CENTER 5TH STREET LLC vs CITY OF OAKLAND

An administrative hearing officer (AHO) heard the appeal on 7/2/2024. (OAK018-038.) At the hearing, the parties provided oral testimony and documentation. (Id.) Respondent argued that the only use identified by Petitioner is storage, which is not permitted under current (RMC-3C) 25CV148214: CENTER 5TH STREET LLC vs CITY OF OAKLAND 08/07/2026 Hearing on Petition for Writ of Mandate CRS# 902551959951 in Department 25 zoning; and that evidence of ongoing blight and disrepair support the finding that the Property was not in 2023 “in use.” (OAK023-024.)

Petitioners testified that they have owned the Property for somewhere between 15-25 years, that they believed storage/warehouse activity was permissible under the OMC as the Property was zoned at the time of purchase, and that they continue to store materials (doors, lumber, and windows) for their construction business to this day. (OAK026, 028.) They also testified that at the time of purchase, there were other Properties on the same street being used as warehouses. (OAK028,031.) They argued that this storage activity was an existing, nonconforming use. When the AHO asked if Petitioners have documentation from the City that the storage use had in fact been “grandfathered in,” they said they had never sought such documentation. (OAK029-030.)

The City responded that, in light of the lack of a business license connected to the Property, no visible activity, and unaddressed blight, it has no indication that any business is being conducted at the Property, and that if Petitioners were storing personal property there, that is not a qualifying purpose under the VPT. (OAK031. See also OAK036-037.)

Petitioners admitted that they are not running a business out of the Property, but are using the Property to facilitate the construction activities of their development company, which has a builder’s license. (OAK028, 031.) They also identified various obstacles they had encountered in their efforts to address blight and redevelop the property for a new use, and argued that adding the tax to the already onerous redevelopment-related fees is unfair. (OAK035-036.) (The City responded that the redevelopment process does not help Petitioners for purposes of 2023; but did concede that if there is a planning permit in place for redevelopment, the Property may qualify for an exemption in 2024 and thereafter. (OAK037.))

In his written decision, the AHO affirmed the City’s determination that the Property was not “in use,” and no applicable exemption under the Vacancy Property Tax ordinance applies. (OAK041.) He also found that the asserted use (storage) was “not a legal use” according to the Oakland Planning Code for property zoned as RM-3, citing Table 17.17.10 of the OMC, which makes no mention of warehousing or storage as a legal use (and observing that warehousing, storage and distribution are only allowed in “Industrial” zones). Finally, considering Petitioner’s “grandfathering” argument, he found Petitioner failed to provide any evidence that the current use was conforming in the past. (Id.)

The instant writ petition, pursuant to Code of Civil Procedure section 1094.5, was filed on 10/9/2025. Although the Petition includes allegations about the Property’s status in prior years and payments of the VPT for those years, and at the administrative appeal hearing the AHO addressed the possibility of a conforming use in subsequent years, this Petition only concerns the City’s denial of Petitioner’s appeal regarding calendar year 2023.

APPLICABLE STANDARD OF REVIEW. Petitioner asserts that the AHO’s decision

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV148214: CENTER 5TH STREET LLC vs CITY OF OAKLAND 08/07/2026 Hearing on Petition for Writ of Mandate CRS# 902551959951 in Department 25 constituted a “prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b)). “Abuse of discretion” is established if a respondent has not proceeded in the manner required by law, the order of decision is not supported by the findings, or the findings are not supported by the evidence. (Id.) The parties agree that the relevant question, here, is “whether the findings are supported by substantial evidence in light of the whole record.” (Opening.

Br., p. 7; Opp. Br., p. 5, citing § 1094.5, subd. (c).) “Substantial evidence” means relevant, credible evidence of “solid value” that “a reasonable mind might accept as adequate to support a conclusion.” (California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584–585.) This is a lower burden than preponderance of the evidence. (Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012, 1015.)

In assessing whether a record contains such evidence, the Court does not isolate and consider only that evidence favoring the finding; rather, it must “consider all relevant evidence in the administrative record including evidence that fairly detracts from” the finding. (California Youth Authority, supra, at p. 585.) That said, the Court does not reweigh the evidence (id., p. 584) or “redetermine the credibility of witnesses.” (HPT IHG-2 Properties Trust v. City of Anaheim (2015) 243 Cal.App.4th 188, 202–203.)

ANALYSIS. Pursuant to OMC 4.56.020(A)(1), a property is deemed vacant, and subject to the Vacant Property Tax, if it is “in use” less than 50 days in a calendar year. For a nonresidential parcel, undeveloped parcel, or ground floor commercial space used for warehousing, storage, or distribution activities, the parcel “will not be considered in use unless at least forty (40) [percent] of the parcel or unit’s floorspace available for warehousing, storage, or distribution is occupied.” (OMC § 4.56.080(B)(1).)

Petitioner asserts that the AHO’s finding that the Property was not “in use” in calendar year 2023 are not supported by substantial evidence, for two reasons. First, Petitioner contends the current zoning designation allows storage, and Petitioner is currently using the Property for storage of construction materials for another business operated by Petitioner’s principals. Petitioners assert that garage storage is permitted based upon the County’s property report, designating the property with a use code of 8100, “Commercial Repair Garage.” (RJN, Ex. 2, p. 1.)

However, whether a use is permitted is resolved by the applicable provisions of Oakland’s Planning Code, including those governing the Property, which the parties agree is currently zoned RM-3/C. OMC § 17.17.030 lists all permitted activities in RM zones, and does not include storage; it also expressly prohibits “industrial activities,” except as an accessory to a listed principal activity, pursuant to §§ 17.17.040 and 17.10.040. Section 17.10.040.G. permits “storage of goods sold by a principal Commercial Activity engaged in by the same firm on the same lot.”

Petitioner points to no evidence in the record that the Property is currently used for any of the principal activities enumerated in section 17.17.030, only evidence of use for storage and warehousing, which is defined as “industrial” (OMC §§ 17.10.540, 17.10.583) and therefore

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV148214: CENTER 5TH STREET LLC vs CITY OF OAKLAND 08/07/2026 Hearing on Petition for Writ of Mandate CRS# 902551959951 in Department 25 prohibited except as an accessory to a principal activity permitted by section 17.17.030. No evidence showed any principal commercial activity on the lot during 2023 by the same firm, foreclosing accessory-use status under § 17.10.040. Further, Petitioner admitted that storage is the sole (and thus, principal) activity and was conducted for the benefit of a different firm, This admission forecloses any possibility that Petitioner’s storage activity could be incidental to some commercial sales activity “by the same firm on the same lot” as Petitioner (§ 17.10.040.G.), i.e., a permitted accessory activity. (For the same reason, Petitioner’s attempt on reply to tack on “garage” uses to other, permissible principal uses is also unavailing.)

Petitioner’s reliance upon RJN Exhibit 2 as proof is also inappropriate in light of the exhibit’s own disclaimer against its use for purposes other than appraising properties. Moreover, the OMC zoning provisions, not guidance for property assessment value, are what determines permissible uses in RM zoned properties. Nor can a document used for purposes of valuing a property establish an actual use, particularly when it is wholly contradicted by Petitioner’s own admissions. Similarly, while Exhibit 3 ostensibly designates the Property as a “commercial repair garage,” Petitioner admitted it is in fact not used for that purpose, but solely for warehousing and storage, which is prohibited for RM zoned properties under the Code.

Thus, even crediting Petitioner’s testimony that the Property is currently used for warehousing and storage, this is not a legally permitted use. (Petitioner has not alleged or argued that the AHO committed legal error in concluding that only legal uses satisfy the VPT.)

Even if the AHO abused his discretion on this point, however, the Court agrees that Petitioner also failed to adduce any evidence of a current use satisfying the claimed exemption for storage, that is, that “at least forty (40) [percent] of the parcel or unit’s floorspace available for warehousing, storage, or distribution is occupied.” (OMC § 4.56.080(B)(1).) Here, Petitioners’ testimony wholly failed to address this issue, and the photos they submitted to the City are so blurry as to be indecipherable.

The City’s evidence of blight and disrepair and the lack of a business license associated with the Property was fairly considered as corroborating the City’s assertion that any qualifying business activity conducted on the Property was negligible. For this independent reason, the AHO was within his discretion, based upon the evidence before him, to find that Petitioners did not establish a current qualifying use under the storage exemption.

Second, Petitioner asserts that the AHO abused his discretion because there was no substantial evidence to support his conclusion that Petitioner failed to establish that its activities on the Property constitute a “legal non-conforming use.”

The parties do not dispute that a zoning change that purports to render a particular use of a parcel illegal works prospectively and, generally, does not strip a property owner of the right to continue that use if it was in existence prior to the change. (OMC § 17.114.040.) Specifically, however, Respondent contends that the nonconforming use, to be continued and maintained after such rezoning, must have “existed lawfully under the previous zoning controls.” (Id.) Thus, to establish a legal nonconforming use, Petitioner must show that storage was a legally authorized

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

25CV148214: CENTER 5TH STREET LLC vs CITY OF OAKLAND 08/07/2026 Hearing on Petition for Writ of Mandate CRS# 902551959951 in Department 25 use at some prior point when Petitioner used it for that purpose, and that such use has been continuous, since. (Id., §§ 17.114.040.A., 17.114.050.A.)

In support of this contention, Petitioner merely asserted that since it acquired the Property (at some indefinite prior date, at least 15 years ago), it used the Property for storage of construction materials, and that at some unspecified point in time, the City made zoning changes. At the administrative hearing, Petitioner presented no specific evidence, whether in the form of detailed testimony or documentary evidence regarding specific usage activities during a particular timeframe, or evidence that during that timeframe, the use was legally permitted. Its representative merely advanced conclusory assertions. As the AHO observed, “Appellant provided no evidence that the property’s [purported] current use was conforming in the past.” (OAK041.)

ORDER. For the foregoing reasons, the Petition for Writ of Administrative Mandate is DENIED. Respondent has not identified any legal authority providing that the Court may award additional relief to Respondent (i.e., order it to pay the taxes and interest owed for calendar year 2023). Respondent shall therefore prepare and submit a proposed judgment consistent with the foregoing. (Code Civ. Proc., § 1094.5, subd. (f).)