People Ex Rel. San Francisco Bay Conservation & Development Commission v. Town of Emeryville

On behalf of the San Francisco Bay Conservation and Development Commission (hereinafter BCDC), the Attorney General brought suit to enjoin certain fill operations by the Town of Emeryville on the ground that Emeryville had not obtained a BCDC permit as directed by the McAteer-Petris Act. (Gov. Code, § 66604.) The trial court concluded that Emeryville was not required to secure a permit because its fill operations were assertedly exempted under the “grandfather clause” in the BCDC enabling legislation. (Gov. Code, § 66632.1.) The court entered judgment for Emeryville and dissolved an injunction which had theretofore restrained the town from conducting further fill activities. This appeal followed.

I

In view of the urgency of the litigation we ordered the cause transferred to this court. (Cal. Rules of Court, rule 20.) At that time we issued an order enjoining all fill operations by the town pending final determination of the appeal. We deemed the stay basic to the maintenance of this court’s appellate jurisdiction because resumption of fill activities would have imperiled the value of appellant’s right of appeal.

Emeryville insists that this court lacked jurisdiction to stay its…