“Out here, due process is a bullet!” – John Wayne
As a general principle, the federal and state constitutions prohibit governmental entities from depriving persons of property without due process of law. But as the Second District Court of Appeal reminded us on January 9, 2019, in Venice Coalition to Preserve Unique Community Character v. City of Los Angeles, __ Cal.App.5th __ (2019), not all governmental actions in land use matters sufficiently implicate property interests to require the procedural due process protections of reasonable notice and an opportunity to be heard.
In 2016, the self-styled “Venice Coalition to Preserve Unique Community Character,” an association of traditional and short-term residents organized to “preserve and protect” Venice from “the negative effects of gentrification and proposed new development driven by rampant land speculation,” sued the City of Los Angeles alleging various violations of due process under the California Constitution, violations of the California Coastal Act, the Venice Land Use Plan, and the California Code of Civil Procedure. The trial court denied the Coalition’s motion for judgment on the pleadings and instead granted the City’s motion for summary judgment. Holding that the City was entitled to judgment as a matter of law, the Court of Appeal affirmed.
The case arose out of the City’s two-pronged, but parallel, process to approve or deny development projects in Venice. One process involves the Venice Coastal Zone Specific Plan, an ordinance that implements the policies of the Venice Land Use Plan and governs all development in the Venice community. To comply with the specific plan, all development projects in Venice must either undergo a project permit compliance review or a determination that a review is not required. For many small-scale development projects, such as construction and demolition of four unit or smaller residential projects not located on certain types of pedestrian-friendly streets, the planning director may issue a “Venice Sign-Off” (“VSO”), which exempts the project from a project permit compliance review. Once the director determines that a project is eligible under one of these categories, he or she must then determine whether it meets certain fixed development requirements applicable to the neighborhood in which the proposed project lies. All other projects must be evaluated for such compliance.
The second process occurs under the Coastal Act, with which all development in Venice must also comply. To comply with the Coastal Act, all development projects must obtain a Coastal Development Permit or an exemption from the CDP requirement. The Coastal Act authorizes exemptions from the CDP requirement for certain minor developments such as improvements to existing single-family residences and other structures.
The Coalition’s main argument on appeal was that the City denied residents due process by issuing VSO’s without notice and a hearing. Recognizing that local governments take three types of actions in land use matters, legislative, adjudicative, and ministerial, the Court of Appeal agreed with the City and the trial court that the VSO process involves nondiscretionary decisions based only on fixed and objective standards, not subjective judgment. As such, the VSO process is ministerial and does not trigger due process protections. In other words, unlike adjudicative actions that “implicate significant or substantial property deprivation” and thus generally require procedural due process protections of reasonable notice and an opportunity to be heard, or legislative actions in which it is not practical to give everyone a direct voice in legislative decisions, actions that require a public officer to perform “in a prescribed manner in obedience to the mandate of legal authority” without regard to his or her own judgment are ministerial and do not trigger due process protections.
The Coalition also argued that the planning director must conduct a discretionary analysis of every small-scale VSO project to ensure it is compliant with the LUP, but the Coalition did not identify any legal requirement mandating the director to independently review such projects for compatibility with the LUP. The Court thus agreed with the City that VSO projects that are consistent with specific plan standards are necessarily consistent with LUP policies because compliance with the specific plan is compliance with the LUP. The Court also reasoned that the Coalition’s argument was an attempt to recast what is essentially a challenge to the specific plan itself as being inconsistent with the LUP, holding that any such challenge is tantamount to arguing the City was wrong and is thus time-barred under the 90-day statute of limitations provided in Government Code section 65009.
