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1 ANDREW L. JARED, State Bar No. 216935 Exempt from Filing Fees
AJared@chwlaw.us
Government Code § 6103
2 JON R. di CRISTINA, State Bar No. 282278
JdiCristina@chwlaw.us
3 COLANTUONO, HIGHSMITH & WHATLEY, PC
420 Sierra College Drive, Suite 140
4 Grass Valley, California 95945-5091
Telephone: (530) 432-7357 11/16/2020
5 Facsimile: (530) 432-7356
6 Attorneys for Respondent and Cross-Defendant
City of Chico
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF BUTTE
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AARON BOWEN, an Individual; and CASE NO. 19CV01362
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HILDA BOWEN, an Individual, Unlimited Jurisdiction
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Petitioners and Plaintiffs, RESPONDENT CITY OF CHICO’S
13 SUPPLEMENTAL OPPOSITION TO
&
v. PETITION FOR WRIT OF MANDATE
Highsmith
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CITY OF CHICO, a municipal corporation; Complaint Filed: May 3, 2019
15 JACK DANIELSON, an individual; HEIDI
DANIELSON, an individual; CANYON OAKS Hearing Date: December 16, 2020
Colantuono,
16 PROPERTY OWNERS ASSOCIATION, INC., a Time: 9:00 a.m.
California nonprofit mutual benefit corporation; Department: 1
17 and DOES 1 to 20, inclusive
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Respondents and Defendants.
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1 TABLE OF CONTENTS
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I. INTRODUCTION ...............................................................................................................6
3
II. ARGUMENT .......................................................................................................................6
4
A. Material Facts Are Undisputed ................................................................................6
5
B. The Bowens Leave Legal Issues in the City’s Opposition Undisputed ...................7
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C. Every Project in the FD Zone Does Not Require a FD Permit ................................8
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D. The Lack of a FD Permit Did Not Prejudice the Bowens......................................10
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E. The Patio Wall Is Not Too High ............................................................................. 11
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1. Section 19.52.100(F)(1) is a ceiling on structures in the FD Zone ............ 11
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2. Section 19.60.060(A)(1)(d) applies ...........................................................13
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F. The Concrete Curb Between the Patio Wall and the Bowen Wall
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12 Violates No Law ....................................................................................................16
13 G. Any Writ Should Be Very Limited in Scope ..........................................................17
Highsmith &
14 III. CONCLUSION ..................................................................................................................18
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Colantuono,
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1 TABLE OF AUTHORITIES
2 Page(s)
3 State Cases
4
Alejo v. Torlakson
5 (2013) 212 Cal.App.4th 768 ..............................................................................................15, 17
6 Boorstein v. CBS Interactive, Inc.
(2013) 222 Cal.App.4th 456 ...............................................................................................8, 16
7
California Public Records Research, Inc. v. County of Alameda
8 (2019) 37 Cal.App.5th 800 .....................................................................................................15
9 California Trout v. State Water Resources Control Bd.
10
(1989) 207 Cal.App.3d 585 .....................................................................................................10
Central Valley Gas Storage, LLC v. Southam
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(2017) 11 Cal.App.5th 686 ...........................................................................................7, 11, 16
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City of Fontana v. California Dept. of Tax & Fee Administration
13 (2017) 17 Cal.App.5th 899 ........................................................................................................9
Highsmith &
14 City of Watsonville v. State Dept. of Health Services
(2005) 133 Cal.App.4th 875 ....................................................................................................17
15
Colantuono,
16 In re Corrine W.
(2009) 45 Cal.4th 522 ..............................................................................................................12
17
County of Sacramento v. Pacific Gas & Electric Co.
18 (1987) 193 Cal.App.3d 300 .......................................................................................................8
19 Dean v. Superior Court (Lever)
(1998) 62 Cal.App.4th 638 ........................................................................................................9
20
DeCastro West Chodorow & Burns, Inc. v. Superior Court
21
(1996) 47 Cal.App.4th 410 ......................................................................................................12
22
Handlery v. Franchise Tax Bd.
23 (1972) 26 Cal.App.3d 970 .......................................................................................................10
24 Harrington v. City of Davis
(2017) 16 Cal.App.5th 420 ......................................................................................................15
25
Hassell v. Bird
26
(2018) 5 Cal.5th 522 ................................................................................................................13
27
Jones v. Aetna Casualty & Surety Co.
28 (1994) 26 Cal.App.4th 1717 ......................................................................................................8
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1 Jordan v. City of Sacramento
(2007) 148 Cal.App.4th 1487 ..................................................................................................13
2
Lopez v. Sony Electronics, Inc.
3
(2018) 5 Cal.5th 627 ................................................................................................................16
4
Martinez v. Socoma Companies, Inc.
5 (1974) 11 Cal.3d 394 .................................................................................................................8
6 People v. Fontenot
(2019) 8 Cal.5th 57 ....................................................................................................................9
7
People v. Mendoza
8 (2000) 23 Cal.4th 896 ..............................................................................................................12
9
People v. Young
10 (2007) 156 Cal.App.4th 1165 ..................................................................................................10
Sass v. Cohen
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(2019) 32 Cal.App.5th 1032 ....................................................................................................11
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12
Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co.
13 (2005) 130 Cal.App.4th 890 ....................................................................................................16
Highsmith &
14
State Board of Education v. Honig
15 (1993) 13 Cal.App.4th 720 ......................................................................................................10
Colantuono,
16 T.O. IX, LLC v. Superior Court
(2008) 165 Cal.App.4th 140 ......................................................................................................6
17
Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc.
18 (1990) 221 Cal.App.3d 617 .....................................................................................................11
19
20
California Statutes
21
Code Civ. Proc., § 19.52.100(F)(1) .............................................................................11, 12, 13, 16
22
Code Civ. Proc., § 1094.5 ..............................................................................................................18
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Evid. Code, §§ 702, 800...................................................................................................................7
24
25
Chico Municipal Code
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Sections 19.27.010 ...........................................................................................................................9
27
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Section 19.52.100.............................................................................................................................7
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1 Section 19.52.100(D) .......................................................................................................................9
2 Section 19.52.100(F)(1) ...........................................................................................................13, 16
3 Section 19.60.060(A)(1)(d) .................................................................................................... passim
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Highsmith &
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Colantuono,
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1 I. INTRODUCTION
2 Respondent City of Chico (“City”) submits this supplemental brief in accord with the Court’s
3 Order of October 23, 2020.1
4 The Bowens’ Reply Brief (Oct. 30, 2020) (“Reply”) cannot persuade. It fails to grapple with
5 the impact of undisputed facts and legal issues. It asks the Court to read the City’s FD Permit
6 requirement in a way no one claims the City ever intended. And it incredibly claims the City may not
7 apply the law for walls between parcels with a grade differential, even though it is undisputed the
8 Bowens themselves created such a differential between their parcel and the Danielson parcel. For
9 these reasons and more, the Court should deny the instant writ petition.
10 II. ARGUMENT
A. Material Facts Are Undisputed
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12 The Bowens affirmatively or tacitly concede a few facts noted in the City’s Opposition brief
13 (Oct. 14, 2020) (“Opp.”). First, the City has never required a FD Permit for projects like the
Highsmith &
14 Danielson Project, the Bowen project in 2015, or similar projects. (Opp., p. 7.) Indeed, the City
15 recently amended its Code to clarify the point, not to change it. (See Reply, pp. 6–8; Decl. of Glen
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16 Hansen (Sep. 14, 2020) (“Hansen Decl.”), Exh. 17 at p. 1 [it “was not the City’s intent” to require a
17 FD Permit “for every project in the FD overlay zone, no matter how small”].) The Bowens wish to
18 ignore this clear legislative intent, and the undisputedly consistent application of that intent over the
19 entire life of the FD Permit requirement, but the Court cannot — even if it concludes the face of the
20 City’s ordinance might lead to a different result. (T.O. IX, LLC v. Superior Court (2008) 165
21 Cal.App.4th 140, 146 [“[O]nce a particular legislative intent has been ascertained, it must be given
22 effect even though it may not be consistent with the strict letter of the statute”].)
23 Second, the Patio Wall is only six feet high as measured from the Patio Floor, which is lower
24 than every point on the Bowen parcel, and thus the Patio Wall is shorter than six feet as viewed from
25 the Bowen parcel. (Opp., p. 8.) It is therefore undisputed the Bowens enjoy less view obstruction
26 than the Chico Municipal Code (“Code” or “CMC”) generally permits. (1 AR 6 [CMC,
27
28 1
As used in this brief, the following terms have the same meaning they had in the City’s Opposition
brief, filed October 14, 2020: the Bowens, Bowen Wall, the Danielsons, Danielson Project, FD
Permit, FD Standards, FD Zone, Patio Floor, Patio Wall.
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1 § 19.60.060(A)(1)(a): rear- and side-yard walls may be six feet high between parcels at same
2 elevation].)2 Accordingly, this lawsuit asks the Court to find that Code provisions applicable to the
3 FD Zone (especially Section 19.52.100)3 and to walls between parcels with a grade differential
4 (Section 19.60.060(A)(1)(d)) entitle the Bowens to an even better view, and take away even more
5 privacy from the Danielsons. That is not what the Code seeks to do; it seeks to balance neighbors’
6 respective view and privacy rights rather than favor the former over the latter.
7 Third, there is no evidence the concrete curb between the Patio Wall and the Bowen Wall
8 changes drainage patterns in a way that harms the Bowen Wall at all, much less in a way that creates
9 a violation of law. (Opp., p. 18.) The Bowens continue to cite only their own bald assertions on this
10 point. (Reply, p. 9 [citing Complaint, ¶¶ 50, 75].) The Court should therefore reject this claim as
based on speculation and as unsupported by citation to authority. (Evid. Code, §§ 702, 800; Central
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12 Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 694 (Central Valley).)
13 Fourth, there is no evidence PG&E serves the Bowen parcel using the utility easement on
Highsmith &
14 the Danielson parcel. (Opp., p. 19.) The Bowens claim this easement was “designed to benefit both
15 parcels,” but they again cite only their own previous assertion of the point. (Reply, p. 14, citing 4 AR
Colantuono,
16 966 [letter from Bowens to City].) Even if a utility easement were designed to benefit the Bowens,
17 that would be insufficient to give them standing to enforce it as explained below, but for now the
18 important point is the Bowens do not (and cannot) establish any connection between their parcel and
19 the utility easement across the Danielson parcel.
20 B. The Bowens Leave Legal Issues in the City’s Opposition Undisputed
21 The Bowens also appear to concede three legal issues the City discussed, as their Reply
22 offers no argument or authority to counter the City’s positions. First, there is no authority for the
23 claim that the Swimming Pool Safety Act somehow governs the Danielson Project. (Opp., pp. 16–
24 17.) Even if the dirt and concrete curb the City permitted between the Patio Wall and the Bowen
25 Wall create a “stepping stone” that lowers the Bowen Wall’s effective height, this offends no law.
26 Second, the Patio Wall does not violate Code provisions concerning retaining walls. (Opp.,
27
28 2
References to the Administrative Record are in the form “[volume] AR [Bates page(s)].”
3
References to unspecified “sections” are to the Chico Municipal Code.
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1 pp. 17–18.) The Patio Wall serves primarily as a privacy wall, but it also serves as a small retaining
2 wall to the extent it holds dirt back from the Danielson parcel — and thus any “exposed” side of the
3 retaining wall faces into the Danielson parcel.
4 Third, the Bowens lack standing to enforce PG&E’s easement on the Danielson parcel.
5 (Opp., p. 19.) They weakly contend that, “even though the Bowens are not the holder of the PG&E
6 easement, they certainly are the intended beneficiaries of such easement because the utilities were
7 designed to benefit both parcels.” (Reply, p. 14.) As noted above, however, the only evidence they
8 cite to support this claim is their own previous assertion that the dirt and concrete curb the
9 Danielsons installed block “our easement access.” (4 AR 966.) In short, they admit they have no
10 ownership interest in the easement on the Danielson parcel, and they cite no evidence connecting
that easement to utility service on the Bowen parcel.
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12 More importantly, even if arguendo the Bowens receive some benefit from the easement
13 across the Danielson parcel, they cite no authority giving them standing to enforce that easement.
Highsmith &
14 Indeed, the authorities the City cited in its Opposition, and which the Bowens make no effort to
15 distinguish, dictate the opposite. (Opp., p. 19.) Public utility easements do not “extend rights”
Colantuono,
16 beyond the utilities receiving them. (County of Sacramento v. Pacific Gas & Electric Co. (1987) 193
17 Cal.App.3d 300, 313–314.) And one does not become a third party beneficiary, entitled to enforce a
18 contract between other parties (here, between / among the City, PG&E, and the developer for Siena
19 at Canyon Oaks (4 AR 776)), just because “the contract, if carried out to its terms, would inure to the
20 third party’s benefit.” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1724–
21 1725; Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 397–398.)
22 Accordingly, the Bowens have no standing to enforce the utility easement across the
23 Danielson parcel. It would therefore be error to consider the claims the Bowens put forth regarding
24 that easement. (Reply, pp. 13–14; Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456,
25 465 [court “will not address the merits of litigation when the plaintiff lacks standing”] (Boorstein).)
26 C. Every Project in the FD Zone Does Not Require a FD Permit
27 The Bowens confirm that they believe every single project in the FD Zone requires a FD
28 Permit — or at least every project required such a permit before the City clarified its Code on this
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1 point. (Hansen Decl., Exh. 17.) Indeed, this is the foundation on which their entire argument rests:
2 The City necessarily abused its discretion when it did not require a FD Permit for the Danielson
3 Project because, the Bowens contend, the City had no such discretion to begin with. (Reply, pp. 6–
4 8.) No matter how small a project is, the Bowens would have the City require formal reports about
5 its impact on soil, geology, hydrology, and biological resources, as well as a “three-dimensional
6 computer simulation of the proposed structures from multiple view points.” (Hansen Decl., Exh. 18
7 [application form for FD Permit].)
8 Aside from being absurdly broad, and fashioning a procrustean bureaucratic hoop the City
9 undisputedly never intended to create, this reading of the City’s Code misapplies canons of statutory
10 interpretation. As the City has briefed, its Code applies FD Standards to “all projects” in the FD
Zone, but it identifies certain categories of projects that also require a FD Permit (“all construction,
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12 reconstruction, or expansion of existing structures and all development projects”). (Opp., p. 10
13 [discussing CMC, § 19.52.100(D) & (F)].) The unavoidable implication is that some projects do not
Highsmith &
14 require a FD Permit. (See Dean v. Superior Court (Lever) (1998) 62 Cal.App.4th 638, 641–642
15 [explaining expressio unius est exclusio alterius].)
Colantuono,
16 The Bowens counter that the Code also broadly defines “development” and “projects,” and
17 note Sections 19.27.010 and 19.52.100(D) require a FD Permit for “development” and “development
18 projects.” They therefore contend every project in the FD Zone is effectively “development” or a
19 “development project” that requires a FD Permit. (Reply, p. 6.) However, this renders most of
20 Section 19.52.100(D) surplusage, something the Court must avoid. (People v. Fontenot (2019) 8
21 Cal.5th 57, 73.) If “development” and “development projects” encompass everything that might
22 happen in the FD Zone, what is left to be covered by the separately identified categories of
23 “construction, reconstruction, or expansion of existing structures”? (1 AR 2.) If we are to give these
24 categories meaning, as we must, the only reasonable conclusion is that the City’s Code contemplates
25 discrete kinds of projects that require a FD Permit — and thus other projects do not require one.
26 Most broadly but most importantly, this means the Code leaves room for City staff to
27 exercise discretion on whether a project is within or without the categories identified in Section
28 19.52.100(D). (See City of Fontana v. California Dept. of Tax & Fee Administration (2017) 17
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1 Cal.App.5th 899, 925 [“where, as here, ‘a statute leaves room for discretion, a challenger must show
2 the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal
3 standards’”].) In turn, the Bowens’ authorities on this point are inapt because they say only that an
4 official may not exercise discretion she does not possess; tautologically, this rule does not apply
5 where, as here, an official does have discretion. (See State Board of Education v. Honig (1993) 13
6 Cal.App.4th 720, 764–765; California Trout v. State Water Resources Control Bd. (1989) 207
7 Cal.App.3d 585, 607; Handlery v. Franchise Tax Bd. (1972) 26 Cal.App.3d 970, 981.)
8 Because the City has discretion here, it is dispositive that the Bowens cite no authority
9 showing it was an abuse of that discretion not to require a FD Permit for the Danielson Project —
10 just as it has never required a FD Permit for similar projects. On the contrary, treating the Danielson
Project like every similar project that came before it is a quintessentially reasonable exercise of
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12 discretion. (See, e.g., People v. Young (2007) 156 Cal.App.4th 1165, 1172 [“no impropriety in the
13 court’s exercise of its discretion” where “procedure was neutral”].)
Highsmith &
14 Accordingly, it was no violation of law to approve the Danielson Project without requiring a
15 FD Permit.
Colantuono,
16 D. The Lack of a FD Permit Did Not Prejudice the Bowens
17 The Bowens argue it “makes sense” to require a FD Permit for the Danielson Project. (Reply,
18 pp. 8–9.) The crux of this argument is that the lack of a FD Permit allegedly prejudiced the Bowens
19 because, they contend, it would have revealed a number of issues they claim are problematic.
20 However, the Bowens do not dispute the City’s position that, if their allegations of problems with the
21 Danielson Project are unfounded, there could be no prejudice from the lack of a FD Permit. (Opp.,
22 p. 11.) Indeed, every issue they raise is unfounded, so there was no prejudice to them even if the
23 Court agrees a FD Permit was required here.
24 First, the Bowens repeat their central claim that the Patio Wall is too high. (Reply, pp. 8–9
25 [¶¶ (a), (b)].) The City addresses that point below.
26 Second, they claim the City inappropriately approved a row of cypress trees on the
27 Danielson parcel. (Id., p. 9 [¶¶ (c), (e)].) To the extent they claim this violated PG&E’s easement,
28 they have no to standing to assert such a claim for the reasons discussed above. And beyond that
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1 easement, the Bowens cite no law the City allegedly violated regarding these trees. (Central Valley,
2 supra, 11 Cal.App.5th at p. 694 [claim forfeited for lack of citation to authority].)
3 More fundamentally, this is the first time the Bowens have alleged these trees implicate any
4 wrongdoing on the City’s part. In the sections they cite in their operative pleading, they only assert
5 this claim against Defendants Jack and Heidi Danielson and Canyon Oaks Property Owners
6 Association. (Reply, p. 9; First Amended Pet. (Jan. 10, 2020) at ¶¶ 52 &113 [discussing trees but not
7 City], 75–91 [discussing City but not trees]. See Sass v. Cohen (2019) 32 Cal.App.5th 1032, 1044
8 [“It is also well settled that a court must evaluate the relief pled against each defendant separately;
9 that is because a complaint must specify against which defendant or defendants each claim is
10 directed”].) At this time, the City takes no position on an issue that only involves the other parties to
this lawsuit. For now it suffices to note the Bowens cannot raise a new claim against the City in their
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12 reply brief. (Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc.
13 (1990) 221 Cal.App.3d 617, 627.)
Highsmith &
14 Third, the Bowens claim the City should have considered “hydrology” issues like the water
15 drainage problem they allege. (Reply, p. 9 [¶ (d)].) As noted above, however, there is no evidence of
Colantuono,
16 such a drainage problem. The Bowens thus demand the City investigate something that, by all
17 indications, does not exist.
18 Fourth, they claim the concrete curb near the Bowen Wall is a “stepping stone” that reduces
19 the wall’s effectiveness as a pool barrier. (Ibid. [¶ (e)].) Again as noted above, however, they cite no
20 authority showing that such a “stepping stone” is unlawful.
21 In sum, because the Bowens’ claims against the City are all unfounded, there could be no
22 prejudice to the Bowens from the lack of a FD Permit.
23 E. The Patio Wall Is Not Too High
24 The Bowens’ main argument remains that the Patio Wall is allegedly too high — that they are
25 entitled to a better view, and their neighbors are entitled to less privacy, than the City’s Code
26 generally permits. They are wrong.
27 1. Section 19.52.100(F)(1) is a ceiling on structures in the FD Zone
28 The Bowens first argue the scope of Code § 19.52.100(F)(1). (Reply, pp. 9–11.) They begin,
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1 however, with a conclusion: “the language in section 19.52.100(F)(1) does not limit the ‘natural
2 (pre-development) grade’ standard to structures that might exceed 25 feet in height.” (Id., p. 9.) This
3 is, of course, entirely dependent on how one should properly interpret Section 19.52.100(F)(1). We
4 therefore turn to that question.
5 Section 19.52.100(F)(1) provides in relevant part: “Height shall be measured as the vertical
6 distance to an imaginary plane located above the natural (pre-development) grade (See Figure 4-1).
7 The height limit in the -FD overlay zone is 25 feet, with an allowance of up to 5 additional feet for
8 chimneys, vents, other projecting architectural features, water tanks, and renewable energy devices.”
9 (1 AR 2.) This is a 2013 restatement of the following language: “The height of any structure in the
10 Foothill Area shall not exceed 25 feet at any point above the natural grade, excepting chimneys,
vents and other such architectural projections.” (1 AR 14.)
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12 The Bowens contend that, by revising Section 19.52.100(F)(1) in 2013, the City necessarily
13 changed the rule. (Reply, p. 10, citing People v. Mendoza (2000) 23 Cal.4th 896, 916.) However, not
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14 every change in statutory language carries the same meaning: “Although a substantial change in the
15 language of a statute by an amendment indicates an intention to change its meaning, a mere change
Colantuono,
16 in phraseology, incident to a revision of the statute, does not result in a change of meaning unless the
17 intent to make such a change clearly appears.” (DeCastro West Chodorow & Burns, Inc. v. Superior
18 Court (1996) 47 Cal.App.4th 410, 418.) Indeed, comparing the two selections above shows nothing
19 has changed in Section 19.52.100(F)(1) except word order and punctuation. This does not indicate an
20 intent to change the rule (much less does it “clearly” show such intent), but simply a restatement:
21 The general ceiling on structures in the FD Zone is 25 feet, as measured from the natural grade.
22 The Bowens next elevate form over substance by insisting words in a statute must be in a
23 particular order for ejusdem generis to apply. (Reply, p. 10.) But the point of this canon is that, when
24 a law lists the categories of things to which it applies, that list is meaningful and informs its scope.
25 (In re Corrine W. (2009) 45 Cal.4th 522, 531 [“when a statute contains a list or catalogue of items, a
26 court should determine the meaning of each by reference to the others, giving preference to an
27 interpretation that uniformly treats items similar in nature and scope”].) It is akin to the other
28 familiar canon that one must read a particular statutory provision in the law’s broader context.
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1 (Hassell v. Bird (2018) 5 Cal.5th 522, 540 [“we consider portions of a statute in the context of the
2 entire statute and the statutory scheme of which it is a part, giving significance to every word,
3 phrase, sentence, and part of an act in pursuance of the legislative purpose”].)
4 Here, therefore, we cannot separate Section 19.52.100(F)(1)’s requirement to measure
5 structures from the natural grade from its requirement that those structures may not exceed 25 feet in
6 height, along with a list of the kinds of structures this affects. This is not a demand to measure all
7 structures, in all contexts, from the natural grade; it is a 25-foot ceiling on structures that otherwise
8 might be taller.
9 The Bowens attempt to distract from this more limited result by claiming Section
10 19.52.100(F)(1) applies to “heights less than 25 feet.” (Reply, p. 10.) But this misleads by taking the
quoted language out of context. The full provision is: “Heights less than 25 feet may be required
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12 along ridgelines and where prominently visible from public rights-of-way, parks, and other public
13 spaces.” (1 AR 2.) This does not indicate structures like the Patio Wall must be measured from the
Highsmith &
14 natural grade; it means only that the 25-foot ceiling on structures in the FD Zone may be lowered in
15 situations that do not apply to the Danielson Project.
Colantuono,
16 Finally, the City repeats that it does not concede the Bowens’ conclusory characterizations of
17 what City staff said regarding the Patio Wall’s height while the Danielson Project was in progress.
18 (Reply, pp. 10–11.) The important point, however, is the Bowens still provide no authority on how
19 staff comments, even with the meaning the Bowens project onto them, could control here. Indeed,
20 the rule is the opposite. (See Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1495–1497
21 [discussing how estoppel applies to public agencies].) And the Bowens again mislead by claiming
22 the City “changed” its position when “this litigation was filed.” (Reply, pp. 10–11.) The first
23 opportunity to squarely address this legal issue came when the Bowens raised it in their
24 administrative challenge to the Danielson Project, and the City explained the proper application of
25 its Code at that time. (5 AR 1022.)
26 2. Section 19.60.060(A)(1)(d) applies
27 After creating a grade differential between their parcel and the Danielson parcel, the Bowens
28 seek to avoid applying the Code provision for walls between parcels with a grade differential. They
13
CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE
245313.1
1 do not persuade.
2 a. The grade differential between the Bowen and Danielson
3 parcels allows the Patio Wall to be measured from the
4 finished grade of the Bowen parcel
5 Section 19.60.060(A)(1)(d) provides in relevant part: “Where there is a difference of less
6 than 2 feet in the ground level between two adjacent parcels, the height of any fence or wall
7 constructed along the common property line shall be determined by using the finished grade of the
8 highest contiguous parcel.” (1 AR 6.) The Bowens claim this provision cannot apply because the
9 City acknowledges the average grade differential between the Bowen and Danielson parcels is two
10 feet, and the highest differential is four feet. (Reply, p. 11.) Indeed, the City does not dispute those
two facts. (Opp., p. 8.) But the Bowens also argue “there is nothing in the record” to support the
PC
11
420 SIERRA COLLEGE DRIVE, SUITE 140
W h a t l e y,
GRASS VALLEY, CA 95945-5091
12 City’s claim that the grade differential begins at 1.5 feet — while citing the very page in the record
13 where the architect of the Danielson Project testified that he measured the differential and found it to
Highsmith &
14 begin at 18 inches. (Reply, p. 11 & fn. 1, citing 5 AR 1068.)
15 In short, there is no basis to reject the City’s contention that the grade differential between the
Colantuono,
16 Bowen and Danielson parcels is 1.5 feet at its shortest point. The reasonableness of applying the first
17 sentence of Section 19.60.060(A)(1)(d) then becomes a matter of simple math: If the highest
18 differential is four feet, and the lowest is 1.5, then most of the differential is probably less than two
19 feet to bring the average down to two.4
20 More importantly, Section 19.60.060(A)(1)(d) does not state the grade differential must be
21 less than two feet on average, at every point, at the highest point, or at most points. It permits walls
22 to be measured from the finished grade of the higher parcel “[w]here there is a difference of less than
23 2 feet in the ground level between two adjacent parcels.” (1 AR 6.) And the record here shows the
24 grade differential between the Bowen and Danielson parcels begins at less than two feet. (5 AR
25 1068.) It was therefore reasonable — certainly not arbitrary and capricious — for the City to find the
26
27 4
The average, or arithmetic mean, of the grade differential would be determined by measuring it at
several points and dividing the sum of those measurements by the number of points measured.
28 (Merriam-Webster.com (definitions of “average” and “arithmetic mean” as of Nov. 16, 2020).) A
curve that steadily increases from 1.5 to 4 would therefore require most points to be below 2 to bring
the average down to 2.
14
CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE
245313.1
1 lowest grade differential its Code contemplates, and to set a baseline for the Patio Wall accordingly.
2 (California Public Records Research, Inc. v. County of Alameda (2019) 37 Cal.App.5th 800, 806
3 [standard of review in traditional mandate] (CPRR); Harrington v. City of Davis (2017) 16
4 Cal.App.5th 420, 434 [deference to city in interpreting cit
Preview
1 ANDREW L. JARED, State Bar No. 216935 Exempt from Filing Fees AJared@chwlaw.us Government Code § 6103 2 JON R. di CRISTINA, State Bar No. 282278 JdiCristina@chwlaw.us 3 COLANTUONO, HIGHSMITH & WHATLEY, PC 420 Sierra College Drive, Suite 140 4 Grass Valley, California 95945-5091 Telephone: (530) 432-7357 11/16/2020 5 Facsimile: (530) 432-7356 6 Attorneys for Respondent and Cross-Defendant City of Chico 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF BUTTE 10 AARON BOWEN, an Individual; and CASE NO. 19CV01362 PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 HILDA BOWEN, an Individual, Unlimited Jurisdiction W h a t l e y, GRASS VALLEY, CA 95945-5091 12 Petitioners and Plaintiffs, RESPONDENT CITY OF CHICO’S 13 SUPPLEMENTAL OPPOSITION TO & v. PETITION FOR WRIT OF MANDATE Highsmith 14 CITY OF CHICO, a municipal corporation; Complaint Filed: May 3, 2019 15 JACK DANIELSON, an individual; HEIDI DANIELSON, an individual; CANYON OAKS Hearing Date: December 16, 2020 Colantuono, 16 PROPERTY OWNERS ASSOCIATION, INC., a Time: 9:00 a.m. California nonprofit mutual benefit corporation; Department: 1 17 and DOES 1 to 20, inclusive 18 Respondents and Defendants. 19 20 21 22 23 24 25 26 27 28 1 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 TABLE OF CONTENTS 2 I. INTRODUCTION ...............................................................................................................6 3 II. ARGUMENT .......................................................................................................................6 4 A. Material Facts Are Undisputed ................................................................................6 5 B. The Bowens Leave Legal Issues in the City’s Opposition Undisputed ...................7 6 C. Every Project in the FD Zone Does Not Require a FD Permit ................................8 7 D. The Lack of a FD Permit Did Not Prejudice the Bowens......................................10 8 E. The Patio Wall Is Not Too High ............................................................................. 11 9 1. Section 19.52.100(F)(1) is a ceiling on structures in the FD Zone ............ 11 10 2. Section 19.60.060(A)(1)(d) applies ...........................................................13 PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 F. The Concrete Curb Between the Patio Wall and the Bowen Wall W h a t l e y, GRASS VALLEY, CA 95945-5091 12 Violates No Law ....................................................................................................16 13 G. Any Writ Should Be Very Limited in Scope ..........................................................17 Highsmith & 14 III. CONCLUSION ..................................................................................................................18 15 Colantuono, 16 17 18 19 20 21 22 23 24 25 26 27 28 2 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 TABLE OF AUTHORITIES 2 Page(s) 3 State Cases 4 Alejo v. Torlakson 5 (2013) 212 Cal.App.4th 768 ..............................................................................................15, 17 6 Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456 ...............................................................................................8, 16 7 California Public Records Research, Inc. v. County of Alameda 8 (2019) 37 Cal.App.5th 800 .....................................................................................................15 9 California Trout v. State Water Resources Control Bd. 10 (1989) 207 Cal.App.3d 585 .....................................................................................................10 Central Valley Gas Storage, LLC v. Southam PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 (2017) 11 Cal.App.5th 686 ...........................................................................................7, 11, 16 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 City of Fontana v. California Dept. of Tax & Fee Administration 13 (2017) 17 Cal.App.5th 899 ........................................................................................................9 Highsmith & 14 City of Watsonville v. State Dept. of Health Services (2005) 133 Cal.App.4th 875 ....................................................................................................17 15 Colantuono, 16 In re Corrine W. (2009) 45 Cal.4th 522 ..............................................................................................................12 17 County of Sacramento v. Pacific Gas & Electric Co. 18 (1987) 193 Cal.App.3d 300 .......................................................................................................8 19 Dean v. Superior Court (Lever) (1998) 62 Cal.App.4th 638 ........................................................................................................9 20 DeCastro West Chodorow & Burns, Inc. v. Superior Court 21 (1996) 47 Cal.App.4th 410 ......................................................................................................12 22 Handlery v. Franchise Tax Bd. 23 (1972) 26 Cal.App.3d 970 .......................................................................................................10 24 Harrington v. City of Davis (2017) 16 Cal.App.5th 420 ......................................................................................................15 25 Hassell v. Bird 26 (2018) 5 Cal.5th 522 ................................................................................................................13 27 Jones v. Aetna Casualty & Surety Co. 28 (1994) 26 Cal.App.4th 1717 ......................................................................................................8 3 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487 ..................................................................................................13 2 Lopez v. Sony Electronics, Inc. 3 (2018) 5 Cal.5th 627 ................................................................................................................16 4 Martinez v. Socoma Companies, Inc. 5 (1974) 11 Cal.3d 394 .................................................................................................................8 6 People v. Fontenot (2019) 8 Cal.5th 57 ....................................................................................................................9 7 People v. Mendoza 8 (2000) 23 Cal.4th 896 ..............................................................................................................12 9 People v. Young 10 (2007) 156 Cal.App.4th 1165 ..................................................................................................10 Sass v. Cohen PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 (2019) 32 Cal.App.5th 1032 ....................................................................................................11 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. 13 (2005) 130 Cal.App.4th 890 ....................................................................................................16 Highsmith & 14 State Board of Education v. Honig 15 (1993) 13 Cal.App.4th 720 ......................................................................................................10 Colantuono, 16 T.O. IX, LLC v. Superior Court (2008) 165 Cal.App.4th 140 ......................................................................................................6 17 Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. 18 (1990) 221 Cal.App.3d 617 .....................................................................................................11 19 20 California Statutes 21 Code Civ. Proc., § 19.52.100(F)(1) .............................................................................11, 12, 13, 16 22 Code Civ. Proc., § 1094.5 ..............................................................................................................18 23 Evid. Code, §§ 702, 800...................................................................................................................7 24 25 Chico Municipal Code 26 Sections 19.27.010 ...........................................................................................................................9 27 28 Section 19.52.100.............................................................................................................................7 4 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 Section 19.52.100(D) .......................................................................................................................9 2 Section 19.52.100(F)(1) ...........................................................................................................13, 16 3 Section 19.60.060(A)(1)(d) .................................................................................................... passim 4 5 6 7 8 9 10 PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 13 Highsmith & 14 15 Colantuono, 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 I. INTRODUCTION 2 Respondent City of Chico (“City”) submits this supplemental brief in accord with the Court’s 3 Order of October 23, 2020.1 4 The Bowens’ Reply Brief (Oct. 30, 2020) (“Reply”) cannot persuade. It fails to grapple with 5 the impact of undisputed facts and legal issues. It asks the Court to read the City’s FD Permit 6 requirement in a way no one claims the City ever intended. And it incredibly claims the City may not 7 apply the law for walls between parcels with a grade differential, even though it is undisputed the 8 Bowens themselves created such a differential between their parcel and the Danielson parcel. For 9 these reasons and more, the Court should deny the instant writ petition. 10 II. ARGUMENT A. Material Facts Are Undisputed PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 The Bowens affirmatively or tacitly concede a few facts noted in the City’s Opposition brief 13 (Oct. 14, 2020) (“Opp.”). First, the City has never required a FD Permit for projects like the Highsmith & 14 Danielson Project, the Bowen project in 2015, or similar projects. (Opp., p. 7.) Indeed, the City 15 recently amended its Code to clarify the point, not to change it. (See Reply, pp. 6–8; Decl. of Glen Colantuono, 16 Hansen (Sep. 14, 2020) (“Hansen Decl.”), Exh. 17 at p. 1 [it “was not the City’s intent” to require a 17 FD Permit “for every project in the FD overlay zone, no matter how small”].) The Bowens wish to 18 ignore this clear legislative intent, and the undisputedly consistent application of that intent over the 19 entire life of the FD Permit requirement, but the Court cannot — even if it concludes the face of the 20 City’s ordinance might lead to a different result. (T.O. IX, LLC v. Superior Court (2008) 165 21 Cal.App.4th 140, 146 [“[O]nce a particular legislative intent has been ascertained, it must be given 22 effect even though it may not be consistent with the strict letter of the statute”].) 23 Second, the Patio Wall is only six feet high as measured from the Patio Floor, which is lower 24 than every point on the Bowen parcel, and thus the Patio Wall is shorter than six feet as viewed from 25 the Bowen parcel. (Opp., p. 8.) It is therefore undisputed the Bowens enjoy less view obstruction 26 than the Chico Municipal Code (“Code” or “CMC”) generally permits. (1 AR 6 [CMC, 27 28 1 As used in this brief, the following terms have the same meaning they had in the City’s Opposition brief, filed October 14, 2020: the Bowens, Bowen Wall, the Danielsons, Danielson Project, FD Permit, FD Standards, FD Zone, Patio Floor, Patio Wall. 6 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 § 19.60.060(A)(1)(a): rear- and side-yard walls may be six feet high between parcels at same 2 elevation].)2 Accordingly, this lawsuit asks the Court to find that Code provisions applicable to the 3 FD Zone (especially Section 19.52.100)3 and to walls between parcels with a grade differential 4 (Section 19.60.060(A)(1)(d)) entitle the Bowens to an even better view, and take away even more 5 privacy from the Danielsons. That is not what the Code seeks to do; it seeks to balance neighbors’ 6 respective view and privacy rights rather than favor the former over the latter. 7 Third, there is no evidence the concrete curb between the Patio Wall and the Bowen Wall 8 changes drainage patterns in a way that harms the Bowen Wall at all, much less in a way that creates 9 a violation of law. (Opp., p. 18.) The Bowens continue to cite only their own bald assertions on this 10 point. (Reply, p. 9 [citing Complaint, ¶¶ 50, 75].) The Court should therefore reject this claim as based on speculation and as unsupported by citation to authority. (Evid. Code, §§ 702, 800; Central PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 Valley Gas Storage, LLC v. Southam (2017) 11 Cal.App.5th 686, 694 (Central Valley).) 13 Fourth, there is no evidence PG&E serves the Bowen parcel using the utility easement on Highsmith & 14 the Danielson parcel. (Opp., p. 19.) The Bowens claim this easement was “designed to benefit both 15 parcels,” but they again cite only their own previous assertion of the point. (Reply, p. 14, citing 4 AR Colantuono, 16 966 [letter from Bowens to City].) Even if a utility easement were designed to benefit the Bowens, 17 that would be insufficient to give them standing to enforce it as explained below, but for now the 18 important point is the Bowens do not (and cannot) establish any connection between their parcel and 19 the utility easement across the Danielson parcel. 20 B. The Bowens Leave Legal Issues in the City’s Opposition Undisputed 21 The Bowens also appear to concede three legal issues the City discussed, as their Reply 22 offers no argument or authority to counter the City’s positions. First, there is no authority for the 23 claim that the Swimming Pool Safety Act somehow governs the Danielson Project. (Opp., pp. 16– 24 17.) Even if the dirt and concrete curb the City permitted between the Patio Wall and the Bowen 25 Wall create a “stepping stone” that lowers the Bowen Wall’s effective height, this offends no law. 26 Second, the Patio Wall does not violate Code provisions concerning retaining walls. (Opp., 27 28 2 References to the Administrative Record are in the form “[volume] AR [Bates page(s)].” 3 References to unspecified “sections” are to the Chico Municipal Code. 7 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 pp. 17–18.) The Patio Wall serves primarily as a privacy wall, but it also serves as a small retaining 2 wall to the extent it holds dirt back from the Danielson parcel — and thus any “exposed” side of the 3 retaining wall faces into the Danielson parcel. 4 Third, the Bowens lack standing to enforce PG&E’s easement on the Danielson parcel. 5 (Opp., p. 19.) They weakly contend that, “even though the Bowens are not the holder of the PG&E 6 easement, they certainly are the intended beneficiaries of such easement because the utilities were 7 designed to benefit both parcels.” (Reply, p. 14.) As noted above, however, the only evidence they 8 cite to support this claim is their own previous assertion that the dirt and concrete curb the 9 Danielsons installed block “our easement access.” (4 AR 966.) In short, they admit they have no 10 ownership interest in the easement on the Danielson parcel, and they cite no evidence connecting that easement to utility service on the Bowen parcel. PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 More importantly, even if arguendo the Bowens receive some benefit from the easement 13 across the Danielson parcel, they cite no authority giving them standing to enforce that easement. Highsmith & 14 Indeed, the authorities the City cited in its Opposition, and which the Bowens make no effort to 15 distinguish, dictate the opposite. (Opp., p. 19.) Public utility easements do not “extend rights” Colantuono, 16 beyond the utilities receiving them. (County of Sacramento v. Pacific Gas & Electric Co. (1987) 193 17 Cal.App.3d 300, 313–314.) And one does not become a third party beneficiary, entitled to enforce a 18 contract between other parties (here, between / among the City, PG&E, and the developer for Siena 19 at Canyon Oaks (4 AR 776)), just because “the contract, if carried out to its terms, would inure to the 20 third party’s benefit.” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1724– 21 1725; Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 397–398.) 22 Accordingly, the Bowens have no standing to enforce the utility easement across the 23 Danielson parcel. It would therefore be error to consider the claims the Bowens put forth regarding 24 that easement. (Reply, pp. 13–14; Boorstein v. CBS Interactive, Inc. (2013) 222 Cal.App.4th 456, 25 465 [court “will not address the merits of litigation when the plaintiff lacks standing”] (Boorstein).) 26 C. Every Project in the FD Zone Does Not Require a FD Permit 27 The Bowens confirm that they believe every single project in the FD Zone requires a FD 28 Permit — or at least every project required such a permit before the City clarified its Code on this 8 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 point. (Hansen Decl., Exh. 17.) Indeed, this is the foundation on which their entire argument rests: 2 The City necessarily abused its discretion when it did not require a FD Permit for the Danielson 3 Project because, the Bowens contend, the City had no such discretion to begin with. (Reply, pp. 6– 4 8.) No matter how small a project is, the Bowens would have the City require formal reports about 5 its impact on soil, geology, hydrology, and biological resources, as well as a “three-dimensional 6 computer simulation of the proposed structures from multiple view points.” (Hansen Decl., Exh. 18 7 [application form for FD Permit].) 8 Aside from being absurdly broad, and fashioning a procrustean bureaucratic hoop the City 9 undisputedly never intended to create, this reading of the City’s Code misapplies canons of statutory 10 interpretation. As the City has briefed, its Code applies FD Standards to “all projects” in the FD Zone, but it identifies certain categories of projects that also require a FD Permit (“all construction, PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 reconstruction, or expansion of existing structures and all development projects”). (Opp., p. 10 13 [discussing CMC, § 19.52.100(D) & (F)].) The unavoidable implication is that some projects do not Highsmith & 14 require a FD Permit. (See Dean v. Superior Court (Lever) (1998) 62 Cal.App.4th 638, 641–642 15 [explaining expressio unius est exclusio alterius].) Colantuono, 16 The Bowens counter that the Code also broadly defines “development” and “projects,” and 17 note Sections 19.27.010 and 19.52.100(D) require a FD Permit for “development” and “development 18 projects.” They therefore contend every project in the FD Zone is effectively “development” or a 19 “development project” that requires a FD Permit. (Reply, p. 6.) However, this renders most of 20 Section 19.52.100(D) surplusage, something the Court must avoid. (People v. Fontenot (2019) 8 21 Cal.5th 57, 73.) If “development” and “development projects” encompass everything that might 22 happen in the FD Zone, what is left to be covered by the separately identified categories of 23 “construction, reconstruction, or expansion of existing structures”? (1 AR 2.) If we are to give these 24 categories meaning, as we must, the only reasonable conclusion is that the City’s Code contemplates 25 discrete kinds of projects that require a FD Permit — and thus other projects do not require one. 26 Most broadly but most importantly, this means the Code leaves room for City staff to 27 exercise discretion on whether a project is within or without the categories identified in Section 28 19.52.100(D). (See City of Fontana v. California Dept. of Tax & Fee Administration (2017) 17 9 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 Cal.App.5th 899, 925 [“where, as here, ‘a statute leaves room for discretion, a challenger must show 2 the official acted arbitrarily, beyond the bounds of reason or in derogation of the applicable legal 3 standards’”].) In turn, the Bowens’ authorities on this point are inapt because they say only that an 4 official may not exercise discretion she does not possess; tautologically, this rule does not apply 5 where, as here, an official does have discretion. (See State Board of Education v. Honig (1993) 13 6 Cal.App.4th 720, 764–765; California Trout v. State Water Resources Control Bd. (1989) 207 7 Cal.App.3d 585, 607; Handlery v. Franchise Tax Bd. (1972) 26 Cal.App.3d 970, 981.) 8 Because the City has discretion here, it is dispositive that the Bowens cite no authority 9 showing it was an abuse of that discretion not to require a FD Permit for the Danielson Project — 10 just as it has never required a FD Permit for similar projects. On the contrary, treating the Danielson Project like every similar project that came before it is a quintessentially reasonable exercise of PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 discretion. (See, e.g., People v. Young (2007) 156 Cal.App.4th 1165, 1172 [“no impropriety in the 13 court’s exercise of its discretion” where “procedure was neutral”].) Highsmith & 14 Accordingly, it was no violation of law to approve the Danielson Project without requiring a 15 FD Permit. Colantuono, 16 D. The Lack of a FD Permit Did Not Prejudice the Bowens 17 The Bowens argue it “makes sense” to require a FD Permit for the Danielson Project. (Reply, 18 pp. 8–9.) The crux of this argument is that the lack of a FD Permit allegedly prejudiced the Bowens 19 because, they contend, it would have revealed a number of issues they claim are problematic. 20 However, the Bowens do not dispute the City’s position that, if their allegations of problems with the 21 Danielson Project are unfounded, there could be no prejudice from the lack of a FD Permit. (Opp., 22 p. 11.) Indeed, every issue they raise is unfounded, so there was no prejudice to them even if the 23 Court agrees a FD Permit was required here. 24 First, the Bowens repeat their central claim that the Patio Wall is too high. (Reply, pp. 8–9 25 [¶¶ (a), (b)].) The City addresses that point below. 26 Second, they claim the City inappropriately approved a row of cypress trees on the 27 Danielson parcel. (Id., p. 9 [¶¶ (c), (e)].) To the extent they claim this violated PG&E’s easement, 28 they have no to standing to assert such a claim for the reasons discussed above. And beyond that 10 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 easement, the Bowens cite no law the City allegedly violated regarding these trees. (Central Valley, 2 supra, 11 Cal.App.5th at p. 694 [claim forfeited for lack of citation to authority].) 3 More fundamentally, this is the first time the Bowens have alleged these trees implicate any 4 wrongdoing on the City’s part. In the sections they cite in their operative pleading, they only assert 5 this claim against Defendants Jack and Heidi Danielson and Canyon Oaks Property Owners 6 Association. (Reply, p. 9; First Amended Pet. (Jan. 10, 2020) at ¶¶ 52 &113 [discussing trees but not 7 City], 75–91 [discussing City but not trees]. See Sass v. Cohen (2019) 32 Cal.App.5th 1032, 1044 8 [“It is also well settled that a court must evaluate the relief pled against each defendant separately; 9 that is because a complaint must specify against which defendant or defendants each claim is 10 directed”].) At this time, the City takes no position on an issue that only involves the other parties to this lawsuit. For now it suffices to note the Bowens cannot raise a new claim against the City in their PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 reply brief. (Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. 13 (1990) 221 Cal.App.3d 617, 627.) Highsmith & 14 Third, the Bowens claim the City should have considered “hydrology” issues like the water 15 drainage problem they allege. (Reply, p. 9 [¶ (d)].) As noted above, however, there is no evidence of Colantuono, 16 such a drainage problem. The Bowens thus demand the City investigate something that, by all 17 indications, does not exist. 18 Fourth, they claim the concrete curb near the Bowen Wall is a “stepping stone” that reduces 19 the wall’s effectiveness as a pool barrier. (Ibid. [¶ (e)].) Again as noted above, however, they cite no 20 authority showing that such a “stepping stone” is unlawful. 21 In sum, because the Bowens’ claims against the City are all unfounded, there could be no 22 prejudice to the Bowens from the lack of a FD Permit. 23 E. The Patio Wall Is Not Too High 24 The Bowens’ main argument remains that the Patio Wall is allegedly too high — that they are 25 entitled to a better view, and their neighbors are entitled to less privacy, than the City’s Code 26 generally permits. They are wrong. 27 1. Section 19.52.100(F)(1) is a ceiling on structures in the FD Zone 28 The Bowens first argue the scope of Code § 19.52.100(F)(1). (Reply, pp. 9–11.) They begin, 11 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 however, with a conclusion: “the language in section 19.52.100(F)(1) does not limit the ‘natural 2 (pre-development) grade’ standard to structures that might exceed 25 feet in height.” (Id., p. 9.) This 3 is, of course, entirely dependent on how one should properly interpret Section 19.52.100(F)(1). We 4 therefore turn to that question. 5 Section 19.52.100(F)(1) provides in relevant part: “Height shall be measured as the vertical 6 distance to an imaginary plane located above the natural (pre-development) grade (See Figure 4-1). 7 The height limit in the -FD overlay zone is 25 feet, with an allowance of up to 5 additional feet for 8 chimneys, vents, other projecting architectural features, water tanks, and renewable energy devices.” 9 (1 AR 2.) This is a 2013 restatement of the following language: “The height of any structure in the 10 Foothill Area shall not exceed 25 feet at any point above the natural grade, excepting chimneys, vents and other such architectural projections.” (1 AR 14.) PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 The Bowens contend that, by revising Section 19.52.100(F)(1) in 2013, the City necessarily 13 changed the rule. (Reply, p. 10, citing People v. Mendoza (2000) 23 Cal.4th 896, 916.) However, not Highsmith & 14 every change in statutory language carries the same meaning: “Although a substantial change in the 15 language of a statute by an amendment indicates an intention to change its meaning, a mere change Colantuono, 16 in phraseology, incident to a revision of the statute, does not result in a change of meaning unless the 17 intent to make such a change clearly appears.” (DeCastro West Chodorow & Burns, Inc. v. Superior 18 Court (1996) 47 Cal.App.4th 410, 418.) Indeed, comparing the two selections above shows nothing 19 has changed in Section 19.52.100(F)(1) except word order and punctuation. This does not indicate an 20 intent to change the rule (much less does it “clearly” show such intent), but simply a restatement: 21 The general ceiling on structures in the FD Zone is 25 feet, as measured from the natural grade. 22 The Bowens next elevate form over substance by insisting words in a statute must be in a 23 particular order for ejusdem generis to apply. (Reply, p. 10.) But the point of this canon is that, when 24 a law lists the categories of things to which it applies, that list is meaningful and informs its scope. 25 (In re Corrine W. (2009) 45 Cal.4th 522, 531 [“when a statute contains a list or catalogue of items, a 26 court should determine the meaning of each by reference to the others, giving preference to an 27 interpretation that uniformly treats items similar in nature and scope”].) It is akin to the other 28 familiar canon that one must read a particular statutory provision in the law’s broader context. 12 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 (Hassell v. Bird (2018) 5 Cal.5th 522, 540 [“we consider portions of a statute in the context of the 2 entire statute and the statutory scheme of which it is a part, giving significance to every word, 3 phrase, sentence, and part of an act in pursuance of the legislative purpose”].) 4 Here, therefore, we cannot separate Section 19.52.100(F)(1)’s requirement to measure 5 structures from the natural grade from its requirement that those structures may not exceed 25 feet in 6 height, along with a list of the kinds of structures this affects. This is not a demand to measure all 7 structures, in all contexts, from the natural grade; it is a 25-foot ceiling on structures that otherwise 8 might be taller. 9 The Bowens attempt to distract from this more limited result by claiming Section 10 19.52.100(F)(1) applies to “heights less than 25 feet.” (Reply, p. 10.) But this misleads by taking the quoted language out of context. The full provision is: “Heights less than 25 feet may be required PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 along ridgelines and where prominently visible from public rights-of-way, parks, and other public 13 spaces.” (1 AR 2.) This does not indicate structures like the Patio Wall must be measured from the Highsmith & 14 natural grade; it means only that the 25-foot ceiling on structures in the FD Zone may be lowered in 15 situations that do not apply to the Danielson Project. Colantuono, 16 Finally, the City repeats that it does not concede the Bowens’ conclusory characterizations of 17 what City staff said regarding the Patio Wall’s height while the Danielson Project was in progress. 18 (Reply, pp. 10–11.) The important point, however, is the Bowens still provide no authority on how 19 staff comments, even with the meaning the Bowens project onto them, could control here. Indeed, 20 the rule is the opposite. (See Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1495–1497 21 [discussing how estoppel applies to public agencies].) And the Bowens again mislead by claiming 22 the City “changed” its position when “this litigation was filed.” (Reply, pp. 10–11.) The first 23 opportunity to squarely address this legal issue came when the Bowens raised it in their 24 administrative challenge to the Danielson Project, and the City explained the proper application of 25 its Code at that time. (5 AR 1022.) 26 2. Section 19.60.060(A)(1)(d) applies 27 After creating a grade differential between their parcel and the Danielson parcel, the Bowens 28 seek to avoid applying the Code provision for walls between parcels with a grade differential. They 13 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 do not persuade. 2 a. The grade differential between the Bowen and Danielson 3 parcels allows the Patio Wall to be measured from the 4 finished grade of the Bowen parcel 5 Section 19.60.060(A)(1)(d) provides in relevant part: “Where there is a difference of less 6 than 2 feet in the ground level between two adjacent parcels, the height of any fence or wall 7 constructed along the common property line shall be determined by using the finished grade of the 8 highest contiguous parcel.” (1 AR 6.) The Bowens claim this provision cannot apply because the 9 City acknowledges the average grade differential between the Bowen and Danielson parcels is two 10 feet, and the highest differential is four feet. (Reply, p. 11.) Indeed, the City does not dispute those two facts. (Opp., p. 8.) But the Bowens also argue “there is nothing in the record” to support the PC 11 420 SIERRA COLLEGE DRIVE, SUITE 140 W h a t l e y, GRASS VALLEY, CA 95945-5091 12 City’s claim that the grade differential begins at 1.5 feet — while citing the very page in the record 13 where the architect of the Danielson Project testified that he measured the differential and found it to Highsmith & 14 begin at 18 inches. (Reply, p. 11 & fn. 1, citing 5 AR 1068.) 15 In short, there is no basis to reject the City’s contention that the grade differential between the Colantuono, 16 Bowen and Danielson parcels is 1.5 feet at its shortest point. The reasonableness of applying the first 17 sentence of Section 19.60.060(A)(1)(d) then becomes a matter of simple math: If the highest 18 differential is four feet, and the lowest is 1.5, then most of the differential is probably less than two 19 feet to bring the average down to two.4 20 More importantly, Section 19.60.060(A)(1)(d) does not state the grade differential must be 21 less than two feet on average, at every point, at the highest point, or at most points. It permits walls 22 to be measured from the finished grade of the higher parcel “[w]here there is a difference of less than 23 2 feet in the ground level between two adjacent parcels.” (1 AR 6.) And the record here shows the 24 grade differential between the Bowen and Danielson parcels begins at less than two feet. (5 AR 25 1068.) It was therefore reasonable — certainly not arbitrary and capricious — for the City to find the 26 27 4 The average, or arithmetic mean, of the grade differential would be determined by measuring it at several points and dividing the sum of those measurements by the number of points measured. 28 (Merriam-Webster.com (definitions of “average” and “arithmetic mean” as of Nov. 16, 2020).) A curve that steadily increases from 1.5 to 4 would therefore require most points to be below 2 to bring the average down to 2. 14 CITY OF CHICO’S SUPPLEMENTAL OPPOSITION TO PETITION FOR WRIT OF MANDATE 245313.1 1 lowest grade differential its Code contemplates, and to set a baseline for the Patio Wall accordingly. 2 (California Public Records Research, Inc. v. County of Alameda (2019) 37 Cal.App.5th 800, 806 3 [standard of review in traditional mandate] (CPRR); Harrington v. City of Davis (2017) 16 4 Cal.App.5th 420, 434 [deference to city in interpreting cit