Luna & Glushon, Kristina Kropp for Plaintiff and Appellant Cordelia J. Donnelly. Stephanie Cao, San Marino City Attorney; Richards, Watson & Gershon, Ginetta L. Giovinco, Stephen D. Lee for Defendant and Appellant City of San Marino.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BS170770) APPEAL from judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed in part, dismissed in part; the request for judicial notice is denied. Luna & Glushon, Kristina Kropp for Plaintiff and Appellant Cordelia J. Donnelly. Stephanie Cao, San Marino City Attorney; Richards, Watson & Gershon, Ginetta L. Giovinco, Stephen D. Lee for Defendant and Appellant City of San Marino.
Appellant and cross-respondent Cordelia Donnelly applied for a permit to construct an accessory dwelling unit, also known as an ADU or granny flat, above the detached garage of her San Marino home. Respondent and cross-appellant City of San Marino denied the permit, citing its zoning code and interim ADU ordinance.
Donnelly filed a petition for writ of mandate in the trial court, contending the city erroneously relied on the interim ordinance and other improper bases to deny her permit. While her petition was pending, the City enacted a permanent ordinance that superseded the substantially similar interim ordinance. Donnelly amended her petition to add facial challenges to various provisions of the permanent ordinance.
The trial court denied Donnelly's request for a writ of mandate. It found that a state statue governing ADUs, Government Code section 65852.2,preempted one provision in the interim and permanent ordinances, but otherwise upheld the validity of both ordinances and the City's application of the interim ordinance to Donnelly's permit request.
All further statutory references are to the Government Code unless otherwise indicated.
Donnelly appealed, and the City cross-appealed. Donnelly's appeal, like her writ petition, has two distinct parts. In the first, she contends the interim ordinance was procedurally invalid and substantively preempted by section 65852.2. Therefore, she argues, the City should have applied the standards in section 65852.2 and issued her a permit, and the court erred by not mandating it do so. We disagree. The court correctly concluded that the interim ordinance was procedurally valid and not preempted by the state statute. We therefore affirm the portion of the judgment denying Donnelly's writ petition.
The second part of Donnelly's appeal and the City's cross-appeal concern Donnelly's facial challenge to the permanent ordinance. We requested supplemental briefing from the parties regarding Donnelly's standing to raise such a challenge, as well as its justiciability in light of recent revisions to section 65852.2. We conclude that the statutory changes have rendered the second portion of Donnelly's appeal, and the entirety of the City's cross-appeal, moot. We accordingly dismiss the cross-appeal. Donnelly's request for judicial notice is denied.
I. Statutory Landscape
In 1994, the Legislature found that ADUs—then called "second units"—were "a valuable form of housing in California," both as a source of affordable housing for tenants and as a source of added income for homeowners. (Stats. 1994, c. 580, § 1.) It also expressed an intent "that any [ADU] ordinances adopted by local agencies have the effect of providing for the creation of [ADUs] and that provisions in these ordinances relating to matters including unit size, parking, and other requirements, are not so arbitrary, excessive, or burdensome so as to unreasonably restrict the ability of homeowners to create [ADUs] in zones in which they are authorized by local ordinance." (Ibid.)
The Legislature reiterated and expanded upon these findings in 2016, declaring that California "faces a severe housing crisis" and that ADUs were "an essential component of California's housing supply." (Stats. 2016, c. 720, § 4.) At the same time, the Legislature significantly revised section 65852.2, a longstanding statute that authorized and encouraged local agencies to regulate ADUs by ordinance. (See Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 545-546.) The revisions to section 65852.2 were set to take effect on January 1, 2017 and generally encouraged development of ADUs. (See generally Stats. 2016, c. 720, § 5 (2017 § 65852.2).) For instance, the revisions eliminated the ability of local agencies to ban ADUs within their borders. They also established "maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot zoned for residential use that contains an existing single-family dwelling," and limited local agencies to those standards: "No additional standards, other than those provided in this subdivision, shall be utilized or imposed, except that a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant or that the property be used for rentals of terms longer than 30 days." (2017 § 65852.2, subd. (a)(6).) The revisions further provided that any local ADU ordinance that failed to meet the updated requirements of the statute "shall be null and void . . . and that agency thereafter shall apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section." (2017. § 65852.2, subd. (a)(4).)
The statutes concerning ADUs have undergone numerous revisions over the years, including during the pendency of this case. For clarity and ease of reference for the reader, we refer to various iterations of section 65852.2 by year in our citations.
However, the revisions left local agencies some latitude in regulating ADUs. Section 65852.2, subdivision (a)(1)(B)(i) provided that local ordinances governing ADUs "shall . . . [i]mpose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, lot coverage, landscape, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places." (2017 § 65852.2, subd. (a)(1)(B)(i).)Subdivision (a)(1)(c) similarly permitted local agencies to "establish minimum and maximum unit size requirements for both attached and detached" ADUs. (2017 § 65852.2, subd. (c)).
II. The Interim Ordinance
On December 14, 2016, the City enacted Ordinance No. O-16-1317, "An Interim Ordinance of the City of San Marino Prohibiting New Accessory Dwelling Units (Also Known As Second Units), Except Those That Satisfy Specified Standards, and Declaring the Urgency Thereof" (the interim ordinance). The City later extended the interim ordinance through December 14, 2017.
The interim ordinance provided for ministerial City approval of ADU applications that satisfied the standards therein. The interim ordinance ADU standards most relevant here are: (1) "An accessory dwelling unit may be located only on residentially zoned lots that contain at least twelve thousand (12,000) square feet in area and contain no more than one single-family residence" ("minimum lot size requirement"); and (2) "A detached accessory dwelling unit shall not exceed thirty (30) percent of the existing livable area of the primary residence or one thousand (1,000) square feet, whichever is less" ("maximum ADU size requirement").
The interim ordinance also contained a severability provision. It stated: "If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional."
III. Permit Application
On January 9, 2017, after both the interim ordinance and the revisions to section 65852.2 took effect, Donnelly applied for a permit to construct an ADU over the detached two-car garage of her single-family residence.
On February 8, 2017, the City sent Donnelly a letter informing her that her application was "incomplete" and that she needed to submit revised plans addressing ten issues. The City sent additional letters on March 8, 2017, April 4, 2017, and April 20, 2017,each of which reduced the number of outstanding issues for Donnelly to address. The City sent Donnelly a final letter on August 24, 2017. The letter, signed by Planning and Building Director Aldo Cervantes, denied the application due to three outstanding issues:
"1. The proposed project would result in the property exceeding the maximum total allowed livable area of 2,700 square feet, which is prohibited by the City Code without approval of a Variance.
"2. The project proposes the construction of a new ADU that would be located on a property less than 12,000 square feet in area, which is prohibited under the [interim] Ordinance. The subject property is only 6,806 square feet in area. As I have explained to you in the past at the public counter, however, the [interim] Ordinance does allow the conversion of an existing garage into an ADU despite the lot size restrictions. You may therefore revise your application to propose the conversion of the existing garage into an ADU. Alternatively, you may apply for approval of a Variance from the minimum lot size requirement for your project as it is now proposed.
"3. The project proposes new construction of a detached garage or accessory structure that would be less than ten feet (10') away from any other building on the same lot, which is prohibited by the City Code Section 23.06.05C. It must therefore be revised or obtain approval of a variance."
There is no indication in the record that Donnelly applied for any variances.
IV. Initial Writ Petition
On September 11, 2017, Donnelly filed a petition for writ of mandate in the trial court. She alleged that the interim ordinance was "designed to circumvent the procedures and state statutory scheme of Section 65852.2" and as such was "a misuse of state law which empowers urgency ordinances and is not only invalid, but also a denial of procedural due process." She further alleged that the interim ordinance was "illegal and unenforceable" because it contradicted and was preempted by section 65852.2. She requested a writ of mandamus or injunction directing the City to issue her an ADU permit.
V. The Permanent Ordinance
On November 8, 2017, while Donnelly's writ petition was pending, the City enacted Ordinance No. O-17-1331, "An Ordinance of the City of San Marino Adopting Regulations Regarding Accessory Dwelling Units and Amending the San Marino Code Regarding the Same" (the permanent ordinance).
The permanent ordinance was substantially similar to the interim ordinance. As relevant here, it included the same minimum lot size requirement (12,000 square feet) and maximum ADU size requirement (the lesser of 1,000 square feet or 30% of existing livable area) as the interim ordinance. It also continued from the interim ordinance the following "owner-occupancy requirement": "The property owner shall file with the county recorder a declaration or agreement of restrictions, which shall be binding on successive owners of the property, approved by the city attorney as to form and content, to place future buyers on notice as to the following: . . . The lot on which the accessory dwelling unit is constructed shall be the primary residence of the property owner. The owner must occupy either the existing main building or the second unit." The permanent ordinance also carried over the interim ordinance's severability provision.
VI. Amended Writ Petition
On December 11, 2017, Donnelly and the City stipulated that Donnelly could file a first amended writ petition adding facial challenges to the permanent ordinance. Donnelly subsequently filed her first amended petition on January 19, 2018. In this petition, the operative one for purposes of this appeal, Donnelly reiterated her previous allegations about the interim ordinance and permit denial in her first cause of action.
In the new second cause of action, titled "Challenge of City's ADU Ordinance," Donnelly alleged that the permanent ordinance "is inconsistent with and . . . exceeds the standards set forth in Section 65852.2 which establishes the maximum standards that local agencies shall use to evaluate an ADU application and prohibit a local agency from using any local ordinance, policy, or regulation that is inconsistent with Section 65852.2 to deny an ADU permit." Donnelly specifically alleged that the minimum lot size requirement, maximum ADU size requirement, and owner-occupancy requirement of the permanent ordinance violated section 65852.2. Donnelly also alleged that as "a resident and taxpayer, and as an applicant to [sic] an ADU permit in the City," she had "a clear and present beneficial right to compel the City to comply with state law in the issuance of ADU permits." She requested a writ of mandamus or injunction setting aside the permanent ordinance.
After briefing, the trial court issued a lengthy written tentative ruling in advance of the November 6, 2018 hearing. The trial court tentatively concluded that the interim ordinance was properly adopted and properly applied to Donnelly's permit application. It further concluded that section 65852.2did not explicitly or implicitly occupy the field of ADU regulation. The court interpreted section 65852.2 "to mean that a local agency may adopt a granny flat ordinance that includes standards other than those enumerated in section 65852.2(a)(1)(D)(i-x), but the ordinance may not contradict the maximum standards enumerated." The court concluded that the City generally complied with that principle; it found that the minimum lot size requirement and owner-occupancy requirement of both ordinances were authorized by section 65852.2.
The trial court examined "current" section 65852.2, which we understand to mean the version of the statute that was in effect from January 1, 2018 through December 31, 2019. (Stats. 2017, c. 594, § 1 (2018-2019 § 65852.2).) The relevant provisions of the 2018 version of the statute were substantively similar to those of the 2017 version of the statute discussed above.
The trial court referred only to the interim ordinance, but stated that its preemption analysis applied to both the interim and permanent ordinances.
However, the court concluded the ordinances' maximum ADU size requirement was preempted because it contradicted section 65852.2, which sets the "maximum standards that local agencies shall use to evaluate a proposed accessory dwelling on a lot zoned for residential use that includes a proposed or existing single-family dwelling." (2018-2019 § 65852.2, subd. (a)(6).) The court reasoned that the maximum ADU size requirement—the lesser of 1,000 square feet or 30 percent of the existing livable area on the lot—was an impermissible "greater limitation" on ADU size than that prescribed by section 65852.2 subdivision (a)(1)(D)(iv), which provided that "[t]he total area of floorspace of an attached accessory dwelling unit shall not exceed 50 percent of the proposed or existing primary dwelling living area or 1,200 square feet." The court nevertheless tentatively denied Donnelly's writ petition, because her lot "indisputably does not meet the Interim Ordinance's 12,000 sq. ft. lost [sic] size requirement, which is not preempted. Therefore, the City did not have a ministerial duty to issue a granny flat permit, and Petitioner's application was properly denied."
At the hearing, Donnelly clarified that her writ petition raised two challenges: "The first is the ministerial duty to issue her an A.D.U. permit. . . . And the other one was a facial challenge to the permanent A.D.U. ordinance." The court indicated that it "did not realize you made a facial challenge," and that in light of that information "I think I would have to grant your petition insofar as that one portion is granted." The City disagreed. It argued that the maximum ADU size requirement was permissible because it was "really a difference of minimums. Here, the Government Code establishes a maximum of 50 percent and 1,200 feet. That's the maximum we can't exceed. And we haven't exceeded that maximum." The court rejected this contention, explaining that it interpreted the statute to mean that local agencies "can't impose any greater requirement, that is, . . . building structure size . . . than they say."
The City further argued that even if the court rejected its statutory interpretation, the ordinances should not be preempted. The City pointed to the severability clauses in the ordinances, and contended that the court could simply sever the maximum ADU size requirement rather than nullifying and voiding the ordinances in their entirety under section 65852.2, subdivision (a)(4). The court accepted that argument, and informed the parties that it was orally modifying its tentative "to grant the facial challenge, and then sever the [maximum ADU size] provision and otherwise uphold the ordinance." The court then adopted the modified tentative as its judgment. It issued a writ of mandate ordering the City to strike the maximum ADU size requirement from the permanent ordinance, but otherwise denied Donnelly's petition.
All relevant versions of section 65852.2, subdivision (a)(4) state that any "existing accessory dwelling unit ordinance that fails to meet the requirements of this subdivision . . . shall be null and void upon the effective date of the act adding this paragraph and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section." (2017, 2018-2019 § 65852.2, subd. (a)(4).)
Donnelly timely appealed. The City timely cross-appealed.
I. Standard of Review
Donnelly sought a writ of mandate under Code of Civil Procedure section 1085, which authorizes a court to issue a writ of mandate "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded. . . ." (Code Civ. Proc., § 1085, subd. (a).) A writ of mandate under Code of Civil Procedure section 1085 thus is a "method for compelling a public entity to perform a legal and usually ministerial duty." (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 995 (Klajic).) "To obtain writ relief under Code of Civil Procedure section 1085, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty." (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.)
The trial court reviews an administrative action under section 1085 "to determine whether the agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, contrary to established public policy, unlawful, procedurally unfair, or whether the agency failed to follow the procedure and give the notices the law requires." (Klajic, supra, 90 Cal.App.4th at p. 995.) We review the trial court's factual findings under the substantial evidence standard. (Id. at pp. 995-996; see also Stafford v. Attending Staff Association of LAC + USC Medical Center (2019) 41 Cal.App.5th 629, 636 (Stafford).) We review legal questions de novo. (Stafford, supra, 41 Cal.App.5th at p. 636.) Statutory interpretation and preemption are both legal questions requiring de novo review. (Apartment Association of Los Angeles County, Inc. v. City of Los Angles (2009) 173 Cal.App.4th 13, 21 [preemption]; Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1247 [statutory interpretation].)
II. Donnelly's Challenges to the Permit Denial and Interim Ordinance
Donnelly's appeal, like her writ petition, proceeds in two distinct parts. She first contends she should have received a permit. Donnelly argues the City denied the permit on improper grounds and the interim ordinance was therefore invalid or preempted. In the second, addressed below, she contends the permanent ordinance is facially invalid and must be stricken in its entirety.
A. Denial of Permit
The City cited three reasons for denying Donnelly's permit: her lot was smaller than the 12,000 square foot minimum lot size required by the interim ordinance, the proposed ADU would violate City Code provisions governing building separation, and the proposed ADU would exceed the maximum livable area for Donnelly's property. Donnelly contends all three reasons are faulty, because they rely on ordinances other than the City's ADU ordinance, in violation of section 65852.2, subdivision (a)(5), and standards other than those in section 65852.2, subdivisions (a)(1)(D)(i-xi), in violation of section 65852.2, subdivision (a)(6).
"'When we interpret a statute, '[o]ur fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.'" (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616.)
Subdivisions (a)(1)(D)(i)-(xi) contain various requirements with which an ADU ordinance must require ADUs to comply, including maximum size and setback requirements (2017 § 65852.2,subds. (a)(1)(D) (iv), (v), (vii).) Subdivision (a)(6)provides that "[t]his subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot zoned for residential use that contains an existing single family dwelling. No additional standards, other than those provided in this subdivision, shall be utilized or imposed . . . ." (2017 § 65852.2, subd. (a)(6).) Subdivision (a)(5) further provides that "[n]o other local ordinance, policy, or regulation shall be the basis for the denial of a building permit or a use permit under this subdivision." (2017 § 65852.2, subd.(a)(5).) Donnelly argues, essentially, that the plain meaning of "maximum standards" in subdivision (a)(6), and "no other local ordinance" in subdivision (a)(5) is that a local agency may not impose any restrictions on ADUs other than those enumerated in subdivision (a)(1)(D)(i)-(xi). This argument is too narrowly focused on these provisions in isolation.
Three different versions of this statute have been in effect during the pendency of this case. For purposes of determining whether the City properly denied Donnelly's permit and whether the interim ordinance was valid, we refer to the 2017 version, which was in effect both when Donnelly filed and when the City denied her permit application.
Subdivision (a)(1)(B)(i) provides that an ADU ordinance "shall . . . [i]mpose standards on accessory dwelling units that include, but are not limited to, parking, height, setback, lot coverage, maximum size of a unit," and other features not relevant here. (2017 § 65852.2, subd. (a)(1)(B)(i) (emphasis added).) The statute itself thus contemplates that local agencies may impose ADU restrictions beyond those specifically enumerated in subdivisions (a)(1)(D)(i)-(xi). Applying subdivisions (a)(5) and (a)(6) as Donnelly suggests would read the italicized language in subdivision (a)(1)(B)(i) out of the statute. We instead harmonize and give meaning to subdivisions (a)(1)(B)(i), (a)(5), and (a)(6) by concluding that an ADU ordinance may "[i]mpose standards" on ADUs other than those listed in subdivision (a)(1)(D), but that the standards listed in subdivision (a)(1)(D) are the maximum limits that may be placed on those features.
Under this interpretation, the City's reliance on the minimum lot size requirement in the interim ordinance was permissible. The "maximum standards" (2017 § 65852.2, subd. (a)(6)) imposed by the statute did not include a minimum lot size (see id. subds. (a)(1)(D)(i-xi)). The City was therefore permitted to impose a standard regarding that feature (id. subd. (a)(1)(B)(i)). The California Department of Housing and Community Development's interpretation is in accordance with ours. Its December 2016 "Accessory Dwelling Unit Memorandum" (the Memorandum), which addressed "recent changes to accessory dwelling unit laws, stated, "For ADUs that require an addition or a new accessory structure, development standards such as parking, height, lot coverage, lot size and maximum unit size can be established with certain limitations." The City offered at least one valid reason to deny the permit. We do not consider the validity of its additional proffered reasons.
The latest version of section 65852.2, which became effective January 1, 2020, provides that local ADU ordinances "shall not include requirements on minimum lot size." (Stats. 2019, c. 653, § 1; c. 655, § 1; c. 659, § 1.5 (2020 § 65852.2, subd. (a)(1)(B)(i)).)
B. Validity of Interim Ordinance
1. Challenge to Interim Ordinance as "Ordinance"
Donnelly contends the City was bound to apply the standards set forth in section 65852.2 to her permit application, because it did not have a permanent ADU ordinance in effect at the time. We disagree.
Section 65852.2, subdivision (a)(1) authorizes local agencies to enact ordinances to "provide for the creation of accessory dwelling units in single-family and multifamily residential zones." (2017 § 65852.2, subd. (a)(1).) If a local agency elects not to enact such an ordinance, it must assess a resident's ADU permit application under the standards of section 65852.2. (See 2017 § 65852.2, subd. (b).) If a local agency does enact an ADU ordinance, the statute requires that the ordinance "shall" satisfy numerous criteria set forth in subdivision (a). (2017 § 65852.2, subd. (a)(1).) If "an existing accessory dwelling unit ordinance . . . fails to meet the requirements of this subdivision, that ordinance shall be null and void . . . and that agency shall thereafter apply the standards established in this subdivision for the approval of accessory dwelling units, unless and until the agency adopts an ordinance that complies with this section." (2017 § 65852.2, subd. (a)(4).)
Thus, there are two scenarios under which a local agency must apply the standards set forth in section 65852.2 to an ADU permit application: when it has not enacted its own ordinance, or when its existing ordinance fails to meet the statute's requirements. Donnelly argues both here; we address the first scenario here and the second in much more detail below in section (II.C. (Preemption)).
Donnelly suggests that the City had not enacted its own ordinance, because the interim ordinance was not permanent. Donnelly provides no support for the assertion that the word "ordinance" as used in section 65852.2 necessarily refers to a permanent ordinance. The statute repeatedly uses the word "ordinance," without modifiers, in subdivisions (a)(1) and (a)(2). Subdivision (a)(4) both uses the term "ordinance" without modification and qualifies it with "existing" and "existing accessory dwelling unit." No part of section 65852.2 modifies the word "ordinance" with "permanent." "Under the standard rules of statutory construction, we will not read into the statute a limitation that is not there." (People v. Bautista (2008) 163 Cal.App.4th 762, 777 (citing Code Civ. Proc., § 1858).) The interim nature of the City's ADU ordinance did not warrant default to application of the state standards.
The Memorandum reached a similar conclusion when interpreting section 65852.2. The Department explained that "[a]dopting an [ADU] ordinance can occur through different forms such as a new ordinance, amendment to an existing ordinance, separate section, or special regulations within the zoning code. . . ." This recognition that ADU ordinances may be adopted in varying ways accords with the lack of limiting language in section 65852.2, and we afford it consideration and respect. (Yamaha Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 7 ["An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts."].)
2. Challenge to Interim Ordinance as Urgency Ordinance
Donnelly next argues that the interim ordinance was improperly enacted under section 65858, which authorizes the legislative body of a city to "adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body . . . is considering or studying or intends to study within a reasonable time." (§ 65858, subd. (a).) Donnelly argues that the interim ordinance was "not meant as a temporary hold on development pending the consideration of a general plan, specific plan, or new zone establishment" within the meaning of section 65858 but rather as an impermissible "backdoor method to modify the rules." The City responds that it adopted the interim ordinance for an authorized purpose under section 65858, namely "to prohibit property owners from installing ADUs that do not comply with the City's standards and the Government Code." We agree with the City.
Interim ordinances "prohibit a property owner from using his or her property for a specified use for a limited period of time." (Building Industry Legal Defense Foundation v. Superior Court (1999) 72 Cal.App.4th 1410, 1418 (Building Industry).) "They protect and promote the planning process by, among other things, prohibiting the introduction of potentially nonconforming land uses that could defeat a later adopted general plan or zoning ordinance." (Ibid.) In short, their purpose is to preserve the status quo. (See CEEED v. California Coastal Zone Conservation Commission (1974) 43 Cal.App.3d 306, 314-315.)
The interim ordinance here, by its terms, was intended to temporarily prohibit construction of ADUs meeting only "minimal state criteria" while the City studied and implemented permanent ADU regulations. The city council expressly found that the interim ordinance was "necessary to prevent the establishment of ADUs with a reasonable potential to conflict with the City's permanent regulation and create potential detriments to the public welfare." The interim ordinance accordingly satisfied the criteria of section 65858, subdivision (a): it temporarily prohibited a land use while the city prepared a comprehensive zoning ordinance providing standards for ADU development.
This case is distinguishable from the cases on which Donnelly relies, Silvera v. City of Lake Tahoe (1970) 3 Cal.App.3d 554 (Silvera), and Building Industry, supra, 72 Cal.App.4th at pp. 1412, 1420. In Silvera, the city used an interim ordinance to authorize construction of a 50-foot-tall building for which a variance had been denied. (Silvera, supra, 3 Cal.App.3d at p. 556.) The court found this use to be an improper end-run around zoning ordinances. "The intent of the city counsel [sic] was not to adopt any stopgap temporary measure to prevent a use which might interfere with a comprehensive zoning plan later to be adopted. It could only have been, and it was, an attempt to circumvent the statutory scheme of community development by the misuse of a code section framed to maintain the status quo pending the completion of a comprehensive plan." (Id. at pp. 556-557.) The findings the City made here do not demonstrate a similar intent. Building Industry is less on point. There, the court held that interim ordinances may not be used to prohibit the processing of development applications. (Building Industry, supra, 72 Cal.App.4th at p. 1420.) The interim ordinance here did not contain this type of improper prohibition.
3. Legislative Findings
Donnelly also argues that the City did not support the interim ordinance with appropriate legislative findings. Section 65858, subdivision (c) mandates findings "that there is a current and immediate threat to the public health, safety, or welfare, and that the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare." (§ 65858, subd. (c).) The City here found that "[i]n the absence of a State-compliant ordinance on January 1, 2017, the City would be required to approve ADUs in locations and under standards that could have negative impacts on the surrounding community," that it needed "additional time to study the potential land use, public services, safety, parking, traffic, and infrastructure effects of allowing ADUs to be built on lots in various areas of San Marino," that applications submitted before it completed its study and enacted permanent regulations "would cause confusion and ambiguity regarding the applicability of provisions in the City's current ADU regulations . . . and State standards, with potentially inconsistent and unfair results for City residents," and that the interim ordinance was "necessary to prevent the establishment of ADUs with a reasonable potential to conflict with the City's permanent regulations and create potential detriments to the public welfare."
Donnelly contends these findings are "devoid of substantial supporting evidence," but does not elaborate on this one-sentence contention. Nor does she cite the appellate record, which in any event does not contain any city council minutes or other information about the interim ordinance or its passage. "The truth of the recitals of the legislative body . . . that the adoption of such interim zoning ordinance was necessary in order to protect public safety, health and welfare and that the county planning commission was conducting or intended to conduct studies within a reasonable time for the purpose of recommending the adoption of a permanent zoning ordinance, must be assumed, and the ordinance must be deemed to be presumptively valid." (Mang v. County of Santa Barbara (1960) 182 Cal.App.2d 93, 98; see also City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 496.) We presume the interim ordinance is valid unless shown otherwise, and Donnelly has failed to show the findings were invalid here.
Donnelly further contends "there is no way that the City can make these findings because, under section 65852.2(a)(6), there is no way for the City to adopt an ADU ordinance which 'conflicts' or is 'inconsistent with' the State prescribed standards." Therefore, she contends, "the City's findings of 'potential conflict' are illusory and unsupportable." As discussed above, this interpretation of section 65852.2, subdivision (a)(6), is too restrictive. Subdivision (a)(1)(B)(i) specifically allows cities to impose ADU standards beyond those identified in the statute. So too does subdivision (c), which authorizes a local agency to "establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units." (2017 § 65852.2, subd. (c).) Donnelly's interpretation of subdivision (a)(6) would effectively read these provisions out of the statute.
A local agency must apply the state statutory standards to an ADU permit application if its own ordinance fails to meet the requirements of section 65852.2, subdivision (a). (2017 § 65852.2, subd. (a)(4).) Donnelly argues this is the case here, either because the entire interim ordinance was preempted due to the Legislature's occupation of the field of ADU regulation or because individual provisions in the interim ordinance were preempted, rendering the entire interim ordinance null and void under section 65852.2, subdivision (a)(4). The City argues that the interim ordinance was not preempted or null and void. We agree with the City.
1. The Legislature has not fully occupied the field of ADU regulation.
Donnelly first contends the interim ordinance as a whole is preempted because the Legislature has "fully occupied" the field of ADU regulation. She points to subdivisions (a)(4) (the "null and void" provision), (a)(6) (the "maximum standards" provision), and (a)(5), which provides that "[n]o other local ordinance, policy, or regulation shall be the basis for the denial of a building permit or a use permit under this subdivision," as evidence of the Legislature's intent to occupy the field.
"Local legislation enters an area 'fully occupied' by general law when the Legislature has expressly manifested its intent to fully occupy the area or where it has impliedly done so in light of recognized indicia of intent." (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1130, 1139 (Big Creek).) Those indicia of intent include "'(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefits to the' locality." (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 898.) "[W]hen local government regulates in an area over which it traditionally has exercised control, such as the location of particular land uses, California courts will presume, absent a clear indication of preemptive intent from the Legislature, that such regulation is not preempted by state statute." (Big Creek, supra, 38 Cal.4th at p. 1149.) As the party asserting preemption, Donnelly bears the burden of overcoming this presumption. (Ibid.; see also T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1116.)
Donnelly has not carried this burden. As above, she ignores section 65852.2, subdivisions (a)(1)(B)(i) and (c), both of which specifically contemplate some role for local agencies in regulating ADUs and therefore demonstrate a lack of intent for the Legislature to occupy the field. Donnelly contends it is error to rely on "a single word or sentence"—namely, these provisions— to determine the meaning of a statute. She does not explain why the provisions she relies on—subdivisions (a)(4), (a)(5), and (a)(6)—provide the only statutory insight into the Legislature's intent, however.
Importantly, they do not, and not merely because we must also consider subdivisions (a)(1)(B)(i) and (c). Section 65852.150 states, "It is the intent of the Legislature that an accessory dwelling unit ordinance adopted by a local agency has the effect of providing for the creation of accessory dwelling units and that provisions in this ordinance relating to matters including unit size, parking, fees, and other requirements, are not so arbitrary, excessive, or burdensome as to unreasonably restrict the ability of homeowners to create accessory dwelling units in zones in which they are authorized by local ordinance." (Stats. 2016, c. 720, § 4 (2017 § 65852.150, subd. (b)).) A Legislature that intended to occupy the field would not also indicate, in multiple places, that local agencies could adopt their own ordinances. The interim ordinance as a whole was not preempted.
2. Individual provisions are not preempted.
a. Severability Provision
Donnelly also contends that specific provisions of the interim ordinance are contradictory to section 65852.2 and therefore render the entire ordinance null and void under section 68582.2, subdivision (a)(4). The first one of these is the severability provision. She reasons, "The City cannot, by inserting conflicting language into its ordinance, evade the explicit direction of the Legislature that if a local agency has an existing ADU ordinance which fails to meet the requirements of Section 65852.2, that ordinance is null and void. . . ." Donnelly did not make this argument below. To the contrary, her counsel told the court during the hearing that she "did not see" a severability provision when briefing the matter." Contentions or theories raised for the first time on appeal are not entitled to consideration," and we do not consider this preemption theory here. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685; see also Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 ["arguments raised for the first time on appeal are generally deemed forfeited"].)
Donnelly's counsel also asked the court, "Should we have some supplemental briefing on it?" The court responded, "I don't know." Counsel did not pursue the issue, even after the court invoked the (identical) severability provision of the permanent ordinance to strike the maximum ADU size requirement.
Donnelly did argue below, and reiterates here, that the minimum lot size, owner-occupancy, and maximum ADU size requirements in the interim ordinance are also preempted and therefore serve as a basis for nullifying the interim ordinance under section 65852.2, subdivision (a)(4). We consider each contention in turn.
b. Minimum Lot Size Requirement
The minimum lot size requirement restricts ADU development to lots that exceed 12,000 square feet in size. Donnelly contends this limitation is "not within the allowable standards set forth in Section 65852.2(a)(1)(D), is more restrictive than allowed thereby, and [is] therefore preemepted and unenforceable." She further argues that the minimum lot size requirement is arbitrary and "against the express intentions of the state Legislature." We disagree.
Section 65852.2, subdivision (a)(1)(D) sets forth a list of requirements with which ADU ordinances "shall . . . [r]equire the accessory units to comply." (2017 § 65852.2, subd. (a)(1)(D).) As we noted above, lot size is not among the items listed in the 2017 statute. Indeed, the 2017 statute as a whole is silent as to lot size. But section 65852.2, subdivision (a)(1)(B)(i) authorizes ADU ordinances to "[i]mpose standards on" a nonexclusive list of ADU characteristics, and Donnelly has not shown that minimum lot size is outside the scope of this authority, which the Department of Housing and Community Development expressly recognized in its Memorandum.
Donnelly provides no support for her assertion that the minimum lot size requirement is arbitrary. She simply states that "[t]here is no rationale for disallowing ADU's [sic] on lots less than 12,000 square feet and the City has failed to provide any." We understand Donnelly to suggest 12,000 square feet is a relatively large lot size, and that the minimum lot size requirement excludes some property owners from constructing ADUs. This is in accordance with the Memorandum, which notes that "limiting ADUs to larger lot sizes . . . may unreasonably restrict the ability of the homeowners to create ADUs, contrary to the intent of the Legislature."
However, as the proponent of a preemption theory, Donnelly bears the burden of demonstrating that the minimum lot size requirement is preempted. That burden has not been carried here. There is nothing in the record regarding the typical lot size in San Marino, what percentage of property owners were barred from building ADUs under the interim ordinance, how the City considered these issues when drafting the interim ordinance, or other information that would shed light on whether the minimum lot size requirement is permissible under section 65852.2.We thus do not find preemption on this basis.
c. Owner-Occupancy Requirement
The owner-occupancy requirement in the interim ordinance states that a property owner seeking an ADU permit "shall file with the county recorder a declaration or agreement of restrictions, which shall be binding on successive owners of the property, . . . to place future buyers on notice of the following: . . . [t]he lot on which the accessory dwelling unit is constructed shall be the primary residence of the property owner. The owner may occupy the existing main building or the second unit as their principal residence." Donnelly contends the "primary residence" element of this provision is inimical to section 65852.2, subdivision (a)(6), which provides that "a local agency may require an applicant for a permit issued pursuant to this subdivision to be an owner-occupant." (2017 § 65852.2, subd. (a)(6).) She also argues that the owner-occupancy requirement "is not within the allowable maximum standards set forth in Section § 65852.2(a)(1)(D) [sic]." The City responds that "the disputed portion of the City's primary residence standard does not state or require owner-occupancy," and that even if it does, "such a standard is authorized" under section 65852.2, subdivision (a)(6).
The latest version of section 65852.2, which became effective January 1, 2020, provides, "This subdivision establishes the maximum standards that local agencies shall use to evaluate a proposed accessory dwelling unit on a lot that includes a proposed or existing single-family dwelling. No additional standards, other than those provided in this subdivision, shall be used or imposed, including any owner-occupant requirement, except that a local agency may require that the property be used for rentals of terms longer than 30 days." (2020 § 65852.2, subd. (a)(6).)
The owner-occupancy requirement is authorized under the 2017 version of section 65852.2, subdivision (a)(6), which expressly contemplates owner-occupant restrictions. (See Sounhein v. City of San Dimas (1996) 47 Cal.App.4th 1181, 1190- 1192 [upholding an owner-occupant restriction of a city ordinance under a previous version of section 65852.2].) The Memorandum also supports this interpretation. It states, "[a] local government can require an applicant to be an owner occupant. The owner may reside in the primary or accessory structure. Local governments can also require the ADU to not be used for short term rentals. . . .Both owner occupant use and prohibition on short term rentals can be required on the same property. Local agencies which impose this requirement should require recordation of a deed restriction regarding owner occupancy . . . ." The additional restriction that the owner-occupant use the property as his or her primary residence does not otherwise contradict section 65852.2; Donnelly has not demonstrated why this is not a standard that may be imposed under the catch-all "but are not limited to" clause of section subdivision (a)(1)(B)(i). The owner-occupancy requirement is not preempted.
d. Maximum ADU Size Requirement
The final interim ordinance provision Donnelly argues is preempted is the maximum ADU size requirement. It provides: "The livable area of an attached accessory dwelling unit shall not exceed thirty (30) percent of the existing living area, or one thousand (1,000) square feet A detached accessory dwelling unit shall not exceed thirty (30) percent of the existing livable area of the primary residence or one thousand (1,000) square feet, whichever is less." Donnelly contends the maximum size requirement in the interim ordinance "directly and specifically contradicts" section 65852.2, subdivisions (a)(1)(D)(iv) and (v), because it prohibits ADUs between 1,000 and 1,200 square feet "even though the state enactment specifically demands their allowance."
The trial court agreed with Donnelly. It concluded that "Section 65852.2(a)(6) prohibits a standard for granny flat size 'other than those provided in this subdivision,' and section 65852.2(a)(1)(D)(iv-v) provides the maximum granny flat size. The City cannot impose a standard that is a greater limitation." The City, which raises this issue in its cross-appeal as it relates to the trial court's preemption of the same provision of the permanent ordinance, contends the regulation is permissible. We agree with the City.
As we have repeatedly stated, section 65852.2, subdivision (c) expressly provides that local agencies "may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units," and subdivision (a)(1)(B)(i) permits local ordinances to impose standards including "maximum size of a unit." (2017 § 65852.2, subds. (a)(1)(B)(i), (c).) Indeed, the Memorandum contemplates such regulations: "Yes, a local government may establish minimum and maximum unit sizes (GC Section 65852.2(c)[)]. However, like all development standards (e.g., height, lot coverage, lot size), unit sizes should not burden the development of ADUs. . . . Typical maximum unit sizes range from 800 square feet to 1,200 square feet. . . .A local government may choose a maximum unit size less than 1,200 square feet as long as the requirement is not burdensome on the creation of ADUs." So too does the Legislature's own expression of intent, section 65852.150, subdivision (b), which contemplates reasonable local ADU restrictions "relating to matters including unit size, parking, fees and other requirements." (2017 § 65852.150, subd. (b) (emphasis added).)
Both Donnelly and the City look to Ex Parte Daniels (1920) 183 Cal. 636 to support their positions. In Ex Parte Daniels, the city of Pasadena enacted a speed limit of 15 miles per hour. The Motor Vehicle Act of 1917, then in force, "permitted the driving of a motor vehicle at a speed not exceeding twenty miles per hour at that place."(Ex Parte Daniels, supra, 183 Cal. at p. 637.) Pasadena nevertheless charged petitioner Daniels with a speeding violation. He contended the city ordinance conflicted with the state speed limit, with which he was undisputedly in compliance. (Id. at pp. 637-638.) The Supreme Court concluded that the city ordinance directly conflicted with the state law and accordingly was void. (Id. at pp. 647-648.)
Donnelly points to the Supreme Court's bottom-line conclusion, while the City relies on the fact that the Motor Vehicle Act of 1917 "not only fixed the maximum rate of speed there at twenty miles an hour, but expressly prohibited municipalities from fixing as a maximum a lesser rate of speed." (Id. at p. 637.) We agree with the City that the express prohibition makes Ex Parte Daniels distinguishable. The 2017 version of section 65852.2, read as a whole, does not expressly prohibit local agencies from imposing reasonable maximum ADU size limitations like the Motor Vehicle Act of 1917 prohibited them from imposing lesser speed limits. It accordingly does not preempt such a provision in the interim ordinance. Donnelly's permit properly was denied.
Because we conclude that the interim ordinance was enforceable against Donnelly, we do not reach her alternative arguments about the City's other bases for denying the permit that she asked us to consider "if this Court were to find that the Urgency Ordinance is unenforceable against Appellant, but that the City had the authority to impose standards not set forth in Section 65852.2."
III. Facial Challenge to Permanent Ordinance and Cross-Appeal
The second portion of Donnelly's appeal challenges the City's permanent ADU ordinance, which it passed in November 2017, several months after her ADU permit was denied. Donnelly argues the permanent ordinance is preempted for the same reasons the interim ordinance was. The City also has cross-appealed the trial court's ruling regarding the preemption of the maximum ADU size provision in the permanent ordinance.
We sent the parties a letter pursuant to section 68081 requesting supplemental briefing regarding Donnelly's standing to facially challenge the permanent ordinance. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 912 ["Lack of standing is a jurisdictional defect that may be raised at any time, including, as it is here, for the first time on appeal."].) We also asked them to address whether Donnelly's contentions that the permanent ordinance is preempted by section 65852.2 remain justiciable in light of recent amendments to section 65852.2.
In light of that briefing and our independent research, we conclude that Donnelly's challenge to the permanent ordinance and the City's cross-appeal concerning the permanent ordinance are moot. We need not and do not address Donnelly's standing.
As noted above, the current version of section 65852.2 explicitly prohibits local agencies from using ADU ordinances to impose minimum lot size requirements (Stats. 2019, 2020 § 65852.2, subd. (a)(1)(B)(i) ["These standards shall not include requirements on minimum lot size."]) and owner-occupancy requirements (2020 § 65852.2, subd. (a)(6) ["No additional standards . . . shall be used or imposed, including any owner-occupant requirement"]). There is no dispute that the minimum lot size and owner-occupancy requirements in the permanent ordinance contradict these provisions. Like previous iterations of the statute, the current version renders "null and void" any existing ADU ordinance that fails to meet its requirements. (2020 § 65852.2, subd. (a)(4).) The City agrees that the permanent ordinance is "now-defunct"; it makes no mention of the severability provision.
Current section 65852.2, subdivision (c) also clarifies and confirms that "a local agency may establish minimum and maximum unit size requirements for both attached and detached accessory dwelling units," including maximum square footage requirements of no less than "850 square feet," or "1,000 square feet for an accessory dwelling unit that provides more than one bedroom." (2020 § 65852.2, subds. (c)(1), (2)(B).) --------
Because the permanent ordinance is null and void, we cannot afford any effective relief to either party with respect to the permanent ordinance. We cannot further invalidate or nullify the already nullified and voided permanent ordinance as Donnelly requests, nor can we revive the stricken maximum ADU size requirement as the City requests. We accordingly dismiss the appeal and cross-appeal as moot to the extent they concern the permanent ordinance. (Sturgell v. Department of Fish & Wildlife (2019) 43 Cal.App.5th 35, 43-44.)
We disagree with the City that the mootness of issues concerning the permanent ordinance renders Donnelly's entire appeal moot. If Donnelly had prevailed on her arguments concerning the interim ordinance, she would have been entitled to the effective relief of a writ of mandamus directing the City to issue an ADU permit. We likewise disagree with Donnelly that the continuing justiciability of her challenges to the interim ordinance means that her appeal is justiciable in full. The mootness inquiry is made on an issue-by-issue basis. "An issue becomes moot when some event has occurred which 'deprive[s] the controversy of its life.'" (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257.) That event here was the enactment of amendments to section 65852.2 that rendered the permanent ordinance null and void.
IV. Donnelly's Request for Judicial Notice
In conjunction with her supplemental letter brief, Donnelly filed a request for judicial notice. She identifies two ordinances recently adopted by the City, O-19-1359-U and O-20-1360-U, and contends they are relevant to the appeal because they "highlight the need for this Court to review and determine whether the City has the authority to adopt an 'Urgency Ordinance' despite the Legislature's very specific directives to the City in Section 65852.2." We deny the request. The new ordinances are not relevant to our consideration of the issues raised on appeal, all of which concern the interim ordinance. (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 770.) We express no opinion on the validity of the new ordinances.
The judgment denying the writ of mandate for a permit is affirmed. The remainder of the appeal and the cross-appeal are dismissed as moot to the extent they challenge the permanent ordinance. The request for judicial notice is denied. The parties are to bear their own costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.