On May 16, 2019, the Second District Court of Appeal published its opinion in California Charter Schools Association v. City of Huntington Park wherein it held that a city’s interim ordinance, prohibiting the approval of additional charter school development in the city, was invalid where there was no “current and immediate threat” of development as approval of a charter school application was not imminent. The city’s factual findings to support an interim ordinance under Government Code section 65858 were inadequate where no applications had actually been submitted to the city; the city planner had only received inquiries and had discussions about additional charter schools.
Background and Procedural History
In 2016, the City of Huntington Park (“City”) contained 20 schools, including six charter schools, which was twice the number of schools necessary to serve its population. Students commuting from other cities resulted in traffic congestion amounting to a public safety concern and leading the City to consider rezoning portions of the City.
In September 2016, the City adopted an urgency ordinance pursuant to Government Code section 65858 (“Section 65858”), imposing a 45-day moratorium on the “establishment and operation of charter schools.” In October 2016, the City extended the moratorium for an additional 10 months and 15 days. The City’s findings of fact stated that the City had received “a proliferation of inquiries and requests” to establish charter schools.
The California Charter Schools Association (“Association”) filed a petition for writ of mandate, challenging the ordinance for violating Section 65858, the California Environmental Quality Act (“CEQA”), the Charter Schools Act of 1992, and principles of anti-discrimination. The trial court denied the petition in its entirety. The Association timely appealed.
Discussion
The Court of Appeal held that the ordinance was invalid where the City’s findings were not based on facts supporting a “current and immediate” threat to warrant adoption as an urgency.
The court reiterated that the legislative intent of Section 65858 demonstrated that the Legislature “set the bar higher” than situations concerning the submission or processing of a development application and “limit[ed] the reach of an interim ordinance to those situations where actual approval of an entitlement for use is imminent.”
As explained by the court, “processing a development application did not constitute a current and immediate threat,” and invalidated an interim ordinance that applied to a submitted application. Here, no applications had been submitted to the City; therefore, the threat to the City was not imminent. Further, the court stated, even if an application had been submitted, the City retained the power to deny it. There is no right to complete a project until an application has been approved.
The court distinguished its holding from Crown Motors v. City of Redding (1991) 232 Cal.App.4th 173. In Crown Motors, a building permit would have been approved by its own terms within 30 days if not for an urgency ordinance, so actual approval of the permit and the vesting of rights was imminent.
The court also held that, although the ordinance had expired by the time of the appeal, the court was at its discretion to hear the claims when “the issue ordinarily arises in controversies that are so short lived as to evade normal appellate review.”
Note that this Opinion was filed April 25, 2019. The court ordered its publication in response to requests from California Charter Schools Association, California Building Industry Association and Building Industry Association, KIPP LA Public Schools, KIPP Foundation, and Pacific Legal Foundation.
Conclusion
In light of this holding, cities should be wary of relying on Section 65858 to pass urgency legislation where approval of a land use permit is not yet pending.
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597
Olivia Filbrandt
ofilbrandt@kmtg.com | 916.321.4290