Tag: Statutory Interpretation

First District Court of Appeal Holds That Governor Newsom’s Certification of Oakland Howard Terminal Project Under AB 734 Was Timely

In Pacific Merchant Shipping Association v. Gavin C. Newsom (August 10, 2021, A162001) __ Cal.App.5th __ [2021 WL 3508693], the First District Court of Appeal held that there was no deadline for the Governor to certify the Howard Terminal Project as qualifying for expedited judicial review under Assembly Bill (AB) 734, and specifically, that the Howard Terminal Project was not subject to the certification deadline in the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (AB 900).

FACTUAL AND PROCEDURAL BACKGROUND

The Howard Terminal Project is a proposed development located at Oakland’s Howard Terminal. It includes a new baseball stadium for the Oakland A’s, as well as residential, retail, commercial, and other uses.

In 2018, the Legislature passed AB 734, which provided that, if the Governor certified that the Howard Terminal project met specific environmental standards, then litigation challenging the project’s environmental review would be subject to expedited judicial review. AB 734 was a stand-alone bill applicable solely to the Howard Terminal project. In many respects, AB 734 was modeled after separate legislation, generally referred to as AB 900, providing for expedited judicial review of “Environmental Leadership Development Projects” (ELDP projects).

First enacted in 2011, the Legislature has amended AB 900 several times, in part to extend various deadlines embedded in the statute. In September 2018, when the Legislature enacted AB 734, AB 900 provided that the Governor had to certify a project by January 1, 2020, and the lead agency had to approve the project by January 1, 2021, when AB 900 would sunset. AB 900 also authorized the Governor to adopt guidelines to implement the statute. The Governor’s AB 900 guidelines reflected AB 900’s deadlines.

AB 734 provided that the Governor’s AB 900 guidelines apply to the “implementation” of AB 734 “to the extent the guidelines are applicable and do not conflict with specific requirements” of AB 734. Unlike AB 900, AB 734 did not specify any deadlines in the text of the statute.

Shortly after the Legislature adopted AB 734, Governor Newsom amended his AB 900 guidelines to reference AB 734 and the Howard Terminal project, along with a different project – the Los Angeles Clippers’ proposed basketball arena in Inglewood – subject to its own, stand-alone, fast-track legislation (AB 987) that contained a similar reference to the Governor’s AB 900 guidelines.

In March 2019, the A’s submitted an application to the Governor for certification under AB 734. As a precursor to Governor certification, the California Air Resources Board (CARB) had to find that the Howard Terminal project would meet strict greenhouse gas emission reduction targets mandated by AB 734. In August 2020 – 16 months after the A’s submitted their application, and eight months after AB 900’s January 1, 2020, certification deadline – CARB made this finding. Governor Newsom certified the Howard Terminal project in February 2021.

A coalition of businesses operating at the Port of Oakland, led by the Pacific Merchant Shipping Association (PMSA), sued the Governor, challenging his authority to certify the project. PMSA alleged that the Governor’s authority to certify the project under AB 734 had expired as of January 1, 2020—the deadline for certification in AB 900. Specifically, PMSA argued that, by incorporating the AB 900 guidelines into AB 734 “to the extent the guidelines are applicable and not in conflict with the specific requirements” of AB 734, the legislature had incorporated AB 900’s deadline for certification. The trial court rejected PMSA’s arguments. PMSA appealed.

THE COURT OF APPEAL’S DECISION

After discussing the general rules of statutory interpretation, the Court of Appeal concluded that the text of AB 734 was ambiguous as to whether the January 1, 2020, deadline for certification of ELDP projects under AB 900 also applied to the Howard Terminal project under AB 734.

Turning to the legislative history for insight, the court noted that the author of AB 734 proposed a standalone bill for the Howard Terminal project, in part, because the project could not meet AB 900’s deadlines. Thus, one option the legislature considered was whether to simply extend AB 900’s deadlines and have the project proceed under AB 900. The court reasoned that the legislature was aware of this option but chose to adopt AB 734—with no deadlines—instead. Based on its review of the legislative history as a whole, the court concluded that the legislature had not intended to incorporate AB 900’s certification deadline into AB 734.

The court also determined that its construction of AB 734 was supported by the legislative purpose of the statute. As the court noted, the purposes served by enactment of AB 734 are made clear in the legislation: to assist the City of Oakland in retaining the Oakland A’s by streamlining environmental review for a “state-of-the-art baseball park” project; to generate thousands of high-wage, highly skilled jobs during construction and operation of the project; to support the City’s and region’s goals for sustainable, transit-oriented housing, including affordable housing; to provide an opportunity for investment “in new and improved transit and transportation infrastructure”; and to “implement sustainability measures designed to improve air quality and mitigate the emissions of greenhouse gases resulting from the project.” For all these reasons, the special legislation was deemed necessary so that the Howard Terminal Project could be developed in an “expeditious manner.” In light of the significant environmental, economic, and cultural benefits which prompted the adoption of AB 734, the court concluded that PMSA’s reading of the statute would undermine rather than promote the general purposes of the statute and the objectives to be achieved.

Lastly, the court concluded that a practical reading of AB 734, including its lack of deadlines, supported the respondents’ argument that the legislature did not intend to incorporate AB 900’s certification deadline into AB 734. Among other practical reasons for rejecting PMSA’s reading of the statute, the court noted that CARB’s step in the process alone exceeded PMSA’s alleged one-year deadline for certification.

The Court of Appeal agreed with the trial court and affirmed the judgment.

RMM attorneys Whit Manley and Chris Stiles represented Real Party in Interest Oakland Athletics Investment Group LLC in the litigation.

– Nathan O. George

Fourth District Court of Appeal Holds City’s Scenic View Ordinance Is Considered a Zoning Ordinance under Gov. Code Section 65901 and Therefore Subject to 90-Day Service Deadline for Petition in Section 65009

In a unanimous opinion, the court in Weiss v. City of Del Mar (2019) 39 Cal.App. 5th 609, upheld the trial court and found that the 90-day service deadline in Government Code section 65009 applied to a planning commission action on a municipal scenic view ordinance. As a result, the court held that a petition for writ of mandate that was served on the City three months after the deadline was time barred.

Background

In August 2016, Petitioner Shirli Weiss submitted an application to the City of Del Mar under its Scenic View Ordinance requesting that Torrey Pacific Corporation, her neighboring property owner, trim its “‘wildly overgrown’” vegetation and trees to restore the ocean view from her property. The Planning Commission held a hearing on the application and, though divided, denied her request. The City Council issued a 2-2 split decision on her appeal in July 2017 which, under the City’s rules, reinstated the Planning Commission’s decision to deny her request.

Weiss filed a petition for writ of mandate against the City and Torrey Pacific in September 2017, but did not serve the City with the petition until December 2017. The respondents jointly moved to dismiss under the 90-day service requirement in Government Code section 65009, subdivision (c)(1)(E). The trial court granted the motion and found it was “‘undisputed’” that this statutory deadline was not met. Weiss appealed. In her appeal, she acknowledged that she served the City more than 90 days after the City Council denied her appeal but contended that section 65009’s deadline did not govern her action.

Time Barred by Section 65009

The Court of Appeal considered the “‘usual and ordinary meanings’” of the plain language in section 65009 within the context of the entire statute. Section 65009, subdivision c, plainly states that a “challenger must file and serve the public entity within 90 days of the challenged decision.” This statute of limitations, the court explained, applies to adoption or amendments of specific plans, general plans, zoning ordinances, development agreements, and regulations attached to specific plans, and all actions “‘done or made prior to any of these decisions.’” (Gov. Code, § 65009, subd. (c)(1).) The service requirement also applies to “‘any decision on the matters listed in Sections 65901 and 65903.’” (Id.) Sections 65901 and 65903 primarily apply to actions related to a zoning ordinance, such as a conditional use permit, variance, or “‘any other powers granted by local ordinance’” to the board of zoning adjustment or zoning administrator. (Id. at § 65901, subd. (a).) The court noted that section 65903 includes zoning board of appeals decisions.

Weiss argued that the City’s Scenic View Ordinance is not a zoning ordinance because it is not within the Municipal Code zoning rules and regulations. The court disagreed, and determined that the Planning Commission was “functionally acting in a zoning board capacity” when it ruled on Weiss’s application. The court explained that the substance of the Scenic View Ordinance required the City to “undertake[] zoning and planning responsibilities,” and therefore it did not matter whether the ordinance was within the City’s Municipal Code. The court cited to Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, where the court held that a tree ordinance was a zoning ordinance. The court noted that any decision made under the Scenic View Ordinance is “quintessentially a public entity decision involving…a land use and zoning determination.” But, the court said, even if it were not a zoning/land use determination, the “‘any other powers’” clause in section 65901 is broad and includes decisions on “a range of issues outside” the categories listed in sections 65901 and 65903.

Weiss also argued that sections 65009 and 65901 only apply to planning or zoning decisions on a project or development, but do not apply to enforcement of an ordinance. Weiss cited section 65009’s stated purpose—to provide “’certainty regarding decisions’” so that owners and governments can “‘proceed with projects.’” The court disagreed with this argument because, particularly where statutory language is “clear and unambiguous,” general statements of statutory purpose “do[] not override the substantive portion” of a statute.  Weiss also argued that the 90-day deadline in section 65009 had only ever been applied to projects or development and never in circumstances like those at issue here. The court agreed with Weiss, but explained that there was no authority stating that section 65009 is triggered only for challenges to projects or developments.

The court also rejected several final arguments from Weiss. First, she argued that the court’s decision to apply the 90-day service rule here would render the statute applicable to all of the Planning Commission’s actions. The court disagreed, pointing back to statutory language that limits 65009 to “zoning and similar land use determinations.” Next, Weiss claimed that the lack of urgency of the current dispute, unlike the expedience necessary for development, precluded applicability of section 65009. The court rejected this argument as an attempt to add language that does not exist in the statute. Additionally, the court explained that tree removal and maintenance issues do need to be resolved promptly. Lastly, Weiss argued that the Scenic View Ordinance specifically mentions Code of Civil Procedure section 1094.6, but does not mention section 65009, so that section must not apply. The court explained that Code of Civil Procedure section 1094.6 addresses filing deadlines but is silent on service of a petition. Both regulations, the court said, can therefore apply simultaneously.