Filed 9/20/22 Surfer’s Point v. City of Encinitas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SURFER’S POINT, LLC,

Plaintiff and Appellant,

v.

CITY OF ENCINITAS et al.,

Defendants and Respondents.

 D079271

 (Super. Ct. No. 37-2020-

 00039124-CU-WM-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy M. Casserly, Blaine K. Bowman, Judges. Affirmed as modified.

Smaha Law Group and Kristen Marquis Fritz for Plaintiff and 

Appellant.

Devaney Pate Morris & Cameron, Jeffery A. Morris and Wendy L. 

House for Defendants and Respondents.

Years after the original development permits for its project issued by 

the City of Encinitas (City) had expired by operation of law, Surfer’s Point, 

LLC (SP), the developer in this case, attempted to resume its development 

project by applying for modifications to the original permits. The City’s 
2

Planning Commission (PC) denied SP’s application for modifications of its 

original development permits. After the Encinitas City Council (CC) denied 

SP’s appeal of the PC’s decision, SP filed a petition for writ of mandate and 

complaint for declaratory relief in the superior court. The court denied the 

writ petition to the extent that SP sought an order requiring the City to 

approve its application, but granted in part SP’s request for declaratory 

relief.

On appeal, SP contends that the trial court erred by denying its request 

for writ relief, arguing that: (1) substantial evidence does not support the 

findings that the CC made in support of its denial of SP’s appeal of the PC’s 

decision denying its application; (2) equitable estoppel and/or promissory 

estoppel applied to bar the CC from denying its appeal and instead required 

that the CC approve SP’s application; and (3) SP’s modification application 

was “deemed approved” pursuant to Government Code section 65956, 

subdivision (b)1 (§ 65956(b)) based on the PC’s failure to timely approve or 

disapprove SP’s application. We conclude that there is substantial, and 

undisputed, evidence to support the CC’s finding that SP’s original 

development permits had expired by operation of law years before SP 

attempted to resume the project, and were thus null and void. As a result, 

SP did not have valid development permits that could be modified. We also 

conclude that the trial court erred by granting in part SP’s request for 

declaratory relief. We therefore modify the judgment to delete the award of 

declaratory relief. Accordingly, we affirm the judgment as so modified.

1 All statutory references are to the Government Code unless otherwise 

specified.
3

FACTUAL AND PROCEDURAL BACKGROUND

SP purchased a vacant 1.81-acre property located in the City’s coastal 

zone at the northeast corner of the intersection of Highway 101 and La Costa 

Avenue (Property) in or about 1999. In 2005, SP filed an application with the 

City for permits to develop the Property and adjacent property to be leased 

from the North County Transit District (NCTD), with a 26-unit 

timeshare/hotel building (Project).2 The PC approved a major use permit 

(MUP), design review permit (DRP), coastal development permit (CDP), and 

environmental impact report (EIR) for the Project in or about 2005. The PC’s 

approvals were not appealed to the CC. After the City issued its notice of 

final action on the Project’s CDP, the California Coastal Commission (CCC) 

appealed the City’s approval of the CDP for the Project. The CCC later 

approved the CDP for the Project, but with special conditions addressing its 

concerns on November 16, 2007. On January 10, 2008, the CCC issued a 

draft notice of intent to issue the CDP. However, SP’s efforts to develop the 

Project thereafter became dormant and no construction began.

SP resumed its efforts to develop the Project and met with City staff 

toward that goal in or about 2013. In a September 6, 2013 letter to SP, SP’s 

land use counsel noted, based on information provided by SP, that City staff 

had apparently advised SP that staff believed the original MUP, DRP, and 

CDP remained valid, even though the CDP had expired in 2009. SP’s counsel 

further noted that because of the expiration of the CDP, CCC staff had 

indicated that the Project would have to be reapproved by the City with 

notice to the public and the CCC before the Project could move forward. 

2 In March 2007, SP and the NCTD entered into a lease agreement 

giving SP contractual rights to develop the adjacent parcel as part of the 

Project.
4

Because SP apparently planned to proceed to reactivate the Project without 

further assistance of its counsel, SP’s counsel advised SP regarding its two 

alternatives for proceeding with the Project: (1) seek a substantial 

conformance finding by City staff; or (2) if City staff found that the revised 

Project was not in substantial conformance with the original permits, SP 

would “need to file (i) an application for a coastal development permit issued 

by the City, and (ii) a major use permit and a design review permit, should

the revised conditions of approval necessitate changes to the latter two 

permits. These will require a [PC] public hearing and, if appealed, a [CC] 

public hearing.”

SP subsequently asked the City’s planning department to confirm 

whether SP’s proposed changes to the Project were in substantial 

conformance with the original permits. In a March 26, 2015 letter to SP, the 

director of the City’s planning department stated his tentative finding that 

SP’s changes to the Project could not be found to be in substantial 

conformance with the Project, as originally approved, and therefore, the PC 

would have to approve an application to modify SP’s original permits for the 

Project. SP modified the design of the Project and submitted those changes 

to the CCC for its approval. In a June 19, 2015 letter to the City’s planning 

department, a CCC analyst stated that the CCC’s original approval of the 

Project had expired on November 16, 2009, which was two years after the 

date of its issuance, and that SP was therefore required to apply for a new 

CDP for the Project. The CCC analyst then set forth the special conditions 

required by the CCC for the original CDP, SP’s response to those conditions, 

and issues that remained to be addressed.
5

In July 2017, SP and the NCTD entered into an amended and restated 

lease agreement, which authorized the City to proceed with the entitlement 

process for SP’s leased property that was part of the Project.

SP filed an application with the City for modification of its original 

permits for development of the Project on August 29, 2017. In its application, 

SP stated: “This application is requesting a modification to the conditionally 

approved project Case No. 00-201 MUP/DR/CDP for a 26 unit timeshare/hotel 

development on vacant land. The project modification[s] are as a result of the 

CCC appeal of 2007 and recent project phasing due to NCTD double tracking 

project. Signage is added to this application.” In particular, whereas the 

original Project was to be completed in a single phase, SP’s proposed 

modifications provided that development of the Project would now be 

completed in two phases due to NCTD’s double tracking project. After 

reviewing SP’s application, City staff sent a letter to SP on December 21, 

2017, informing it that its application was incomplete because of certain 

issues that might require redesign of the Project. After reviewing SP’s 

revisions to the Project, City staff sent a letter to SP on August 20, 2018, 

informing it that its application was still incomplete. After receiving this 

letter, SP made further revisions to the Project.

SP submitted revised plans for the Project in April 2019, which City 

staff apparently deemed complete and submitted to the PC for its 

consideration. On May 30, the City gave notice of a PC public hearing to be 

held on June 6 pertaining to its consideration of SP’s application.3 In its 

agenda report, City staff recommended that the PC approve the application. 

3 The City initially gave notice of a PC public hearing to be held on May 

2, 2019, but subsequently gave notice of the June 6 public hearing because its 

May 2 notice was apparently inadequate.
6

The report described SP’s application as requesting a major use permit 

modification (MUPMOD), a design review permit modification (DRPMOD), a 

coastal development permit (CDP), and a parcel map waiver (PMW) to 

consolidate three parcels into a single lot for construction of “a 25-unit 

timeshare hotel in two phases (Phase I with 14 units & Phase II with 11 

units) and associated site improvements.” At the June 6 hearing, the PC and 

members of the public discussed various issues related to the Project. At the 

conclusion of the hearing, the PC “CONTINUED OFF CALENDAR” (per the 

minutes of the June 6 PC meeting) its hearing on SP’s application, 

apparently to allow SP and City staff to address issues that remained 

unresolved.

The City gave notice on June 4, 2020 of a PC public hearing to be held 

on June 18 on SP’s application, based on SP’s revisions to the Project. In its 

995-page agenda report, City staff again recommended that the PC approve 

the application. In that report, City staff stated that SP’s application asked 

that the PC consider “modifications to a [MUP] and [DRP] as well as the 

renewal of a [CDP].” SP’s application also sought a PMW to consolidate three 

parcels into a single lot.

At the June 18, 2020 public hearing, the PC denied SP’s application 

based on the following findings set forth in its minutes:

“A.) Expiration of Design Review Permit

“Based on Encinitas Municipal Code [(EMC)] Section 

23.08.160 the [PC] finds that [DRP] 002888-2017 is expired 

as more than two years has [e]lapsed since the effective 

date of an approval of an application.

“B.) Findings Based Upon [EMC] Section 23.08.080

“The project is inconsistent with the North 101 Corridor 

Specific Plan Design Recommendations as it relates to the 

following:
7

“[descriptions of items (a) through (k)].

“The above environmental determination and findings are 

supported by the minutes, maps, and exhibits, and entire 

record of the hearing, including testimony, public 

comments, and commission discussion all of which are 

herein incorporated by reference.”

Based on those findings, the PC denied all four permits (i.e., case No. 17-205

MUPMOD/DRMOD/PMW/CDP). On July 6, 2020, SP timely appealed to the 

CC, challenging the PC’s denial of its application.

After giving notice of its public hearing, the CC heard SP’s appeal of 

the PC’s decision denying SP’s application on August 19, 2020. SP requested 

that the CC vacate the PC’s finding that the original DRP had expired and 

grant its requests for modification of the DRP, modification of the MUP, a 

CDP, and a PMW. In its agenda report for the August 19 hearing, City staff 

recommended that the CC approve SP’s appeal, set aside the PC’s decision 

denying SP’s application, and instead approve that application. After 

hearing SP’s argument and public comments, the CC issued Resolution 2020-

78 in which it denied SP’s appeal and upheld the PC’s decision denying SP’s 

application, stating:

“The findings required for approval of a [CDP] (EMC 

30.080.090), a [MUP] (EMC 30.74.070) and a [DRP] (EMC 

23.08.080) cannot be made. This conclusion is based on the 

following:

“[sets forth 10 specific findings].”

The eighth finding listed by the CC for denying SP’s appeal states: 

“8. Pursuant to [EMC] Sections 23.08.160 (Design Review Permit) and 

30.74.120 (Use Permit), there is substantial evidence in the record the [DRP] 

and [MUP] are null and void because two years passed after the effective 

date, construction had not started, and the [P]roject was not pursued 

diligently. An extension of the permit was not requested 15 days prior to the 
8

date of expiration. The [P]roject was dormant between 2009 to 2013 with no

activity completed.”

SP filed the instant petition for writ of mandate and complaint for 

declaratory relief against the City and the CC on October 27, 2020. SP 

sought the following relief, among other things: (1) issuance of a writ of 

mandate ordering the City and CC to vacate the denial of SP’s application for 

modification of its DRP, modification of its MUP, a new CDP, and a PMW 

and an order that those permits be issued; (2) declarations that (a) neither 

the PC nor the CC was permitted to evaluate whether SP’s original DRP had 

expired because proper notice had not been given that the issue of expiration 

of the DRP would be raised at the public hearings, (b) its MUPMOD, CDP, 

and PMW were deemed approved pursuant to section 65956(b), (c) the CC 

was estopped from making a decision contrary to the PC’s findings in 2005 

approving the MUP and DRP, and (d) the CC’s denials of the MUPMOD, 

DRPMOD, CDP, and PMW were not supported by its findings or the 

evidence; and (3) an award of reasonable attorney fees and costs.

The trial court issued a detailed 18-page minute order confirming its 

tentative ruling granting in part and denying in part SP’s requested relief on 

April 6, 2021. The court concluded that although SP’s 2005 permits appeared 

to have expired in 2007 by operation of law pursuant to provisions of the 

EMC, the CC could not adopt a formal resolution so concluding because it had 

not given public notice that the issue of the expiration of the permits would 

be considered at its August 19, 2020 hearing. Nevertheless, the court stated:

“[T]he City was not required to hold a noticed public 

hearing in order for the original [p]ermits to actually 

expire. . . . [I]t is possible for a previously-valid permit to 

have expired by operation of law, but for no formal followup action to be taken on it. In other words, it is entirely 

possible that even if a matter is not properly noticed (such 
9

that the City Council may have been without power to issue 

a formal resolution on the issue of expiration) the truth of 

the underlying facts may still be that the permit has 

expired by operation of law – there simply has not been a 

formal ruling to that effect.”

The court proceeded to reject SP’s argument that the City should be equitably 

estopped from denying the continued validity of its original 2005 permits 

because City staff had led SP to believe that those permits remained valid. 

Finally, the court summarily concluded that there was substantial evidence 

to support the remaining nine findings by the CC on which its denial of SP’s 

appeal was based. Accordingly, the court concluded: “Ultimately, the 

impropriety of issuing an improperly-noticed formal ruling concluding that 

the original [p]ermits (or at least one of them) have expired does not 

materially amount to the relief that [SP] is seeking by way of the instant writ 

and declaratory judgment action.”4

The trial court entered judgment on May 19, 2021, incorporating its 

April 6, 2021 minute order, directing the City to modify the CC’s Resolution 

2020-78 to remove its finding that there was substantial evidence that the 

original DRP and MUP permits were null and void because two years had 

passed since their effective dates without construction starting, and denying 

the remainder of the relief sought by SP. The court found that the nine other 

findings cited in the CC’s Resolution 2020-78 were supported by substantial 

evidence. The court therefore denied SP’s request for an order directing the 

City to reverse its decision to deny its application for a modification of the 

MUP, modification of the DRP, a new CDP, and a PMW.

4 As SP notes, the trial court did not address its argument that its

application for the MUPMOD, CDP, and PMW was deemed approved 

pursuant to section 65956(b) based on the PC’s failure to timely approve or 

disapprove its application.
10

SP timely filed a notice of appeal challenging the judgment. This court 

issued an order on June 20, 2022, requesting that the parties submit 

supplemental letter briefs addressing certain issues not previously briefed, 

and proposing to take judicial notice of certain EMC ordinances. We have 

received, and considered, the parties’ supplemental briefs.

DISCUSSION

I

Land Use Regulation Generally

To establish a general framework before addressing the specific 

circumstances in this case, we begin with a brief discussion of the regulation 

of land use in California. A municipality “has broad authority, under its 

general police power, to regulate the development and use of real property 

within its jurisdiction to promote the public welfare.” (California Building 

Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 455.) “Land use 

regulation in California has been a function of local government under the 

grant of police power contained in article XI, section 7 of the California 

Constitution.” (Big Creek Lumber Co. v. County of Santa Cruz (2006) 

38 Cal.4th 1139, 1151, fn. omitted (Big Creek Lumber Co.).) Accordingly, 

cities and counties are empowered to adopt general plans, specific plans, 

zoning ordinances, and other ordinances regulating the development of 

property within their jurisdictions. (Id. at pp. 1151-1152; Friends of Davis v. 

City of Davis (2000) 83 Cal.App.4th 1004, 1010; Land Waste Management v. 

Contra Costa County Bd. of Supervisors (1990) 222 Cal.App.3d 950, 957 

(Land Waste Management).)

In enacting general plans and zoning ordinances, local agencies 

perform a legislative function. (Big Creek Lumber Co., supra, 38 Cal.4th at 

p. 1152; Land Waste Management, supra, 222 Cal.App.3d at p. 957.) In 
11

contrast, “the grant of a land-use permit or variance is an adjudicatory act, 

rather than a legislative one. [Citation.] Adjudicatory decisions must be 

consistent with applicable land-use legislation. [Citations.]” (Land Waste 

Management, at p. 957.) “[A]dministrative decisions, such as variances and 

use permits, are adjudicative.” (Arnel Development Co. v. City of Costa Mesa

(1980) 28 Cal.3d 511, 518; see also, Saad v. City of Berkeley (1994) 

24 Cal.App.4th 1206, 1211 (Saad); Landi v. County of Monterey (1983) 

139 Cal.App.3d 934, 936.) “The permit process clearly involves the 

application of existing rules to a specific set of existing facts.” (Patterson v. 

Central Coast Regional Com. (1976) 58 Cal.App.3d 833, 841.) The issuance of 

use permits and other land use decisions are inherently discretionary 

decisions. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1182-

1183; Guinnane v. San Francisco City Planning Com. (1989) 209 Cal.App.3d 

732, 736, 740.) Local agencies often adopt ordinances requiring special 

permits for development of property, such as a design review permit, for 

which their approval is largely dependent on the provisions of the ordinance. 

(7 Miller & Starr, Cal. Real Estate (4th ed. 2021) § 21:10, p. 21-92.)

II

Standards of Review

Code of Civil Procedure section 1094.5 sets forth the procedure for 

judicial review of adjudicatory decisions made by administrative agencies. 

(Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 

11 Cal.3d 506, 514 (Topanga).) Code of Civil Procedure section 1094.5, 

subdivision (b) provides:

“The inquiry in such a case shall extend to the questions 

whether the respondent has proceeded without, or in excess 

of, jurisdiction; whether there was a fair trial; and whether 

there was any prejudicial abuse of discretion. Abuse of 

discretion is established if the respondent has not 
12

proceeded in the manner required by law, the order or 

decision is not supported by the findings, or the findings 

are not supported by the evidence.”

In Topanga, the California Supreme Court stated: “[Code of Civil Procedure] 

[s]ection 1094.5 clearly contemplates that at minimum, the reviewing court 

must determine both whether substantial evidence supports the 

administrative agency’s findings and whether the findings support the 

agency’s decision.” (Topanga, supra, 11 Cal.3d at pp. 514-515.) In Young v. 

City of Coronado (2017) 10 Cal.App.5th 408 (Young), this court stated:

“The scope of review of supporting evidence for abuse of 

discretion depends on whether the decision substantially 

affects a fundamental vested right. (Code Civ. Proc., 

§ 1094.5, subd. (c).) Where the public agency’s decision 

affects a fundamental vested right, the trial court exercises 

independent judgment in assessing whether the evidence is 

sufficient to support the agency’s findings. [Citation.] In 

such cases, the court conducts a limited trial de novo and 

‘abuse of discretion is established if the court determines 

that the findings are not supported by the weight of the 

evidence.’ [Citations.] ‘In all other cases, abuse of 

discretion is established if the court determines that the 

findings are not supported by substantial evidence in the 

light of the whole record.’ (Code Civ. Proc., § 1094.5, subd. 

(c).)

“Where . . . the underlying administrative mandamus case 

does not involve a fundamental vested right, on appeal 

‘ “we review the administrative decision, not the superior 

court’s decision.” ’ [Citations.]

“ ‘[T]he petitioner in an administrative mandamus 

proceeding has the burden of proving that the agency’s 

decision was invalid and should be set aside, because it is 

presumed that the agency regularly performed its official 

duty. When the standard of review is the substantial 

evidence test . . . it is presumed that the findings and 

actions of the administrative agency were supported by 

substantial evidence. [Citations.] Thus, since the same 
13

standard of review applies now on appeal as it did in the 

trial court, the burden is on appellant to show there is no 

substantial evidence whatsoever to support the findings of 

the Board.’ [Citation.]” (Id. at pp. 418-419.) 

To uphold an agency’s decision, substantial evidence to support only 

one of the findings cited by the agency is sufficient. (Breneric Associates v. 

City of Del Mar (1998) 69 Cal.App.4th 166, 176 (Breneric) [“If [any] finding is 

supported by substantial evidence, the agency’s rejection of the proposed 

development must be upheld”]; Saad, supra, 24 Cal.App.4th at pp. 1213-

1215.) Accordingly, in applying the substantial evidence standard in 

reviewing the CC’s decision, “[w]e examine the administrative record to 

determine whether there is substantial evidence to support [any] of the 

findings and conclusions upon which [the CC] relied to deny a design review 

permit [and major use permit] for [SP’s] proposed project.” (Breneric, at 

p. 176, fn. omitted.)

Under the substantial evidence standard of review, “the appellate court 

is not bound by the trial court’s determinations but instead conducts a de 

novo examination of the administrative record to assess whether there is 

substantial evidence to support the administrative agency’s findings and 

whether the findings support the agency’s decision. The burden is on the 

petitioner to show there is insufficient evidence to support the agency’s 

findings. [Citation.] Under this standard of review, we resolve all reasonable 

doubts in favor of the administrative findings and decision and reverse the 

administrative determination only if, based on the evidence before the 

agency, a reasonable person could not have reached the conclusion reached by 

the agency. [Citation.]” (Breneric, supra, 69 Cal.App.4th at pp. 174-175.)

However, in conducting our review for substantial evidence to support 

an agency’s findings and decision, we decide de novo, or independently, any 
14

questions of law based on undisputed facts. (Boling v. Public Employment 

Relations Bd. (2018) 5 Cal.5th 898, 912-913; Bostean v. Los Angeles Unified 

School Dist. (1998) 63 Cal.App.4th 95, 107-108.) Likewise, “to the extent we 

are called upon to interpret statutes or [ordinances] . . . , such issues involve 

pure questions of law which we resolve de novo. [Citation.]” (Bostean, at 

p. 108; see also, International Engine Parts, Inc. v. Feddersen & Co. (1995) 

9 Cal.4th 606, 611; Carmel Development Co., Inc. v. Anderson (2020) 

48 Cal.App.5th 492, 503; Usher v. County of Monterey (1998) 65 Cal.App.4th 

210, 216 [“On review in this court, questions of statutory interpretation are 

questions of law warranting independent review”].) Accordingly, the 

application of an interpreted statute or ordinance to undisputed facts 

presents a question of law subject to our independent review. (International 

Engine Parts, Inc., at p. 611.)

III

Relevant Provisions of the Encinitas Municipal Code

The EMC sets forth provisions regulating design review permits, major 

use permits, and coastal development permits for the development of 

property within the City’s jurisdiction. On June 20, 2022, we issued an order 

proposing to take judicial notice of certain EMC ordinances that may be 

relevant to our disposition of this case and requesting that the parties submit 

letter briefs addressing whether we should take judicial notice of those 

ordinances. After considering the parties’ briefs and oral arguments on 

appeal, we take judicial notice sua sponte of those ordinances.5 (Evid. Code, 

5 Specifically, we take judicial notice of the following EMC ordinances: 

EMC sections 23.08.020, 23.08.060, 23.08.070, 23.08.150, 23.08.160, 

30.01.070, 30.74.020, 30.74.060, 30.74.070, 30.74.110, 30.74.120, 30.80.010, 

30.80.020, 30.80.162, and 30.80.164.
15

§§ 451, subd. (a), 452, subd. (a), 459, subd. (a); Tanimura & Antle Fresh 

Foods, Inc. v. Salinas Union High School Dist. (2019) 34 Cal.App.5th 775, 

797, fn. 13 [mandatory judicial notice of ordinances per Evid. Code, §§ 451, 

subd. (a), 459, subd. (a)]; The Kennedy Com. v. City of Huntington Beach

(2017) 16 Cal.App.5th 841, 852-853 [discretionary judicial notice of 

ordinances per Evid. Code, §§ 452, 459]; Reid v. City of San Diego (2018) 

24 Cal.App.5th 343, 368, fn. 12; Madain v. City of Stanton (2010) 

185 Cal.App.4th 1277, 1280, fn. 1.)

EMC design review permit ordinances. EMC section 23.08.020 sets 

forth the necessity of issuance of a design review permit as a prerequisite to 

the issuance of other development permits, providing:

“A. Without first having obtained a design review permit, 

it shall be unlawful for any person to construct . . . any 

structure, when such activity is required by this chapter to 

have a design review permit.

“B. No building permit, grading permit or other 

development permits shall be issued relating to a structure 

or site development for which a design review permit is 

required until the design review permit is obtained.” 

(Italics added.)

EMC section 23.08.070 sets forth the requirement for final determination by 

the PC or CC on a design review permit application, providing:

“A. A final determination by the [PC] or the [CC] on the 

application for a design review permit shall be made by 

written resolution, setting forth the facts which support the 

action. . . .

“B. An application for a design review permit shall be 

approved unless findings of fact are made based upon the 

information presented in the application or during the 

deliberations which support one or more of the regulatory 

conclusions contained in this chapter. The decision maker 

shall elaborate on each of the regulatory conclusions made 
16

in support of a denial in sufficient detail to explain as 

clearly as possible the reasons for the denial.”

There are two EMC ordinances that, when considered together and 

applied to the undisputed facts in this case, precluded, as a matter of law, the 

approval of SP’s application for a modification of its original 2005 design 

review permit. First, EMC section 23.08.150 sets forth the requirements for a 

modification of a design review permit, providing:

“A proponent may apply for a modification of a valid design 

review permit. The application procedures, hearings and 

notifications for any modification shall be the same as for a 

new application. . . .” (Italics added.)

Second, EMC section 23.08.160 sets forth a two-year period during which a 

validly issued design review permit remains effective and declares the 

conditions under which that the design review permit may thereafter become 

“null and void,” providing:

“A. The design review permit approval shall be valid for 

two years after the effective date of the permit. A building 

permit and any other permit required for the construction 

of the project shall be obtained within the two-year period. 

If construction has not started within the time period 

specified in the City’s adopted building code, and is not 

diligently pursued thereafter, the design review permit shall 

be deemed null and void.

“B. The Director may, upon written request by the 

proponent, grant reasonable extensions of up to a total of 

two years for the design review permit; provided no change 

in City policies has occurred which would be in conflict with 

the project. A request for such an extension shall be filed 

with the Director at least 15 days prior to the expiration of 

the design review permit, together with the required 

application fee. Upon proper filing of an application of 

extension, public notice shall be made according to the 

provision of Chapter 30.01 as modified by this chapter. 

A public hearing is not required.” (Italics added.)
17

EMC major use permit ordinances. EMC section 30.74.020 sets forth 

the necessity of issuance of a use permit as a prerequisite to the issuance of 

other development permits, providing:

“A. Without first having obtained a use permit, it shall be 

unlawful for any person to construct a project when such 

project is required by the provisions of this Code to obtain a 

use permit.

“B. No building permit or other development permits shall 

be issued relating to a project for which a use permit is 

required by this Code until the use permit is obtained.” 

(Italics added.)

EMC section 30.74.070 sets forth the requirement for a final determination 

by the PC on an application for a use permit, providing:

“A. A final determination on the application for a use 

permit shall be made by written resolution if by the [PC] or 

by notice of determination if by the Director setting forth 

the facts which support the action.

“B. An application for use permit shall be approved unless 

findings of fact are made based upon the information 

presented in the application or during the hearings which 

support one or more of the following conclusions:

“1. The location, size, design or operating characteristics of 

the proposed project will be incompatible with or will 

adversely affect or will be materially detrimental to 

adjacent uses, residences, buildings, structures or natural 

resources . . . .

“2. The impacts of the proposed project will adversely 

affect the policies of the Encinitas General Plan or the 

provisions of this Code; or

“3. The project fails to comply with any other regulations, 

conditions or policies imposed by this Code. . . .” (Italics 

added.)

As was the case with respect to the DRP, there are two EMC 

ordinances that, when considered together and applied to the undisputed 
18

facts in this case, precluded, as a matter of law, the approval of SP’s 

application for a modification of its original 2005 major use permit. First, 

EMC section 30.74.110 sets forth the requirements for a modification of a use 

permit, providing:

“A proponent may apply for a modification of a valid use 

permit. The application procedures, hearings and 

notifications for any modification shall be the same as for a 

new application. . . .” (Italics added.)

Second, EMC section 30.74.120 sets forth a two-year period during which a 

validly issued use permit remains effective and declares the conditions under 

which the use permit may thereafter become “null and void,” providing:

“A. The use permit approval shall be valid for two years 

after the effective date of the permit. A building permit and 

any other permit required for the construction of the project 

shall be obtained within the two-year period. If 

construction has not started within the time period 

specified in the City’s adopted building code, and is not 

diligently pursued thereafter, the use permit shall be 

deemed null and void.

“B. The Director may, upon written request by the 

proponent, grant reasonable extensions of up to a total of 

two years for the use permit; provided no change in City 

policies has occurred which would be in conflict with the 

project. A request for such an extension shall be filed with 

the Director and at least 15 days prior to the expiration of 

the use permit, together with the required application fee. 

Upon proper filing of an application for extension, public 

notice shall be made according to the provision of Chapter 

30.01 as modified by this chapter. A public hearing is not 

required.” (Italics added.)

EMC coastal development permit ordinances. EMC section 30.80.010 

provides in part that, unless exempted, “[a] coastal development permit is 

required for all development within the Coastal Zone of the City.” EMC 

section 30.80.020(B) provides that the PC “is authorized to render a final 
19

determination for Coastal Development Permits” on applications for design 

review permits and major use permits.

Also, there are two EMC ordinances that set forth the period during 

which a validly issued coastal development permit remains effective. First, 

EMC section 30.80.162 provides: “If substantial construction has not been 

completed in reliance upon a granted coastal development permit within a 

minimum of two years of the grant or a longer period as otherwise approved, 

then upon notice to the property owner and an opportunity to present 

information to the Director, the Director may declare the coastal development 

permit to have expired with the privileges granted thereby canceled.” (Italics 

added.) Second, EMC section 30.80.164 provides that the director of the 

City’s planning department “may, on one or more occasions, extend the 

expiration period on the coastal development permit if [he or she] finds that 

there are no changed circumstances . . . . However, the total of all extensions 

shall not exceed a period of two years. . . .” (Italics added.)

IV

Substantial Evidence Supports the CC’s Finding

That SP’s 2005 Permits Were Null and Void

SP contends that the trial court erred by denying its requested relief 

because substantial evidence did not support the findings that the CC made 

in support of its denial of SP’s appeal from the PC’s decision denying SP’s 

development application for the Project. However, the undisputed evidence 

shows that the 2005 DRP and MUP expired by operation of law. We 

therefore conclude that there is substantial evidence to support the CC’s 

finding that those permits were null and void. Because an application for 

modification requires existing valid permits, neither the CC nor the PC could 

approve SP’s application for modification of those permits.
20

A

As discussed above, in its June 18, 2020 resolution, the PC made 

specific findings in support of its decision to deny SP’s application, stating in 

part:

“A.) Expiration of Design Review Permit

“Based on [EMC] Section 23.08.160 the [PC] finds that 

[DRP] 002888-2017 is expired as more than two years has 

[e]lapsed since the effective date of an approval of an 

application.”

Based on this and other findings, the PC denied all four permits (i.e., case No. 

17-205 MUPMOD/DRMOD/PMW/CDP). On July 6, 2020, SP timely appealed 

to the CC, challenging the PC’s decision denying its application. In 

particular, SP appealed the PC’s finding that its original 2005 DRP had 

expired due to lapse of time pursuant to EMC section 23.08.160.

After giving notice of its public hearing, on August 19, 2020, the CC 

heard SP’s appeal of the PC’s decision and issued Resolution 2020-78 denying 

SP’s appeal and upholding the PC’s decision denying SP’s application, stating 

in part:

“The findings required for approval of a [CDP] (EMC 

30.080.090) [sic], a [MUP] (EMC 30.74.070) and a [DRP] 

(EMC 23.08.080) cannot be made. This conclusion is based 

on the following:

“[¶] . . . [¶]

“8. Pursuant to [EMC] Sections 23.08.160 (Design Review 

Permit) and 30.74.120 (Use Permit), there is substantial 

evidence in the record the [DRP] and [MUP] are null and 

void because two years passed after the effective date, 

construction had not started, and the [P]roject was not 

pursued diligently. An extension of the permit was not 

requested 15 days prior to the date of expiration. The 

[P]roject was dormant between 2009 to 2013 with no 

activity completed.” (Italics added.)
21

B

Based on our review of the administrative record, we conclude that 

there is substantial evidence to support the CC’s decision to deny SP’s appeal 

of the PC’s denial of its application for modification of the DRP, modification 

of the MUP, a CDP, and a PMW. As discussed above, to affirm the CC’s 

decision, we need find substantial evidence to support only one of the CC’s 

10 findings cited in support of its decision. (Breneric, supra, 69 Cal.App.4th 

at p. 176; Saad, supra, 24 Cal.App.4th at pp. 1213-1215.) Further, as we 

discuss below, the undisputed evidence shows that SP did not, either at the 

time of the June 18, 2020 PC public hearing or the August 19, 2020 CC public 

hearing, have any existing, valid development permit for the Project. Absent 

such an existing permit, SP did not have any fundamental vested right that 

could be affected at those hearings. We therefore apply the ordinary 

substantial evidence standard in reviewing the CC’s findings and decision. 

(Young, supra, 10 Cal.App.5th at pp. 418-419; Breneric, at pp. 174-175; Saad, 

at p. 1213.) Contrary to SP’s apparent assertion, the fact that its 2017 

application sought modifications of its 2005 DRP and MUP, which were valid 

on their issuance in 2005, does not mean that SP’s fundamental vested rights 

were affected such that it is entitled to de novo review. As discussed below, 

those 2005 permits had long expired by operation of law because construction 

had not started within the required two-year period and there was no request 

to renew those permits within the time period prescribed by ordinance. As a 

result, the permits had become null and void. (Cf. Amerco Real Estate Co. v. 

City of West Sacramento (2014) 224 Cal.App.4th 778, 783-784 [“Courts rarely 

uphold the application of the independent judgment test to land use 

decisions. [Citation.] Cases upholding such application typically involve 

‘classic vested rights’– i.e., a vested right to develop property in a particular 
22

way”]; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519, 

1527.)

Applying that standard to the evidence in the administrative record in 

reviewing the CC’s findings and its decision to deny SP’s appeal, we first 

address the question whether there is substantial evidence to support the 

CC’s finding number 8, which requires merely the application of EMC 

ordinances to the undisputed evidence in this case. Again, finding number 8 

states:

“Pursuant to [EMC] Sections 23.08.160 (Design Review 

Permit) and 30.74.120 (Use Permit), there is substantial 

evidence in the record that the [DRP] and [MUP] are null 

and void because two years passed after the effective date, 

construction had not started, and the [P]roject was not 

pursued diligently. An extension of the permit was not 

requested 15 days prior to the date of expiration. The 

[P]roject was dormant between 2009 to 2013 with no 

activity completed.”

Interpretation of EMC section 23.08.160. In determining whether there 

is substantial evidence to support the CC’s finding number 8, we first review 

the express language of the relevant ordinances cited by the CC. EMC 

section 23.08.160, as quoted above, provides: “The design review permit 

approval shall be valid for two years after the effective date of the permit. . . . 

If construction has not started within the time period specified in the City’s 

adopted building code, and is not diligently pursued thereafter, the design 

review permit shall be deemed null and void.” (Italics added.) Before 

applying EMC section 23.08.160 to the evidence in the record, we must 

initially interpret its language so as to effectuate the ordinance’s purpose. 

(Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 

55 Cal.4th 783, 803.) Because the language of a statute or ordinance is 

generally the most reliable indicator of its legislative intent, we first examine 
23

the words themselves, giving them their usual and ordinary meaning and 

construing them in context. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.) “If 

the language of the statute [or ordinance] is not ambiguous, the plain 

meaning controls and resort to extrinsic sources to determine the 

Legislature’s intent is unnecessary.” (Kavanaugh v. West Sonoma County 

Union High School Dist. (2003) 29 Cal.4th 911, 919.) Applying those 

standards of statutory construction to the language of EMC section 

23.08.160, we conclude that the usual and ordinary meaning of its language 

is unambiguous and that there is only one reasonable interpretation of that 

language. We therefore construe EMC section 23.08.160 as providing that if 

construction of a project for which a DRP has been issued has not started and 

been diligently pursued thereafter within two years after issuance of the 

DRP, the DRP expires by operation of law, becomes null and void, and is thus 

no longer valid.

Expiration of the 2005 DRP. Given our interpretation of EMC section 

23.08.160, we conclude that the CC correctly interpreted that ordinance, 

properly applied it to the evidence in this record, and properly found that the 

2005 DRP had expired by operation of law and was thus null and void. The 

PC approved SP’s original application for a MUP, DRP, and CDP for the 

Project on September 1, 2005. Pursuant to EMC section 23.08.160, the 2005 

DRP was “valid” for two years after that date (i.e., until September 1, 2007) 

and would be deemed “null and void” if construction had not started within 

the time period specified in the City’s building code. The undisputed 

evidence in the record shows that construction of the Project did not start and 

was not diligently pursued thereafter during any relevant time period; as of 

this date, construction of the Project still has not begun—17 years after the 

issuance of the DRP in 2005. The undisputed evidence in the record further 
24

shows that SP never timely filed a written request for an extension of the 

2005 DRP for up to an additional two years (i.e., up to and through 

September 1, 2009), which it could have done pursuant to EMC section 

23.08.160(B). There is thus substantial evidence to support the CC’s findings 

that construction of the Project had not started and was not diligently 

pursued, that SP did not request an extension of the DRP, and that the 

Project “was dormant between 2009 to 2013 with no activity completed.” 

Accordingly, under the express provisions of EMC section 23.080.160, there is 

substantial evidence to support the CC’s finding that the 2005 DRP was thus 

null and void.

SP’s SC2 argument. SP argued in the trial court, and argues again on 

appeal, that Specific Condition 2 (SC2), which was attached to the PC’s 2005 

resolution approving its DRP, and not EMC section 23.08.160, controls the 

expiration of its 2005 DRP, and maintains that SC2 extended the effective 

period of its development permits or at least required that the CC hold a 

public hearing pursuant to that specific condition. SC2 provided: “At any 

time after two years from the date of this approval, September 1, 2007 at 

5:00 p.m., or the expiration date of any extension granted in accordance with 

the [EMC], the City may require a noticed public hearing to be scheduled 

before the authorized agency to determine if there has been demonstrated 

good faith intent to proceed in reliance on this approval. If the authorized 

agency finds that good-faith intent to proceed has not been demonstrated, the 

application shall be deemed expired as of the above date (or the expiration 

date of any extension).” (Italics added.) SP suggests that the language of 

SC2 should be interpreted as precluding the “automatic expiration” of the 

2005 DRP by operation of law under EMC section 23.08.160 and to instead 

require that a hearing on that issue similar to the hearing that Community 
25

Development Com. v. City of Fort Bragg (1988) 204 Cal.App.3d 1124 (Fort 

Bragg) suggested, in dicta, would be required for revocation of a conditional 

use permit. We disagree and decline to adopt SP’s suggested interpretation 

of SC2. First, the express language of SC2 is permissive, not mandatory, 

using the word “may” instead of “shall.” Accordingly, the City had the option

to hold a public hearing on the issue of whether SP had shown a good faith 

intent to proceed in reliance on the City’s approval of the 2005 DRP. The fact 

that SC2 gave the City that option did not preclude the 2005 DRP from 

expiring by operation of law under EMC section 23.08.160 because 

construction had not started on the Project. Further, based on the 

undisputed evidence in the record, it is clear that construction did not start 

within the two-year period after issuance of the DRP in 2005 and still has not 

started 17 years later. Accordingly, there could be no reasonable argument 

that SP, in fact, had a “good faith intent” to proceed in reliance on the City’s 

approval of the 2005 DRP that would have precluded expiration of the DRP 

within the meaning of SC2 even if the City had elected to hold a public 

hearing on that issue, rather than simply allowing the 2005 DRP to expire by 

operation of law pursuant to EMC section 23.08.160. Finally, to the extent 

that SC2 was included as part of the PC’s approval of SP’s 2005 DRP because 

of the holding in Fort Bragg, we conclude, as discussed in Section VII(B) 

below, that the language in Fort Bragg regarding the public agency’s possible 

consideration of revocation, rather than expiration, of the conditional use 

permit was dicta and, in any event, is inapposite to this case because the PC 

and CC did not consider revocation of any valid DRP. Instead, both the PC 

and the CC simply found that the 2005 DRP had expired by operation of law. 

Contrary to SP’s assertion, SC2 did not have the effect of superseding EMC 
26

section 23.08.160’s provisions regarding the expiration by operation of law of 

the 2005 DRP.

Interpretation of EMC section 30.74.120. We next address the question 

whether there is substantial evidence to support the CC’s parallel finding 

that SP’s 2005 MUP expired by operation of law pursuant to EMC section 

30.74.120 and was thus null and void. EMC section 30.74.120, as quoted 

above, provides: “The use permit approval shall be valid for two years after 

the effective date of the permit. . . . If construction has not started within the 

time period specified in the City’s adopted building code, and is not diligently 

pursued thereafter, the use permit shall be deemed null and void.” Because 

the language of EMC section 30.74.120 is identical to the language of EMC 

section 23.08.160, with the exception of the name of the development permit 

(i.e., DRP versus MUP), we incorporate our reasoning above in interpreting 

EMC section 23.08.160. Applying that reasoning in interpreting EMC 

section 30.74.120, we construe EMC section 30.74.120 as providing that if 

construction of a project for which a MUP has been issued has not started 

and been diligently pursued within two years after issuance of the MUP, the 

MUP expires by operation of law, becomes null and void, and is no longer 

valid.

Expiration of the 2005 MUP. Given our interpretation of EMC section 

30.74.120, we conclude that the CC correctly interpreted that ordinance, 

properly applied it to the evidence in this record, and properly found that the 

2005 MUP expired by operation of law and was thus null and void. Pursuant 

to EMC section 30.74.120, the original 2005 MUP was “valid” for two years 

after September 1, 2005 (i.e., until September 1, 2007) and was deemed “null 

and void” if construction had not started within the time period specified in 

the City’s building code. As discussed above, the undisputed evidence in the 
27

record shows that construction of the Project did not start and was not 

diligently pursued thereafter during any relevant time period; as of this date, 

construction of the Project still has not begun. The undisputed evidence in 

the record also shows that SP never timely filed a written request for an 

extension of its MUP for up to an additional two years (i.e., up to and through 

September 1, 2009), which SP could have done pursuant to EMC section 

30.74.120(B). There is therefore substantial evidence to support the CC’s 

findings that construction of the Project had not started and was not pursued 

diligently, that SP did not request an extension of the MUP, and that the 

Project “was dormant between 2009 to 2013 with no activity completed.” 

Accordingly, under the express provisions of EMC section 30.74.120, there is 

substantial evidence to support the CC’s finding that the 2005 MUP was null 

and void.

Effect of expiration of 2005 DRP and MUP. In its Resolution 2020-78, 

the CC stated in part: “The [CC] hereby denies the appeal filed by [SP] and 

upholds the [PC’s] decision to DENY [SP’s application for the modification of 

the original 2005 DRP, modification of the original 2005 MUP, a CDP, and a 

PMW] based on the following findings: [¶] The findings required for approval 

of a [CDP], [MUP] and [DRP] cannot be made . . . based on the following: [¶] 

[setting forth its 10 findings].” As discussed above, the CC’s finding number 

8 states that there was substantial evidence in the record showing that both 

the 2005 DRP and MUP were null and void because two years had passed 

after their effective dates and construction on the Project had not started. In 

reaching this conclusion, the CC expressly found that the expirations of the 

2005 DRP and MUP rendered those development permits “null and void” 

under the ordinances discussed above (i.e., EMC § 23.08.160 and EMC 

§ 30.74.120). In denying SP’s appeal, the CC necessarily found, albeit 
28

impliedly, that the fact that the 2005 DRP and MUP had expired by 

operation of law and were null and void meant that the 2005 DRP and MUP 

were no longer “valid.” The import of that finding is shown when the EMC 

ordinances authorizing applications for modifications of DRPs and MUPs are 

considered.

First, EMC section 23.08.150, of which we have taken judicial notice, 

provides in relevant part: “A proponent may apply for a modification of a 

valid design review permit.” (Italics added.) Applying the standards of 

statutory construction discussed above to the language of EMC section 

23.08.150, we conclude that the usual and ordinary meaning of the language 

of the ordinance is unambiguous and that there is only one reasonable 

interpretation of this language. We therefore construe EMC section 

23.08.150 as providing that a design review permit may be modified only if 

there is an existing “valid” design review permit to modify. Alternatively 

stated, if there is no existing “valid” design review permit, there can be no 

modification of a design review permit. The legal effect of EMC section 

23.08.150 is that any application to modify an “invalid,” or expired, design 

review permit must be denied. Neither the PC nor the CC has the authority 

under EMC section 23.08.150 to approve an application for modification of a 

design review permit that has expired by operation of law, become null and 

void, and is thus invalid. Applying EMC section 23.08.150’s requirements for 

modification of a design review permit to SP’s application for modification of 

its 2005 DRP, which the CC properly found had expired by operation of law 

and become null and void pursuant to EMC section 23.08.160, we conclude 

that the CC properly denied SP’s appeal of the PC’s denial of its application 

for a modified DRP. We further conclude that, based on finding number 8, 

the CC had no authority to grant SP’s appeal and approve its application for 
29

modification of its 2005 DRP because such a decision would have been in 

contravention of EMC section 23.08.150.

Second, EMC section 30.74.110, of which we have also taken judicial 

notice, similarly provides in relevant part: “A proponent may apply for a 

modification of a valid use permit.” (Italics added.) Applying the standards 

of statutory construction discussed above to the language of EMC section 

30.74.110, we conclude that there is similarly only one reasonable 

interpretation of that language. We therefore construe EMC section 

30.74.110 as providing that a use permit may be modified only if there is an 

existing “valid” use permit to modify. The legal effect of EMC section 

30.74.110 is that any application to modify an “invalid,” or expired, use 

permit must be denied. Applying EMC section 30.74.110’s requirements for 

modification of a use permit to SP’s application for modification of its 2005 

MUP, which the CC properly found had expired by operation of law and was 

thus null and void pursuant to EMC section 30.74.120, we conclude that the 

CC properly denied SP’s appeal of the PC’s denial of its application for a 

modified MUP. We further conclude that, based on finding number 8, the CC 

had no authority to grant SP’s appeal and approve its application for 

modification of its 2005 MUP because such a decision would have been in 

contravention of EMC section 30.74.110.

Substantial evidence to support the CC’s denial of a CDP and PMW.

SP appears to contend that even though there may be substantial 

evidence to support the CC’s denial of its appeal of the PC’s decision to deny 

SP’s application to modify the 2005 DRP and MUP, there was no substantial 

evidence to support the CC’s denial of its appeal as to the PC’s denial of its 

application for a CDP and PMW. We disagree. First, SP’s application for a 

modification of its 2005 DRP, a modification of its 2005 MUP, a CDP, and a 
30

PMW appears to be a “joint” application for which the requested development 

permits are interdependent. Therefore, the proper denial of one permit 

would implicitly require the denial of the other permits. Second, and more 

importantly, as noted above, there are EMC ordinances that expressly make 

the issuance of a valid DRP and/or MUP a precondition to the issuance of 

other development permits. In particular, EMC section 23.08.020(B) 

provides: “No building permit, grading permit or other development permits 

shall be issued relating to a structure or site development for which a design 

review permit is required until the design review permit is obtained.” (Italics 

added.) Applying the standards of statutory construction discussed above to 

the language of EMC section 23.08.020(B), we conclude that the usual and 

ordinary meaning of the language of the ordinance is unambiguous and that 

there is only one reasonable interpretation of this language. We therefore 

construe EMC section 23.08.020 as providing that until the PC or CC issues a 

valid design review permit, no other development permits (e.g., MUP, CDP, 

or PMW) may be issued. In effect, that ordinance makes the issuance of a 

valid DRP a precondition to the issuance of any other development permit.

EMC section 30.74.020(B) similarly provides: “No building permit or 

other development permits shall be issued relating to a project for which a use 

permit is required by this Code until the use permit is obtained.” (Italics 

added.) Applying the standards of statutory construction discussed above to 

the language of EMC section 30.74.020(B), we again conclude that the usual 

and ordinary meaning of the language of the ordinance is unambiguous and 

there is only one reasonable interpretation of this language. We therefore 

construe EMC section 30.74.020 as providing that until the PC or CC issues a 

valid use permit, no other development permits (e.g., DRP, CDP, or PMW) 
31

may be issued. In effect, that ordinance makes the issuance of a valid MUP a 

precondition to the issuance of any other development permit.6

Accordingly, we conclude that, in implicitly applying the provisions of 

EMC sections 23.08.020 and 30.74.020, the CC properly denied SP’s appeal of 

the PC’s denial of its application for a CDP and a PMW based on its denial of 

SP’s appeal of the PC’s decision to deny SP’s application for modifications of 

its 2005 DRP and MUP. In effect, the CC impliedly found that the 

preconditions for the issuance of the CDP and PMW related to the Project 

were not satisfied because the existence of a valid DRP and valid MUP were 

required under EMC sections 23.08.020 and 30.74.020 before the CC had the 

authority to grant SP’s appeal and approve its application for a CDP and 

PMW.7 We therefore conclude that there is substantial evidence to support 

the CC’s finding number 8, which, in turn, supports its denial of SP’s appeal 

of the PC’s decision to deny SP’s application for a modification of the 2005 

DRP, a modification of its 2005 MUP, a CDP, and a PMW. Because there is 

substantial evidence to support one of its findings, and this finding in turn 

supports the CC’s administrative decision to deny SP’s appeal, we need not, 

6 Based on our reading of EMC sections 23.08.020(B) and 30.74.020(B), it 

appears that a DRP and MUP must be issued concurrently and that the 

issuance of both is a prerequisite to the issuance of any other development 

permit for a project.

7 In its briefing, SP does not make any specific argument regarding the 

PMW that it requested in connection with the Project, which would allow 

consolidation of three parcels into a single parcel. Based on our review of the 

record, it appears that SP’s application for consolidation of those parcels was 

conditioned on approval of the other development permits for the Project. In 

any event, we conclude that SP has not carried its burden on appeal to show 

that there is not substantial evidence to support the CC’s denial of its appeal 

of the PC’s decision to deny SP’s application for the PMW.
32

and do not, address whether there is also substantial evidence to support the 

other nine findings that the CC made in support of its decision. (Breneric, 

supra, 69 Cal.App.4th at p. 176; Saad, supra, 24 Cal.App.4th at pp. 1213-

1215.)

V

Declaratory Relief8

A

Equitable estoppel and promissory estoppel

SP contends that even if there was substantial evidence to support the 

CC’s denial of its appeal of the PC’s decision to deny SP’s application for the 

development permits for the Project, the trial court erred by not finding that 

the doctrine of equitable estoppel and/or promissory estoppel applied to 

preclude the City from denying SP’s application for those development 

8 SP’s combined petition for writ of mandate and complaint for 

declaratory relief included several requests for declaratory relief. There is 

case law holding that the trial court should not issue declaratory relief in a 

writ proceeding. (See, e.g., State of California v. Superior Court (1974) 

12 Cal.3d 237, 249 [“It is settled that an action for declaratory relief is not 

appropriate to review an administrative decision”]; Selby Realty Co. v. City of 

San Buenaventura (1973) 10 Cal.3d 110, 127 [same]; City of Pasadena v. 

Cohen (2014) 228 Cal.App.4th 1461, 1467, fn. omitted (Cohen) [“Declaratory 

relief . . . cannot be joined with a writ of mandate reviewing an 

administrative determination”]; Tejon Real Estate, LLC v. City of Los Angeles

(2014) 223 Cal.App.4th 149, 154-155; Guilbert v. Regents of University of 

California (1979) 93 Cal.App.3d 233, 244 [request for declaratory relief 

cannot be joined with petition for writ of mandate reviewing administrative 

decision].) Accordingly, it appears that the trial court may have lacked the 

authority to consider the ancillary declaratory relief that SP requested. (Cf. 

Cohen, at p. 1467.) Because the requests for declaratory relief were raised 

without objection in the trial court, we assume for purposes of this opinion 

that the court had the authority to consider the requests and we exercise our 

discretion to address the merits of the issues as to which SP requested 

declaratory relief.
33

permits and/or from finding that the 2005 permits had expired by operation 

of law. In particular, SP cites evidence showing that City staff represented to 

SP that the 2005 DRP and MUP remained valid and that SP was therefore 

required to apply only for modifications of those permits in order for it to be 

able to resume development of the Project. We conclude that the trial court’s 

findings that the doctrines of equitable estoppel and promissory estoppel did 

not apply in the circumstances of this case are supported by substantial 

evidence.

1. Procedural background. The record includes evidence showing that 

certain City planning department staff members advised SP that its 2005 

DRP and MUP remained valid and recommended that SP file an application 

for modifications of the 2005 DRP and MUP in order to resume its efforts to 

develop the Project. In particular, in his declaration, Daniel Reedy, SP’s 

principal, stated that in 2008, a City senior planner advised him that the City 

had a moratorium on permit expirations due to the recession. In 2012 and 

2013, when SP resumed discussions with City staff, no one mentioned that 

the moratorium had terminated or that SP’s 2005 permits had expired. In 

2015, the planning department director informed SP that the 2005 DRP and 

MUP remained valid, but that SP would have to apply for modification of 

those permits because there were additional changes that would have to be 

made to the Project. Reedy stated in his declaration that at all times until 

2020, City staff assured SP that its 2005 permits remained valid and that 

only modifications to those permits would be required.

On August 29, 2017, SP filed its application requesting modifications of 

the 2005 DRP and MUP and for approval of a new CDP. In its agenda report 

for the PC’s June 18, 2020 public hearing on SP’s application, City staff 
34

stated that the 2005 DRP and MUP remained valid and recommended that 

the PC approve the application. At its June 18, 2020 public hearing, 

however, the PC found that SP’s 2005 DRP had expired by operation of law 

and proceeded to deny SP’s application.

In its agenda report for the CC’s August 19, 2020 public hearing on 

SP’s appeal of the PC’s decision, City staff again stated that the DRP and 

MUP remained valid and recommended that the CC grant SP’s appeal. At its 

August 19, 2020 public hearing, the CC, found that both SP’s 2005 DRP and 

2005 MUP had expired by operation of law and denied SP’s appeal.

In its petition for writ of mandate, SP alleged that it would be 

inequitable for the City to deny its application and preclude it from 

developing the Project. In addition to requested writ relief, SP requested 

declaratory relief stating that the CC was estopped from making a decision 

contrary to the CC’s findings in its 2005 resolution approving SP’s 2005 DRP 

and MUP because the City’s planning department had led SP to believe that 

its 2005 permits remained valid and SP had reasonably relied on those 

representations.

In its April 6, 2021 minute order, the trial court rejected SP’s request 

for equitable relief, citing Toigo v. Town of Ross (1998) 70 Cal.App.4th 309 

(Toigo), in which the court stated:

“The principle of estoppel . . . prohibits a governmental 

entity from exercising its regulatory power to prohibit a 

proposed land use when a developer incurs substantial 

expense in reasonable and good faith reliance on some 

governmental act or omission so that it would be highly 

inequitable to deprive the developer of the right to complete 

the development as proposed. . . . [¶] We note at the outset 

that [the developer] faces daunting odds in establishing 

estoppel against a governmental entity in a land use 

case. . . . [¶] . . .[T]here is no meaningful distinction 

between an estoppel claim and a vested right claim where 
35

land use is at issue. [Citations.] In California, the 

developer’s right to complete a project as proposed does not 

vest until a valid building permit, or its functional 

equivalent, has been issued and the developer has 

performed substantial work and incurred substantial 

liabilities in good faith reliance on the permit. [Citations.] 

Courts have yet to extend the vested rights or estoppel 

theory to instances where a developer lacks a building 

permit or the functional equivalent, regardless of the 

property owner’s detrimental reliance on local government 

actions and regardless of how many other land use and 

other preliminary approvals have been granted. To the 

contrary, it has been stated that ‘ “[w]here no such permit 

has been issued, it is difficult to conceive of any basis for 

such estoppel.” [Citations.]’ [Citation.] California courts 

apply this rule most strictly . . . .” (Toigo, supra, 

70 Cal.App.4th at pp. 321-322, fn. omitted.)

Applying Toigo, the trial court questioned whether SP had shown that 

a failure to apply equitable estoppel in this case would deprive SP of the right 

to complete its development as proposed, noting that further changes to the 

Project might have been required such that the Project would no longer 

match the Project as proposed at the time the 2005 permits were approved. 

The court also noted that SP did not have a valid building permit, or its 

functional equivalent, that would allow it to commence construction, as was 

required in order for equitable estoppel to apply under Toigo. The court 

stated: “[E]ven if the approved Permits can accurately be described as 

‘vested’ (at least for a two-year time frame), it is not ‘highly inequitable’ (a 

standard emphasized by the Toigo court) to deprive [SP] of the opportunity to 

complete the Project as it existed in those original Permits because those 

Permits were never solid enough to build upon as-is until a [CDP] was 

approved.” Finally, the court considered the doctrine of laches, and noted 

that SP had waited until 2013 to resume efforts to develop the Project and 

had not filed a complete application until 2019—long after its 2005 permits 
36

had expired under the applicable EMC ordinances. The court stated: “It 

would be particularly improper in this case for equity to interpose to override 

the public policy behind the ‘normal planning and review process’ given this 

very significant passage of time (roughly 15 years) and how that passage of 

time may have altered the circumstances surrounding the Project.” 

Accordingly, the court denied SP’s request for equitable relief, stating: “For 

these many reasons, and in light of the general indication that a developer 

who seeks to invoke equitable estoppel ‘faces daunting odds,’ this Court 

concludes that this is not a proper case for the imposition of the doctrine of 

equitable estoppel.” The court entered its judgment on May 19, 2021 denying 

SP’s requested equitable relief.

2. Legal principles. Equitable principles originated “in the necessity 

for exceptions to the application of rules of law in those cases where the law, 

by reason of its universality, would create injustice in the affairs of men.” 

(In re Estate of Lankershim (1936) 6 Cal.2d 568, 572-573.) “[T]he granting or 

withholding of equitable relief involves the exercise of judicial discretion.” 

(Fairchild v. Raines (1944) 24 Cal.2d 818, 826.)

“ ‘The elements of the doctrine [of equitable estoppel] are that (1) the 

party to be estopped must be apprised of the facts; (2) he must intend that his 

conduct shall be acted upon, or must so act that the party asserting the 

estoppel has a right to believe it was so intended; (3) the other party must be 

ignorant of the true state of facts; and (4) he must rely upon the conduct to 

his injury.’ ” (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.) 

Further, “[t]he [plaintiff’s] detrimental reliance must be reasonable.” 

(Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261 (Schafer); 

see also, Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 35 (Waller).) 
37

“Equitable estoppel against the government . . . is the exception, not the 

rule.” (Attard v. Board of Supervisors of Contra Costa County (2017) 

14 Cal.App.5th 1066, 1079.) In cases against the government, an additional 

requirement applies in land use cases: the court must expressly balance the 

injustice done to the private person with the public policy that would be 

supervened by invoking estoppel to grant development rights outside of the 

normal planning and review process. (Id. at pp. 1079-1080; Toigo, supra, 

70 Cal.App.4th at p. 321.)

“The existence of equitable estoppel generally is a factual question for 

the trier of fact to decide, unless the facts are undisputed and can support 

only one reasonable conclusion as a matter of law. [Citation.] We review 

factual findings regarding the existence of equitable estoppel under the 

substantial evidence test. [Citation.] In a case involving equitable estoppel 

against the government, however, the existence of estoppel is in part a legal 

question to the extent it involves weighing policy concerns to determine 

whether the avoidance of injustice in the particular case justifies any adverse 

impact on public policy or the public interest. [Citations.] . . . [W]e review 

questions of law de novo.” (Schafer, supra, 237 Cal.App.4th at pp. 1263-

1264.)

3. Analysis. Based on our review of the record, we conclude that there 

is substantial evidence supporting the trial court’s finding that the doctrine of 

equitable estoppel does not apply in the circumstances of this case to warrant 

the equitable relief that SP sought in its writ petition. The trial court relied, 

as do we, on the principles discussed in Toigo, supra, 70 Cal.App.4th 309, 

regarding the application of equitable estoppel in land use cases. In 

particular, there is substantial evidence supporting the trial court’s finding 
38

that SP did not have a building permit, or its functional equivalent, which 

would have allowed it to commence construction of the Project in its current 

or modified version at the time of the CC’s decision. SP therefore did not 

have a vested interest that could be protected by the application of equitable 

estoppel. There is also substantial evidence to support the court’s finding 

that SP had waited 15 years after the issuance of its permits in 2005 to seek 

equitable relief against the City, which weighed against the application of 

equitable estoppel.

Further, case law holds that developers generally may not reasonably 

rely on statements of public agency employees who are not authorized to 

make land use decisions, such as the approval of modifications of the DRP 

and MUP, a CDP, and PMW in this case. Those decisions were solely for the 

PC and CC to make under applicable EMC ordinances. In Benson v. 

California Coastal Com. (2006) 139 Cal.App.4th 348 (Benson), the court 

stated: “Everyone is presumed to know the law. [Citation.] Indeed, [the 

appellant] does not claim he was unaware that the Commission, not its staff, 

had the power to decide what action to take at the hearing. Under the 

circumstances, he could not reasonably rely on staff comments predicting 

what action the Commission would take.” (Id. at p. 355.)

In this case, SP cannot reasonably claim that it was unaware of the 

relevant EMC ordinances authorizing the PC and CC, and not City staff, to 

make decisions on its application. Those EMC ordinances are publicly 

available. Further, in 2013, SP’s counsel advised SP that if City staff 

determined that its revised Project was not in substantial conformance with 

its 2005 permits, then SP would “need to file (i) an application for a coastal 

development permit issued by the City, and (ii) a major use permit and a 

design review permit, should the revised conditions of approval necessitate 
39

changes to the latter two permits. These will require a [PC] public hearing 

and, if appealed, a [CC] public hearing.” While that advice is arguably 

ambiguous, SP’s counsel did not advise SP to obtain modifications of its 2005 

permits; rather, counsel advised SP to file applications for development 

permits. Further, regardless of SP’s counsel’s advice, SP cannot rely on any 

purported ignorance of relevant EMC ordinances regarding modification of 

development permits. Given the express provisions of the EMC ordinances 

and the legal advice that SP received from its own land use counsel, there is 

substantial evidence to support an implied finding by the trial court that SP 

could not demonstrate that it reasonably relied on any contrary 

representations or other statements by City staff. (Schafer, supra, 

237 Cal.App.4th at p. 1261 [equitable estoppel requires that detrimental 

reliance be reasonable]; Waller, supra, 11 Cal.4th at p. 35 [same].) Finally, 

the trial court properly considered and weighed the relevant public policy 

considerations and concluded that equitable estoppel should not be applied in 

this land use case because of the public policy against interference with the 

City’s normal planning and review process for issuance of land use permits. 

Accordingly, we conclude that substantial evidence supports the trial court’s 

finding that the doctrine of equitable estoppel does not apply in the 

circumstances of this case.

Incorporating our reasoning above, we similarly conclude that there is 

substantial evidence to support the trial court’s implied finding that the 

doctrine of promissory estoppel also did not apply. Accordingly, we conclude 

that the court did not err by denying SP’s request for equitable relief under 

either the doctrine of equitable estoppel or the doctrine of promissory 

estoppel.
40

B

Section 65956(b)

SP contends that even if its 2005 development permits expired by 

operation of law, its application for modifications of those permits must be 

“deemed approved” pursuant to section 65956(b) because the PC did not 

timely approve or disapprove its application. We disagree.

1. Section 65956(b). Section 65956(b) is part of the Permit 

Streamlining Act (§ 65920 et seq.) (PSA), which was enacted in 1977 with the 

legislative purpose of expediting the processing of land use permits by public 

agencies. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1046-1047, 

abrogated by statute on other grounds as noted in DeBerard Properties, Ltd. 

v. Lim (1999) 20 Cal.4th 659, 668.) Section 65956(b) provides:

“In the event that a lead agency or a responsible agency 

fails to act to approve or to disapprove a development 

project within the time limits required by this article, the 

failure to act shall be deemed approval of the permit 

application for the development project. However, the 

permit shall be deemed approved only if the public notice 

required by law has occurred. . . .” (Italics added.)

2. Doctrine of implied findings. As SP notes, in its April 6, 2021 

minute order, the trial court did not expressly address SP’s argument that its 

application should be deemed approved pursuant to section 65956(b) because 

the PC failed to timely approve or disapprove the application. However, SP 

does not discuss the import of that omission on our standard of review.

“To this appeal . . . , we apply basic tenets prescribing the scope and 

limits of appellate review, starting with the most fundamental--the 

presumption of correctness. An appealed judgment is presumed to be correct. 
41

We will indulge all intendments and presumptions to support the judgment 

on matters as to which the record is silent and prejudicial error must be 

affirmatively shown. [Citation.] [¶] Particularly pertinent here, and not 

addressed by either side, is the doctrine of implied findings. This doctrine 

requires that in the absence of a statement of decision, an appellate court will 

presume that the trial court made all factual findings necessary to support 

the judgment for which substantial evidence exists in the record. In other 

words, the necessary findings will be implied and the only issue on appeal is 

whether the implied findings are supported by substantial evidence. 

[Citations.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267, 

fn. omitted (Shaw).) The doctrine of implied findings “is a natural and logical 

corollary to three fundamental principles of appellate review: (1) a judgment 

is presumed correct; (2) all intendments and presumptions are indulged in 

favor of correctness; and (3) the appellant bears the burden of providing an 

adequate record affirmatively proving error. [Citations.]” (Fladeboe v. 

American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).) 

“Failure to provide an adequate record on an issue requires that the issue be 

resolved against appellant. [Citations.]” (Eisenberg et al., Cal. Practice 

Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 8:17, p. 8-6.)

3. Analysis. SP’s section 65956(b) argument is premised on the 

assumption that the PC did not timely approve or disapprove its application 

at its June 6, 2019 public hearing or at any time thereafter within 90 days of 

the date its application was deemed complete under the PSA. However, in so 

arguing, SP disregards what apparently occurred at the June 6, 2019 hearing 

and fails to provide an adequate record on that issue. The only concurrent 

statement in the administrative record showing what occurred at the June 6, 
42

2019 PC hearing is a copy of the PC’s minutes for that hearing, which states 

that its consideration of SP’s application “was CONTINUED OFF 

CALENDAR.” Those minutes do not contain any description of the 

discussions that occurred at the June 6, 2019 hearing on SP’s application, 

and the record on appeal does not contain a transcript of that hearing. 

However, the parties agree that the record shows that at the June 6, 2019 

hearing, members of the PC, as well as members of the public, raised a 

number of significant issues relating to the Project as proposed in SP’s 

application. In particular, the City staff’s subsequent agenda report for the 

CC’s August 19, 2020 public hearing on SP’s appeal noted those issues, 

stating: “The [PC] considered the [P]roject on June 6, 2019 and [the hearing] 

was continued off-calendar to allow [SP] to address various issues, which are 

listed below.” That agenda report also described events occurring after the 

PC’s June 6, 2019 hearing, stating: “Subsequent to the June 6, 2019 hearing, 

[SP] questioned the legal purview of the [PC] to request significant changes 

on the application . . . . [SP] submitted an alternative design for the east 

elevation [of the Project] to soften the view to address the [PC’s] concerns 

raised at the June 6, 2019 hearing. Though [SP] did not address all of the 

[PC’s] concerns (see list below), staff determined the changes to be an 

improvement to the previous decision. However, staff informed [SP] that 

modifying the design will expand the City’s legal authority under the [DRP] 

to request additional modifications beyond the limited scope of improvements 

being requested as part of the subject application. [SP] requested to move 

forward to the June 18, 2020 [PC] hearing with the original design with a 

supplemental request to include the revised east elevation as an option for 

the [PC] to consider.” The report then states: “The [PC] held a second 

hearing on June 18, 2020 to consider the subject application request. At that 
43

hearing, staff provided responses to the various issues raised by the [PC] at 

the June 6, 2019 hearing as follows (see staff’s response[s] in italics below 

[regarding] each item): . . . .” The list of issues set forth in the agenda report 

that had apparently been raised at the PC’s June 6, 2019 hearing includes 

landscaping, beach sand replenishment, bulk and mass concerns pertaining 

to scenic view corridors, step down of Phase II building with slope and 

inclusion of single-story elements to enhance views from street, increase 

articulation from street, parking, need for photo simulations from a street 

level perspective regarding effect on views, and the lack of a pedestrian 

sidewalk on an adjacent street. At its June 18, 2020 public hearing, the PC 

considered SP’s revisions to the Project and denied its application for the 

development permits.

Applying the presumption of correctness and the doctrine of implied 

findings, we presume that, in denying SP’s requested relief, the trial court 

impliedly found that SP’s application was not deemed approved pursuant to 

section 65956(b). Further, we presume that the trial court made all factual 

findings necessary to support the judgment for which substantial evidence 

exists in the record. (Shaw, supra, 170 Cal.App.4th at p. 267.) One such 

finding would be that, in light of the issues raised by members of the PC and 

public at the June 6, 2019 hearing, SP withdrew its application for 

development permits based on its existing version of the Project rather than 

have the PC deny its application at that hearing, thereafter revised its plans 

for the Project to address those issues, and resubmitted those plans to the PC 

for its consideration in 2020. The court could have further found that

because SP effectively withdrew its application at the June 6, 2019 hearing, 

the time period within which the PC was required to approve or disapprove 

SP’s application (as of June 6, 2019) ceased to run and therefore, the 
44

application was not “deemed approved” pursuant to section 65956(b). Based 

on our review of the administrative record, as discussed above, there is 

substantial evidence to support these implied findings. The PSA does not 

contain any provisions precluding an applicant from submitting a complete 

application for a development permit and thereafter withdrawing it. (Cf. 

Linovitz Capo Shores LLC v. California Coastal Com. (2021) 65 Cal.App.5th

1106, 1119-1120 (Linovitz) [implicitly recognizing that applicants may 

withdraw applications, but concluding in that case that substantial evidence 

supported trial court’s finding that applicant had not, in fact, withdrawn its 

application, so application was deemed approved pursuant to § 65956(b)].) 

Although the record on appeal does not contain any evidence showing that SP 

expressly withdrew its application at the June 6, 2019 hearing, SP did not 

provide any transcript of the PC’s June 6, 2019 hearing that may have shown 

its express withdrawal of its application so that it could revise its Project in 

light of the issues raised at that hearing. Also, there is nothing in the record 

showing that SP objected to the June 6, 2019 being continued off calendar. 

The minutes from the PC’s June 6, 2019 meeting stating that the PC’s 

consideration of SP’s application was “CONTINUED OFF CALENDAR,” 

support an implied finding that SP withdrew its application. In addition, 

SP’s subsequent resubmission of its revised Project in 2020 further supports 

an implied finding that it had withdrawn its application on June 6, 2019, and 

effectively filed a new application for that revised Project in 2020. By not 

including a transcript or other evidence showing what transpired at the PC’s 

June 6, 2019 hearing, we conclude that SP failed to provide an adequate 

record on the issue; that failure requires that we resolve against SP the 

factual question of the withdrawal of its application at the June 6, 2019 

hearing. (Fladeboe, supra, 150 Cal.App.4th at p. 58; Eisenberg et al., Cal. 
45

Practice Guide: Civil Appeals and Writs, supra, at ¶ 8:17, p. 8-6.) 

Accordingly, we conclude that there is substantial evidence to support the 

trial court’s implied finding that SP’s application, as considered by the PC on 

June 6, 2019, was not deemed approved pursuant to section 65956(b), but 

rather, that SP withdrew the application at that hearing. We further 

conclude that on SP’s resubmission of its revised Project in 2020, the PC 

timely denied its application at its June 18, 2020 hearing and therefore, 

complied with the PSA’s requirements for timely approval or disapproval of 

land use permit applications. Accordingly, the trial court correctly rejected, 

albeit impliedly, SP’s section 65956(b) argument.

C

The CC’s finding that the 2005 permits had expired

Finally, we address the trial court’s award of declaratory relief to SP. 

In its judgment granting in part and denying in part SP’s request for 

declaratory relief, the trial court found that because the City had not 

provided SP with notice that the issue of the validity of the 2005 permits 

would be considered by the CC at its August 19, 2020 hearing, the CC was 

without power to find that the 2005 permits had expired and were null and 

void. Accordingly, in its judgment, the court directed the City to modify its 

Resolution 2020-78 to remove the language set forth in finding number 8.

1. Consideration of issue on appeal. Although the City has not filed a 

cross-appeal challenging the judgment to the extent that the trial court 

directed it to remove the language of finding number 8 from its Resolution 

2020-78, we nevertheless exercise our inherent discretion to address the issue 

of whether the court erred by ordering the City to do so.
46

The CC’s finding in its resolution that the 2005 permits were null and 

void is central to our disposition of SP’s appeal. We conclude that the trial 

court’s determination that the CC could not make such a finding due to lack 

of proper notice to SP is so “interwoven” with the issue of the validity of the 

2005 permits that we may exercise our discretion to address that 

determination and, if erroneous, modify the judgment accordingly. (Cf. Hong 

Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 487-488; City of Santa 

Maria v. Cohen (2017) 11 Cal.App.5th 96, 107-108; In re Marriage of Garrity 

& Bishton (1986) 181 Cal.App.3d 675, 690; Eisenberg et al., Cal. Practice 

Guide: Civil Appeals and Writs, supra, ¶ 8:197, p. 8-162.) “The test of 

whether a portion of a judgment appealed from is so interwoven with its 

other provisions as to preclude an independent examination of the part 

challenged by the appellant is whether the matters or issues embraced 

therein are the same as, or inter-dependent upon, the matters or issues which 

have not been attacked.” (American Enterprise, Inc. v. Van Winkle (1952) 

39 Cal.2d 210, 217.) In California, “when an appeal is taken from a portion of 

a judgment which cannot be separated from the remainder of it,” that appeal 

“brings before the reviewing court all of the nonseverable portions.” (Ibid.) 

In the circumstances of this case, we conclude, as discussed below, that we 

may review the trial court’s consideration of the question whether the City 

gave proper notice regarding the CC’s consideration of the expiration of the 

2005 permits at its public hearing on SP’s appeal of the PC’s denial of its 

application, because that question directly relates to our determination that 

there was substantial evidence to support the CC’s finding number 8 and 

thus, its denial of SP’s appeal. If left unaddressed, the trial court’s 

determination that the language of finding number 8 must be removed from 
47

the CC’s Resolution would result in an internally inconsistent judgment. 

(Ibid.)

2. Analysis. Based on our review of the record, it is clear that the City 

gave proper notice of the CC’s August 19, 2020 public hearing on SP’s appeal 

of the PC’s denial as such notice was required by statutory and EMC 

provisions. First, the Government Code sets forth certain notice 

requirements for public hearings on land use permits or other development 

permits. Section 65905 provides: “(a) . . . [A] public hearing shall be held 

on . . . an application for a conditional use permit or equivalent development 

permit, a proposed revocation or modification of a variance or use permit or 

equivalent development permit, or an appeal from the action taken on any of 

those applications.” The City was therefore required to hold a public hearing 

on the CC’s consideration of SP’s appeal from the PC’s denial of SP’s 

application. Section 65905, subdivision (b) provides: “Notice of a hearing 

held pursuant to subdivision (a) shall be given pursuant to Section 65901.” 

Section 65901, subdivision (a) sets forth the manner of publication for notices 

of public hearing, which is not an issue in this case. Section 65901, 

subdivision (b) provides: “The notice shall include the information specified 

in Section 65094.” Significantly, section 65094 provides: “As used in this 

title, ‘notice of public hearing’ means a notice that includes the date, time, 

and place of a public hearing, the identity of the hearing body or officer, a 

general explanation of the matter to be considered, and a general description, 

in text or by diagram, of the location of the real property, if any, that is the 

subject of the hearing.” (Italics added.)

The EMC sets forth similar provisions requiring that the City provide 

notice of its public hearings on certain land use decisions. In particular, 
48

EMC sections 23.08060(F) and 30.74.060(F) require that the CC consider the 

approval or disapproval of an application for a DRP or MUP at a “noticed, 

public hearing.” EMC section 30.01.070(A) provides: “When a noticed, public 

hearing must be conducted the following shall apply: [¶] 1. Notice shall 

contain the date and time set for hearing which shall not be less than 10 nor 

more than 40 calendar days from the date of notice. Notice shall describe the 

purpose of the hearing and a description of the areas affected.” (Italics 

added.)

After the PC made its June 18, 2020 determination denying SP’s 

application, the City issued its notice of the CC’s August 19, 2020 public 

hearing on SP’s appeal of the PC’s decision, which set forth information 

regarding the case number, application filing date, and location of the project. 

The notice then described SP’s project, stating: “To consider an appeal of the 

[PC’s] denial of a Major Use Permit Modification, Design Review Permit 

Modification, Parcel Map Waiver and Coastal Development Permit to modify 

a previously approved 25-unit timeshare hotel constructed in two phases with 

associated updated landscape/site improvements and a temporary 

construction trailer. The project also includes a request to consolidate three 

existing legal lots into one parcel.” (Italics added.)

Based on our review of the language of the notice of the CC’s public 

hearing, we conclude that the notice complied with all statutory and 

ordinance requirements for notices of public hearings on the relevant land 

use decisions. In particular, the City’s notice of the CC’s August 19, 2020 

public hearing on SP’s appeal of the PC’s decision described the purpose of 

that hearing as being for the purpose of the CC’s consideration of SP’s appeal 

of the PC’s “denial of a Major Use Permit Modification, Design Review Permit 

Modification, Parcel Map Waiver and Coastal Development Permit.” In so 
49

doing, the City’s notice of the CC’s August 19, 2020 public hearing properly 

set forth “a general explanation of the matter to be considered” by the PC 

within the meaning of section 65094 and the “purpose of the hearing” within 

the meaning of EMC section 30.01.070(A)(1). (Italics added.)

Contrary to SP’s arguments in the trial court, the City’s notice of the 

CC’s public hearing was not required to set forth, in detail, every possible 

finding that the CC might make in support of its consideration of SP’s appeal. 

Neither the Government Code sections nor the EMC ordinances, quoted 

above, require such detail in a notice of public hearing. Rather, only a 

“general explanation” or description of the “purpose” of the hearing is 

required. (§ 65094; EMC § 30.01.070(A)(1).) SP does not cite, nor are we 

aware of, any statutory or case authority requiring that notices of public 

hearings on land use decisions set forth, in detail, all possible findings that 

the public agency might make in approving or denying an application for a 

development permit or an appeal of a decision approving or denying such an 

application. Further, even assuming that SP’s appeal to the CC involved 

fundamental vested rights and/or its right to procedural due process, SP does 

not cite, nor are we aware of, any case holding that notices of public hearings 

on such vested rights must provide more than a notice of the hearing, 

including the date of the hearing and a description of the matter to be 

considered at that hearing, and an opportunity to be heard at that hearing. 

On the contrary, case law holds that procedural due process generally does 

not require that notices of public hearings be detailed regarding the possible 

specific issues to be considered and possible specific findings that might be 

made by a public agency. (See, e.g., Linovitz, supra, 65 Cal.App.5th at 

pp. 1123-1125; Benson, supra, 139 Cal.App.4th at p. 353 [notice of public 

hearing was adequate even though it did not apprise appellant of specific 
50

issues to be considered at hearing].) The California Supreme Court has 

“refrain[ed] from describing a specific formula which details the nature, 

content, and timing of the requisite notice.” (Horn v. County of Ventura

(1979) 24 Cal.3d 605, 618.) Nevertheless, the court held that “notice must, at 

a minimum, be reasonably calculated to afford affected persons the realistic 

opportunity to protect their interests.” (Id. at p. 617.) Alternatively stated, a 

notice of public hearing must apprise interested parties of the pending public 

hearing that may affect their property interests and an opportunity to 

present their objections. (Ryan v. California Interscholastic Federation-San 

Diego Section (2001) 94 Cal.App.4th 1048, 1072.) “All that is required is that 

the notice be reasonable.” (Pacific Gas & Electric Co. v. Public Utilities Com.

(2015) 237 Cal.App.4h 812, 860.) The court in Laupheimer v. State of 

California (1988) 200 Cal.App.3d 440, held that a notice of public hearing 

need not contain asserted procedural details, but rather, that the notice need 

only be reasonably calculated, under all of the circumstances, to apprise 

interested parties of the pendency of the action and afford them an 

opportunity to be heard on that action. (Id. at p. 453, citing Mullane v. 

Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.)

Applying the above standards for notices of public hearings to the City’s 

notice of the CC’s August 19, 2020 public hearing, we conclude that notice 

satisfied applicable statutory requirements, as well as procedural due 

process. That notice provided SP, as well as nearby property owners and 

other interested members of the public, with notice of the matter to be 

considered by the CC at its August 19, 2020 public hearing, including a 

sufficient description of that matter, and an opportunity to be heard on the 

matter. Specifically, the notice for the CC’s August 19, 2020 public hearing 

sufficiently described the matter to be considered as the CC’s consideration of 
51

SP’s appeal of the PC’s denial of its application for modification of the DRP, 

modification of the MUP, a CDP, and a PMW. Nothing more was required. 

Accordingly, in considering SP’s appeal of the PC’s denial of its application 

for modification of, or issuance of, those development permits, the CC could 

properly consider all relevant factors, and make all specific findings of fact 

supported by the evidence, in making its decision to approve or deny SP’s 

appeal. In so doing, the CC could, as discussed below, consider whether 

modifications of the DRP and MUP could be properly approved if those 

permits had expired by operation of law and therefore were no longer valid 

(i.e., were null and void). In particular, in deciding SP’s appeal of the PC’s 

decision, the CC could properly consider the expiration of the DRP by 

operation of law, which the PC expressly cited as one basis for its denial of 

SP’s application.

Contrary to SP’s argument, the omission from the notice of public 

hearing of any detailed description of the CC’s consideration of the specific 

issue of the validity of the 2005 permits in considering SP’s appeal did not 

preclude the CC from properly making findings on that issue if supported by 

substantial evidence. To the extent that SP relies on Fort Bragg as support 

for its argument, we conclude that the language on which SP relies is dicta 

and, in any event, Fort Bragg supports, rather than undermines, our 

conclusion that the City’s notice of public hearing in this case allowed the CC 

to properly consider the issue of the validity of the 2005 permits and their 

expiration by operation of law. First, Fort Bragg concluded that the trial 

court erred by misconstruing the phrase “substantial evidence of use in 

progress” as requiring actual construction of buildings in order to avoid 

expiration of a conditional use permit and, based thereon, reversed the trial 

court’s judgment denying the petition for writ of mandate requesting 
52

reinstatement of that permit after the public agency found that the permit 

had expired. (Fort Bragg, supra, 204 Cal.App.3d at pp. 1129-1132.) Because 

the ordinance in Fort Bragg is inapposite to the EMC ordinances regarding 

expiration of the DRP and MUP in this case, Fort Bragg’s holding on that 

issue is irrelevant to the proper interpretation and application of the EMC 

ordinances. Second, although Fort Bragg discussed the possibility that the 

public agency’s action could be interpreted as revoking, as opposed to making 

a finding of expiration of, the conditional use permit, it concluded that the 

issue of revocation was not properly before the public agency because the 

agency had not given notice that the issue of revocation, as opposed to 

expiration, would be considered at the public hearing. (Id. at pp. 1131-1132.) 

The court concluded that although the public agency had given notice that 

the issue of expiration of the conditional use permit would be considered at 

the hearing, the notice did “not afford[ ] notice of the city council’s intention 

to consider revocation” of that permit at its hearing. (Id. at p. 1132.) Rather, 

“[t]he hearing solely concerned the expiration of the permit in light of 

whether substantial evidence of use had been demonstrated . . . . Any 

attempted revocation is therefore a nullity.” (Ibid.) In so holding, Fort 

Bragg, albeit in dicta, distinguished between a public agency’s consideration 

of the issue of expiration of a permit and its consideration of revocation of a 

permit. (Ibid.)

In the circumstances of this case, the record shows that, unlike the 

public notice in Fort Bragg, the City’s notice of the CC’s public hearing did 

not expressly state that the CC would decide the issue of expiration of SP’s 

2005 DRP and MUP. Nevertheless, the City’s notice of the CC’s public 

hearing properly gave notice of the purpose of the hearing, which implicitly 

included the CC’s consideration of any relevant factors or evidence in support 
53

of, or opposition to, the PC’s denial of SP’s application, including the PC’s 

finding that the 2005 DRP had expired by operation of law and its denial of 

all four permits, which was presumably based on the fact that a valid DRP 

must be issued before any additional development permits may issue.9

For the foregoing reasons, we conclude that the trial court erred by 

directing the City to remove from the CC’s August 19, 2020 resolution 

denying SP’s appeal its finding number 8, as quoted above.10 We therefore 

modify the judgment by deleting that order and thereby, in effect, reinstate 

the CC’s finding number 8.11

DISPOSITION

The judgment is modified to delete the following language: “The Court 

directs the City of Encinitas to modify City Council Resolution 2020-78 to 

remove the following: [¶] Pursuant to Encinitas Municipal Code Sections

23.08.160 (Design Review Permit) and 30.74.120 (Use Permit), there is 

substantial evidence in the record that the Design Review and Major Use 

Permits are null and void because two years passed after the effective date, 

9 To the extent that SP argues that the CC’s decision was, in effect, a 

revocation of its 2005 permits, our conclusion that those permits expired by 

operation of law disposes of that contention; there can be no meaningful 

revocation of an expired permit.

10 In so concluding, the trial court did not cite any case law in support of 

its conclusion that the notices for the PC’s and CC’s public hearings were 

required to set forth the issue of the validity of the DRP and MUP or 

expiration thereof or, for that matter, other specific issues or possible 

findings, in order for those issues to be properly addressed at the hearings. 

In particular, although the trial court discussed the Fort Bragg case in 

general, as noted, that case supports, rather than conflicts with, our 

conclusion in this case.

11 The trial court nevertheless found, as noted ante, that SP’s 2005

permits expired in 2007 by operation of law pursuant to provisions of the 

EMC.
54

construction had not started, and the project was not pursued diligently. An 

extension of the permit was not requested 15 days prior to the date of 

expiration. The project was dormant between 2009 to 2013 with no activity 

completed.” The judgment is further modified to revise the sentence in line 

nine on page two to read as follows: “The relief sought by Surfer’s Point, LLC 

in the Motion is hereby denied.” As so modified, the judgment is affirmed.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

HALLER, J.