Bottini v. City of San Diego

• Court: California Court of Appeal
• Decided: September 18, 2018
• Docket: D071670
• Status: Published

Opinion

Filed 9/18/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

FRANCIS A. BOTTINI, JR., et al., D071670

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2013-00075491- CU-WM-CTL) CITY OF SAN DIEGO et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, Katherine

A. Bacal, Judge. Affirmed.

Bottini & Bottini, Albert Y. Chang and Yury A. Kolesnikov for Plaintiffs and

Appellants.

Office of the City Attorney, Mara W. Elliott, City Attorney, and Carmen A.

Brock, Deputy City Attorney, for Defendants and Appellants.

Francis A. Bottini, Jr., Nina M. Bottini, and the Bernate Ticino Trust dated March

9, 2009, Trust 3 (the Bottinis) applied to the City of San Diego for a coastal development

permit (CDP) to construct a single-family home on a vacant lot in La Jolla. City staff determined that the Bottinis' proposed construction project is categorically exempt from

environmental review under the California Environmental Quality Act (CEQA; Pub.

Resources Code, § 21000 et seq.),1 but the City Council of San Diego (City Council;

together with the City of San Diego, the City) reversed that determination. In reaching its

decision, the City Council found that full environmental review is necessary because the

Bottinis had removed a 19th century cottage from the lot on which they planned to build

their residence shortly before they applied for a CDP. The City itself had previously

voted against designating that cottage as a historical resource, declared that the cottage

was a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless,

the City Council—after the cottage's demolition—declared the cottage "historic,"

concluded that the cottage's demolition must be considered part of the Bottinis' project for

purposes of CEQA, and found that there was a reasonable possibility that CEQA's

"historical resources" and "unusual circumstances" exceptions applied to the Bottinis'

construction project, thus requiring full environmental review.

In response to the City Council's ruling, the Bottinis filed a petition for a writ of

administrative mandamus seeking to compel the City Council to set aside its decision, as

well as a complaint for damages against the City, based on alleged violations of the

takings, due process, and equal protection clauses of the California Constitution. The

City moved for summary judgment on the Bottinis' constitutional causes of action.

1 All further statutory references are to the Public Resources Code, unless otherwise noted.

2 The court granted the Bottinis' petition for a writ of administrative mandamus and

ordered the City Council to set aside its determination that the Bottinis' proposed

construction project requires environmental review. Specifically, the court concluded

that the demolition of the cottage is not a component of the Bottinis' construction project

and, as a result, the City Council's determination that the project is not categorically

exempt from CEQA review lacked substantial evidentiary support. The court also

granted the City's motion for summary judgment on the Bottinis' constitutional claims.

We conclude that the trial court properly granted the Bottinis' petition for a writ of

administrative mandamus because the demolition of the cottage that previously existed

on the Bottinis' property is not a component of the Bottinis' residential construction

project for purposes of CEQA. Rather, the cottage was demolished due to the City's

determination that the cottage was a public nuisance in need of abatement—an event that

occurred before the Bottinis applied for a CDP. We further conclude that the trial court

properly granted the City's motion for summary judgment. Accordingly, we affirm the

judgment in full.

I.

CEQA OVERVIEW

CEQA and its implementing regulations "embody California's strong public policy

of protecting the environment." (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281,

285.) " 'The basic purposes of CEQA are to: [¶] (1) Inform governmental decision

makers and the public about the potential, significant environmental effects of proposed

activities. [¶] (2) Identify ways that environmental damage can be avoided or

3 significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment

by requiring changes in projects through the use of alternatives or mitigation measures

when the governmental agency finds the changes to be feasible. [¶] [and] (4) Disclose to

the public the reasons why a governmental agency approved the project in the manner the

agency chose if significant environmental effects are involved.' " (Id. at pp. 285-286.)

In furtherance of these goals, CEQA establishes a three-tier environmental review

process. The first step is jurisdictional and requires a public agency to determine whether

a proposed activity is a "project." Under CEQA, a project is defined as "an activity

which may cause either a direct physical change in the environment, or a reasonably

foreseeable indirect physical change in the environment, and . . . [¶] . . . [¶] . . . that

involves the issuance to a person of a lease, permit, license, certificate, or other

entitlement for use by one or more public agencies." (§ 21065.) A project may

encompass "several discretionary approvals by governmental agencies" and does not

mean "each separate governmental approval." (Guidelines, § 15378, subd. (c).)2 Thus,

"CEQA's requirements [can]not [be] avoided by chopping a proposed activity into bite-

sized pieces which, when taken individually, may have no significant adverse effect on

the environment." (POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52,

73.) If a proposed activity is a project, the agency proceeds to the second step of the

CEQA review process.

2 All future references to Guidelines are to the Guidelines for Implementation of CEQA (Cal. Code Regs., tit. 14, § 15000 et seq.).

4 At the second step, the agency must "decide whether the project is exempt from

the CEQA review process under either a statutory exemption [citation] or a categorical

exemption set forth in the CEQA Guidelines [citations]." (California Building Industry

Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382 (Bay Area

Air).) Examples of categorical exemptions include the operation, repair, maintenance,

permitting, leasing, licensing, or minor alteration of existing structures (the Class 1

categorical exemption; Guidelines, § 15301); minor alterations in the condition of land,

water, or vegetation (the Class 4 categorical exemption; id., § 15304); and—of particular

relevance to this appeal—the construction of a single-family residence (the Class 3

categorical exemption; id., § 15303).

Unlike statutory exceptions, categorical exemptions are subject to exceptions. For

instance, the Class 3 categorical exemption that is at issue in this appeal does not apply—

or, stated differently, CEQA review may apply—if a project "may cause a substantial

adverse change in the significance of a historical resource." (Guidelines, § 15300.2,

subd. (f); Pub. Resources Code, § 21084, subd. (e).) For purposes of this decision, we

will refer to this as the "historical resource" exception. The Class 3 categorical

exemption also does not apply if "there is a reasonable possibility that the activity will

have a significant effect on the environment due to unusual circumstances." (Guidelines,

§ 15300.2, subd. (c).) This exception is commonly referred to as the "unusual

circumstances" exception.

If a project is categorically exempt and does not fall within an exception, " 'it is

not subject to CEQA requirements and "may be implemented without any CEQA

5 compliance whatsoever." ' " (County of Amador v. El Dorado County Water Agency

(1999) 76 Cal.App.4th 931, 966.) But if a project is not exempt, the agency must then

"decide whether the project may have a significant environmental effect." (Bay Area Air,

supra, 62 Cal.4th at p. 382.) Under CEQA, a project that causes a substantial adverse

change in the significance of an historical resource is considered to be a project that

significantly impacts the environment. (§ 21084.1; see § 21060.5 [defining the

environment as "the physical conditions which exist within the area which will be

affected by a proposed project," including "objects of historic . . . significance."].)

Finally, if the project may have a significant effect on the environment, the agency

must proceed to the third step of the process and prepare an environmental impact report

(EIR). (§§ 21080, subd. (d), 21082.2, subd. (d), 21100, subd. (a), 21151, subd. (a).)

At each stage of the CEQA review process, the public agency must evaluate the

environmental impact of a project against a measure commonly referred to as the

baseline, i.e., the environment's state in the absence of the project. (North County

Advocates v. City of Carlsbad (2015) 241 Cal.App.4th 94, 101 (Carlsbad); CREED-21 v.

City of San Diego (2015) 234 Cal.App.4th 488, 504 (CREED-21).) " '[T]he baseline

"normally" consists of "the physical environmental conditions in the vicinity of the

project, as they exist at the time . . . environmental analysis is commenced . . . ." ' "

(Carlsbad, at p. 101; see Association of Irritated Residents v. Kern County Bd. of

Supervisors (2017) 17 Cal.App.5th 708, 725 ["[T]he text of CEQA and the Guidelines

identify existing conditions as the starting point (i.e., baseline) for determining and

quantifying the proposed project's changes to the environment."].)

6 II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Windemere and historical designation efforts

The Windemere Cottage (Windemere) was a late Victorian-era beach bungalow in

La Jolla designed by architects Joseph Falkenhan and Irving Gill. In 1927, the

Windemere was moved from its original beachside location to Virginia Way. The

Windemere exhibited features that were representative of early architecture in La Jolla,

including a hipped roofline, eaves with exposed rafters, vertical board and batten

redwood walls, and leaded, diamond-paned windows.

In 2010, the then-owner of the Windemere (the Prior Owner) nominated the

Windemere for designation as a historical resource with the Historical Resources Board

(the Board). The Board is the appointed body with authority over historical resources in

San Diego, including the designation of historical sites, the establishment of historical

districts, and the review of development projects that may affect historical resources. At

the time, the Prior Owner intended "to restore the building to its 1894 Period of

Significance." However, in February 2011—before the Board ruled on the Windemere's

nomination—the Prior Owner sold the Windemere and the lot on which it was located to

the Bottinis for $1.22 million. The Prior Owner also assigned the Bottinis her rights to

the Windemere's historical designation application and a property report that Legacy 106,

Inc. (Legacy 106) had prepared in support of the application.

After the sale, the Bottinis withdrew the pending nomination and submitted a

single discipline preliminary review application to the Board to verify whether the

7 Windemere was eligible for historical designation—not to pursue historical designation,

but rather, to "determine the constraints on future development" of the property.

Together with the application, the Bottinis submitted the Legacy 106 report and an

addendum that the Bottinis had solicited to rebut the report. Based on these submissions

and an on-site visit, the Board's staff recommended that the Board deny historical

designation. In the staff's view, the Windemere had undergone too many alterations to

warrant historical designation.

In September 2011, the Board held a public hearing to determine whether to grant

the Windemere historical status. More than a dozen speakers, including members of the

Save Our Heritage Organization (SOHO) and the La Jolla Historical Society (LJHS),

spoke in favor of historical designation. Nevertheless, a divided Board narrowly declined

to grant historical status to the Windemere. SOHO and LJHS requested reconsideration

of the decision, but the Board denied the organizations' request as untimely.

Shortly after the Board's vote, a preservation officer from the State Office of

Historic Preservation (the State) notified the Board that the State had received

photographs and context statements about the Windemere and, based on these

submissions, believed that the Windemere "appear[ed] eligible" for the California

Register of Historical Resources (Register).3 The Register is "an authoritative guide in

California to be used by state and local agencies, private groups, and citizens to identify

3 The City requested judicial notice of the State's official website, but does not discuss the basis or purpose for its request. Accordingly, we deny the City's request.

8 the state's historical resources and to indicate what properties are to be protected, to the

extent prudent and feasible, from substantial adverse change." (§ 5024.1, subd. (a).) The

letter did not indicate that the State had received a nomination to list the Windemere in

the Register, nor that it had acted on any such nomination. Rather, it described the

process by which properties may be nominated and stated that the State "encourages

nominations of properties" to the Register.

B. The demolition of the Windemere

In November 2011, the Bottinis requested that the City's Neighborhood Code

Compliance Division (Code Compliance) determine whether the Windemere constituted

a public nuisance. Together with their request, the Bottinis included a report from a

structural engineering firm, which stated that the Windemere was "uninhabitable and no

persons [should] be allowed to occupy" it. According to the report, the Windemere's

roof, framing, and single wall construction were incapable of supporting gravity and

seismic/wind loads, the rear porch was rotted, portions of the residence were decayed due

to age and neglect, and the Windemere was susceptible to collapse in the event of a minor

seismic event.

The San Diego Municipal Code sets forth the criteria by which a structure may be

categorized as "unsafe, dangerous, or substandard" and therefore, deemed a public

nuisance. (Mun. Code, §§ 121.0402-121.0405.) If a property is found to be a public

nuisance, Code Compliance must issue a notice of abatement to the property owner

describing, among other things, the basis of the determination and actions that must be

undertaken to abate the public nuisance. (Id., § 121.0406.) Failure to comply with an

9 abatement order is punishable as a misdemeanor. (Id., §§ 12.0413, 121.0411.) The

Municipal Code also establishes procedures that apply to abatement actions involving

designated historical resources, which require a property owner to obtain a permit and

ensure compliance with all applicable regulations and ordinances prior to the alteration,

demolition, or relocation of the designated historical resource. (Id., § 121.0419.)

After reviewing the Bottinis' request and conducting an on-site visit, Code

Compliance sent the Bottinis a notice that declared the Windemere a public nuisance for

six independent reasons, including the structure's dilapidated state, unfitness for

habitation, and susceptibility to fire, earthquake, and wind. The notice further stated as

follows: "In order to comply with City regulations, you are required to obtain a

Demolition Permit . . . . [¶] In order to avoid abatement action, the Demolition Permit

must be obtained and a Final Inspection Approval secured no later than February 15,

2012."4 The next day, the Bottinis procured a demolition permit and promptly bulldozed

4 The parties dispute whether Code Compliance ordered the Bottinis to obtain a demolition permit as the sole means by which to abate the public nuisance or whether the Bottinis, in the alternative, could have repaired the Windemere. Ultimately, we need not resolve this factual disagreement because it is undisputed that, at minimum, Code Compliance authorized the Bottinis to obtain a demolition permit and the City's Development Services Department (Department) issued the Bottinis a demolition permit.

10 the Windemere.5 Because Code Compliance declared that the Windemere was a public

nuisance, the Bottinis did not have to obtain a CDP for the demolition. (§ 30005, subd.

(b); Mun. Code § 126.0704, subd. (f).) Further, the abatement procedures for designated

historical resources did not apply because neither the Board nor the State had designated

the Windemere a historical resource at the time that Code Compliance rendered its public

nuisance determination.

C. The CDP process and appeals

In August 2012, the Bottinis—now the owners of a vacant lot—applied to the

Department for a CDP to construct a single-family home on their lot. As part of the

permitting process, the La Jolla Community Planning Association (Planning Association)

reviewed the proposed construction project. During two public meetings, Planning

Association members voiced concerns that the Bottinis may have engaged in improper

project splitting under CEQA. Nevertheless, the Department's environmental staff

ultimately determined that the construction of the Bottinis' home was categorically

exempt from CEQA review as new residential construction on a vacant lot.

The Planning Association and LJHS appealed the Department's decision to the

City Council, claiming that the Department had failed to consider the "whole of the

5 The City requested judicial notice of a video showing the Windemere's demolition. We deny the request, as the City appears to be using the request as a guise to supplement the administrative record. (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1190.) The City also requested judicial notice of a video of the City Council meeting at which the demolition video was displayed. We deny this request as unnecessary; the transcript for that meeting is already a part of the administrative record.

11 project" and alleging that the proper project baseline should have been set at a time

before the Bottinis demolished the Windemere. Over the course of two meetings, the

City Council heard testimony from supporters and opponents of the CEQA appeals. At

the first meeting, Department staff and the deputy city attorney informed the City Council

that the Bottinis had followed the Municipal Code "to the letter" in all the actions that

they had undertaken. Still, the City Council deadlocked 4-4 on whether to grant the

CEQA appeals. At the second meeting, one City Council member who had originally

voted to deny the CEQA appeals switched his vote to grant the CEQA appeals "to get

[the] item off [the City Council's] docket and to get the [Bottinis] out of [the] purgatory"

of another tied vote.

As a result, the City Council issued a resolution granting the CEQA appeals and

remanding the project to the Department to reevaluate its environmental determination

with a baseline of January 2010⸺a date that preceded the Bottinis' purchase of the

property. In its resolution, the City Council concluded that the Windemere's "demolition

should be included in the environmental analysis" of the Bottinis' residential construction

project. The City Council further concluded that the project was "not categorically

exempt from environmental analysis" because two CEQA exceptions took precedence

over the categorical exemption that governs the construction of single-family homes.

Specifically, the City Council concluded that the redefined project (which now included

the demolition of the Windemere), with its new baseline of January 2010 (when the

Windemere still existed), would "have a significant effect on the environment due to

unusual circumstances and may cause a substantial adverse change in the significance of

12 a historic resource" pursuant to section 15300.2, subdivisions (c) and (f) of the CEQA

Guidelines.

D. The superior court action

The Bottinis filed an action in the superior court, requesting issuance of a

peremptory writ of mandamus directing the City to set aside its decision. In an amended

petition, the Bottinis asserted causes of action against the City for inverse condemnation,

equal protection, and due process violations. In their inverse condemnation cause of

action, the Bottinis alleged that the City's CEQA determination constituted a regulatory

taking of their property because it delayed their plans to construct a home on their

property and, as a result, required them to pay a mortgage for both their existing home

and an empty lot. In their due process and equal protection causes of action, the Bottinis

contended that the City acted without any rational basis and intentionally targeted the

Bottinis for disfavored treatment because they had demolished the Windemere.

After briefing and argument, the trial court granted the Bottinis' petition for a

peremptory writ of mandamus. According to the court, the Bottinis' project is "a separate

project distinct from the demolition of the [Windemere]." The court determined that the

project baseline should be set at the point at which the property was "an empty lot"

because the "[Windemere] had been razed pursuant to [the] demolition permit eight

months before the Bottinis submitted their project application." On that basis, the court

13 found that the City had abused its discretion in concluding that the project is not

categorically exempt from CEQA review.6

After further briefing and argument, the trial court granted summary judgment for

the City on the Bottinis' constitutional causes of action. Applying the inverse

condemnation standards that the California Supreme Court discussed in Landgate, Inc. v.

California Coastal Com. (1998) 17 Cal.4th 1006 (Landgate), the court concluded that the

City was entitled to summary judgment on the Bottinis' inverse condemnation cause of

action because governmental review of a project "for compliance with CEQA is clearly a

legitimate governmental purpose." The court further concluded that the City was entitled

to summary judgment on the Bottinis' equal protection cause of action because no

evidence demonstrated that the City had "intentionally discriminated" against the Bottinis

or that the City lacked a rational basis for its decision. Finally, the court concluded that

the City was entitled to summary judgment on the Bottinis' due process cause of action

because the Bottinis have no protected property interest where, as here, the decision

maker (the City) has discretion to grant or deny the benefit at issue (the CEQA

categorical exemption).

6 The City immediately appealed the trial court's order granting the Bottinis' petition for a peremptory writ of mandamus. In an unpublished decision, we dismissed the City's appeal for lack of jurisdiction. (Bottini v. City of San Diego (Jan. 26, 2016, No. D067510).)

14 The City appealed the judgment insofar as it granted the Bottinis' petition for a

writ of mandamus and the Bottinis cross-appealed the judgment insofar as the trial court

granted the City's summary judgment motion.

III.

ANALYSIS

A. CEQA

1. Standard of review

" ' "In considering a petition for a writ of mandate in a CEQA case, '[o]ur task on

appeal is "the same as the trial court's." [Citation.]' . . . . Accordingly, we examine the

[agency's] decision, not the trial court's [decision]." [Citation.]' [Citations.]" (World

Business Academy v. Cal. State Lands Com. (2018) 24 Cal.App.5th 476, 491 (World

Business).)

" '[O]ur inquiry extends only to whether there was a prejudicial abuse of

discretion' by the agency. [Citation.] ' "Such an abuse is established 'if the agency has

not proceeded in a manner required by law or if the determination or decision is not

supported by substantial evidence.' [Citations.]" [Citation.]' [Citation.] To the extent

the question presented turns on an interpretation of CEQA, the Guidelines, or the scope

of a particular exemption, it is one of law that we review de novo. [Citation.]" (World

Business, supra, 24 Cal.App.5th at p. 492.)

2. Application

This case turns largely on the propriety of the parties' dueling definitions of the

project that is the subject of this dispute. The City, on the one hand, contends that the

15 City Council correctly defined the project to include the demolition of the Windemere

and properly set a baseline of January 2010, before the Windemere was demolished.

Framed as such, the City claims that the City Council accurately determined that the

project would result in a substantial adverse change in the significance of an historical

resource (the Windemere) and that the project is therefore not categorically exempt from

CEQA review. The Bottinis, on the other hand, contend that the project should be

defined to include only the construction of their residence and claim that the baseline

should be set in August 2012, when they applied for a CDP. According to the Bottinis,

the City Council erred by considering the Windemere's demolition as part of the project

because the City itself had authorized the Bottinis to demolish the Windemere as a public

nuisance, which they did several months before they submitted their CDP application.

Based on our review of the administrative record, we agree with the Bottinis and

conclude that the City Council abused its discretion by determining that the project

encompassed the demolition of the Windemere—an event that took place before the

Bottinis filed their application to construct a residence. We also conclude that the City

Council abused its discretion by setting a baseline in January 2010, a full year before the

Bottinis acquired the property on which they planned to construct their residence. As we

will discuss post, the City's issuance of a permit authorizing the demolition of the

Windemere served a public safety objective untethered to the construction of the Bottinis'

residence and, in any event, fell outside of the CEQA review process altogether because

it was ministerial. Further, at the time the Bottinis filed their request for a CDP, the

Bottinis' property was a vacant lot. Under CEQA, that environmental condition

16 accurately reflects the baseline for the Bottinis' construction project, not an

environmental condition that presumes the continued existence of a cottage that, in

reality, no longer existed at the time the Bottinis filed their application.

In short, the only project that remained for purposes of CEQA after the City's

Code Compliance Division authorized the Bottinis to demolish the Windemere was the

construction of a single-family residence on a vacant lot—a categorically exempt act

under CEQA.

a. Applicable project definition and baseline

As noted, the San Diego Municipal Code establishes procedures that Code

Compliance must follow to identify unsafe, dangerous, or substandard structures, and to

order their abatement "to protect and preserve the safety of the citizens and communities

where these structures are located." (Mun. Code, § 121.0401, subd. (a).) These

procedures require Code Compliance to determine whether a given structure is unsafe,

dangerous, or substandard, according to a detailed set of criteria. (Id., §§ 121.0403-

121.0405). In this case, Code Compliance concluded that the Windemere constituted a

public nuisance for six independent reasons under those criteria and, on that basis,

authorized the Bottinis to obtain a ministerial permit to demolish the Windemere.

The City contends that we should treat the Windemere's demolition as part of the

project under review because, in the City's view, the public nuisance determination that

resulted in the issuance of a demolition permit was a "faux 'emergency' " that the Bottinis

"cajoled," "pressur[ed]," and "coerc[ed] Code Compliance" into making. We reject the

City's characterizations of the public nuisance determination, for a number of reasons.

17 As an initial matter, this CEQA action is not the appropriate forum to launch a

retroactive, collateral attack on the validity of Code Compliance's public nuisance

determination. That public nuisance decision is final and is not the subject of this CEQA

appeal. (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630,

647-649 [rejecting objector's attempt to use an appeal arising from the certification of an

EIR as a vehicle to collaterally attack the validity of the City's general plan].)

Even if this were the appropriate forum to rehash the merits of the public nuisance

determination, the City has directed us to no evidence—let alone substantial evidence—

that calls into question Code Compliance's conclusion that the Windemere was a bona

fide public nuisance. In fact, the City does not even attempt to articulate why it believes

the public nuisance determination was incorrect. Instead, the City criticizes the Bottinis

for removing various architectural features from the Windemere, which, in the City's

words, "weaken[ed] its structural integrity." But the City does not accuse the Bottinis of

violating any state laws or Municipal Code provisions by purportedly removing these

architectural features. On the contrary, the City expressly concedes that the Bottinis were

not required to obtain a building permit to engage in the conduct that the City alleges.

Further, in arguing that the structural integrity of the Windemere was in fact

"weaken[ed]," the City undercuts its own unsupported claim that the Windemere never

should have been declared a public nuisance in the first place.

The City also has not directed us to any evidence to support its claim that the

Bottinis "strong-armed" Code Compliance into making an unfounded public nuisance

determination. On the contrary, when questioned at a City Council meeting, the deputy

18 city attorney agreed with the Department's assessment that the Bottinis had followed the

Municipal Code "to the letter" by asking the Board to determine whether the Windemere

was historical, notifying Code Compliance that the Board had concluded that the

Windemere was not historical, and requesting that Code Compliance make a public

nuisance determination. Under these circumstances, we conclude that there is no

substantial evidence that undercuts Code Compliance's public nuisance determination or

the legitimacy of the actions that the Bottinis undertook in connection with that

determination.

We recognize, of course, that the public nuisance determination and the

Windemere's subsequent demolition necessarily affected the conditions of the property

on which the Bottinis later requested permission to construct their residence. However,

the ministerial demolition permit furthered a goal unrelated to the construction of the

Bottinis' residence—the protection and safety of the City's citizens. (Mun. Code,

§ 121.0401, subd. (a).) Indeed, the public nuisance determination itself states that Code

Compliance visited and analyzed the property "to determine the condition of the structure

with regards to fire, life, health and safety regulations of the City of San Diego." Further,

the determination did not reference or authorize, let alone depend on, the subsequent

issuance of a building permit to the Bottinis. (Adams Point Pres. Soc'y v. City of

Oakland (1987) 192 Cal.App.3d 203, 207 [demolition was a separate project than the

anticipated construction of a building on the demolition site because the demolition

permit was not dependent on the issuance of a building permit].) Thus, the public

nuisance determination confirms that the demolition permit served a purpose distinct

19 from, and was not a part of, the project under review. (Banning Ranch Conservancy v.

City of Newport Beach (2012) 211 Cal.App.4th 1209, 1226 [ordinances were separate

projects because "[t]hey serve[d] different purposes"].)

Notwithstanding the public safety goals that the demolition permit advanced, the

City contends that we still must treat the Windemere's demolition and the construction of

the Bottinis' residence as a single cohesive project because the Bottinis purportedly knew

before the demolition that they intended to construct a residence on the lot after the

demolition. The City argues, for instance, that the construction of the Bottinis' residence

was not a mere "afterthought," but rather, the Bottinis' goal when they purchased the

property. According to the City, we would permit the Bottinis to violate the rule against

segmentation of projects if we were to overlook the Bottinis' intent to construct a

residence on the property. (Guidelines, § 15378, subd. (a) [project includes "the whole of

an action"].)

Assuming that the Bottinis intended to construct a residence on the lot when they

purchased it, that fact does not change the result of this case. That is because the

demolition permit that Code Compliance authorized the Bottinis to obtain was, as all

parties agree, ministerial. Whereas CEQA applies to certain nonexempt discretionary

acts, it specifically excludes ministerial acts from its reach. (§ 21080, subd. (b)

[excluding "[m]inisterial projects proposed to be carried out or approved by public

agencies"].) This exclusion of ministerial acts "recognizes that unless a public agency

can shape the project in a way that would respond to concerns raised in an EIR, or its

functional equivalent, environmental review would be a meaningless exercise."

20 (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117.) Because

the demolition permit that Code Compliance authorized the Bottinis to obtain was

ministerial, it fell outside of CEQA's scope altogether and the demolition that occurred as

a result was not subject to environmental review, either then or now. (Friends of Juana

Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 292-293 [rejecting

argument that CEQA required consideration of both demolition permit and anticipated

construction because both projects were ministerial].)

Our decision in CREED-21 is particularly analogous to the case at hand. In

CREED-21, the City of San Diego planned to replace storm drain pipes, construct storm

drain infrastructure, and revegetate the affected area. (CREED-21, supra, 234

Cal.App.4th at p. 495.) The storm drain system failed before the City began its work, so

the City constructed a new storm drain system under an emergency CEQA exemption.

(Ibid.) After the emergency repair was complete, the City concluded that revegetation

was the only act that required an environmental assessment, given that it was the sole

component of the original project that had not been completed. (Id. at pp. 498-499.) In

an appeal arising from a writ proceeding, we agreed. Specifically, we concluded that the

work that the City had anticipated as part of its initially-defined project—the repair of the

storm drain pipes and the construction of infrastructure—was "exempt from CEQA's

environmental review provisions" due to the emergency permit, and "therefore no

environmental review of that work was required under CEQA either before or after it was

completed." (Id. at p. 506.)

21 The same is true here. The Bottinis very well may have purchased the Windemere

and the lot on which it was located with the intention of constructing a new residence on

that lot. Indeed, the Bottinis acknowledge that they filed a single discipline preliminary

review application with the Board shortly after purchasing the property with the express

purpose of "determin[ing] the constraints on future development" of the property.

However, the City's own historical designation and nuisance abatement provisions

enabled the Bottinis to obtain a ministerial permit to demolish the existing structure on

their property and pave the way for future construction—provisions that the Bottinis

followed "to the letter," according to the deputy city attorney. It is because of these

Municipal Code provisions, as well as the City's sanctioning of the Bottinis' conduct at

each step of the process, that an intervening CEQA-exempt event—the City's issuance of

a ministerial demolition permit—occurred. As in CREED-21, this intervening event took

place "outside of CEQA's requirements and therefore no environmental review of that

completed work is required."7 (CREED-21, supra, 234 Cal.App.4th at p. 506.)

Our conclusion that the project in this case consists solely of the construction of

the Bottinis' residence comports with decisions from our court that have recognized that

"CEQA generally applies prospectively to activities to be carried out in the future and not

7 The City tries to distinguish this case from CREED-21 on the basis that the intervening event in CREED-21 was "a sudden, unexpected occurrence," whereas the nuisance determination here purportedly was not. But in CREED-21 we did not base our holding on the "sudden" and "unexpected" nature of the intervening event. Rather, we based our decision on the fact that the intervening event was exempt from CEQA. So, too, is the ministerial permit at issue in this case. (§ 21080, subd. (b).) Accordingly, the City's attempt to distinguish CREED-21 is unavailing.

22 retrospectively to work already completed." (CREED-21, supra, 234 Cal.App.4th at pp.

502-503, italics added; Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428,

1452 (Riverwatch) ["We believe that in general preparation of an EIR is not the

appropriate forum for determining the nature and consequences of prior conduct of a

project applicant."].) Indeed, the baseline for purposes of CEQA normally reflects the

environmental conditions as they exist "at the time . . . environmental analysis is

commenced" precisely because a baseline that reflects current conditions—rather than

past conditions—enables a lead agency to more accurately assess a project's likely

environmental impact before the project takes place. (Carlsbad, supra, 241 Cal.App.4th

at p. 101; see CREED-21, at pp. 506-507.)

California courts have applied this principle in a variety of circumstances, even

when a project applicant's past conduct may have violated the law or escaped

environmental review. (Riverwatch, supra, 76 Cal.App.4th at pp. 1451-1453 [measure of

a project's environmental impact should not include the applicant's past unauthorized

activities in the region]; Citizens for East Shore Parks v. State Lands Com. (2011) 202

Cal.App.4th 549, 561 [baseline "must include existing conditions, even when those

conditions have never been reviewed and are unlawful"]; Fat v. County of Sacramento

(2002) 97 Cal.App.4th 1270, 1279-1280 [baseline for pilots' conditional use permit

application was the year in which application was filed, even though the airport had

expanded without CEQA review for decades]; Bloom v. McGurk (1994) 26 Cal.App.4th

1307, 1314-1316 [applying CEQA exemption to disposal facility's request for a waste

permit, even though there was no record that the facility's prior activities had ever gone

23 through an environmental review].) Insofar as the City Council in this case set a baseline

in the past to measure the environmental impacts flowing from the Bottinis' prior

conduct, these decisions demonstrate that the City's decision was legally erroneous.

Reasonable minds may differ as to whether the Board should have granted

historical designation to the Windemere. But the Board did not do so. Reasonable minds

may also differ as to whether the Bottinis should have attempted to repair the

Windemere, rather than asking Code Compliance to declare it a public nuisance. But

they did not. And Code Compliance did in fact authorize the Bottinis to obtain a

ministerial demolition permit for the Windemere. While the City may wish to turn back

the clock and undo these decisions, that goal cannot be accomplished in this case by

simply redefining the Bottinis' project and setting a CEQA baseline in the past, to a time

when the Windemere still existed. The fact is that the Bottinis' project for purposes of

CEQA consists solely of the construction of a single-family residence and the proper

baseline for that project is the physical environmental condition of the lot as it existed at

the time the Bottinis filed their request for a CDP. In concluding otherwise, the City

Council abused its discretion.

b. Class 3 categorical exemption

Because the City Council improperly defined the project and baseline, the City

Council also erred in concluding that the project is not categorically exempt from

environmental analysis under CEQA. The CEQA Guidelines categorically exempt the

construction of a single-family residence from review under CEQA. (§ 15303, subd. (a);

Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 727

24 (Ukiah) ["Guidelines section 15303 lists single-family residences as an example of a

class 3 categorical exemption."].) The project in this case consists of the construction of

the Bottinis' proposed residence, with baseline conditions reflecting a vacant lot.

Accordingly, the Class 3 categorical exemption squarely applies, subject to any

applicable exceptions that might nullify the categorical exemption.

From our review of the administrative record, we discern no exception that would

take precedence over the Class 3 categorical exemption. In the proceedings before the

City Council, the Council concluded that the historical resource exception applies. That

exception provides as follows: "A categorical exemption shall not be used for a project

which may cause a substantial adverse change in the significance of a historical

resource." (Guidelines, § 15300.2.) However, with a properly defined project and

baseline, substantial evidence does not support the City Council's conclusion.

25 Assuming that the Windemere did in fact constitute a historic resource under

CEQA,8 the Bottinis' construction project will not cause a substantial adverse change in

the Windemere's significance. (San Lorenzo Valley Community Advocates for

Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139

Cal.App.4th 1356, 1392 [CEQA exception did not apply because "[a] change in physical

conditions is a necessary predicate for a finding of environmental impact."], italics

added.) Rather, as discussed ante, by the time the Bottinis applied for a CDP in August

2012, the Windemere had already been demolished pursuant to Code Compliance's

December 2011 demolition authorization.

The City Council also concluded that the "unusual circumstances" exception

applied. That exception precludes the application of a categorical exemption when a

project will "have a significant effect on the environment due to unusual circumstances."

(Guidelines, § 15300.2, subd. (c).) The "unusual circumstances" exception typically

requires a showing that: (1) the project has some feature that distinguishes it from others

8 CEQA establishes three types of historical resources—(1) mandatory historical resources, which include resources listed in, or determined to be eligible for listing in, the Register; (2) presumptive historical resources, which include resources in a local register of historical resources or identified as significant in surveys of historical resources; and (3) discretionary historical resources, which include resources that lead agencies in their discretion consider to be historical, even if the resources have been denied listing or have not yet been listed on a local register. (Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1051-1062; § 21084.1; Guidelines, § 15064.5, subd. (a).) On appeal, the City contends—and the Bottinis dispute—that the Windemere constituted a discretionary historical resource. In light of our conclusion that the properly defined project, with a proper baseline, could not adversely affect the Windemere, it is unnecessary for us to resolve whether the Windemere was a discretionary historical resource.

26 in the exempt class, such as its size or location and (2) there is a reasonable possibility of

a significant effect on the environment due to that unusual circumstance. 9 (World

Business, supra, 24 Cal.App.5th at p. 498.)

Neither the City Council's resolution nor the City's appellate briefing has identified

any distinguishing or unusual feature presented by the Bottinis' construction project. The

City points to the demolition of the Windemere as a distinguishing or unusual feature

warranting application of the "unusual circumstances" exception. However, for the

reasons just discussed, the demolition of the Windemere is not part of the project at issue.

Accordingly, the Bottinis' project—the construction of a single-family home—has no

features that distinguish it from others in the exempt class, and substantial evidence does

not support the City Council's application of the "unusual circumstances" exception.

(Ukiah, supra, 2 Cal.App.4th at p. 736 [the "potential environmental impacts" were

"normal and common considerations in the construction of a single-family residence" and

did not constitute unusual circumstances].)

9 The City takes contradictory and confusing positions in its appellate briefing regarding the City Council's reliance on the "unusual circumstances" exception. In its opening brief, the City argues that the "City Council was justified in its conclusion [that the] Bottinis' self-serving actions present an 'unusual circumstances' [sic] barring the use of a categorical exemption." But the City claims in its reply brief that the "City Council did not rely on the 'unusual circumstance' exemption to grant the appeals." We have reviewed the administrative record and can confirm that the City Council did in fact conclude that the "unusual circumstances" exception applies to the Bottinis' project.

27 c. Conclusion

For the foregoing reasons, we conclude that the "historical resources" and

"unusual circumstances" exceptions do not apply to the Bottinis' residential construction

project for purposes of CEQA. Further, the City does not contend that any other CEQA

exception applies. Accordingly, CEQA's Class 3 categorical exemption applies to the

Bottinis' residential construction project and the trial court's judgment is affirmed insofar

as it granted the Bottinis' petition for a peremptory writ of mandamus.

B. The Bottinis' constitutional causes of action

Based on the City's decision to grant the CEQA appeals and the residential

construction delays resulting from that decision, the Bottinis also alleged three causes of

action against the City for violations of the California Constitution's takings, equal

protection, and due process clauses. The trial court granted summary judgment in favor

of the City on all three causes of action. For the reasons discussed post, we agree that no

triable issue of material fact exists as to the Bottinis' constitutional causes of action. We

therefore affirm the trial court's summary judgment ruling.

Summary judgment may be granted only if there is no triable issue of material fact

and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,

§ 437c, subd. (c).) A defendant moving for summary judgment has the burden of

presenting evidence that negates an element of plaintiff's claim or evidence that the

plaintiff does not possess and cannot reasonably expect to obtain evidence needed to

support an element of the claim. (Miller v. Department of Corrections (2005) 36 Cal.4th

28 446, 460; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) If the defendant

meets this burden, the burden shifts to the plaintiff to set forth "specific facts" showing

that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)

We review de novo the trial court's grant of summary judgment. (Hughes v. Pair

(2009) 46 Cal.4th 1035, 1039.) We take the facts from the record that was before the trial

court when it ruled on the motion and consider all the evidence set forth in the moving

and opposing papers, except those to which objections were made and sustained.

(Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206; § 437c, subd. (c).) The

court does not weigh the parties' evidence; rather, it must consider all the evidence and

"all inferences reasonably deducible from the evidence." (§ 437c, subd. (c); Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 540-541; Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 856.) However, "any doubts as to the propriety of granting a summary

judgment motion should be resolved in favor of the party opposing the motion." (Reid, at

p. 535; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)

2. Inverse condemnation

a. Legal standard

Both the United States and California Constitutions guarantee real property

owners "just compensation" when their land is taken for a public use. (Cal. Const., art. I,

§ 19; U.S. Const., 5th Amend.) These constitutional guarantees do "not prohibit the

taking of private property, but instead place[] a condition on the exercise of that power."

(First English Evangelical Lutheran Church v. County of Los Angeles (1987) 482 U.S.

304, 314.) Stated differently, the state and federal takings clauses are "designed not to

29 limit the governmental interference with property rights per se, but rather to secure

compensation in the event of otherwise proper interference amounting to a taking." (Id.

at p. 315.)

"The paradigmatic taking requiring just compensation is a direct government

appropriation or physical invasion of private property." (Lingle v. Chevron U.S.A., Inc.

(2005) 544 U.S. 528, 537 (Lingle).) However, "government regulation of private

property may, in some instances, be so onerous that its effect is tantamount to a direct

appropriation or ouster—and . . . such 'regulatory takings' may be compensable" as a

taking. (Id. at p. 537; Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 415

["[W]hile property may be regulated to a certain extent, if regulation goes too far it will

be recognized as a taking."].)

"Two categories of regulatory action are generally 'deemed per se takings for Fifth

Amendment purposes. First, where government requires an owner to suffer a permanent

physical invasion of her property—however minor—it must provide just compensation.

[Citation.] A second categorical rule applies to regulations that completely deprive an

owner of " 'all economically beneficial us[e]' " of her property. '[Citation.]" (Dryden

Oaks, LLC v. San Diego County Regional Airport Authority (2017) 16 Cal.App.5th 383,

394-395.)

In addition to these "relatively narrow" categories of regulatory takings, the United

States Supreme Court recognized a third "essentially ad hoc" category of regulatory

takings in Penn Cent. Transp. Co. v. New York City (1978) 438 U.S. 104, 124 (Penn

Central). (Lingle, supra, 544 U.S. at p. 538.) In Penn Central, the Supreme Court

30 identified three factors that are of "particular significance" for determining whether an ad

hoc regulatory taking has occurred. The primary considerations are " 'the economic

impact of the regulation on the claimant' " and the " 'extent to which the regulation has

interfered with distinct investment-backed expectations.' " (Lingle, supra, 544 U.S. at pp.

538-539.) "In addition, the 'character of the governmental action'—for instance whether

it amounts to a physical invasion or instead merely affects property interests through

'some public program adjusting the benefits and burdens of economic life to promote the

common good'—may be relevant in discerning whether a taking has occurred."10 (Id. at

p. 539.)

In this case, the trial court concluded that the City was entitled to judgment as a

matter of law on the Bottinis' inverse condemnation cause of action, which alleged that

the delay arising from the City Council's order granting the CEQA appeals violated the

takings clause of the California Constitution. In granting summary judgment for the City,

the court did not apply the Penn Central factors discussed ante. Instead, it applied the

"substantially advances" standard that the California Supreme Court articulated in

10 A special regulatory takings test also applies to land-use exactions, i.e., demands that governments make on landowners to dedicate a portion of their property to the public as a condition for securing development permits. In land-use exaction cases, there must be an "essential nexus" between a "legitimate state interest" that the government asserts will be furthered by the condition of a development permit and the exaction, as well as "rough proportionality" between the development restriction and the impact that the state- imposed development condition is intended to mitigate. (Dolan v. City of Tigard (1994) 512 U.S. 374, 386, 391; Nollan v. Cal. Coastal Com. (1987) 483 U.S. 825, 837.) This standard does not apply because the Bottinis have not alleged a land-use exaction.

31 Landgate, supra, 17 Cal.4th 1006—a standard that asks whether the government's

conduct substantially advances a legitimate state interest.

On appeal, the City urges us to apply the "substantially advances" formula in

evaluating the trial court's summary judgment ruling. The Bottinis, on the other hand,

contend that the "substantially advances" test is no longer good law and insist that we

must apply the Penn Central test—a test that the Bottinis claim they have satisfied.

Therefore, before we rule on the merits of the trial court's summary judgment ruling, we

must resolve the proper legal standard that governs when a plaintiff alleges a regulatory

taking under the California Constitution—a task that we turn to now.

In Landgate, the California Coastal Commission denied a landowner's request for

a coastal development permit to build a residence on its property for several reasons,

including the landowner's failure to obtain a necessary lot line adjustment from the

Commission. (Landgate, supra, 17 Cal.4th at pp. 1011-1013.) The trial court granted the

landowner's petition for writ of mandate compelling the Commission to set aside its

decision on the basis that the Commission lacked jurisdiction to consider the lot line

adjustment—that authority rested with the County of Los Angeles. (Id. at p. 1014.) The

landowner also filed state and federal takings claims against the Commission, seeking

damages for the delay caused by the Commission's erroneous determination that it, rather

than the County, had jurisdiction over the setting of the property's lot lines. (Id. at p.

1013.) The trial court and the Court of Appeal found that the landowner was entitled to

recover on its taking claims, but our Supreme Court reversed. (Id. at pp. 1015-1016,

1032.)

32 The Supreme Court cited Penn Central and its factors with approval, but did not in

fact apply the Penn Central factors to the case before it. Instead, the Court—reciting

language from a different United States Supreme Court case, Agins v. City of Tiburon

(1980) 447 U.S. 255—found that a regulatory error alone does not amount to a taking if it

is "part of a reasonable regulatory process designed to advance legitimate government

interests . . . ." (Landgate, supra, 17 Cal.4th at p. 1021.) As the Landgate Court

explained, "[t]he proper inquiry is . . . whether there is, objectively, sufficient connection

between the land use regulation in question and a legitimate governmental purpose so

that the former may be said to substantially advance the latter." (Id. at p. 1022.) Under

that means-end standard, the Landgate Court concluded that the Commission's permit

denial, though erroneous, "appear[ed] to substantially advance legitimate governmental

interests," and that it therefore did not give rise to a takings claim. (Id. at p. 1023.)

However, in Lingle, the United States Supreme Court subsequently held that the

"substantially advances" formula that it had set forth in Agins—the formula that the

California Supreme Court had cited in Landgate—was "regrettably imprecise" and is "not

a valid method of discerning whether private property has been 'taken' for purposes of the

Fifth Amendment." (Lingle, supra, 544 U.S. at p. 542.) As the unanimous Lingle Court

explained, the aim of regulatory takings jurisprudence is to "identify regulatory actions

that are functionally equivalent to the classic taking in which government directly

appropriates private property or ousts the owner from his domain." (Id. at p. 539.) To do

so, courts must "focus[] directly upon the severity of the burden that government imposes

upon private property rights." (Ibid.) However, "the 'substantially advances' inquiry

33 reveals nothing about the magnitude or character of the burden a particular regulation

imposes upon private property rights. Nor does it provide any information about how

any regulatory burden is distributed among property owners. In consequence, [the

"substantially advances"] test does not help to identify those regulations whose effects are

functionally comparable to government appropriation or invasion of private property; it is

tethered neither to the text of the Takings Clause nor to the basic justification for

allowing regulatory actions to be challenged under the Clause." (Id. at p. 542.)

The Lingle Court further found that the "substantially advances" test "asks, in

essence, whether a regulation of private property is effective in achieving some legitimate

public purpose. An inquiry of this nature has some logic in the context of a due process

challenge, for a regulation that fails to serve any legitimate governmental objective may

be so arbitrary or irrational that it runs afoul of the Due Process Clause . . . . But such a

test is not a valid method of discerning whether private property has been 'taken' for

purposes of the Fifth Amendment." (Lingle, supra, 544 U.S. at p. 542.) Thus, the Lingle

Court held "that the 'substantially advances' formula is not a valid takings test, and indeed

conclude[d] that it ha[d] no proper place in [the Supreme Court's] takings jurisprudence."

(Id. at p. 548.)

In the wake of Lingle, state and federal courts alike have recognized that the

"substantially advances" formula that the United States Supreme Court articulated in

Agins and the California Supreme Court applied in Landgate no longer constitutes a valid

test by which to determine whether there has been a regulatory taking under the Fifth

Amendment; instead, the Penn Central factors govern. (Lockaway Storage v. County of

34 Alameda (2013) 216 Cal.App.4th 161, 189 ["In light of Lingle, we reject the [c]ounty's

contention that Landgate establishes an independent test for evaluating whether

government action is a regulatory taking."]; Allegretti & Co. v. County of Imperial (2006)

138 Cal.App.4th 1261, 1280 (Allegretti) ["Whether County's Action Substantially

Advances a State Interest Is No Longer A Valid Standard to Assess An Unconstitutional

Taking Under the Fifth Amendment"]; Guggenheim v. City of Goleta (9th Cir. 2010) 638

F.3d 1111, 1117 ["Agins was overruled by Lingle"]; Crown Point Dev. Inc. v. City of Sun

Valley (9th Cir. 2007) 506 F.3d 851, 854 ["Agins' 'substantially advances' language—i.e.,

that it is a 'stand-alone regulatory takings test'—was rejected by the Supreme Court in

Lingle."].)

To date, no published authority of which we are aware has expressly analyzed

whether, in light of Lingle, the "substantially advances" formula remains a valid test by

which to determine whether a regulatory taking has occurred under the takings clause of

the California Constitution, as opposed to the Fifth Amendment to the United States

Constitution. (Allegretti, supra, 138 Cal.App.4th at pp. 1281-1284 [declining to decide

whether the "substantially advances" test is a viable regulatory takings test under the

California Constitution].) We now answer that question in the negative and conclude that

the Penn Central test endorsed in Lingle—and not the "substantially advances"

formula—applies to ad hoc regulatory takings claims that arise under the California

Constitution. We reach this conclusion for the following reasons.

First, the California Supreme Court has held that the takings clause in the

California Constitution should be construed "congruently" with the federal takings

35 clause, with minor differences that are not applicable here. (San Remo Hotel v. City and

County of San Francisco (2002) 27 Cal.4th 643, 664; see also, e.g., Santa Monica Beach

v. Superior Court (1999) 19 Cal.4th 952, 957, 962-975 [takings challenge to rent control

regulation under both clauses considered without separate discussion of the state clause].)

On that basis, at least one member of the California Supreme Court has explained that

Lingle's ruling—i.e., its clarification that the "substantially advances" formula is a due

process test—applies to challenges arising under the California Constitution. (California

Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 485 (conc. opn. of

Werdegar, J.) ["Had Lingle already been decided, we would have considered it in our

analysis."].)

Second, the rationale underpinning the Lingle decision applies with equal force to

the California takings clause as to the federal takings clause. "Indeed, it has long been

recognized that the purpose of section 19 [of article I of the California Constitution], as

well as the purpose of the takings clause of the Fifth Amendment to the United States

Constitution, is to ensure that individual property owners are not compelled to bear

burdens or incur costs that, in fairness and justice, should be borne by the public at large."

(Williams v. Moulton Niguel Water Dist. (2018) 22 Cal.App.5th 1198, 1210.) But, as the

Lingle Court described, the "substantially advances" formula neither elucidates the

magnitude or character of the burden that the government regulation imposes upon

private property rights nor provides information about how the regulatory burden is

distributed among property owners. (Lingle, supra, 544 U.S. at p. 542.)

36 Finally, no published California Supreme Court or Court of Appeal decision of

which we are aware has applied the "substantially advances" formula to regulatory

takings claims—whether based on the United States or California Constitution—since the

United States Supreme Court issued Lingle thirteen years ago. On the contrary, it appears

that California courts have implicitly assumed that the Penn Central formula—not the

"substantially advances" test—applies to ad hoc regulatory takings claims under both the

state and federal takings clauses. (Los Altos El Granada Investors v. City of Capitola

(2006) 139 Cal.App.4th 629, 651 [overturning trial court's ruling that plaintiff's state and

federal takings claims were meritless because the trial court applied the "substantially

advances" test, which is a "due process test"]; see Besaro Mobile Home Park, LLC v. City

of Fremont (2012) 204 Cal.App.4th 345, 359 [applying Penn Central test to takings cause

of action arising under California Constitution]; Garcia v. Four Points Sheraton LAX

(2010) 188 Cal.App.4th 364, 389-390 [same]; Small Property Owners of San Francisco

v. City & County of S.F. (2006) 141 Cal.App.4th 1388, 1402-1409 [same].)

Accordingly, and based on our Supreme Court's instruction that we are to interpret

the California Constitution's takings clause congruently with the federal takings clause,

we make explicit the conclusion that past decisions have impliedly reached and hold that

the Penn Central test—not the "substantially advances" formula—applies to regulatory

takings causes of action arising under the California Constitution.

b. Application

In the following section, we apply the Penn Central standard to the facts of the

present appeal. As noted, the Penn Central test requires us to examine three factors to

37 determine whether a regulatory taking has occurred: (1) the economic impact of the

regulation on the claimant; (2) the extent to which the regulation has interfered with the

claimant's reasonable, distinct investment-backed expectations; and (3) the character of

the government action. (Penn Central, supra, 438 U.S. at p. 124.)

For the first factor, "we ask whether the regulation 'unreasonably impair[s] the

value or use of [the] property' in view of the owners' general use of their property."

(Allegretti, supra, 138 Cal.App.4th at p. 1278.) In this case, the evidence suggests that

the City Council's decision had an adverse economic impact on the Bottinis. For

example, the evidence shows that the Bottinis have had to pay a mortgage for both their

existing home and an empty lot—at an additional cost of several thousand dollars per

month—as a result of the construction delay caused by the City Council's erroneous

resolution granting the CEQA appeals. Further, it is doubtful that the Bottinis could have

made an alternative use of the property during the period in which they sought to

overturn the City Council's decision, given that the lot is zoned exclusively for residential

purposes. Thus, the economic impact factor weighs in favor of the Bottinis.

However, the second factor—the extent to which the City Council's decision

interferes with a reasonable investment-backed expectation—weighs strongly against the

Bottinis. "A 'reasonable investment-backed expectation' must be more than a 'unilateral

expectation or an abstract need.' " (Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986,

1005 (Ruckelshaus); see also Allegretti, supra, 138 Cal.App.4th at p. 1279.) Instead, it

"must be objectively reasonable." (Colony Cove Props., LLC v. City of Carson (9th Cir.

2018) 888 F.3d 445, 452.) Additionally, "a reasonable expectation may [depend on]

38 whether the landowner had constructive knowledge of the regulation when choosing to

[acquire] the property." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 273

(Shaw).)

The only evidence relevant to the second factor that the Bottinis have submitted is

a three-page declaration from Francis Bottini, which states in pertinent part as follows:

"When we purchased the home, the [Prior Owner] represented in the listing that the

existing residence could either be renovated or demolished and replaced . . . . We relied

on this representation in purchasing the property for $1.22 million because the existing

residence appeared abandoned and not in good repair." This does not establish that the

Bottinis had a distinct investment-backed expectation.

As an initial matter, Mr. Bottini's declaration does not state that, at the time the

Bottinis purchased the property at issue, they intended to demolish the Windemere and

construct a residence on the lot. Thus, the Bottinis' expectations are not distinct and

concrete, but are instead vague and abstract. (Allegretti, supra, 138 Cal.App.4th at p.

1279 & id. fn. 9 ["[Plaintiff's] testimony was only that he had purchased the farm having

been given 'lots of reassurances that it could be a viable farming operation' (italics added)

and that his investment had not yet reached expectation . . . . [Plaintiff's] expectation is

too general to meet the requisite Penn Central factor."]; Shaw, supra, 170 Cal.App.4th at

p. 274 [affirming determination that there was no regulatory taking of property, where the

property owners' "abstract and vague expectations [were] not the slightest bit 'distinct' so

as to qualify as a ' "distinct investment backed expectation[]" ' that would favor the

finding of a taking."].)

39 Even if the Bottinis had articulated that they had a distinct expectation to demolish

the Windemere and build a residence at the time they purchased the property, there is no

basis for us to conclude that the Bottinis had a reasonable expectation that they would be

permitted to engage in such conduct without undertaking any form of environmental

review. Indeed, Mr. Bottinis' declaration claims merely that the Prior Owner stated that

the Windemere could "be renovated or demolished and replaced"—a representation that

says nothing about whether environmental review would or would not be necessary.

Further, setting aside any representations that the Prior Owner may have made to

the Bottinis, there is no evidence that the City informed the Bottinis before they

purchased the property that they could demolish the Windemere and construct a residence

without undergoing environmental review. This case thus stands in contrast to Lockaway

Storage v. County of Alameda (2013) 216 Cal.App.4th 161 (Lockaway), on which the

Bottinis rely. In that case, the County of Alameda informed a storage facility operator

that it could build and operate a self-storage facility on a property that the operator had

not yet acquired. (Id. at p. 168.) The operator then purchased the property and, after

several years, the County reversed its stance. (Id. at p. 186.) On these facts, the court

found that the operator had a reasonable investment-backed expectation. (Id. at pp. 185-

186.) In this case, by contrast, there is no evidence suggesting that the Bottinis purchased

the property in reliance on any representation made by the City.

In fact, at the time the Bottinis purchased the property, the Prior Owner's

nomination for the Windemere's designation as a historical resource was still pending

before the Board. Thus, when the Bottinis purchased the property, it was still possible

40 that the Board would grant historical designation to the Windemere—and indeed, it

nearly did. If that had happened, the Bottinis very likely would not have been able to

demolish the Windemere and construct a new residence without satisfying the Municipal

Code nuisance abatement procedures applicable to structures that have been designated

as historical resources (Mun. Code, § 121.0419) and/or undergoing a full CEQA review

(§§ 21060.5, 21084, subd. (e), 21084.1; Guidelines, § 15300.2, subd. (f)). In addition,

Mr. Bottini himself testified during one of the City Council hearings that he "knew when

[they] bought [the] house . . . it would be well over a year before [they would] be able to

do anything to that house" because of the historical review nomination that was pending

at the time. For all of these reasons, we conclude that the Bottinis lacked a reasonable

and distinct investment-backed expectation.

Finally, the third Penn Central factor requires us to examine the "character" of the

City's action. (Penn Central, supra, 48 U.S. at p. 124.) The Lingle Court explained that

whether the government's conduct "amounts to a physical invasion or instead merely

affects property interests through 'some public program adjusting the benefits and

burdens of economic life to promote the common good'—may be relevant in discerning

whether a taking has occurred." (Lingle, supra, 544 U.S. at p. 539.) In this case, the City

did not physically invade or appropriate the Bottinis' property. Accordingly, this factor

does not support a taking. (Shaw, supra, 170 Cal.App.4th at p. 274 [holding that there

was no regulatory taking, in part, because the government did not physically invade the

property at issue]; Allegretti, supra, 138 Cal.App.4th at p. 1278 [same]; Rancho De

Calistoga v. City of Calistoga (9th Cir. 2015) 800 F.3d 1083, 1091 [same].)

41 "We may dispose of a takings claim on the basis of one or two of [the Penn

Central] factors." (Allegretti, supra, 138 Cal.App.4th at p. 1277.) For the foregoing

reasons—in particular, the lack of a distinct investment-backed expectation—we

conclude that the trial court did not err in granting summary judgment for the City on the

Bottinis' inverse condemnation cause of action. (Ruckelshaus, supra, 467 U.S. at p. 1005

[disposing of takings claim relating to trade secrets solely on absence of reasonable

investment-backed expectations].)

3. Due process

Under the California Constitution, a person may not be deprived of life, liberty, or

property without due process of law. (Cal. Const., art. I, § 7, subd. (a).) "The concept of

'due process of law' guarantees both procedural and substantive rights." (Rental Housing

Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200

Cal.App.4th 81, 93 (Hayward).) Although the Bottinis' complaint does not state whether

they have asserted a procedural or substantive due process cause of action against the

City, or both, their summary judgment briefing and appellate briefs focus on substantive

due process concerns. Further, the Bottinis have not alleged or argued that the City

denied them notice and an opportunity to be heard before depriving them of a protected

42 liberty or property interest—the foundational requirements of procedural due process.11

(Alviso v. Sonoma County Sheriff's Dept. (2010) 186 Cal.App.4th 198, 209.) We

therefore construe the Bottinis' cause of action as one sounding in substantive due

process.

"Substantive due process protects against 'arbitrary legislative action, even though

the person whom it is sought to deprive of his right to life, liberty or property is afforded

the fairest of procedural safeguards.' [Citation.] To satisfy substantive due process

concerns, 'the law must not be unreasonable, arbitrary or capricious but must have a real

and substantial relation to the object sought to be attained. [Citations.]' " (Hayward,

supra, 200 Cal.App.4th at p. 93.) " '[R]ejections of development projects and refusals to

issue building permits do not ordinarily implicate substantive due process. [Citations.]

Even where state officials have allegedly violated state law or administrative procedures,

such violations do not ordinarily rise to the level of a constitutional deprivation.' "

(Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687,

709.) Rather, "[a] substantive due process violation requires some form of outrageous or

egregious conduct constituting a 'true abuse of power.' " (Las Lomas Land Co., LLC v.

City of Los Angeles (2009) 177 Cal.App.4th 837, 856 (Las Lomas).)

11 The Bottinis briefly argue that one of the City Council members who voted to grant the CEQA appeals formerly served as an officer of LJHS and therefore, had "biased views" that detract from the "legitimacy" of the City Council's votes. However, the Bottinis relegated this undeveloped argument to a footnote. We therefore decline to consider it. (California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 796, fn. 9.)

43 The Bottinis contend that a reasonable jury could conclude that the City Council's

decision to grant the CEQA appeals and remand the Bottinis' CDP application to City

staff for further environmental review was unreasonable, arbitrary, and capricious. The

Bottinis further argue that a reasonable jury could find that the City Council acted as it

did in order to punish the Bottinis for demolishing the Windemere.

We have no need to analyze whether a reasonable jury could reach these

conclusions because, as the City correctly argues, the Bottinis have not identified any

property interest or statutorily conferred benefit with which the City has interfered.

(Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) 214 Cal.App.4th 1534,

1562-1563 [affirming order dismissing due process claim brought under California

Constitution because marijuana cooperative had no property right to operate dispensary];

Chan v. Judicial Council of California (2011) 199 Cal.App.4th 194, 201 [affirming order

dismissing due process claim brought under California Constitution because plaintiffs

had no property interest in remaining certified interpreters]; cf. Schultz v. Regents of

University of California (1984) 160 Cal.App.3d 768, 783 ["If a [plaintiff] cannot show a

statutory interest subject to deprivation, we believe the [plaintiff] must still identify a

property interest in order to invoke due process rights under the state Constitution."].)

The Bottinis raised this argument both in the trial court and on appeal; however,

the Bottinis have not attempted to identify any interest or benefit of which the City has

deprived them. Instead, relying on Galland v. City of Clovis (2001) 24 Cal.4th 1003

(Galland), the Bottinis suggest that they need not identify any right or statutorily

44 conferred interest to prove a due process violation, as long as they can show that the City

engaged in a "deliberate flouting of the law." (Id. at p. 1035.) The Bottinis are mistaken.

Under Galland, a government entity may be found liable for a due process

violation for conduct that deliberately flouts the law, but such conduct still must "obstruct

the [plaintiff's] constitutionally based property rights." (Galland, supra, 24 Cal.4th at p.

1040, italics added; id. at p. 1033 [the "deliberate flouting" test is the "appropriate

substantive due process standard for determining when an administrative body charged

with implementing a law acts erroneously in such a way as to injure an individual's

economic and property interests."], italics added; id. at p. 1034 ["[A] deliberate flouting

of the law that trammels significant personal or property rights" qualifies as a due

process violation], italics altered; id. at p. 1040 ["[A]dministrative expenses can be

charged directly to [the government] . . . only when the city imposes them in deliberate

contravention of the law to obstruct the [plaintiffs'] constitutionally based property

rights . . . ."], italics added.) Thus, the Bottinis can prevail only if they show that the

City's allegedly deliberate flouting of the law interfered with a property right or

statutorily conferred interest. They have identified no such right or interest.

Nor is it apparent that the Bottinis could identify such a right or interest. The

Bottinis have no right or statutorily conferred interest that entitles them to bypass CEQA

review. (Las Lomas, supra, 177 Cal.App.4th at pp. 848-852 [project applicant had no

due process right to force lead agency to complete and consider EIR under CEQA];

Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 308 ["The procedural rights created by

CEQA . . . do not operate as constitutional safeguards nor create fundamental, substantive

45 rights."].) Indeed, even if a lead agency declares a project categorically exempt under

CEQA (for example, under a Class 3 categorical exemption), the agency has discretion to

apply an exception that overrides the categorical exemption. Nor do the Bottinis have a

property right or statutorily conferred interest in a discretionary CDP that has not yet

been issued. (Reddell v. California Coastal Com. (2009) 180 Cal.App.4th 956, 970-971

["The Coastal Act sets only minimum standards and policies and creates no mandatory

duty to issue development permits."].)

On these facts, we conclude that the trial court properly granted the City's motion

for summary judgment on the Bottinis' substantive due process cause of action.12

4. Equal Protection

The California Constitution, like its federal counterpart, guarantees the right to

equal protection of the laws. (Cal. Const., art. I, § 7, subd. (a).) "Equal protection of the

laws means that similarly situated persons shall be treated similarly unless there is a

sufficiently good reason to treat them differently." (People v. Castel (2017) 12

Cal.App.5th 1321, 1326.)

12 We note that the Bottinis' prayer for relief requests only monetary damages for the due process cause of action, coupled with a general request for attorney fees and costs. However, "[i]t is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution." (Javor v. Taggart (2002) 98 Cal.App.4th 795, 807 (Javor).) Because we resolve this appeal based on the Bottinis' lack of a property interest or statutorily conferred benefit, we need not and do not address whether the Bottinis' inability to recover damages constitutes an independent basis on which to affirm the summary judgment order.

46 The Bottinis alleged a "class of one" violation, claiming that the City treated them

differently from every other person seeking to build a single-family home insofar as the

City required a full environmental review of a CEQA-exempt residential construction

project. "To succeed on a class of one claim, a plaintiff must establish that '(1) the

plaintiff was treated differently from other similarly situated persons, (2) the difference in

treatment was intentional, and (3) there was no rational basis for the difference in

treatment.' " (Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3

Cal.5th 1118, 1144.) The third element is essentially the same rational basis test that

courts typically apply in equal protection cases involving economic regulations. (Las

Lomas, supra, 177 Cal.App.4th at p. 858.) For purposes of this decision, we presume that

the first two elements are satisfied and focus our attention on the third element.

Where the defendant is "the party moving for summary judgment[,] it has the

burden of negating a necessary element of the plaintiff's case or establishing an

affirmative defense. [Citation.] In the area of economic regulation, a legislative

classification does not deny equal protection if the 'distinctions drawn by a challenged

[act] bear some rational relationship to a conceivable legitimate state purpose.'

[Citation.] Thus, in a case where the state moves for summary judgment, the state meets

its burden by demonstrating some conceivably rational basis for its classification. 'A

distinction . . . is not arbitrary if any set of facts reasonably can be conceived that would

sustain it.' [Citation.] The state need not prove such facts exist; the existence of facts

supporting the . . . [classification] is presumed. [Citations.] Once the state posits a

rational basis for its classification, the burden shifts to the plaintiff to demonstrate the

47 classification bears no rational relationship to any conceivable legitimate state interest as

a matter of law [citation] or to demonstrate there are triable issues of fact which, if

resolved in favor of the plaintiff, would negate any rational basis for the classification."

(Wachs v. Curry (1993) 13 Cal.App.4th 616, 622, revd. on other grounds Marathon

Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974 (Wachs).)

In its motion for summary judgment and its appellate briefing, the City articulated

just one basis for the City Council's conduct, i.e., that the City Council rationally could

have granted the CEQA appeals and required the Bottinis' project to undergo

environmental review because the City purportedly believed that "a potential statewide

historic resource had been destroyed and the loss of a 100 year old beach cottage had

evaded environmental review."

There can be no dispute that the state has a legitimate interest in protecting

California's environmental resources and ensuring that statutorily mandated

environmental reviews are conducted. (§ 21000 ["It is the intent of the Legislature that

all agencies of the state government which regulate activities of private individuals,

corporations, and public agencies which are found to affect the quality of the

environment, shall regulate such activities so that major consideration is given to

preventing environmental damage . . . ."].) The Bottinis do not contend otherwise.

However, the parties dispute whether the City's decision was rationally related to

achieving that interest. We conclude that it was. Although the Windemere no longer

existed at the time the City Council issued its decision, thereby precluding any possibility

that the Windemere could be preserved or relocated, the City could have reasonably

48 believed that an "environmental review" of the Bottinis' project would result in other

forms of mitigation. (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50

Cal.3d 370, 376, fn. 7, revd. on another point by Pub. Resources Code, § 21080.04, subd.

(b) ["full environmental review" under CEQA includes "consideration of available

measures to mitigate any environmental effects"].) In fact, before the City Council

granted the CEQA appeals and ordered a CEQA review of the project, the Bottinis

themselves proposed mitigation measures that did not involve the preservation or

relocation of the Windemere, including the creation of a plaque commemorating the

Windemere and the donation of the Windemere's architectural drawings to a historical

society.13

Because the City satisfied its burden of articulating a rational basis for its decision,

the burden shifted to the Bottinis to show that the City's decision bore no rational

relationship to a conceivable legitimate state interest as a matter of law, or to demonstrate

13 In relating the mitigation measures proposed by the Bottinis, we are not suggesting that these measures would constitute sufficient mitigation if a lead agency were to conclude that a project may cause a substantial adverse change in the significance of an historical resource. On the contrary, "preservation in place" is the preferred method of addressing environmental impacts affecting historical resources, unless the lead agency "determines that another form of mitigation is available and provides superior mitigation of the impacts." (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 87; see League for Protection of Oakland's etc. & Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 909 [proposed measures to mitigate the demolition of an historical building, including a plaque and documentation of the building's historical features, did not "begin to alleviate the impacts of [the building's] destruction"].) Rather, we simply conclude that, under the deferential rational basis test, the City Council could have reasonably concluded that mitigation measures other than preservation or relocation of the Windemere would be sufficient here, where preservation and relocation were no longer viable options.

49 that there were triable issues of fact which, if resolved in favor of the Bottinis, would

negate any rational basis for the classification. (Wachs, supra, Cal.App.4th at p. 622.)

The Bottinis argue that they satisfied that burden for two reasons.

First, the Bottinis contend that a triable issue of fact exists because the City

patently misapplied CEQA, namely, by requiring an environmental assessment of a

CEQA-exempt project. As discussed ante, we agree that the City misconstrued CEQA

and, on that basis, we have affirmed the trial court's order granting their petition for a

peremptory writ of mandamus. However, we disagree that the City Council's mere

misinterpretation of CEQA establishes a triable issue of fact as to whether the City

Council violated the Bottinis' equal protection rights. The City Council articulated a

rational basis for its decision, even though we have concluded that the expressed basis is

erroneous. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1186 ["Plainly,

the [c]ouncil erred in considering and deciding issues raised for the first time after the

public hearing was over. Further, it may have misconstrued or misapplied the provisions

of the zoning ordinance concerning lot coverage and usable open space. Nonetheless, the

[c]ouncil's ultimate decision to deny the permits did not lack a rational basis."]; Shaw,

supra, 170 Cal.App.4th at p. 278 ["[T]he [c]ounty's legal position, though later found to

be erroneous, was nevertheless plausible" and therefore constitutional.].)

Second, the Bottinis argue that a reasonable jury could conclude that the City

Council required an environmental assessment in order to punish the Bottinis for

demolishing the Windemere. However, in making this argument, the Bottinis rely

entirely on inference and have produced no evidence that the City Council ordered an

50 environmental review in order to punish them. The Bottinis contend that an intent to

punish can be inferred from one City Council member's statement that an environmental

assessment was needed to "do the right thing." We disagree. A City Council member's

request that the City Council "do the right thing" in no way implies that the City Council

member, let alone the entire City Council, sought to punish the Bottinis.

For all of these reasons, we conclude that the trial court did not err in granting

summary judgment for the City on the Bottinis' equal protection cause of action.14

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.

14 As with their due process cause of action, the Bottinis seek only monetary damages, which cannot be recovered for alleged violations of the equal protection clause of the California Constitution. (Javor, supra, 98 Cal.App.4th at p. 807.) Our conclusion that the City had a rational basis for its decision obviates the need for us to determine whether the summary judgment ruling should be affirmed on this basis.