Filed 4/25/19; Certified for Publication 5/16/19 (order attached)




 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                DIVISION THREE


CALIFORNIA CHARTER                                   B284162
SCHOOLS ASSOCIATION,
                                                     (Los Angeles County
        Plaintiff and Appellant,                     Super. Ct. No. BS166035)

        v.

CITY OF HUNTINGTON PARK et
al.,

        Defendants and Respondents.


     APPEAL from the judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Reversed.
     Sheppard Mullin Richter & Hampton, Arthur J. Friedman
and Alexander L. Merritt for Plaintiff and Appellant.
     Alvarez-Glasman & Colvin, Arnold M. Alvarez-Glasman, Noel
Tapia, Christopher G. Cardinale and Tania Ochoa for Defendants
and Respondents.
      Cox, Castle & Nicholson, Andrew B. Sabey and Linda C.
Klein for California Building Industry Association and Building
Industry Legal Defense Foundation as Amici Curiae.
      Pacific Legal Foundation, Damien M. Schiff, Joshua P.
Thompson and Jeremy Talcott for Pacific Legal Foundation as
Amicus Curiae.
                        ——————————
      The City of Huntington Park (Huntington Park) enacted and
extended an urgency ordinance that imposed a temporary
moratorium on charter schools while it considered amending its
zoning code. The California Charter Schools Association
(Association) petitioned for writ of mandate seeking an order
directing Huntington Park to invalidate approval of the ordinance
on the ground it violated, among other things, the Planning and
Zoning Law. (Gov. Code,1 § 65000 et seq.) The trial court entered
judgment denying the petition and the Association appealed. We
hold as a matter of law that the ordinance is invalid because the
findings contained therein of “numerous inquiries and requests for
the establishment and operation of charter schools” did not amount
to a “current and immediate threat” as required by section 65858,
subdivision (c) to enact an urgency ordinance.




     1 All further statutory references are to the Government Code
unless otherwise indicated.




                                2
         FACTUAL AND PROCEDURAL BACKGROUND
I.   Huntington Park
     The facts are not in material dispute. Huntington Park is a
small, densely populated working-class general law city2 in Los
Angeles County.
       In September of 2016, the Huntington Park City Council held
a series of public hearings to consider whether to enact an urgency
interim zoning ordinance, under the authority of section 65858, to
impose a temporary moratorium on the establishment, construction,
and development of new charter schools within its borders.
       The mayor stated at a hearing that Huntington Park is 3.1
square miles in size and contains approximately 59,000 residents
and 20 schools, of which six are charter schools. Huntington Park
has more schools than any community in the southeast part of the
county. There are more than twice the amount of educational
facilities than that needed to serve Huntington Park’s school-age
population, and many of those attending the schools are not
residents of Huntington Park. The population density and high
number of schools attracting students from outside Huntington
Park contributes to traffic, parking, and noise problems in the
neighborhoods.



     2  A general law city has “ ‘only those powers expressly
conferred upon it by the Legislature, together with such powers as
are “necessarily incident to those expressly granted or essential to
the declared object and purposes of the municipal corporation.” The
powers of such a city are strictly construed, so that “any fair,
reasonable doubt concerning the exercise of a power is resolved
against” it.’ ” (Martin v. Superior Court (1991) 234 Cal.App.3d
1765, 1768.)




                                 3
      The assistant city attorney described a public safety issue.
One neighborhood has three schools within a block of each other,
causing traffic congestion on the narrow streets during student
drop-off and pick-up. The traffic problems and related disruption to
the community were sufficiently significant that the police and
representatives from the schools formed a traffic “task force” that
meets monthly to develop solutions.
      Meanwhile, the Huntington Park City Council and City
Attorney identified a “huge, huge” need for a diversity of land uses,
such as services, businesses, and other revenue sources, which must
compete with schools for limited space.
      The Huntington Park Community Development Department,
which requested the urgency ordinance, reported that it had
received “a proliferation of inquiries and requests for the
establishment and operation of charter schools.” The Huntington
Park Municipal Code (HPMC) requires charter schools to obtain
conditional use permits (CUP),3 which could be either approved or
disapproved at the discretion of Huntington Park. But the HPMC
contained no development standards for charter schools. The
proposed interim ordinance would give staff time to assess whether
the HPMC was adequate to ensure that future charter schools, and
expansion or relocation of existing charter schools, could be done in
a manner that protected the public and satisfied the goals and
objectives of Huntington Park’s general plan. And if not, to



      3 A CUP “is the approval for a particular use subject to
conditions intended to assure that the special use authorized by the
permit does not create conflicts or otherwise affect public health
and safety.” (7 Miller & Starr, Cal. Real Estate (4th ed. 2018)
§ 21:10.)




                                  4
consider amending the HPMC to ensure sufficient protection for the
community.
       Asked how many applications for charter school development
were being filed, the city planner explained that it had received “at
least five inquiries and . . . had several serious sit down discussions”
with charter school representatives within the preceding year.
II.   Huntington Park City Council adopts an urgency ordinance
       In September 2016, Huntington Park City Council adopted
urgency ordinance 2016-949 under section 65858 imposing a 45-day
moratorium on the “establishment and operation of charter schools”
and the “approval or issuance of licenses, permits or other
entitlements for the establishment, construction, and development
of charter schools.” The ordinance contained Huntington Park’s
findings that a “current and immediate threat” to public health,
safety, and welfare existed because of the following: (A) Huntington
Park had received “numerous inquiries and requests for the
establishment and operation of charter schools” that may be
incompatible with current land uses and the general plan; (B) the
HPMC did not have development standards specifically for charter
schools; (C) certain locations in Huntington Park had already
experienced adverse impacts from charter schools; (D) “as
applications for approval or issuance of . . . permits or other
entitlements for the establishment . . . of charter schools [are]
submitted to [Huntington Park], there is no determination whether
the locations and regulation of such uses are consistent with the
purpose and intent of the [HPMC], which may undermine public
health, safety, and welfare”; (E) the current HPMC did not ensure
compatibility with other land uses as the result of Huntington
Park’s changed characteristics; and (F) Huntington Park sought
“[t]o ensure the [HPMC’s] consisten[cy] with the goals . . . and




                                   5
standards of the General Plan.” Huntington Park City Council also
found that the ordinance was exempt from the provisions of the
California Environmental Quality Act (CEQA). (Pub. Resources
Code, § 21000 et seq.)
      In October 2016, Huntington Park City Council adopted
ordinance 2016-950, extending the moratorium for an additional
10 months and 15 days. The extension recited that Huntington
Park had received “a proliferation of inquiries and requests,” and
found that Huntington Park had “received numerous inquiries and
requests for the establishment and operation of charter schools
within Huntington Park that may be incompatible with current
land uses and the General Plan.”
III.   Procedural history
       The Association filed its petition for writ of mandate (Code
Civ. Proc., § 1085)4 challenging the ordinance in three causes of
action: (1) violation of section 65858; (2) violation of CEQA; and
(3) preemption by the Charter Schools Act (Ed. Code, § 47601
et seq.). In its reply brief, the Association added as an argument
that the ordinance discriminated against charter schools.
       The trial court denied the Association’s writ petition. The
Association filed its timely appeal.



       4 “A traditional writ of mandate under Code of Civil
Procedure section 1085 is a method of compelling the performance
of a legal, usually ministerial duty. [Citation.] Generally, a writ
will lie when there is no plain, speedy, and adequate alternative
remedy; the respondent has a duty to perform; and the petitioner
has a clear and beneficial right to performance.” (Walnut Valley
Unified School Dist. v. Superior Court (2011) 192 Cal.App.4th 234,
237, fn. 4.)




                                   6
                           DISCUSSION
I.    Mootness
      Huntington Park contends that this appeal is moot because
ordinance 2016-950 extending the moratorium already expired by
its own terms while the appeal was in the briefing stage. However,
we need not determine whether the appeal is moot because we
nonetheless have discretion to consider it. Even if technically moot,
an appeal may be decided when, as here, “the issue ordinarily arises
in controversies that are so short lived as to evade normal appellate
review.” (Hoffman Street, LLC v. City of West Hollywood (2009) 179
Cal.App.4th 754, 766.)
II.  Current and immediate threat under section 65858,
subdivision (c)
       “The general purpose of section 65858 is to allow a local
legislative body to adopt interim urgency zoning ordinances
prohibiting land uses that may conflict with a contemplated general
plan amendment or another land use measure proposal which the
legislative body is studying or intends to study within a reasonable
period of time.” (216 Sutter Bay Associates v. County of Sutter
(1997) 58 Cal.App.4th 860, 869 (Sutter Bay).)5 Such ordinances are
within a city’s police power. (CEEED v. California Coastal Zone
Conservation Com. (1974) 43 Cal.App.3d 306, 314–315.)

      5 Subdivision (a) of section 65858 states in part, “the
legislative body of a county, city, including a charter city, or city
and county, to protect the public safety, health, and welfare, may
adopt as an urgency measure an interim ordinance prohibiting any
uses that may be in conflict with a contemplated general plan,
specific plan, or zoning proposal that the legislative body, planning
commission or the planning department is considering or studying
or intends to study within a reasonable time.”




                                  7
       Subdivision (c) of section 65858, at issue here, reads in
relevant part, “[t]he legislative body shall not adopt or extend any
interim ordinance pursuant to this section unless the ordinance
contains legislative findings that there is a current and immediate
threat to the public health, safety, or welfare, and that the approval
of additional subdivisions, use permits, variances, building permits,
or any other applicable entitlement for use which is required in
order to comply with a zoning ordinance would result in that threat
to public health, safety, or welfare.” (Italics added.)
       In the context of a saturation of schools with the associated
traffic problems, and an outdated municipal code, the ordinance
contained the findings variously that Huntington Park had received
a “proliferation of inquiries,” and “numerous inquiries and requests
for the establishment” of charter schools. The city planner’s
testimony, which supplied the factual underpinning, was that the
department had received “at least five inquiries and . . . had several
serious sit down discussions” with charter school representatives
within the preceding year.6 No actual CUP applications or pending
charter school permits were in the record.
      The Association challenges this finding of current and
immediate threat. Noting that no actual development applications
were pending when Huntington Park enacted the ordinance, the
Association contends no current and immediate threat of a new
charter school application approval existed to justify the use of the


      6 The Association alternatively contended that the record
contained insufficient evidence of inquiries. We do not address this
issue as we have related the factual basis for the finding, which is
not in dispute, and accept as true the findings contained in the
ordinance to address the legal question of whether that finding
constitutes a current and immediate threat under the statute.




                                  8
police power, with the result that Huntington Park exceeded its
authority in adopting the ordinance.
       “Where the ordinance recites facts that constitute the urgency
and those facts may reasonably be held to constitute an urgency, the
courts will neither interfere with nor determine the truth of those
facts.” (Sutter Bay, supra, 58 Cal.App.4th at p. 868, italics added,
citing Crown Motors v. City of Redding (1991) 232 Cal.App.3d 173,
179 (Crown Motors).) However, whether the recited facts may be
held to constitute an urgency is a legal question. Under Code of
Civil Procedure section 1085, when the relevant facts are
undisputed, and the issue is one of statutory interpretation, the
question is one of law for which we employ our independent review.
(Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th
1241, 1253.)
       The Association relies on Building Industry Legal Defense
Foundation v. Superior Court (1999) 72 Cal.App.4th 1410 (Building
Industry) to argue as it did below, that current and immediate
threat means that the approval of an entitlement or use is
imminent, and so mere inquiries, requests, and meetings about a
use do not meet the definition. Building Industry is persuasive.
       Building Industry’s interim ordinance under section 65858
“suspend[ed] the processing of development applications on
certain . . . lots pending . . . review and update of the [city’s] general
plan.” (Building Industry, supra, 72 Cal.App.4th at p. 1413, italics
omitted.) The city adopted the ordinance after a developer
submitted an application for a residential subdivision. (Ibid.) As
justification for the ordinance, the city recited that its antiquated
general plan needed review and that issues had arisen about the
adequacy of various land use elements and overcrowding or




                                    9
potential overcrowding of schools in the immediate future “ ‘from
building permits currently authorized.’ ” (Ibid., italics added.)
       Building Industry held that the interim ordinance violated
two subdivisions of section 65858. Subdivision (a) of section 65858
authorizes interim ordinances to prohibit “uses,” but not to “fix
procedures for processing development applications.” (Building
Industry, supra, 72 Cal.App.4th at p. 1416.) More relevant here,
Building Industry also held that processing a development
application did not constitute a current and immediate threat under
subdivision (c) of section 65858. (Id. at pp. 1416–1418.) Building
Industry concluded that “[l]imiting the reach of an interim
ordinance to those situations where actual approval of an
entitlement for use is imminent is consistent with the purpose of
interim controls.” (Id. at p. 1418, italics added.)
       The legislative history of section 65858, subdivision (c),
supported Building Industry’s conclusion: “Although the
Legislature could have tied adoption of an interim ordinance to the
submission or processing of a development application, it chose to
set the bar higher, restricting its application to situations where an
approval of an entitlement of use was imminent.” (Building
Industry, supra, 72 Cal.App.4th at pp. 1418–1419.) Likewise,
Building Industry found that case law upholding the validity of
urgency zoning ordinances under section 65858 involved situations
where local agencies were faced with immediate threats of
development. (Building Industry, at p. 1419, citing Sutter Bay,
supra, 58 Cal.App.4th 860, Conway v. City of Imperial Beach (1997)
52 Cal.App.4th 78 & Metro Realty v. County of El Dorado (1963) 222
Cal.App.2d 508.)
       Another case, Crown Motors, supra, 232 Cal.App.3d 173, also
addressed whether the requisite threat existed. Crown Motors held




                                 10
that the approval of a pending application for a use permit
constituted a current and imminent threat under section 65858,
subdivision (c) because the permit would have been approved within
30 days but for the urgency ordinance. (Id. at pp. 179–180.) In
other words, actual approval of a permit was imminent.
       The holding in Building Industry makes sense. Issuing a
building permit and approving a development application are acts
that give the landowner the right to proceed with development.
“Formal submission of the application to the city’s planning
department merely starts the wheels rolling . . . . As always, the
city retains the power to deny it.” (Building Industry, supra, 72
Cal.App.4th at pp. 1419–1420.) The landowner only gains a vested
right to complete the project as development proceeds; the mere
processing of a development application does not endow a vested
right. (Ibid.)
       Likewise, with CUPs, municipalities have discretion, when
reviewing such applications, to deny permits or to impose conditions
on such permits. (BreakZone Billiards v. City of Torrance (2000) 81
Cal.App.4th 1205, 1224.) Although a CUP runs with the land and
“creates a property right which may not be revoked without
constitutional rights of due process” (Malibu Mountains Recreation,
Inc. v. County of Los Angeles (1998) 67 Cal.App.4th 359, 367–368),
no right vests until a permit is granted, and the successful
applicant has thereafter acted upon the grant to his or her
detriment. (Ibid.; BreakZone Billboards, at p. 1224.) If processing
a filed application as in Building Industry does not pose a current
and immediate threat to the public health, safety, or welfare
because no rights will vest imminently, then mere inquiries,
requests, and meetings, preliminary to submitting a CUP
application, cannot possibly present that threat.




                                11
       Huntington Park argues no case establishes the bright line
rule proffered by the Association. But, as analyzed, Building
Industry, supra, 72 Cal.App.4th 1410 does. Huntington Park
misunderstands Building Industry when it argues that the analysis
of subdivision (c) of section 65858 is dictum. Building Industry
presents two independent, statutory grounds for invalidating the
ordinance there, subdivision (a) and, relevant to our case,
subdivision (c). Selinger v. City Council (1989) 216 Cal.App.3d 259,
also cited by Huntington Park, does not undermine the
Association’s argument. Selinger held that a section 65858
ordinance imposing a development moratorium did not toll the one-
year time period in which the city must act on a pending
application under the Permit Streamlining Act (§ 65920 et seq.).
(Id. at p. 269.) The development application in Selinger should
have already been approved by operation of law when the urgency
ordinance was adopted, with the result that the required threat was
present. (Id. at pp. 264–265.) More important, Selinger did not
discuss what constituted an urgency under section 65858,
subdivision (c). “ ‘ “ ‘[C]ases are not authority for propositions not
considered.’ ” ’ ” (Reid v. City of San Diego (2018) 24 Cal.App.5th
343, 367.) For the same reason, Martin v. Superior Court, supra,
234 Cal.App.3d 1765, cited by Huntington Park, is irrelevant. The
issue there was whether the municipality could extend its urgency
ordinance for more than the statutorily authorized two years.
(Id. at p. 1772.) Imminent threat was never at issue in that case.
Finally, neither Sutter Bay, nor Crown Motors, supports
Huntington Park’s stance. In the former, the urgency ordinance
prevented a development agreement from vesting. (Sutter Bay,
supra, 58 Cal.App.4th at p. 871.) As explained, the latter held that
the approval of a use permit was imminent, thus justifying the




                                 12
ordinance’s findings. (Crown Motors, supra, 232 Cal.App.3d at
pp. 179–180.)
      For the foregoing reasons, we hold that ordinance 2016-950 is
not valid under section 65858 because mere inquiries, requests, and
meetings do not constitute a current and immediate threat within
the meaning of subdivision (c) of that statute.
      Our conclusion renders it unnecessary for us to decide
whether the ordinance was exempt from CEQA, was preempted by
the Charter Schools Act, or discriminated against charter schools.
We therefore do not address the Association’s remaining
contentions on appeal.
                         DISPOSITION
      The judgment is reversed. California Charter Schools
Association is awarded its costs on appeal.




                                         DHANIDINA, J.

We concur:



             EDMON, P. J.



             EGERTON, J.




                                13
Filed 5/16/19
                CERTIFIED FOR PUBLICATION


 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE


CALIFORNIA CHARTER                        B284162
SCHOOLS ASSOCIATION,                      (Los Angeles County
                                          Super. Ct. No. BS166035)
       Plaintiff and Appellant,
                                          CERTIFICATION AND
       v.                                 ORDER FOR PUBLICATION

CITY OF HUNTINGTON PARK et
al.,

       Defendants and Respondents.


      The opinion in the above-entitled matter filed April 25, 2019,
was not certified for publication in the Official Reports. For good
cause it now appears that the opinion should be published in the
Official Reports and it is so ordered.



       DHANIDINA, J.                 EGERTON, Acting P. J.
