San Pablo Ave. Golden Gate Improvement Ass'n, Inc. v. City of Oakland

322 Cal.Rptr.3d 870

103 Cal.App.5th 233

SAN PABLO AVENUE GOLDEN GATE IMPROVEMENT ASSOCIATION, INC., et al., Petitioners and Appellants,

v.CITY COUNCIL OF the CITY OF OAKLAND et al., Defendants and Respondents.

A168039

Court of Appeal, First District, Division 4.

Filed June 28, 2024

As Modified on Denial of Rehearing July 29, 2024

Trial Judge: Hon. Frank Roesch, Trial Court: Alameda County Superior Court (Alameda County Super. Ct. No. 22CV005451)

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, Walnut Creek, Niran S. Somasundaram, San Francisco, for Defendants and Respondents.

HITE, J.^*

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. Cloud-Kitchens’s submission described the proposed facility as "[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." Cloud-Kitchens’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 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 Cloud-Kitchen[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."

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 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 Plan- ning Department’s interpretations and determinations of the zoning regulations, including use classifications and zoning clearances.

I. Standard of Review

[1, 2] 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, 283 Cal.Rptr.3d 877.) 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, 283 Cal.Rptr.3d 877; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8, 78 Cal.Rptr.2d 1, 960 P.2d 1031.)

II. Chapter 17.152 Is an Invalid Basis to Challenge Zoning Decisions

[3] 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 [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.

[4] 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, 234 Cal.Rptr.3d 856, 420 P.3d 767 [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

[5] 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...