of Citizens for Beach Rights v. City of San Diego, Case No. D069638, Filed Filed March March 28, 28, Haller: and Rules of Court, rule (c).

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1 Court of Appeal, Fourth Appellate District. Division One Court of Appeal, Fourth Appellate District. Division One Kevin J. Lane, Clerk/Administrator 1901 Harrison 1 Street - Suite - Suite 900 Kevin J. Lane, Clerk/Administrator Electronically RECEIVED on 4/13/2017 at 253,43 Oakland, California 'ornia E Electronically FILED on 4/13/2017 by Michael Hubbard. Deputy Clerk voice I U.2/ fax - fax tsiv.v I Uff BURKE, WILLIAMS E., & SORENSEN, LLP Harrison Street - Suite 900 Oakland, California voice fax BURKE, WILLIAMS & SORENSEN, LLP Direct No.: nmuscolino@bwslaw.com Direct No.: nmuscolino@bwslaw.com P.J. Hon. Gilbert Nares, Associate Justice Justice Hon. Judith L. L. Haller, Associate Justice California Court of of Appeal Fourth Appellate District, Division One One 750 B Street, Suite San Diego, California Hon. Gilbert Nares, Associate Justice Hon. Judith L. Haller, Associate Justice California Court of Appeal Fourth Appellate District, Division One 750 B Street, Suite 300 San Diego, California Re: Request for for Publication of of Citizens for Beach Rights v. City of San Diego, Case No. D069638, Filed Filed March March 28, 28, Re: Request for Publication of Citizens for Beach Rights v. City of San Diego, Case No. D069638, Filed March 28, Dear Justices McConnell, Nares Nares and and Haller: Haller: Dear Justices McConnell, Nares and Haller: The League of of California Cities ("League") and and the California the California State State Association Association of of Counties ("CSAC") respectfully request that that the Court the Court publish publish its opinion its opinion in Citizens for Beach Rights v. City of San Diego (filed March 28, 2017), Appeal No. No. D ("Opinion"). The Opinion satisfies the the standards for publication for under under California California Rules Rules of Court, rule (c). The League of California Cities ("League") and the California State Association of Counties ("CSAC") respectfully request that the Court publish its opinion in Citizens for Beach Rights v. City of San Diego (filed March 28, 2017), Appeal No. D ("Opinion"). The Opinion satisfies the standards for publication under California Rules of Court, rule (c). 1. Interest of the League and CSAC Interest of the League and CSAC The League is is an an association of 475 of 475 California California cities cities dedicated dedicated to protecting to protecting and and restoring local control to to provide for for the the public public health, health, safety, safety, and welfare and welfare of their of their residents, and and to to enhance the quality the quality of life of for life all for Californians. all The League The League is advised advised by its Legal Advocacy Committee ("League Committee"), which which is comprised comprised of 24 city of 24 city attorneys representing all all regions of the of State. the State. The League The League Committee Committee monitors monitors litigation of concern to to municipalities and and identifies cases cases that are that of are statewide of statewide or or nationwide The The League Committee has identified has identified this case this as case having as such having such The League is an association of 475 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 ("League Committee"), which is comprised of 24 city attorneys representing all regions of the State. The League Committee monitors litigation of concern to municipalities and identifies cases that are of statewide or nationwide The League Committee has identified this case as having such CSAC is a non-profit association of 58 of 58 California counties. counties. CSAC CSAC sponsors sponsors a a Litigation Coordination Program, which which is administered is by the by County the County Counsels' Counsels' Association of of California, and and overseen by a by Litigation a Litigation Overview Overview Committee Committee comprised comprised of county counsels throughout the the state. state. The Litigation The Litigation Overview Overview Committee Committee monitors monitors CSAC is anon -profit association of 58 California counties. CSAC sponsors a Litigation Coordination Program, which is administered by the County Counsels' Association of California, and overseen by a Litigation Overview Committee comprised of county counsels throughout the state. The Litigation Overview Committee monitors v2 Los Angeles - Inland Empire - Marin - Marin County County - Oakland - Oakland - Orange - Orange County County - Palm - Desert Palm - Desert San Francisco - San Francisco - Silicon Valley - Silicon - Ventura Valley County - Ventura County Los Angeles -Inland Empire - Marin County -Oakland -Orange County -Palm Desert -San Francisco -Silicon Valley -Ventura County

2 BURKF, WILLIAMS & SORENSEN, LLP BURKE, WILLIAMS & SORENSEN. LLP Page 2 Page 2 litigation of concern to counties statewide, and has identified this case as having such litigation of concern to counties statewide, and has identified this case as having such 2. The Opinion Satisfies Rule (c) 2. The Opinion Satisfies Rule (c) California Rules of Court, rule (c), sets forth a liberal standard for publication. It encourages publication of opinions that meet any one of nine criteria. (Rules of Court, rule (c) ["An opinion... should be certified for publication" if it satisfies any one of nine criteria].)1 The Opinion satisfies criteria nos. 2 and 6. California Rules of Court, rule (c), sets forth a liberal standard for publication. It encourages publication of opinions that meet any one of nine criteria. (Rules of Court, rule (c) ["An opinion... should be certified for publication" if it satisfies any one of nine criteria].)' The Opinion satisfies criteria nos. 2 and 6. First, the Opinion applies an existing rule of law to facts that are significantly different than those in existing published opinions. (Rules of Court, rule (c)(2).) The appellate courts have applied the 90-day statute of limitations of Government Code section 65009(c)(1)(E) in a variety of different fact patterns. (See, e.g., Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, [plaintiff timely challenged conditions imposed on second unit permits under 90-day statute of limitations of section 65009(c)(1)(E)]; Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1493 [challenge to Community Development Department Director's letter approving construction of Wal-Mart Supercenter barred by 90-day statute of limitations of section 65009(c)(1)(E)]; Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, , [purported challenge to building permit was barred by plaintiff's failure to timely challenge underlying approval of variance within 90 days, pursuant to section 65009(c)(1)(E)].) However, no published opinion has addressed the First, the Opinion applies an existing rule of law to facts that are significantly different than those in existing published opinions. (Rules of Court, rule (c)(2).) The appellate courts have applied the 90-day statute of limitations of Government Code section 65009(c)(1)(E) in a variety of different fact patterns. (See, e.g., Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, [plaintiff timely challenged conditions imposed on second unit permits under 90-day statute of limitations of section 65009(c)(1)(E)]; Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1493 [challenge to Community Development Department Director's letter approving construction of Wal-Mart Supercenter barred by 90-day statute of limitations of section 65009(c)(1)(E)]; Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, , [purported challenge to building permit was barred by plaintiff's failure to timely challenge underlying approval of variance within 90 days, pursuant to section 65009(c)(1)(E)].) However, no published opinion has addressed the Rule (c) provides that an opinion should be published if it: Rule (c) provides that an opinion should be published if it: (1) Establishes a new rule of law; (2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions; (3) Modifies, explains, or criticizes with reasons given, an existing rule of law; (4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule; (5) Addresses or creates an apparent conflict in the law; (6) Involves a legal issue of continuing public interest; (7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law; (8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or (9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law. [paragraph breaks omitted.] (1) Establishes a new rule of law; (2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions; (3) Modifies, explains, or criticizes with reasons given, an existing rule of law; (4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule; (5) Addresses or creates an apparent conflict in the law; (6) Involves a legal issue of continuing public interest; (7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law; (8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or (9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law. [paragraph breaks omitted.]

3 BURKI WILLIAMS & SORENSEN, LLP BURICE, WILLIAMS & SORENSEN, LLP Page 3 Page 3 argument plaintiff presented in this matter that Section does not apply to a final development approval because the plaintiff contends an underlying, requisite permit has expired. In rejecting that argument, the Opinion establishes that the 90-day statute of limitations of section 65009(c)(1)(E) applies to a public agency's determination that the applicant is entitled to proceed with the subject project. argument plaintiff presented in this matter that Section does not apply to a final development approval because the plaintiff contends an underlying, requisite permit has expired. In rejecting that argument, the Opinion establishes that the 90-day statute of limitations of section 65009(c)(1)(E) applies to a public agency's determination that the applicant is entitled to proceed with the subject project. Second, this Court's opinion involves a legal issue of continuing public interest. (Rules of Court, rule (c)(6).) The short limitations period of section 65009(c)(1) is "intended to provide certainty for property owners and local governments regarding" local planning and zoning decisions. (Gov. Code 65009, subdivs. (a)(2) & (a)(3).) But this legislative purpose can only be achieved when all interested parties public entities and property owners alike have certainty regarding precisely when the 90-day limitations period commences to run. Ambiguity on the commencement of the limitations period has numerous unfortunate consequences, including without limitation: Second, this Court's opinion involves a legal issue of continuing public interest. (Rules of Court, rule (c)(6).) The short limitations period of section 65009(c)(1) is "intended to provide certainty for property owners and local governments regarding" local planning and zoning decisions. (Gov. Code 65009, subdivs. (a)(2) &(a)(3).) But this legislative purpose can only be achieved when all interested parties public entities and property owners alike have certainty regarding precisely when the 90-day limitations period commences to run. Ambiguity on the commencement of the limitations period has numerous unfortunate consequences, including without limitation: Public entities, property owners, and interested persons may waste their respective resources debating, and even litigating, issues for which this Court's Opinion would provide useful guidance. Public entities, property owners, and interested persons may waste their respective resources debating, and even litigating, issues for which this Court's Opinion would provide useful guidance. Judicial resources could be unnecessarily wasted through such litigation. Judicial resources could be unnecessarily wasted through such litigation. The resources of tax-payer funded public entities could be unnecessarily wasted in such litigation. The resources of tax -payer funded public entities could be unnecessarily wasted in such litigation. The "chilling effect" on projects that lawsuits challenging local zoning and planning decisions would not, contrary to the Legislature's express intent, be "alleviate[d]." (See Gov. Code 65009, subdiv. (a)(2).) The "chilling effect" on projects that lawsuits challenging local zoning and planning decisions would not, contrary to the Legislature's express intent, be "alleviate[d]." (See Gov. Code 65009, subdiv. (a)(2).) In sum, multiple grounds support the publication of the Opinion. In sum, multiple grounds support the publication of the Opinion.

4 BURKE, WILLIAMS & SORENSEN, LLP BURKF, WILLIAMS & SOI~ENSFN, LLP Page 4 Page 4 3. Conclusion 3. Conclusion Based on the foregoing, the League and CSAC believe that the Opinion meets the standards for publication set forth in California Rules of Court, rule (c), and respectfully urge this Court to order the Opinion published. Based on the foregoing, the League and CSAC believe that the Opinion meets the standards for publication set forth in California Rules of Court, rule (c), and respectfully urge this Court to order the Opinion published. Sincerely, Sincerely, Burke, Williams &Sorensen, LLP 1~~~iZ"~ Kevin D. Siegel Kevin D. Siegel ~L~ KDS:cs KDS:cs r Nic las J. Muscolino Nic las J. Muscolino

5 Court of Appeal, Fourth Appellate District. Division One Kevin J. Lane, Clerk/Administrator Electronically FILED on 4/13/2017 by Michael Hubbard. Deputy Clerk STATE OF CALIFORNIA Court of Appeal, Fourth Appellate District Division 1 PROOF OF SERVICE (Court of Appeal) Case Name: Citizens for Beach Rights v. City of San Diego Court of Appeal Case Number: D Superior Court Case Number: CU-WM-CTL 1. At the time of service I was at least 18 years of age and not a party to this legal action. 2. My address used to e-serve: ksiegel@bwslaw.com 3. I served by a copy of the following document(s) indicated below: Title(s) of papers e-served: Filing Type REQUEST - REQUEST TO PUBLISH OPINION Document Title Request for Publication of Citizens for Beac Righ PERSON SERVED ADDRESS Type Craig Sherman Craig A. Sherman, APC Jana Will San Diego City Attorney Kevin Siegel Nicholas Muscolino craigshermanapc@gmail.com e- Service jwill@sandiego.gov e- Service ksiegel@bwslaw.com e- Service DATE / TIME nmuscolino@bwslaw.com e- Service 2017 This proof of service was automatically created, submitted and signed on my behalf through my agreements with TrueFiling and its contents are true to the best of my information, knowledge, and belief.

6 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. -- Date /s/kevin Siegel Signature Siegel, Kevin (194787) Last Name, First Name (PNum) Law Firm