Filed 2/2 8 /14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

TOWER LANE PROPERTIES ,
Plaintiff and Respondent
,

v.

CITY OF LOS ANGELES ,
Defendant and Appellant ;

BRUCE KARSH et a l.,
Intervenors and Appellants

. B 244092
(Los Angeles County Super. Ct. BS137339 )

APPEAL from a judgment of the Superior Court of Los Angeles County. James
C. Chalfant , Judge. Affirmed.
Carmen A. Trutanich , City Attor ney , Terry Kaufmann Macias, Supervising Attorney, Michael J. Bostrom , Deputy City Attorney, for Defendant and Appellant. Jeffer, Mangels, Butler & Mitchell, Robert E. Mangels, Benjamin M. Reznik,
Matthew D. Hinks f

or Plaintiff and Respondent.
Latham & Watkins, James L. Arnone, Jeffrey P. Carlin, Benjamin J. Hanelin for Intervenors and Appellants.

______ ________ _____ ___________2

Respondent Tower Lane Properties ( Tower L ane) sought a grading permit from the City of Los Angeles (the City) for constructi on of a three

- residence family compound

over three contiguous hillside lots totaling 85,000 square feet. The City’s engineers
conditioned the permit upon compliance with Los Angeles Municipal Code section 91.7006.8.2, which states no grading permit shall be issued for a hillside site larger than 60,000 square feet unless a “tentative t ract map” has been approved by a c ity planner

. Arguing no tentative tract map is required when a builder does not propose t o subdivi de the land, Tower Lane instituted writ proceedings to compel the City to set aside
th e permit condition. The trial court agreed that the Los Angeles Municipal Code require s no tentative tract ma p when a building project involve s no subdivision of land,
which Tower Lane’s project did not. It t herefore ordered the City to clear the permit condition. The City and two neighboring intervenor property owners appeal.
We agree with the trial court that a tentative tract map is required only when land is subdivided. Because Tower Lane proposed no s ubdivision, we affirm. Factual Background
Tower Lane seeks to build a single

- family residential compound on property located in the Benedict Canyon neighbo rhood of Los Angeles. The property consist s of three separate but contiguous lots lo cated in an ar ea designated as “ h illside ” under the Los Angeles Municipal Code (LAMC). 1 On May 3, 2011, Tower Lane applied to the City’s Department of Building and Safety for building and grading permits for 35,452 square feet of residential construction, including thr ee residences, a pool and spa
, a pool cabana building, a pool service and equipment building, accessory living quarters, and associated parking areas. The Department of Building and Safety forwarded the building plans to the City’s Planning Department , wh ich reviewed them to ensure compliance with City building codes. During its review process the Planning Department notified Tower Lane that to obtain a grading permit it must comply with LAMC section 91.7006.8.2, which requires

1 LAMC section 91.7003 ; undesignated section references will be to the LAMC.3

approval by th at d epartmen t of a tentative tract map whenever grading will be conducted

on a hillside area larger than 60,000 square feet

. 2 Tower Lane objected to th is requirement and applied for a waiver

. The City conditioned issuance of a ny waiver upon preparation of an
enviro nmental impact assessment under the California Environmental Quality Act
, Pub lic
Resources Code section 21000 et seq. Refusing to prepare such an assessment, Tower
Lane instead filed a petition for a writ of mandate to compel the City to clear the section 91.7006.8.2 requirement. Appellants Bruce and Marth a Karsh, residents of Benedict Canyon who reside next to Tower Lane’s property, intervene d in the writ proceedings

. 3

T he trial court found section 91.7006.8.2 by its plain language , regulatory context and historical application applie s only when a hillside project involves subdividing land, which Tower Lane’s project did not

. The court therefore granted Tower Lane’s petition and issued a writ directing the City to clear the section 91.7006.8.2 permit c ondition from
Tower Lane’s project. 4 The City and intervenors timely appeal ed

.

2 Section 91.706.8.2 provides : “No permit shall be issued for the import or exp ort of earth materials to or from and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m 2 ) unless a tentative tract map has been approved therefor by the advisory agency. The advisory agency may waive this requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.”

3 I ntervenor s request judicial notice of other recent writ proceedings inv olving Tower Lane and the City, arguing evidence in those proceedings rebut s Tower Lane’s assertions on appeal that intervenors exercise improper influence over City employees. We deny the request because Tower Lane’s allegations of improper influence are irrelevant to the issues presented on appeal. ( Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

4 Although the trial court ordered the City to clear the section 91.7006.8.2 permit condition, it did not order it to issue any per mit to Tower Lane because other conditions had yet to be met. That decision not to order the issuance of the requested permit is not at issue in this appeal.4 Discussion
1. Standard of Review This appeal requires us to determine whether section 91.7006.8.2 applies to grading projects where real property will not be subdivided. “I nterpretation of an ordinance presents a question of law that we review de novo.” ( Woodla nd Park
M anagement

, LLC v. City of East Palo Alto Rent Stabilization Bd. (2010) 181 Cal.App.4th 915, 919

. )
2

. R ules of Statutory Construction “The rules governing statutory construction are well settled. We begin with the
fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.” ( Burden v. Snowden (1992) 2 Cal.4th 556, 562.) The construction of a county ordinance is subject to the same standard. ( Dep’t of Health
Servs. v. Civil Serv. Com. (1993) 17 Cal.App.4th 487, 494.) To ascertain such intent, we consider the words of the ordinance itself, as they are the most reliable indicators of the drafter’s pu rpose. ( Lewis C. Nelson & Sons, Inc. v. Clovis Unified Sch. Dist. (2001) 90 Cal.App.4th 64, 69

- 70; People v. Gardeley (1996) 14 Cal.4th 605, 621.) We may not speculate that the enacting body meant something other than what it said ( s ee Unzueta v.
Ocean V iew School District (1992) 6 Cal.App.4th 1689, 1697 ) , nor add to or alter an ordinance to accomplish a p urpose that does not appear on its face ( s ee Burden v. Snowden, supra , 2 Cal.4th at p. 562)

. For example, when a term has been expressly defined, we ca nnot re write that definition to mean something other than what has been prescribed. ( Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) Additionally, we construe the language in the context of the regulatory framework as a whole, keeping in
mind the nature and purpose of the ordinance in which the language appear s, and harmonizing, where possible, separate provisions relating to the same subject. ( Boston v. Penny Lane Centers, Inc. (2 009) 170 Cal.App.4th 936, 950; Lewis C. Nelson & Sons, I nc. v. Clov is Unified Sch. Dist

. , supra, 90 Cal.App.4th at p p

. 69

- 70.) W hen the intent is unambiguous
, the plain meaning controls and there is no need for construction. ( People v. Gardeley, supra, 14 Cal.4th at p. 621; Halbert’s Lumber, Inc. v. Lucky Stores, Inc.5

( 1992) 6 Cal.App.4th 1233, 1239.) Only if the language is un clear will we look to
extrinsic aids to determine the drafter’s intent. ( Halbert’s Lumber, Inc. v. Lucky Stores,
Inc.
, supra, 6 Cal.App.4th at p. 1239. )
3. Subdivision Map Act
T he Subdivision M ap Act , Government Code section 66410 et seq., is “‘ the primary regulatory control ’ governing the subdivision of real property in California. [Citation.] The Act vests the ‘ [r]egulation and control of the design and improvement of
subdivisions ’ in the le gislative bodies of local agencies, which must promulgate ordinances on the subject. (§ 66411.) The Act generally requires all subdividers of property to design their subdivisions in conformity with applicable general and specific plans and to comply wit h all of the conditions of applicable local ordinanc es.” ( Gardner v. County of Sonoma (2003) 29 Cal. 4th 990, 996

- 997 , fn. omitted ( Gardner ) .)

“ As used in the Act, ‘ subdivision ’ means ‘ the division, by any subdivider, of any unit or units of improved or unimproved land . . . .’ ( [Gov. Code,] § 66424.) Ordinarily, subdivision under the Act may be lawfully accomplished only by obtaining local approval and recordation of a tentative and final map pursuant to section 66426, when five or more parcels are in volve d, or a parcel map pursuant to section 66428 when four or fewer parcels are involved. ” ( Gardner
, supra , 29 Cal.4th at p. 997.) A tentative map is a map showing the design and improvement of a proposed subdivision of five or more parcels and the exist ing conditions in and around it. (Gov. Code, § 66424.5, subd. (a).) A final map is an approved map of a proposed subdivision that is substantially similar to the tentative map, including any required alterations. (Gov. Code, § 66426; Citizens for Respon sible Equitable Environmental Development v. City of San Diego (2010) 184 Cal.App.4th 1032, 1042 .)

“ A local agency will approve a tentative and final map or a parcel map only after extensive review of the proposed subdivision and consideration of such matt ers as the property ’ s suitability for development, the adequacy of roads, sewer, drainage, and other services, the preservation of agricultural lands and sensitive natural resources, and
dedication issues. [Citations.] [¶] By generally requiring local r eview and approval of6

all proposed subdivisions, the Act aims to ‘ control the design of subdivisions for the benefit of adjacent landowners, prospective purchasers and the public in general. ’ [Citation.] More specifically, the Act seeks ‘ to encourage and facilitate orderly community development, coordinate planning with the community pattern established by local authorities, and assure proper improvements are made, so that the area does not become an undue burden on the taxpayer. ’ [Citations.]” ( Gardner
, supra , 29 Cal.4th at pp. 997

- 998; Sixells, LLC v. Cannery Bus. Park (2008) 170 Cal.App.4th 648, 652.)
The Subdivision Map Act delegates “[r]egulation and control of the design and improvement of subdivisions” to local agencies, “ which must promulgate ordinances on the subject. ” ( Gov. Code, § 66411; Gardner
, supra , 29 Cal.4th at p. 997. ) To implement the subdivision process mandated by the Subdivision Map Act, t he City of Los Angeles enacted Article 7 of Chapter I of the LAMC . T he first provision of Article 7 states Article 7 “ shall be known as the Division of Land Regulations of the City of Los Angeles, and contains the City’s regulations regarding Subdivision Maps. ” (§ 17.00 et.

seq. ; hereafter Article 7 or the Division of Land Regulations. )
The st ated purpose of Article 7 “ is to regulate and control the division of land, within the City of Los Angeles
. . . , [and] to supplement the provisions of the Subdivision Map Act concerning the design, improvement and survey data of subdivisions, the form an d content of Tentative Maps and Final Maps, and the procedure to be followed in securing the official approval of the City of Los Angeles on such maps, consistent with the applicable general and specific plans as well as the public health, safety and welfa re. ” (§ 17.01 , subd. (B).) It is also the intention of Article 7 to ensure

“ that the subdividing of land in the City of Los Angeles be done in accordance with the grading regulations of the City contained and set forth in Article 1 of Chapter 9 of [the
L AMC] and to establish when possible beauty and attractiveness in the hills consistent with watershed drainage, erosion and fire control requirements, and good engineering practices. ” ( Ibid .)
The LAMC makes an “a dvisory a gency ” responsible for approval of subdivisions
, authoriz ing the agency to make “ investigations and reports on the design and7

improvement of proposed subdivisions” and “to approve, conditionally approve, or disapprove Tentative Maps of proposed subdivisions.” (§ 17.03 , subd. (A) ; s ee also Gov. Code, § 66415 [defining “ advisory agency ” as “a designated official or an official body charged with the duty of making investigations and reports on the design and improvement of proposed division of real property, the imposing of requirements or

co nditions thereon, or having the authority by local ordinance to approve, condition ally approve or disapprove maps ”].)
T he LAMC define s a tentative map as: “ a map made for the purpose of showing the design of a proposed subdivision creating five or more parcels , . . . and showing the existing conditions in and around it

. . . .” (§ 17.02 , italics added. ) A tract map may be either a tentative map or a final map. ( Ibid. )
The D ivision of L and R egulations also require s that subdivision of land be “done
in accordance with the grading regulations of the City ” contained in the LAMC’s Building Code. ( See § § 17.0 1 , subd. (B)
, 91.101 et. seq

. , 91. 70 01 et. seq.) A permit is required for grading. (§ 91.106.1.2 [“ No person shall commence or perform any gradi ng, and no person shall import or export any earth materials to or from any grading site, without first having obtained a permit therefor from the Department”].) Grading permits are issued by the Department of Building and Safety. (§ 91.202 [“ DEPARTMENT is the Depa rtment of Building and Safety”].) Section 91.7006 of the Building Code governs “Conditions Preced ent to Issuing a Grading Permit. ” S ub section
91.7006.8 is a heading: “Conformance with Zoning Regulations Required. ” Subsection
91.7006.8 contai ns two ordinances : 91.7006.8.1 and 91.7006.8.2. S ection 91.7006.8.1,
which immediately preced es the Ordinance in question and is enti tled “Subdivision Map Act, ” requires that all grading permits comply with the Subdivision Map Act

. 5 (§

5 Section 91.7006.8.1 states: “No permit shall be issued for any grading or import or export of earth materials to or from any grading site except in compliance with the zoning, private street and division of land regulations contained in Chapter I of the Los Angeles Municipal Code, the Subdivision Map Act of the State of California and the approved master plan for the area in which the grading is to be done.” (§ 91.7006.8.1.)8

91.7006.8.1.) As noted, section 91.7006.8.2, entitled “Tentative Tract Map,” conditions grading on large hillsides on the approval of a tentative tract map.
T he City charges a fee for the review of a grading plan under the Ordinance, as set forth in section 19.02 , subd ivision (F). 6 That section establishes a $12,201 fee for

“ [ r ] eview of grading plans in hillside areas having an area in excess of 60,000 square feet to determine whether a tract map is required to be filed.” (§ 19.02 , subd. (F).)
4. The Ordinance Applie s to Subdivisions Only

. The language of the Ordinance is subdivision

- specific. The Ordinance by its plain language applies to subdivisions only. The Ordinance

states: “No permit shall be issued for the import or export of earth materials to or from
and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m 2 ) unless a tentative tract map has been approved therefor by the advisory agency. The advisory agency may waive this requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.” 7 ( § 91.7006.8.2, italics added. ) The

terms “tentative tract map” and “advisory agency” are defined solely in, a nd operate exclusively under
, the auspices of the Division of Land Regulations. A tentative map depicts “ the design of a proposed subdivision creating five or more parcels .” (§ 17.02,
italics added. ) The advisory agency “ investigat [es] and reports on th e design and improvement of proposed subdivisions
, ” “ approve [s] , conditionally approve [s] , or disapprove [s] Tentative Maps of proposed subdivisions ,” and “ report [s] directly to the subdivider the action taken on the Tentative Map .” (§ 17.03 , subd. (A) , it alics added. )

6 We grant a ppellant City’s request to take judicial notice of sections of the LAMC. ( Trinity Park, L.P. v. City of Sunnyvale (2011 ) 193 Cal.App.4th 1014, 1027 [ We may take judicial notice of local ordinances and other official resolution s, reports and acts of a city].)

7 The Ordinance was originall y adopted in 1964 and was ree nacted without change in 1998.9

But here, Tower Lane is not a subdivider and proposes no further division of land or creation of five or more parcels. The Division of Land Regulations is the City’s response to requirements set forth in the Subdivision Map Act , which defi nes “a dvisory agency ” as “ a designated
official

. . . charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property ” and “t entative map ” as “ a ma p made for the purpose of showing the design and improvement of a proposed subdivision .” (Gov. Code, §§ 66415, 66424.5, subd. (a) , italics added ; see id . at §§ 66424, 66426.) But again, Tower Lane proposes no division or subdivision. Appellants argue the “tentative tract map procedure” used by the advisory agency is “important to the City” and “well suited for analyzing the potential impacts of hillside grading.” For example, when determining whether to approve a tentative tract map, the agency must determine whether a project is consistent with t he goals and policies of the City’s general plan and any specific plan; whether the site is physically suitable for t he type of development proposed ; whether the proposed improvements are likely to cause serious public health problems; and whether the impr ovements will conflict with access

easements. (See Gov. Code, § 66474 [stating the grounds for denial of a tentative map].) Appellants contend “[t]hese are precisely the inquiries the City should make in determining whether and under what conditions to a llow large grading projects in hillside
areas.” It is not our place to decide whether the City should make these inquiries, only
whether section 91.7006.8.2 mandates them. It does not. Prescriptions for the inquiries appellants propose are already foun d in sections 91.7002 and 91.7006.1 through
91.7006.4 of the B uilding C ode, which assign many of the inquiries to soils engineers and geologists. Reference to the advisory agency is made nowhere in the “Grading,
Excavations and Fills” division of the B uil ding C ode (§ 91.7001 et seq.)

. The Ordinance, by contrast, calls upon the advisory agency only for evaluation of a tentative tract map
, which exists only to describe a land subdivision. W e therefore conclude the Ordinance assigns duties pertaining only t o subdivisions.10

Appellants argue the Ordinance should properly be read to require approval of a grading plan because the word “therefor ” means no permit shall be issued unless a
tentative tract map has been approved “ for the grading ” by the advisory agenc y. We disagree. The Ordinance provides : “No permit shall be issued for the import or export of
earth materials to or from and no grading shall be conducted on any grading site in hillside areas having an area in excess of 60,000 square feet (5574 m 2 ) un less a tentative tract map has been approved therefor by the advisory agency. ” (§ 91.7006.8.2, italics
added. ) A tentative tract map sh ows the design and improvement of a proposed
subdivision site and the existing conditions around the site . ( See 12 Wit kin, Summary of Cal. Law (10th ed. 2005) Real Property, § 811 , subd. (1) .) T he subject of a tentative tract map is thus the site itself , not the “grading” on it

. The statutory framework surrounding the Ordinance supports our conclusion that the City int ended the Ordinance to apply to subdivisions only. The LAMC is organized
as a numbered outline list with several nested levels , each level reflected by a corresponding digit . For example, section 91.7006.8.2, with which we are concerned,
falls within cha pter 9, article 1, division 70, and section 06, and itself constitute s subdivision 2 of subsection 8 of that section. Hence section “ 91.7006.8.2. ” (All numbered ordinances in the LAMC are called “sections” whether they constitute sections, subsections, o r subdivisions.) Subsection 8 of section 6 (§ 91.7006.8) constitutes only a title: “Conformance with Zoning Regulations Required.” But nested under the title are two subdivisions,
subsection 91.7006.8.1 and o u r o rdinance, subdivision (“section”) 91.700 6.8.2. Subdivision 91.7006.8.1, entitled “Subdivision Map Act,” conditions “any grading or import or export of earth materials to or from any grading site” on “compliance with the zoning, private street and division of land regulations contained in Chapt er I of the Los Angeles Municipal Code, the Subdivision Map Act of the State of California and the approved master plan for the area in which the grading is to be done. ” (§ 91.7006.8.1
, italics added .) And a s we have seen, subdivision 2, the Ordinance, a dds an additional condition: A tentative tract map when grading is done on a hillside area larger than11

60,000 square feet. Although the Ordinance itself does not mention subdivision (other
than obliquely, through reference to a tentative tract map and ad visory agency ) , its pairing with subdivision 1 with in subsection 91.7006.8 indicates the City meant for the
Ordinance to operate in the same context as does subdivision 1, i.e., when a project
involves land subdivision. ( See People v. Hull (1991) 1 Cal.4t h 266, 272 [ c hapter and section headings are entitled to considerable weight].) Moreover, the fee provision
, set forth in section 19.02 , subdivision (F), which provides for “review of grading plans in large hillside areas to determine if a tract map is required to be filed
, ” also supports the sub division

- only interpretation. Use of the term “tract map
, ” a subdivision

- specific term, indicates t he application fee operates when the City reviews grading plans for hillside subdivision sites. Applying the O rdinance only to subdivisions is also consistent with the purpose of the statutory scheme, specifically section 91.7006.8, the City’s grading regulations, and the Subdivision Map Act, which harmonize subdivision approval and grading regulations. (See §§ 1 7.01, subd. (B), 91.7006.8.1.) Appellants argue the purpose of the Ordinance is to protect the integrity of all hillsides and hillside communities from harmful grading. We disagree, as h illside grading is extensively addressed elsewhere in the Building C ode

. For example, s ection 91.7004 requires that a ny hillside grading plan be prepared by a civil engineer and conform to the Building Code to the satisfaction of th e Superintendent of Building. (§ § 91 .700 3 , 91.700 4 .) Section 91.7004 also requires that h illside grading
itself be inspected by a civil engineer , soils engineer and engineering geologist, any of whom may require revisions to the grading plans. (§§ 91.7004, 91.7008.) The purpose of the Ordinance is to ensure that grading on large hillside

s ubdivision sites is done in accordance with the purpose and goals of the Division of
Land R egulations. This allows the City to control grading for an anticipated subdivision. In the absence of the Ordinance, a subdivision developer could first obtain a g rading permit, complete the grading work, then apply for subdivision approval. The City would then be unable to control or condition the grading as part of the subdivision approval

process . The Ordinance closes this potential loophole by articulating tha t some review of12

the subdivision plans, whether an approval of a tentative tract map or a waiver, must take place before any grading can occur in hillside areas. The waiver provision does not compel an alternative interpretation

. Appellants contend that applying the Ordinance only to subdivisions renders the
second sentence of the Ordinance surplusage because the a dvisory a gency would never have discretion to waive a tract map when a tentative tract map is no t required in the first place. The second s en tence of the Ordinance states, “ The advisory agency may waive [the tentative tract map] requirement if it determines that a tract map is not required by the division of land regulations contained in Chapter I of the Los Angeles Municipal Code.” (§ 91.7006 .8.2.) Appellants argue that if the Ordinance was intended to apply to subdivisions only, then the second sentence would provide that the Advisory Agency
shall waive the tentative tract map requirement if it finds that no tract map is required
under the D ivision of L and R egulations. Although a ppellants argue that the subdivision

- specific interpretation renders th is waiver provision superfluous , we fail to find a more compelling interpretation that gives the waiver provision meaning. Although a construct ion rendering some words surplusage should be avoided if possible, the rule is not absolute. ( Santa Clara C ounty Local Transp. Auth. v. Guardino (1 995) 11 Cal.4th 220, 234

- 235; People v. De P orceri (2003) 106 Cal.App.4th 60, 69 [ t he principle “is merely a guide and should not be employ ed to defeat legislative intent”]. ) We agree with the trial court that drafters often “say in 10,000 words what they can say in 1,000.” Because the language of the Ordinance makes apparent that the City intended it to apply to subdivisions only, the redundant nature of
the waiver provision does not overcome that intent. T he plain meaning of the Ordinance is clear and unambiguous, and therefore the language of the Ordinance controls.13

5. Judicial Deference to the City Ag encies’ Interpretation is Unwarranted Appellants urge us to defer to the City ’s interpretation of the Ordinance

. 8 In October 2011 and January 2012 , the City issued two memoranda detailing the City agencies’ application of the Ordinance to hillside buildin g projects

. The memoranda

stat ed the Ordinance applied to all large hillside projects 9 and set out a detailed procedure for obtaining approval of a grading plan or a waiver of the grading plan approval requirement

. Under the new procedure, all large hill side grading project s must undergo
some level of environmental review under the California Environmental Quality Act

. While recognizing that an agency’s interpretation must be given great weight, th e interpretation is not binding , and ultimate responsi bil ity for interpretation of an ordinance rests with the court. ( See Brown v. Fair Political Practices Com. (200 0 ) 84 Cal.App.4th 137, 150.) T he level of deference we accord to an agency’s interpretation turns on “whether the agency has a comparative int erpretive advantage over the courts, and also whether its interpretation is likely to be correct.” ( Ibid. ) Factors to consider in determining if an agency has a comparative advantage include whether “the legal text to be interpreted is technical, obscure , complex, open

- ended, or entwined with issues of fact, policy
, and discretion.” ( Yamaha Corp. of America v. State Bd. o f Equalization (1998) 19 Cal.4th 1, 12.) Here, interpretation of the Ordinance requires no technical expertise that would give the Cit y agencies a comparative interpretative advantage.
Further , we consider whether a n agenc y has consistently followed its putative interpretation , and how long it has done so . ( Slocum v. State Board of Equalization (2005) 134 Cal.App.4th 969, 974; s ee als o Yamaha Corp. of Am. v. State Board of Equalization, supra, 19 Cal.4th at p. 13 [ a n interpretation is more likely to be correct where there is evidence “that the agency ‘ has consistently maintained the interpretation in

8 The Department of City Planning and the Department of Building and Safety (the City agencies) share responsibility for permitting.

9 For purposes of this opinion, a “large hillside” is an area larger than 60,000 square feet.14

question, e specially if it is longs tanding ’ ” ; “ ‘ a vacillating position

. . . is entitled to no
deference ’ [ c itation]

. ”) Here, t he City ’s historical position on the Ordinance has been unclear and
inconsistent

. Appellants offer c ity a ttorney opinions from 1990 and 1999 as evidence of
the City’s purported long

- standing interpretation. The first opinion provides advice to the

a dvisory a gency regarding waiver of a tentative tract map to obtain a grading permit for hillside development of 13 single family lots on a site subdivid ed in the 1920 ’ s. The c ity

a ttorney stated that the a dvisory a gency’s waiver determination under the Ordinance require d environmental review

. The second opinion , a letter to a councilman who requested a determination of whether a tract map was required prior to the is suance of a grading permit “for the development of 93 single family homes, on an existing tract approved in 1902 prior to modern environmenta l procedures and regulations,” set forth “the legal principles and standards that are involved in consi deration of a waiver request.” City a ttorney opinions construing a local ordinance are entitled to consideration, just as a ttorney g eneral opinions construing a state statute are entitled to consideration. ( DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 19 [overruled on other grounds by Yamaha Corp. of Am. v. State Board of Equalization , supra, 19 Cal.4th 1].) However, the opinions proffered by appellants discussed the Ordinance only in the context of subdivision of land. The opinions do not establish that the Ordinance has been applied to non

- subdivided projects

. 10

10 Appellants argue that because the Ordinance was reenact ed in 1998 after these

c ity a tt orney opinions, the City is presumed to have been aware of and adopted the city attorney’s construction

. (See DeYoung v. City of San Diego, supra, 147 Cal.App.3d at p p

. 18

- 19.) Assuming this is true, the point does not assist appellants because, as discu ssed, the city attorney opinions dealt only with subdivisions of land occurring before environmental regulations were enacted. At any rate, a n agency’s erroneous interpretation that alters or enlarges the terms of an ordinance does not govern our interpre tation, even if the ordinance is subsequently re enacted without change. ( See Traverso v. People ex rel. Dep’t of Transp. (1996) 46 Cal.App.4th 1197, 1206

- 1207.)15

Appellants advance only three non

- subdivision projects since 1964 to which the
Ordinance has been applied. 11 These projects include: ( 1 ) construction of two buildings consisting of warehouse an d offic e space with associated parking; ( 2 ) construction of an
86

- bed addition to a n existing 117

- bed nursing home; and ( 3 ) construction of two single

family homes in a lar ge hillside area. Although the Ordinance was applied to these projects, no eviden ce indicates they were required to u ndergo discretionary review t o obtain a grading permit waiver

. 12 Instead, the evidence suggests these projects underwent a routine clearance that involved
no environment al assessment. Moreover, t he only example involvin g a single

- family
residence was merely a request by the permit applicant for a determination that a tract

map was not required

. S ubstantial evidence indicates the City agencies have not followed any consistent and long

- standing interpretation of the Ord inance. Of 11 permits issued between 2000
and 2011 for grading on large hillside areas, o nly two make even vague reference to any requirements related to grading on a site in excess of 60,000 square feet. One simply
states that such grading required a “s pecial inspect,” while the other notes the requirement was cleared because the applicant was exempt. Additionally, Tower Lane ’s predecessors obtained two grading permits for the property in 2005 and 2006
, and the Karshes obtained grading permits for nine projects on their large hillside property , all without undergoing any environmental review und er the Ordinance. Thus, out of 22 grading permits for properties having hillside grading sites larger than 60,000 square feet,

11 In contrast, in a five month period after the City’s January 2012 memorandum spelling out a procedure for approval under the Ordinance, the Ordinance was applied to 14 projects.

12 Discretionary review occurs when the City has the regulatory power to eliminate or mitigate any of a project’s adverse environmental consequences . ( Friends of Wes two od, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 267 .) Whenever the City undertakes discretionary review, an environmental assessment is required under CEQA

. ( Id. at p. 272; Cal. Code Regs., tit. 14, § 15268.)16

only one required any type of clea rance, which was obtained without undergoing any
environmental revi ew. Moreover, City officials themselves offer inconsistent interpretations of the Ordinance. Ifa Kashefi, the current Deputy Superintendent of Building and an employee
of the City’s De partment of Buildi ng and Safety since 1985, stated in a declaration , “As long as I have been at the Department, the Department’s interpretation of Section 91.7006.8.2 has been that the Section does apply to projects that propose no subdivision.”
But Hamid Behdad, a Department of Building and Safety plan check and grading engineer for 18 years, declared , “I understood the Ordinance to be applicable only in the case of grading in connecti on with subdivision projects.” The only clear evidence of the City’s application of the Ordinance to all large hillside grading projects are the two recent City memoranda discussed above

. But these
memoranda were not released until after Tower Lane applied for permits. N o evi dence suggests the detailed procedure now requi red by the Planning Department existed prior to the January 2012 memo randum . An agency’s undisclosed unilateral interpretation is not entitled to deference. Because the City cannot point to a consistent a nd long

- standing interpretation, its current inter pretation is entitled to no deference

. (See also Southern
Ca l. Edison Co. v. Pub. Utilities Co m

. (2000) 85 Cal.App.4th 1086, 1105 [ “ [ A ] n
agency ’ s interpretation of a regulation or statute does not control if an alternative reading is compelled by the plai n language of the provision ”].) Appellants argue that Tower Lane’s project should be subject to discretionary
review under the Ordinance because the project will have significant environmental impacts. Environmental review of large hillside grading proj ects like Tower Lane ’s residential compound may be desirable public policy, b ut “ ‘[ c ] ourts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authori ty. ’ ” ( Unzueta v. Ocean View School District, supra, 6 Cal.App.4th at p. 1697.) The trial court properly interpreted the Ordinance to apply to subdivisions only.17 Disposition The judgment is affirmed. Respondents are to recover costs on appeal.
CERTIFIED FO R PUBLICATION

.

CHANEY, J. , Acting P. J

.

We concur:

JOHNSON, J.

MILLER, J. *

* Judge of the Los Angeles Sup erior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.