Stewart Enterprises, Inc. v. City of Oakland

         Alameda County Super. Ct. No. RG12646176, Honorable Evelio Grillo Trial Judge

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[Copyrighted Material Omitted]

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         COUNSEL

         BURKE, WILLIAMS & SORENSEN Kevin D. Siegel, Barbara J. Parker City Attorney, and Heather B. Lee Deputy City Attorney, for Defendants and Appellants.

         WENDEL, ROSEN, BLACK & DEAN Les A. Hausrath and Todd A. Williams for Plaintiffs and Respondents.

         OPINION

         HUMES, P.J.

         In May 2012, Stewart Enterprises, Inc. and SE Combined Services of California, Inc. (collectively, Stewart) obtained a building permit to construct a crematorium on a site in East Oakland. Five days later, the Oakland City Council (City Council) passed an emergency ordinance requiring a conditional use permit (CUP) to operate new crematoria. Stewart

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administratively appealed a determination that the emergency ordinance applied to its proposed crematorium, but Oakland’s Planning Commission (Planning Commission) denied the appeal. Stewart then brought this action, which included administrative-mandamus claims, against the City of Oakland, the City Council, and the Planning Commission (collectively, the City).

         The trial court granted one of Stewart’s claims petitioning for writ of administrative mandamus, ruling that Stewart had a vested right in the building permit based on a preexisting local ordinance and that the emergency ordinance was not sufficiently necessary to the public welfare to justify an impairment of that right. On appeal, the City argues that (1) Stewart had no vested right; (2) even if Stewart had a vested right, it was not impaired; and (3) even if Stewart had a vested right that was impaired, the impairment was supported by substantial evidence. We are not persuaded by these arguments and affirm.^[1]

         I.

         Factual and Procedural Background

         In 2011, Stewart began the process of obtaining approval to operate a crematorium at 9850 Kitty Lane in East Oakland. The Kitty Lane property was in an area zoned as Commercial Industrial Mix 2 (CIX-2).^[2] A CUP was required for “extensive impact” civic activities in the CIX-2 zone, but “general manufacturing” was permitted so long as it was not within 300 feet of a residential zone. (Oakland Mun. Code, §§ 17.10.240, 17.10.570, some capitalization omitted.) At the time, Oakland Municipal Code (OMC) section 17.10.240(B) defined extensive impact civic activities to include “[c]emeteries, mausoleums, and columbariums, ” but the category did not expressly include crematoria.

         Stewart obtained a zoning clearance after City staff determined that the proposed crematorium was a permissible general manufacturing use in the CIX-2 zone. In November 2011, BAAQMD granted Stewart authority to construct the crematorium. In its risk assessment, BAAQMD deemed the

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health “risk levels... acceptable” and recommended that Stewart follow certain measures to avoid triggering more stringent requirements, including limiting cremations to 3, 000 bodies annually.

         Stewart purchased the Kitty Lane property in January 2012 and took additional steps toward opening a crematorium, representing a total investment of about $2 million. On May 1.0, 2012, Stewart obtained a building permit to make structural improvements and install a crematorium. At the time the permit was issued, OMC former section 17.102.040(A) (the permit-vesting ordinance) provided in relevant part, “Whenever any subsisting building permit... has been lawfully issued beforehand, ... neither the original adoption of the zoning regulations nor the adoption of any subsequent rezoning or other amendment thereto shall prohibit the construction, other development or change, or use authorized by said permit[.]”^[3]

         Meanwhile, Stewart’s plan to operate a crematorium had raised concerns in the surrounding community, and these concerns were brought to the attention of the City Council president. In early May 2012, a draft “interim ordinance” was filed that required a CUP for new crematorium activity. On May 15, after the draft ordinance was revised to become an “emergency ordinance, ” the City Council held a public hearing to consider its adoption. At the hearing, community members and representatives from an environmental organization expressed concern about the crematorium’s potential negative impact on public health and business development in East Oakland. They supported a CUP requirement to permit the public to obtain additional information and to have further input before the crematorium was built.

         Written materials were also presented for the City Council’s consideration. The Alameda County Public Health Department (PHD) submitted a letter expressing its support for a CUP requirement. The PHD noted both the “potential health impacts” of crematoria generally and its “understand[ing]” that the planned crematorium in particular would “emit a range of pollutants, ” citing a report prepared by BAAQMD before it cleared Stewart to build. After pointing to the high rates of asthma in East Oakland, the PHD concluded, “Given the existing disproportionate burden of disease, a public process is necessary to protect community health.” In addition, a petition signed by dozens of community members “ask[ed] that the City of Oakland refuse to rubber-stamp the application for a crematorium... at 9850 Kitty Lane” so that they could first be provided with “a full explanation of the environmental and health impacts a crematorium would have... and an opportunity for [their] concerns to be heard and addressed.”

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         At the hearing’s conclusion, the City Council adopted the emergency ordinance. Under section 3 of the emergency ordinance, “[c]rematoriums or existing crematoria uses expanded shall only be permitted upon the granting of a major conditional use permit pursuant to the conditional use permit procedure in Chapter 17.134 of the Planning Code.” Under section 4, “[n]o building, zoning or other permit that has been issued for any building or structure for which rights to proceed with said building or structure have not yet vested pursuant to the provisions of State law shall proceed without complying with this ordinance.”^[4] As required for emergency ordinances under Oakland City Charter section 213, the ordinance contained a recital that it was “necessary to preserve the public peace, health, welfare or safety and to avoid a direct threat to the health, safety, and welfare of the community, ” based on its other recitals that (1) “crematoria emit particulate matter and other toxic pollutants” and “the possibility of trucking many thousands of bodies into Oakland from the Bay Area and beyond would add to those emissions, increase traffic congestion, and tax Oakland’s infrastructure”; (2) “the Airport Area Gateway is a recently revitalized corridor, [and] a regional cremation center [could] displace retail activities and compromise the economic opportunities of the Airport Area Gateway plan”; and (3) “[a] [r]egional cremation center in Oakland would impact the total environment of our neighborhoods and backslide efforts to address the cumulative impacts of environmental inequalities in less than fortunate areas of Oakland.”

         The day after the City Council hearing, the Oakland Planning and Zoning Director sent Stewart a letter informing it that the emergency ordinance applied to crematorium activity at the Kitty Lane property. The letter told Stewart that “[a]s a result, [it could] not proceed with any development or establishment of a Crematorium in reliance on the building permit or otherwise” without first obtaining a CUP. Stewart appealed this determination to the Planning Commission.

         In August 2012, the Planning Commission held a public hearing on Stewart’s appeal. At the hearing, several community members again voiced concerns about the impact on public health and businesses, and they reiterated their position that a CUP requirement was necessary to allow for adequate public input before the crematorium was built. In addition, community members submitted hundreds of form letters asking the Planning Commission to deny the appeal based on similar concerns. The Planning Commission also heard from a local business association, which advocated for a CUP based on the ...