CALIFORNIA BUILDING INDUSTRY ASSOCIATION v. CITY OF SAN JOSE (AFFORDABLE HOUSING NETWORK OF SANTA CLARA COUNTY)

Appellant, City of San Jose, Request for Judicial Notice

Cal.January 31, 2014

$212072 IN THE SUPREME COURT OF CALIFORNIA SUPREME COURT CALIFORNIA BUILDING INDUSTRY F | L E D ASSOCIATION, Petitioner, JAN 3 1 2014 Vv. Frank A. McGuire Clerk CITY OF SAN JOSE AND CITY COUNCIL Deputy AND MAYOROF THE CITY OF SAN JOSE, Defendants, Appellants and Respondents. AFFORDABLE HOUSING NETWORK OF SANTA CLARA COUNTY,etal. Intervenors. CITY OF SAN JOSE’S MOTION TO TAKE JUDICIAL NOTICE After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H038563 Superior Court, Santa Clara County, Case No. 1-10-CV167289 *ANDREWL. FABER(61072) THOMASP. MURPHY(121251) Berliner Cohen Ten Almaden Boulevard, 11th Floor San Jose, California 95113-2233 Telephone Number: (408) 286-5800 Andrew.Faber@berliner.com Tom.Murphy@berliner.com 4847-2392-8600v1 TPM\06429009 RICHARD DOYLE,City Atty (88625) NORA FRIMANN,Assistant City Atty (93249) MARGO LASKOWSKA,Sr. Deputy City Atty (187252) Office ofthe City Attorney 200 East Santa Clara Street San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for CITY OF SAN JOSE and MAYORand CITY COUNCIL OF THE CITY OF SAN JOSE To: The Chief Justice and the Associate Justices of the Supreme Court of the State of California: Pursuant to California Rules of Court Rule 8.252 and Evidence Code section 459, Defendants and Appellants City of San Jose and City Council and Mayorofthe City of San Jose (“City”) respectfully bring this motion requesting the Court to take judicial notice of San Jose Municipal Codesection 1.04.160, “Severability.” I. ARGUMENT. California Evidence Code section 459 permits a reviewing court to take judicial notice of any matter specified in Evidence Code 452, which in turn allowsa court to take judicial notice of regulations andlegislative enactments issued by or under the authority of any public entity in the United States. (Evidence Code § 452(b).) The City respectfully asks that this Court take judicial notice of San Jose Municipal Code section 1.04.160, whichprovidesthat: If any section, subsection, sentence, clause, or phrase of any ordinance heretofore or hereafter adopted by the city council of the city of San José is for any reason held to be invalid or unconstitutional by a decision of any court of competentjurisdiction, such decision shal] not affect the validity of the remaining portion of such ordinance. Each and every section, subsection, sentence, clause or phrase of any ordinance is severable from all other sections, subsections, sentences, clauses or phrases unless such ordinance contains a provision whichstates that the council would not have passed the remainderof such ordinanceif it had ownthat any section, subsection, sentence, clause or phrase of the ordinance would subsequently be declared invalid or unconstitutional. (See Exhibit A to Declaration of Thomas P. Murphy in Support ofMotion to Take Judicial Notice.) 4847-2392-8600v1 _|- TPM\06429009 The trial court and court of appeal did not take judicial notice of San Jose Municipal Code section 1.04.160. However, the section is relevant to this case becausePetitioner California Building Industry Association (CBIA) asserts in this case that the City’s inclusionary housing ordinance, San Jose Municipal Code Chapter 5.08 (the Ordinance), is invalid in its entirety. The Ordinance requires developers ofnew residential housing projects of more than 20 units in the City to sell 15 percent of their units at below marketprices as affordable housing. The Ordinance providesfor a numberofalternative methods by which a developer subjecttoits provisions may comply with this basic inclusionary requirement, such as by paymentofan “in-lieu” fee or dedication or land. (San Jose Municipal Code §§5.08.510-5.08.550 (Appellants’ Appendix 689, 692-697).) In its Opening Brief, CBIA has argued that these alternative compliance options, in addition to the underlying inclusionary requirement, are invalid. (See CBIA OpeningBrief, p. 5, stating that alternative compliance options “are properly viewedas an integrated program of exactions, the constitutionality of which should be considered as a whole. . . .”) For the reasons stated in its Answer Brief on the Merits, the City disputes this assertion, and contendsthat, if the Court should deem invalid the provisions of the Ordinance allowing developersat their option to comply with the underlying inclusionary requirementby alternative means (which it should not), it should nonetheless sever any such provision deemedinvalid and enforce the remainder of the Ordinance, including the underlying inclusionary requirementitself. (City AnswerBrief, pp. 48-50.) Asit addresses severability and by its terms is effectively incorporated into the Ordinance, San Jose Municipal Code section 1.04.160, is relevant to the 4847-2392-B600v1 _2- TPIM\06429009 City’s position. Also, by its termsit is effectively incorporated into the Ordinance. It therefore forms part ofthe subject matter ofthis case. I. CONCLUSION. For these reasons, the City respectfully requests that the Court take judicial notice of San Jose Municipal Code section 1.04.160. DATED: JANUARY31, 2014 RICHARD DOYLE,CITy ATTORNEY AND BERLINER COHEN By Anfeo£ ANDREWL.FABER THOMASP. MURPH ATTORNEYS FOR THE CITY OF SAN JOSE AND CITY COUNCIL AND MAYOR OF THE CITY OF SAN JOSE 4847-2392-8600v1 3- TPM\06429009 -849-3419-2663v1 :GARCIA\06429009 CERTIFICATE OF SERVICE Supreme Court, Case No. 8212072 Court ofAppeal, Sixth District, Case No. H038563 Santa Clara County Superior Court Case No.: 110-CV-167289 I, Elizabeth Sierra Garcia, declare under penalty of perjury underthe lawsofthe State of California that the following facts are true and correct: I am citizen of the United States, over the age of eighteen years, and not a party to the within action. I am an employee of Berliner Cohen, and my business address is Ten Almaden Boulevard, Suite 1100, San Jose, California 95113-2233. On January 31, 2014, I served the following document(s): CITY OF SAN JOSE’S MOTION TO TAKE JUDICIAL NOTICE in the following manner: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Jose, California addressed as set forth below. Damien M.Schiff Anthony L. Francois Pacific Legal Foundation 930 G Street Sacramento, California 958 14 Telephone: (916) 419-7111 David Lanferman Rutan & Tucker Five Palo Alto Square 3000 El Camino Real, Suite 200 Palo Alto, CA 94306 Telephone: (650) 320-1507 Margo Laskowska Office of the City Attorney City of San Jose 200 East Santa Clara Street San Jose, CA 95113-1905 Telephone: (408) 535-1900 Paul B. Campos Building Industry Association of the Bay Area 101 Ygnacio Valley Road, Suite 210 Walnut Creek, CA 94596 Telephone: (925) 274-1365 Nick Cammarota California Building Industry Association 1215 K Street, Suite 1200 Sacramento, CA 95814 Telephone: (916) 443-7933 L. David Nefouse Wilson Sonsini Goodrich & Rosati P.C. 650 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 565-3812 Kyra Kazantzis James F. Zahradka Melissa A. Morris Law Foundation ofSilicon Valley Public Interest Law Firm 152 N. ThirdStreet, 3" Floor San Jose, CA 95112 Telephone: (408) 280-2429 Michael Rawson The Public Interest Law Project California Affordable Housing Law Project 449 15" Street, Suite 301 Oakland, CA 94612 Telephone: (510) 891-9794 Corina I. Cacovean Collen Bal Wilson Sonsini Goodrich & Rosati P.C. One Market Plaza Spear Tower, Suite 3300 San Franciso, CA 94105-1126 Telephone: (415) 947-2017 1849-34 19-2663v1 =GARCIA\06429009 Court Clerk The Honorable Socrates Manoukian California Court ofAppeal Santa Clara County Superior Court 333 West Santa Clara Street, Suite 1060 Old Courthouse San Jose, CA 95113 191 N.First Street Telephone: (408) 277-1004 San Jose, CA 95113 Telephone: (408) 882-2310 I am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service/Express Mail, Federal Express and other overnight mail services, to wit, that correspondence will be deposited with the United States Postal Service/overnight mail service this same day in the ordinary course of business. Executed on January 31, 2014, at San Jose, California. ELIZABETH SIERRA GARCIA $212072 IN THE SUPREME COURT OF CALIFORNIA CALIFORNIA BUILDING INDUSTRY ASSOCIATION, Petitioner, V. CITY OF SAN JOSE AND CITY COUNCIL AND MAYOROFTHECITY OF SAN JOSE, Defendants, Appellants and Respondents. AFFORDABLE HOUSING NETWORK OF SANTA CLARA COUNTY,etal. Intervenors. DECLARATION OF THOMASP. MURPHYIN SUPPORT OF CITY OF SAN JOSE’S MOTION TO TAKE JUDICIAL NOTICE After a Decision by the Court ofAppeal Sixth Appellate District, Case No. H038563 Superior Court, Santa Clara County, Case No. 1-10-CV167289 *ANDREWL. FABER(61072) RICHARD DOYLE,City Atty (88625) THOMAS P. MURPHY(121251) NORA FRIMANN,Assistant City Atty (93249) Berliner Cohen MARGO LASKOWSKA,Sr. Deputy City Atty (187252) Ten Almaden Boulevard, 11th Floor Office ofthe City Attorney San Jose, California 95113-2233 200 East Santa Clara Street Telephone Number: (408) 286-5800 San José, California 95113-1905 Andrew.Faber@berliner.com Telephone Number: (408) 535-1900 Tom.Murphy@berliner.com Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for CITY OF SAN JOSE and MAYORand CITY COUNCIL OF THE CITY OF SAN JOSE 4815-2282-9336v1 TPM\06429009 DECLARATION OF THOMASP. MURPHYIN SUPPORTOF CITY OF SAN JOSE’S MOTION TO TAKE JUDICIAL NOTICE I, Thomas P. Murphy, declare as follows: 1. I am an attorney with the law firm of Berliner Cohen, one ofthe counsel ofrecord for the City of San Jose and City Council and Mayorofthe City of San Jose (“City”), Defendants and Appellants below in this matter. I am duly licensed and admitted to practice before this Court. 2. Attached hereto as Exhibit A is a copy of San Jose Municipal Code section 1.04.160, “Severability.” I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 31% day of January, 2014 at San Jose, California. AoAe \_ THOMASP. 4815-2282-9336v1 -|- TPM\06429009 ENFORCEMENT OF CODE which showsservice in conformity with this code or otherprovisions oflaw applicableto the subject matter. concerned. (Prior code § 1308.) 1.04.160 Severability. If any section, subsection, sentence, clause, or phrase of any ordinance heretofore or hereafter adopted bythe city council of the city of San José is for any reason heldto be invalid or unconstitutional by a decision ofany court ofcompetentjurisdiction, such decision shall not affect the validity of the remaining portion of such ordinance. Each and every section, subsection, sentence, clause or phrase of any ordinance is severable from all other sections, subsections, sentences, clauses or phrases unless such ordinance contains a provision which states that the council would not have passed the remainder of such ordinance if it had knownthat any section, subsection, sentence, clause or phrase of the ordinance would subsequently be declared invalid or unconstitutional. (Ord. 21619.) Chapter 1.08 ENFORCEMENT OF CODE? | Sections: 1.08.010 Violations and remedies. 1.08.015 Injunction andcivil penalties. 1.08.015.5 Personal liability for unpaid taxes. 1.08.016 Cost recovery for enforcement; attorneys’ fees. 1.08.020 Certain violations deemed infractions. 1.08.025 Parking violations. 1.08.030 Violation of administrative provisions. 1.08.040 Enforcement powers. 1.08.050 City manager authorized to appoint reserve or auxiliary city policemen. 1.08.010 Violations and remedies. A. No person shall violate any provision orfail to comply with any of the requirements ofthis Code or of any other ordinance ofthe city. Any person violating any of the provisions or failing to comply with any of the mandatory requirements 2012 S-21 § 1.08.010 of this Code or of any city ordinance, other than administrative provisions thereof, shall be guilty of a misdemeanor, unless the violation of such provision is designated as an infraction or is a parking violation. The Code provisions for which a violation is an infraction are set forth in Section 1,08.020. The Code provisions for which a violation is a parking violation are set forth in Section 1.08.025. Any person convicted of a misdemeanor under the provisions of this Code or other city ordinance shall be punishable by a fine of not more than one thousand dollars or by imprisonment in the city or county jail for a period not exceedingsix months, or by both such fine and imprisonment. Any person convicted of an infraction under the provisions of this Code or other city ordinance shal} be punishable by: 1. A fine not exceeding one hundred dollars for a first violation; 2. A fine not exceeding two hundred dollars for a second violation, within one year, of the same provision of this Code or of the same ordinance; 3.- A fine not exceeding five hundred dollars for a third violation, within one year, of the same provisions of this Code or of the same ordinance; and 4. Any personviolating the same provision of this Code or other city ordinance that is designated as an infraction, for the fourth time within one year, shall be guilty of a misdemeanor. . Any person determined to have committed a parking violation under the provisions of this Code or othercity ordinance shall be subject to parking penalties and late paymentpenalties as set forth by resolution of the city council. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Code or of any other city ordinance is committed, continued or permitted by such person, and shall be punishable accordingly. Any condition existing in violation of any of the provisions of any state or federal law or regulation or of this Code or any other city ordinance shall be deemed a public nuisance and may be abated by the city. Nuisance shall include, but is not limited to, the factors in Section 1.13.050. 849-3419-2663v1 :GARCIA\06429009 CERTIFICATE OF SERVICE Supreme Court, Case No. 8212072 Court of Appeal, Sixth District, Case No. H038563 Santa Clara County Superior Court Case No.: 110-CV-167289 I, Elizabeth Sierra Garcia, declare under penalty of perjury under the laws of the State of California that the following facts are true and correct: I am a citizen of the United States, over the age of eighteen years, and not a party to the within action. I am an employee of Berliner Cohen, and my business address is Ten Almaden Boulevard, Suite 1100, San Jose, California 95113-2233. On January 31, 2014, I served the following document(s): DECLARATION OF THOMASP. MURPHY IN SUPPORT OF CITY OF SAN JOSE’S MOTION TO TAKE JUDICIAL NOTICE in the following manner: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Jose, California addressed as set forth below. Damien M.Schiff Anthony L. Francois Pacific Legal Foundation 930 G Street Sacramento, California 958 14 Telephone: (916) 419-7111 David Lanferman Rutan & Tucker Five Palo Alto Square 3000 El Camino Real, Suite 200 Palo Alto, CA 94306 Telephone: (650) 320-1507 Margo Laskowska Office of the City Attorney City of San Jose 200 East Santa Clara Street San Jose, CA 95113-1905 Telephone: (408) 535-1900 Paul B. Campos Building Industry Association of the Bay Area 101 Ygnacio Valley Road, Suite 210 Walnut Creek, CA 94596 Telephone: (925) 274-1365 Nick Cammarota California Building Industry Association 1215 K Street, Suite 1200 Sacramento, CA 95814 Telephone: (916) 443-7933 L. David Nefouse Wilson Sonsini Goodrich & Rosati P.C. 650 Page Mill Road Palo Alto, CA 94304 Telephone: (650) 565-3812 Kyra Kazantzis James F. Zahradka Melissa A. Morris Law Foundationof Silicon Valley Public Interest Law Firm 152 N.Third Street, 3Floor San Jose, CA 95112 Telephone: (408) 280-2429 Michael Rawson The Public Interest Law Project California Affordable Housing Law Project 449 15" Street, Suite 301 Oakland, CA 94612 Telephone: (510) 891-9794 Corina I. Cacovean Collen Bal Wilson Sonsini Goodrich & Rosati P.C. One Market Plaza Spear Tower, Suite 3300 San Franciso, CA 94105-1126 Telephone: (415) 947-2017 Court Clerk The Honorable Socrates Manoukian California Court of Appeal Santa Clara County Superior Court 333 West Santa Clara Street, Suite 1060 Old Courthouse San Jose, CA 95113 191 N.First Street Telephone: (408) 277-1004 San Jose, CA 95113 Telephone: (408) 882-2310 I am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service/Express Mail, Federal Express and other overnight mail services, to wit, that correspondence will be deposited with the United States Postal Service/overnight mail service this same day in the ordinary course of business. Executed on January 31, 2014, at San Jose, California. ELIZABETH SIERRA GARCIA 1849-3419-2663v1 =GARCIA\06429009