set, therefore inhibiting the Planning Commission's ability to alter the location of the proposed project to minimize obstruction to views." But plaintiffs' cursory argument without citation to authority or the record is unpersuasive. The decision designating property lines resulted only in determination of minimum setbacks. As far as this court can tell from the record, it did not determine the actual location of the proposed project, nor does it appear to preclude the planning commission from full consideration during design review of the types of injuries, including injuries to views, that concern plaintiffs about new construction on Lot 5.
Due process is flexible. (Horn, supra, 24 Cal.3d at p. 617 ["the general application of due process principles is flexible, depending on the nature of the competing interest involved"].) Here, plaintiffs' right to notice and an opportunity to be heard about how construction of a new home will impact their views, privacy, light, and noise is adequately protected by the design review process under section 10.54.050. Indeed, plaintiffs themselves ask us to remand for the City to determine the property lines in design review. But plaintiffs do not explain why separately reconsidering the minimum setbacks is a necessary part of that process when during design review the City considers and decides whether the actual location of the building is appropriate, or whether it impermissibly interferes with their property rights. "Due process cannot become a blunderbuss to pepper proceedings with alleged opportunities to be heard at every ancillary and preliminary stage, or the process of administration itself must halt. Due process insists upon the opportunity for a fair trial, not a multiplicity of such opportunities." (Dami v. Department of Alcoholic Beverage Control (1959) 176 Cal.App.2d 144, 151.) Plaintiffs have failed to demonstrate the City's designation of a front property line deprived them of a significant or substantial property right without notice and a hearing.
E. Statutory Interpretation
Next we turn to plaintiffs' argument that the City erred in its interpretation of the relevant municipal ordinances, sections 10.88.040 and 10.54.050.
Curiously, although plaintiffs repeatedly assert that the Sausalito Municipal Code "has two conflicting provisions governing the setting of property lines," they failed to analyze that issue in either their opening or reply briefs on appeal and instead incorporated by reference arguments made in their briefs in the trial court. "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20, citing Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [" 'it is not appropriate to incorporate by reference, into a brief, points and authorities contained in trial court papers, even if such papers are made a part of the appellate record' "].) Accordingly, plaintiffs have forfeited this issue. (See Soukup, at p. 294, fn. 20 [disregarding purported incorporations by reference]; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [if appellant merely incorporates by reference arguments made in trial court, contention will be forfeited].)
Even were we to consider the merits of their argument, however, plaintiffs have not shown a conflict between these ordinances. Plaintiffs assert sections 10.88.040 and 10.54.050 give "original jurisdiction" to determine the front property line to two different entities; section 10.88.040 allows the CDD to determine the front property line, while section 10.54.050 allows the planning commission to set the property lines during design review. But plaintiffs cite to no language in section 10.54.050 suggesting that the planning commission is responsible for designating a front property line during design review.
The City addresses the argument on the merits in their respondent's brief.
As discussed above, section 10.88.040, on the other hand, specifically addresses property line determinations and contemplates specific circumstances (when a parcel abuts more than one street) under which the front property line is chosen by the property owner subject to approval by the CDD. Because the clear and unambiguous language of the ordinance reveals that only the CDD is tasked with making a front property line determination when a parcel abuts more than one street, we discern no conflict requiring designation of lot lines by the planning commission during design review. (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 890-891 ["' "If the regulatory language is clear and unambiguous, our task is at an end, and there is no need to resort to canons of construction and extrinsic aids to interpretation."' "].)
In arguing section 10.54.050 gives the planning commission authority to determine the front property line during design review, plaintiffs cite to a provision in section 10.54.050.B.18 requiring design review permits for the following applications: "Administrative design review for proposals made in conjunction with other applications requiring Planning Commission review and approval." (Italics added.) Plaintiffs argue "[t]his is a poorly worded provision and makes little sense when read literally as drafted.... [but] easily makes sense if the phrase 'Administrative design review' is taken out.'" Once we excise such language, plaintiffs contend, "[t]hen it becomes clear that any proposal made in conjunction with a larger project should be sent to the Planning Commission." Plaintiffs offer no authority supporting our authority to rewrite municipal ordinances in such a manner, and indeed, the law is firmly to the contrary. (City of Torrance v. Southern California Edison Company (2021) 61 Cal.App.5th 1071, 1088 ["we have 'no power to rewrite an ordinance or statute so as to make it conform to a presumed intention which is not expressed' "].) In sum, plaintiffs have not shown section 10.54.050 conflicts with section 10.88.040 so as to require the City to designate a front property line during design review.
C. Designation of All Property Lines
Finally, plaintiffs contend the City exceeded its authority in designating not just the front property line, but the rear and side property lines for Lot 5 as well. Plaintiffs contend (1) there is no authority for the City to set rear and side property lines outside of design review, (2) the determination of the rear property line is a discretionary decision, and (3) they disagree with the City's choice of rear property line.
Plaintiffs have not shown the City erred in designating the rear and side property lines. Section 10.88.040 provides as follows: "2. 'Rear property line' means, ordinarily, that line of a parcel that is opposite and most distant from the front line of the parcel. In the case of a triangular or gore-shaped parcel, a line 10 feet in length within the parcel parallel to and at a maximum distance from the front parcel line shall be deemed to be the rear parcel line for the purpose of determining the depth of rear yard. [¶] 3. 'Side property lines' are recorded lot boundaries that are neither front nor rear property lines which extend between front and rear property lines. On a corner lot, there will be one side parcel line and one rear property line."
As plaintiffs acknowledge, the definition provides that "ordinarily" the rear property line is the line most distant from the front property line. Here, the city council designated the line most distant from the front property line as the rear line. Although the definition provides for a different determination of a rear property line for a "triangular or gore-shaped parcel," plaintiffs do not contend that definition should apply here. Nor do plaintiffs explain why their "preferred" choice for a rear property line, property line "C" would be appropriate under the definition in the ordinance. Accordingly, plaintiffs have not shown the city council exceeded its authority by designating the rear and side property lines when it determined the front property line.
Plaintiffs argue "line C" would be the "appropriate" choice because "that actually provides some rear yard benefit to a neighbor (McMillan)," whereas the current choice "line H" "gives the benefit of the rear yard to no neighbors." Nowhere in the statutory language, however, do plaintiffs locate "rear yard benefit to neighbors" as a standard for selecting the rear property line.
III. DISPOSITION
The judgment is affirmed. The City and RPIs are to recover their costs on appeal.
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WE CONCUR: Humes, P. J. Banke, J.