Agenda - Planning Commission - 10/06/2016

Home

Zoning Bulletin August 25, 2016 1 Volume 10 1 Issue 16 had been issued for which rights to proceed with the building had not yet vested could proceed without obtaining a CUP. The Oakland Planning&Zoning Director sent Stewart a letter inform- ing it that the emergency ordinance applied to its crematorium activity at its site in East Oakland, and that it needed to obtain a CUP before it could proceed with any development of the crematorium. Stewart appealed the determination that the emergency ordi- nance applied to its crematorium. Oakland's Planning Commis- sion denied the appeal. Stewart then brought a legal action against the City of Oakland, the City Council, and the City's Planning Commission (collec- tively, the "City"). Stewart maintained that it had a vested right in the building permit based on a preexisting City ordinance. At the time the building permit was issued to Stewart, an ordinance (the "permit-vesting ordinance") in the City of Oakland's Municipal Code provided as follows: "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[.]" Stewart contended that the application of the emer- gency ordinance was an abuse of discretion because it violated Stewart's vested right under the permit vesting ordinance. f The trial court agreed. It ruled that Stewart had a vested right in the building permit based on the permit-vesting ordinance and that the emergency ordinance was not sufficiently necessary to the pub- lie welfare to justify an impairment of that right. The City appealed. On appeal, the City argued 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 justified as necessary to the public welfare. DECISION: Affirmed. The Court of Appeal, First District, Division 1, California, held that: (1) Stewart had a vested right to construct the crematorium pursuant to the building permit legally issued to it; (2) application of the emergency ordinance requiring a CUP impaired Stewart's vested right; and (3) the impairment of Stewart's vested right was not justified as it was not sufficiently necessary to the public welfare. ©2016 Thomson Reuters 9 r e Y C