REMY, THOMAS, MOOSE and MANLEY, LLP
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JAMES G. MOOSE
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ANDREA K. LEISY
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LAURA M. HARRIS
TIFFANY K. WRIGHT
CHRISTOPHER 1. BUTCHER
SABRINA V. TELLER
JEANNIE LEE
AssociATES
November 11, 2010
VIA
FEDERAL EXPRESS
The Honorable Richard J. McAdams, Presiding Justice
The Honorable Patricia Bamattre-Manoukian, Associate Justice
The Honorable Nathan D. Mihara, Associate Justice
California Court of Appeal, Sixth District
333 West Santa Clara Street, Suite 1060
San Jose, CA 95113
Re:
Request for Publication
Friends of the Juana Briones House
v.
City of Palo Alto
Sixth District Court of Appeal Case No. H033275
Dear Justices McAdams, Bamattre-Manoukian, and Mihara:
Pursuant to California Rules of Court, Rule 8.1120, subdivision (a), we
respectfully request publication of the opinion issued by this Court on October 27, 2010,
in Friends ofthe Juana Briones House v. City ofPalo Alto ("Opinion").
We submit this letter on behalf of the League of California Cities ("League").
This letter sets forth the League's interest in publication and the reasons the League
believes the Opinion meets the standards for publication set forth in California Rules of
Court, Rule 8.1105, subdivision (c).
The parties to the appeal did not author this letter in whole or in part. The parties
to the appeal did not make a monetary contribution for the preparation of this letter.
As described in more detail below, the decision explains and clarifies existing
rules of law relating to when permitting decisions implicate the discretion of a decision­
making body, thereby requiring environmental review under the California
Justices McAdams, Bamattre-Manoukian, and Mihara
November 1 1, 20 10
Page 2
Environmental Quality Act ("CEQA") (Pub. Resources Code, § 2 1000 et seq.). The
Court's analysis addresses legal issues of continuing public interest and makes a
significant contribution to the legal literature on this topic. Therefore, pursuant to Rule
8. 1 105, subdivisions (c)(2), (c)(3), (c)(4), (c)(6) and (c)(7), of the California Rules of
Court, the Opinion warrant publication.
1. The League of California Cities Has an Interest in Publication of the Opinion.
We submit this request for publication on behalf of the League of California
Cities. The League of California Cities is an association of 474 California cities
dedicated to protecting and restoring local control to provide for the public health, safety,
and welfare·of their residents, and to enhance the quality of life for all Californians. The
League is advised by its Legal Advocacy Committee, which is comprised of 24 city
attorneys from all regions of the State. The Committee monitors litigation of concern to
municipalities, and identifies those cases that are of statewide or nationwide significance.
The Committee has identified this case as being of such significance.
The League has a keen interest in the development of CEQA case law. CEQA has
a direct and significant impact on land-use decision-making by cities throughout the
State. In particular, the League has a strong interest in the publication of the Opinion's
discussion distinguishing ministerial and discretionary permits and approvals. (Opinion,
Discussion Section II.B.l-3.) The League's member cities frequently grapple with the
question of whether a given permitting procedure implicates their discretion and triggers
the need for CEQA review. As discussed below, the holding provides helpful guidance
on the application of this CEQA principle and clarifies the existing case law on this oft­
litigated issue.
2. The Opinion's Discussion of Ministerial Permits Merits Publication.
There are four reasons why the Opinion's discussion of ministerial versus
discretionary permitting procedures merits publication.
First, the Opinion clarifies the meaning of "ministerial" and "discretionary" as the
terms are used in CEQA by summarizing existing case law regarding the definition of
these terms. (Opinion, Discussion Section LA, pp. 10- 15.) In synthesizing the judicial
history on this issue, the Opinion sets forth a "functional test" that should be used to
determine whether a decision is ministerial. (/d., p. 13.) This discussion warrants
publication because it clarifies CEQA and the regulations promulgated to implement it,
and makes a significant contribution to legal literature by reviewing judicial history
relating to this issue. (Rule 8. 1 105, subdivision (c)(4), (c)(7).) The Opinion also
distinguishes and construes the holding of San Diego Trust & Savings Bank v. Friends of
Justices McAdams, Bamattre-Manoukian, and Mihara
November 1 1, 20 10
Page 3
Gill ( 198 1) 12 1 Cal.App.3d 203, 2 10 (Friends of Gill) to clarify that Friends of Gill does
not stand for the proposition that the authority to delay a project, without more, renders
an approval discretionary. (Opinion, Discussion Section II.B.1, pp. 19-20.) This
discussion warrants publication because it explains why the Respondent's interpretation
of the holding in Friends of Gill is overly broad. (Rule 8. 1 105, subdivision (c)(3).)
Second, the Opinion addresses the commonly-argued position that if a local code
permits any type of project conditioning, then the approval is necessarily discretionary.
(Opinion, Discussion Section II.B.2, p. 23.) In rejecting this argument, the Opinion
explains that the pertinent question is ''whether appellants could 'legally compel approval
without any changes in the design of its project which might alleviate adverse
environmental consequences." (Ibid., citing Friends of Westwood, Inc. v. City ofLos
Angeles ( 1987) 19 1 Cal.App.3d 259, 267 (original emphasis).) Local governments are
regularly called upon to determine whether a specific project approval is ministerial or
discretionary pursuant to CEQA. The Opinion's discussion of the relationship between
project conditions and the discretionary or ministerial nature of an approval will assist
local governments in making these determinations. It warrants publication. (Rule 8. 1 105,
subdivision (c)(6).)
Third, the Opinion rejects the notion that the potential serial combination of
ministerial permits-specifically, a ministerial demolition permit followed by a
ministerial building permit -- when viewed together are cumulatively environmentally
significant and trigger the need for CEQA review. (Opinion, Discussion Section II.B.3,
pp. 26-27.) As explained in the Opinion, because ministerial actions are statutorily
exempt from CEQA, a series of ministerial actions is likewise exempt. (Ibid.) Thus, the
Opinion warrants publication because it applies existing law to set of facts significantly
different from those addressed in published opinions. (Rule 8. 1 105, subdivision (c)(2).)
Fourth, the City of Palo Alto-like all cities-regularly issues building and
demolition permits. The Opinion holds that building permits, and demolition permits for
significant buildings outside of the downtown area, are ministerial permits under the City
of Palo Alto Municipal Code. Publication of the Opinion resolves any questions
regarding the discretionary nature of the City's existing permitting process for these
permits. Therefore, the Opinion settles legal issues of continuing public interest and
publication will reduce the probability that these now-settled issues will be relitigated in
the future at the public taxpayers' expense. (Rule 8. 1 105, subdivision (c)(6).)
3. Conclusion
The amendment to California Rules of Court, which adopted revised guidelines for
publication of appellate cases, took effect on April 1, 2007. The former rule contained a
Justices McAdams, Bamattre-Manoukian, and Mihara
November 1 1,20 10
Page 4
presumption against publication. (California Rules of Court, Former Rule 976.) The new
rule provides a more liberal standard: an appellate opinion "should" be published if any
of nine separate criteria are met. (California Rules of Court, Rule 8.1105, subd. (c).) As
explained above, the League believes the Opinion meets several ofthe standards for
publication set forth in California Rules of Court, Rule 8. 1 105, subdivision (c). On
behalf of the League, we respectfully request that the Court certify the Opinion for
publication.
Very truly yours,
Whitman F. Manley
cc:
All counsel of record
Proof of service attached