Modification: South Lake Tahoe Property Owners Group v. City of South Lake Tahoe

SOUTH LAKE TAHOE PROPERTY OWNERS GROUP,

Plaintiff and Appellant,

v.

CITY OF SOUTH LAKE TAHOE,

Defendant and Respondent.

No. C093603

(Super. Ct. No. SC20180243)

California Court of Appeal

Third Appellate District

Filed July 12, 2023

ORDER MODIFYING OPINION AND PETITIONS FOR REHEARING ARE DENIED

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 20, 2023, be modified as follows:

On page 22, the last sentence in the first paragraph beginning with "The City's argument is meritless" is replaced with the following:

The City's argument is meritless, as it is not necessary to look beyond Measure T's text to determine the ordinance discriminates against interstate commerce where the text expressly distinguishes between residential homeowners who reside in their South Lake Tahoe homes and all other residential property owners, including out-of-state owners. (See Camps Newfound/Owatonna, Inc. v. Town of Harrison (1997) 520 U.S. 564, 575-576.) The complaint's undisputed allegations of Measure T's adoption and its terms were the only facts necessary to plead a facial dormant Commerce Clause violation.

On page 23, third full paragraph beginning with "The omission of a citation" replace the last sentence starting "Moreover, whether Measure T" with the following:

Moreover, whether Measure T facially violates the dormant Commerce Clause is initially a matter of interpreting its text, and citations to the record beyond what is contained in plaintiff's statement of facts and introduction to the constitutional arguments were not necessary.

On page 34, add a final paragraph to section III following the sentence that begins with "We will thus remand for further proceedings" with the following:

We also recognize the ordinance includes a severability clause. On remand, the parties may also address whether the resident homeowner exception is severable from the remainder of Measure T.

The petitions for rehearing are denied.

BY THE COURT:

EARL, P. J.

HULL, J.

KRAUSE, J.