Opinion

San Pablo Ave Golden Gate Improvement Assn v. City Council Oakland

Court
California Court of Appeal
Filed
Jul 29, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 30.4%

The opinion

Filed 7/29/24 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SAN PABLO AVENUE GOLDEN

GATE IMPROVEMENT

ASSOCIATION, INC., et al., A168039

Petitioners and Appellants,

v. (Alameda County

CITY COUNCIL OF THE CITY OF Super. Ct. No. 22CV005451)

OAKLAND et al.,

Defendants and Respondents.

THE COURT:

It is ordered that the opinion filed herein on June 28, 2024, be

modified as follows:

1. On page 8, footnote 5, the number “60” has been changed to

“90,” the reference to Government Code section 65009 has been

clarified by adding “subdivision (c)(1),” and the number in “60-

day” has been changed to “90-day” so the sentence reads:

Although that window remains open for 90 days under

Government Code section 65009, subdivision (c)(1), the 90-

day time frame seems meaningless in circumstances

where there is no notice of the granting of the clearance.

The modification does not change the judgment.

Appellant’s petition for rehearing is denied.

Dated: July 29, 2024 BROWN, P. J.

1

Filed 6/28/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

SAN PABLO AVENUE GOLDEN

GATE IMPROVEMENT A168039

ASSOCIATION, INC., et al.,

Petitioners and Appellants,

(Alameda County

v. Super. Ct. No. 22CV005451)

CITY COUNCIL OF THE CITY OF

OAKLAND et al.,

Defendants and Respondents.

Petitioners San Pablo Avenue Golden Gate Improvement Association,

Inc., and Oakland Neighborhoods For Equity (Neighbors) appeal from the

trial court’s denial of a writ of mandamus following the dismissal of their

administrative complaint against the City Council of the City of Oakland,

William Gilchrist, Robert D. Merkamp, and Nathaniel L. Dunn (the City)

brought pursuant to Oakland Municipal Code (OMC) chapter 17.152. 1 We

affirm.

BACKGROUND

I. CloudKitchens’s Use Classified as Light Manufacturing

In September 2020, CloudKitchens applied to the City’s Planning

Department for a zoning clearance to convert a wood shop into a commercial

kitchen. CloudKitchens’s submission described the proposed facility as

1 Undesignated references are to the Oakland Municipal Code (OMC).

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“[c]ompartmentalized commercial kitchens for take-out services only,”

measuring roughly 14,000 square feet space.

As explained on the City-issued application form, “[a] Zoning Clearance

is required for all new or relocated businesses (including change of

ownership) in order to verify that the type of business [being proposed] is

permitted by the City’s Zoning Regulations at that location.” CloudKitchens’s

facility is in a “Housing and Business Mix-1 Commercial Zone” (HBX-1 zone),

which permits by right certain industrial activities classified as “Light

Manufacturing.” (§ 17.65.030.) One such light manufacturing use

enumerated in the OMC is “the production or assembly of: [¶] . . . [¶]

(D) [b]everages (including alcoholic) and food . . . with more than ten

thousand (10,000) square feet of floor area.” (§ 17.10.560, subd. (D).)

Later that month, the Planning Department issued CloudKitchens a

zoning clearance. The following March, the Planning Department issued

CloudKitchens a building permit allowing renovations.

II. Neighbors Request Revocation Review Process

In April 2021, Neighbors learned of CloudKitchens’s plans. Nearly two

months later, Neighbors sent a letter to the City Administrator “request[ing]

that the City reconsider its approval of CloudKitchens as qualifying for HBX-

1 classification.” The City’s Zoning Manager responded, maintaining that the

decision was proper.

In July, Neighbors filed a formal complaint requesting the Planning

Department initiate a revocation review process pursuant to chapter 17.152.

They alleged “CloudKitchens will [b]ecome a [n]uisance” due to increased

traffic, air pollution, and noise, and that the commercialized kitchen “is

essentially a Fast-Food Restaurant” not permitted in an HBX-1 zone. Given

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the alleged impermissible use and anticipated nuisance, Neighbors contended

that the zoning clearance contravened zoning regulations.

The Planning Department denied the request. Echoing the Zoning

Manager’s earlier response, it reiterated that CloudKitchens’s proposed use

was “considered a Light Manufacturing Industrial Activity since it involves

the manufacturing of food in a facility that exceeds 10,000 square feet,” and

thus was “permitted by right in the HBX-1 Zone.” It expounded that this

determination was consistent with “similar kitchen uses . . . including

another CloudKitchen[s] located in the City.”

The Planning Department further stated it was “beyond the scope of

O.M.C. [c]hapter 17.152 to revisit [the] zoning determination” because it

enforces against violative uses and existing nuisances not zoning decisions.

It accordingly refused to reconsider its zoning determination, but it did

address the merits of Neighbors’ complaint that CloudKitchens’s activities

constituted a nuisance. Despite sending staff “a number of times” to the site

to observe any violations, the Planning Department averred there was not

substantial evidence to initiate revocation proceedings. 2

Neighbors appealed to an independent hearing officer pursuant to

section 17.152.080. They expressly limited the appeal to two issues: (1)

whether chapter 17.152 “provide[s] a legal basis to revoke the prior City

approvals”; and (2) whether CloudKitchens’s proposed use was “correctly

classified as Light Manufacturing Industrial.”

2 Staff did observe one right-of-way violation by a double-parked truck.

As the Planning Department explained, however, “[p]ublic right-of-way

violations are outside the purview of zoning regulations” and are “generally

addressed through the City’s Code Enforcement process, not through O.M.C.

Section 17.152.” It therefore stated it was “conferring with the City’s

Department of Transportation . . . on how to appropriately address the issue

with CloudKitchen[s].”

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The hearing officer affirmed the decision. He first noted chapter 17.152

is designed to address “public complaints regarding existing violations” not

“[p]revious errors by City staff in making zoning determinations.” He

therefore found the Planning Department could not revisit the initial zoning

approval and was correct to deny the revocation request “to the extent the

City addressed only the present allegations regarding CloudKitchens’[s]

existing/intended use.” Nonetheless, the hearing officer found sufficient

evidence supported the light manufacturing use classification. Despite

conceding that CloudKitchens’s business model shared “some characteristics

of a fast-food restaurant,” he concluded the Planning Department’s

classification was “persuasive” and found “the City should be afforded

deference in interpreting its own zoning classifications.”

Neighbors then petitioned for a writ of mandate in the trial court.

Following a hearing, the trial court affirmed, holding that chapter 17.152

“does not create a legal basis to challenge a prior zoning determination made

by the City.” Because Neighbors limited their administrative appeal to the

Planning Department’s use classification and zoning clearance, the trial court

held that the hearing officer lacked jurisdiction to reach the complaint’s

merits and that remand would be futile. Neighbors appealed.

DISCUSSION

Neighbors contend the hearing officer erred as a matter of law by

inverting the burden of proof under chapter 17.152. Specifically, they assert

the OMC requires the hearing officer to grant an appeal and set a revocation

hearing where a petitioner presents sufficient evidence of a zoning

violation — as opposed to upholding a decision supported by substantial

evidence, as the hearing officer did here. They further claim that the hearing

officer erred by deferring to the Planning Department’s interpretation of the

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use classifications and that the evidence contradicted the department’s

determination.

We need not address these assertions, however, because chapter 17.152

does not provide a legal basis to challenge the Planning Department’s

interpretations and determinations of the zoning regulations, including use

classifications and zoning clearances.

I. Standard of Review

We review the denial of a petition for writ of administrative mandamus

de novo to determine whether the hearing officer “prejudicially abused its

discretion.” (Code Civ. Proc., § 1094.5, subd. (b); see California Renters Legal

Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820,

836–837.) We independently review the proper interpretation of statutes, but

where appropriate we consider a municipality’s interpretation of its own

ordinances. (California Renters Legal Advocacy & Education Fund v. City of

San Mateo, supra, 68 Cal.App.5th at p. 837; Yamaha Corp. of America v.

State Bd. of Equalization (1998) 19 Cal.4th 1, 8.)

II. Chapter 17.152 Is an Invalid Basis to Challenge Zoning

Decisions

Neighbors argue that chapter 17.152 — known as the Enforcement

Regulations (§ 17.152.010) — authorizes review of use classifications and

resultant zoning clearances. We disagree.

Section 17.10.090 specifies chapter 17.132 as the appropriate chapter

for appealing use classification determinations. Entitled “[c]lassification of

unlisted uses,” it directs the Planning Department to classify an activity with

the description that “most closely portrays it.” (§ 17.10.090.) It expounds

that if there is “uncertainty as to the classification of use, the Director of

City Planning shall classify said use, subject to the right of appeal from such

determination pursuant to the administrative appeal procedure in

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[c]hapter 17.132.” (Ibid., italics added.) There is no ambiguity over whether

chapter 17.152 is an improper legal basis to challenge a use classification.

Even if section 17.10.090 did not specify that chapter 17.132 governs

appeals of uncertain or novel use classifications, the plain meaning of

chapter 17.132 establishes that it covers Neighbors’ complaint. The express

purpose of chapter 17.132 is to “prescribe the procedure” for appealing “any

determination or interpretation made by the Director of City Planning

under the zoning regulations.” (§ 17.132.010, italics added.) This broad

language facially applies to use classifications and zoning clearances.

(Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635 [the term “any” is

one of “broad inclusion, meaning ‘without limit and no matter what kind’ ”].)

The applicability of chapter 17.132 is fatal to Neighbors’ claim because they

filed it after the statute of limitations. (§ 17.132.020 [requiring an appeal to

be brought within ten calendar days of a Planning Department decision].) 3

Neighbors fail to substantiate their contention that the Planning

Department did not adhere to classification rules outlined in chapter 17.10.

In any event, Neighbors forfeited any argument that the Planning Director

was required to issue a “formal” use classification determination by failing to

raise this argument during the administrative process. (Hagopian v. State of

Cal. (2014) 223 Cal.App.4th 349, 371 [“an interested party must present the

exact issue to the administrative agency that is later asserted during

3 Given our independent interpretation that chapter 17.132 controls, we

need not consider whether deference is owed to the Planning Department’s

interpretation under the principles articulated in Yamaha Corp. of America

v. State Bd. of Equalization, supra, 19 Cal.4th at page 8. For the same

reason, we deny Neighbors’ request to take judicial notice of exhibits A–F

documenting the Planning Department’s past zoning approvals. Conversely,

we grant Neighbors’ request to take judicial notice of Exhibits G–J because

they capture provisions of the OMC that we interpret de novo.

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litigation or on appeal. [Citation.] General objections, generalized

references[,] or unelaborated comments will not suffice”].) Neighbors do not

cite any ordinance or case law supporting their contention that a zoning

clearance issued by Planning Department staff does not constitute a

determination under chapter 17.10. (Temple of 1001 Buddhas v. City of

Fremont (2024) 100 Cal.App.5th 456, 204 [arguments unsupported by legal

authority or cogent analysis are forfeited].) Nor are we persuaded that a

zoning clearance does not constitute a “determination” by the Planning

Department merely because it is also required for certain business permits

under chapter 5 of the OMC. 4 (See §§ 5.02.130, 5.12.050, subd. (A).) Indeed,

the application form expressly states that a zoning clearance is required “to

verify that the type of business [being proposed] is permitted by the City’s

Zoning Regulations at that location.”

To avoid being time-barred by chapter 17.132, 5 Neighbors contend

that the Enforcement Regulations control because they empower any

4 We observe this argument contradicts Neighbors’ Request for Judicial

Notice, which asserts “[t]he issuance of staff reports, zoning clearances[,] and

approval letters are formal actions.” It is also belied by Neighbors’ initial

letter to the Planning Department “request[ing] that the City reconsider its

approval of CloudKitchens as qualifying for HBX-1 classification” as well as

their admission that a clearance letter is “the Zoning Department’s

interpretation, based on representations by the owner, that the activity is

allowed.”

5 Section 17.132.020 requires an appeal “by any interested party” from

“any administrative determination or interpretation made by the Director of

City Planning under the zoning regulations” be taken to the City Planning

Commission “within ten (10) calendar days.” It is unclear on this record

whether anyone other than Cloudkitchens and the Planning Department

knew of Cloudkitchens’s zoning clearance at the time it issued, or whether,

as a matter of Planning Department practice, the decision on

Cloudkitchens’s “over the counter” zoning clearance application was

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member of the public to file a complaint regarding “violations of the zoning

regulations.” (§ 17.152.080.) Neighbors broadly interpret this phrase to

suggest that the Enforcement Regulations purports to “ensure compliance

with the zoning regulations” (§ 17.152.010), which encompass

section 17.65.030 concerning permitted uses in HBX-1 zones. (See

§ 17.07.020 [defining the zoning regulations as “[t]he provisions of

[c]hapters 17.07 through 17.158”].) But this ignores the dictate that the

Enforcement Regulations “shall not be deemed exclusive” in ensuring

compliance with the zoning regulations. (§ 17.152.010.) Moreover, where a

specific statute covers a particular subject, “ ‘the specific statute controls and

takes priority over a general statute encompassing the same subject.’ ” (Ross

v. California Coastal Com. (2011) 199 Cal.App.4th 900, 928.) Thus, even if

“violations of zoning regulations” under the Enforcement Regulations

include erroneous zoning interpretations and determinations by the

Planning Department, chapter 17.132 as the more specific ordinance

controls. 6

sufficiently known to the public that notice of it might be said to be

chargeable to “any interested party.” (§ 17.132.020.) Arguably, assuming

the Planning Department’s administrative decisions on zoning clearance

applications such as this one are not published or otherwise widely known

to the public, the brief, 10-day window to appeal effectively forecloses facial

challenges to zoning determinations by third parties. Although that window

remains open for 60 days under Government Code section 65009, the 60-day

time frame seems meaningless in circumstances where there is no notice of

the granting of the clearance. Since any number of policy considerations

concerning the appropriate timing of pre-enforcement challenges to zoning

determinations of all kinds may be in play here, it seems equally clear to us

that this issue is best addressed legislatively (i.e. by rule, ordinance, or

statute) and is beyond our purview in this appeal.

6 Moreover, “violations” as used in section 17.152.080 is, at most,

ambiguous, so we consider other aids of interpretation to discern its meaning.

8

Neighbors’ authority for the proposition that staff approvals are

inconsistent with the applicable zoning scheme are ultra vires are unavailing.

(See City and County of San Francisco v. Board of Permit Appeals (1989)

207 Cal.App.3d 1099, 1106–1110 [appeals board cannot issue permit where

density violation was not in dispute and evidence negated prior

nonconforming use]; Johnston v. Board of Supervisors (1947) 31 Cal.2d 66,

73–74 [Board of Supervisors is bound by terms of ordinance when issuing a

use permit], disapproved on other grounds by Bailey v. Los Angeles County

(1956) 46 Cal.2d 132, 139.) Neighbors did not bring an appeal under the

correct chapter of the OMC; and no zoning violation has been found.

Neighbors’ contention that this outcome upends their rights and

expectations ignores the City’s admission that chapter 17.152 may be used to

abate activities that contravene the HBX-1 zone’s permitted uses or cause a

(H.B. v. Superior Court (2023) 97 Cal.App.5th 341, 344.) We begin by

considering the term in the context of associated words. (See 290 Division

(EAT), LLC v. City and County of San Francisco (2022) 86 Cal.App.5th 439,

456 [discussing the interpretative canon noscitur a sociis].) A revocation

complaint must be based on substantial evidence of “[1] a violation of the

[z]oning regulations, [2] [a violation of] any prescribed condition of

approval[,] or [3] public nuisance [that] exists on . . . any property that is

the subject of a zoning permit.” (§ 17.152.080.) The latter two clauses only

proscribe certain behavior by property owners. This lends credence to the

City’s argument that the first clause — violations of zoning

regulations — likewise only extends to actions of property owners.

We further “examine that language in the context of the entire

statutory framework to discern its scope and purpose.” (Kaanaana v. Barrett

Business Services, Inc. (2021) 11 Cal.5th 158, 168–169.) The Enforcement

Regulations empower officials to “arrest violators” of the zoning regulations

and grant officials right of entry to inspect suspected violations.

(§§ 17.152.040–17.152.050.) Such investigatory and enforcement powers

make sense to address acts by property owners who violate zoning rules or

create a nuisance, but they are incongruous with correcting the Planning

Department’s determinations of use classifications.

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nuisance. In other words, the Planning Department’s use classification and

zoning clearance was not a variance or rezoning, and the Enforcement

Regulations still permit Neighbors to seek a revocation hearing for any

nonconforming uses (or nuisances) if they arise. What the Enforcement

Regulations do not do is allow members of the public to challenge use

classifications or zoning determinations outside the procedures prescribed in

chapter 17.132.

Because we find that chapter 17.152 does not provide a legal basis for

challenging the Planning Department’s classification determination, we need

not address Neighbors’ other arguments regarding the merits of the use

classification or nuisance per se.

DISPOSITION

The order denying the petition for writ of mandate is affirmed. The

City is entitled to recover its costs on appeal. (Cal. Rules of Court,

rule 8.278(a)(2).)

HITE, J. *

We concur:

BROWN, P. J.

STREETER, J.

San Pablo Avenue Golden Gate Improvement Association, Inc., et al. v. City Council of the City of

Oakland et al. (A168039)

* Judge of the Superior Court of California, City and County of San

Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

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Trial Judge: Hon. Frank Roesch

Trial Court: Alameda County Superior Court

Attorneys: Greenfire Law, PC, Rachel S. Doughty, Ariel Strauss, for

Petitioners and Appellants.

Barbara J. Parker, City Attorney, Maria Bee, Chief

Assistant City Attorney, Montana Baker and Allison L.

Ehlert, Deputy City Attorneys, for Defendants and

Respondents.

Hanson Bridgett LLP, Andrew A. Bassak, Niran S.

Somasundaram, for Defendants and Respondents.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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