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Thang D. Vu v. Ronald Ticknor

January 26, 2012

THANG D. VU, PLAINTIFF AND APPELLANT,
v.
RONALD TICKNOR, AS CHIEF BUILDING OFFICER, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. SC20080281)

The opinion of the court was delivered by: Mauro , J.

Vu v. Ticknor

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Thang D. Vu sought government approval for the construction of a single-family residence in South Lake Tahoe. After Vu obtained an environmental impact review, a transfer of coverage rights and a building permit, and after he incurred $300,000 in construction costs, defendant Ronald Ticknor, the chief building officer for defendant City of South Lake Tahoe (the City), revoked Vu's building permit and ordered Vu to tear down the partially constructed residence on his property.

Vu filed a petition for writ of mandate and complaint seeking to rescind the revocation decision and to recover damages. The City and Ticknor filed demurrers, which the trial court sustained without leave to amend.

Among other things, Vu asserts on appeal that (1) the trial court erred in concluding that he failed to exhaust his administrative remedies, and (2) a writ of mandate is available to compel Ticknor to correct his abuse of discretion.

We conclude that Vu's action against the City is barred because he failed to exhaust his administrative remedies, and there is no showing that he can amend his pleading to overcome this defect. Accordingly, we will affirm the judgment as to the City.

Ticknor did not assert Vu's failure to exhaust administrative remedies in his demurrer. Accepting Vu's allegations as true, as we must in reviewing an order sustaining a demurrer (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6), Vu states a claim for mandamus relief against Ticknor. Mandamus is available to correct an abuse of discretion (Cuadra v. Millan (1998) 17 Cal.4th 855, 871, disapproved on another ground in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4; Inglin v. Hoppin (1909) 156 Cal. 483, 491), and Vu alleges that Ticknor abused his discretion by falsely and wrongfully revoking the building permit. We will reverse the judgment as to Ticknor.

BACKGROUND

Vu owns undeveloped real property located in the City of South Lake Tahoe. The property is subject to an open-air easement, memorialized in a grant of open-space easement with covenants (Grant) recorded with the El Dorado County Recorder's Office in 1981.

The Grant was intended to maintain the property as an open-space land so that the public may enjoy its natural and scenic beauty. The Grant effectively precluded any development on the property. Paragraph 8 of the Grant provides that the City shall not abandon the easement without the written consent of the California Tahoe Regional Planning Agency (TRPA) or its successor agency (collectively Resources Agency)*fn1 unless the City finds that no public purpose described in Government Code section 51084, subdivision (b)*fn2 will be served by keeping the property as open space and the Resources Agency concurs in such finding. The Resources Agency forwarded a copy of the Grant to the El Dorado County Department of Building Inspection in 1981.

Vu acquired title to the property and an adjacent parcel on June 28, 2002. The property detail report Vu obtained from the El Dorado County Assessor's Office showed that the property was subject to an open-space easement. Although the specific terms of the Grant were not disclosed to Vu, he understood that the property had been dedicated to the City as open space and could not be developed without the express written consent of the City, the Resources Agency, and the California Tahoe Conservancy (Conservancy) within the Resources Agency. (Gov. Code, §§ 12800 & 12805, subd. (a).)

Vu contacted the City's building inspection department in 2005 to inquire about building a single-family residence on the property. Defendant Ronald Ticknor, the chief building officer for the City's community development department, informed Vu that the only requirement for building a residence on the property was an assignment of coverage rights*fn3 from the Conservancy. Ticknor told ...


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