Lackner

Effective September 9, 1976, the Legislature enacted a comprehensive modification of the statutory scheme governing new hospital facilities in California. The legislation consolidates approval authority for new facilities in the Department of Health and expands the scope of projects subject to approval. (Leg. Counsel’s Dig. of Assem. Bill No. 4001 (1975-1976 Reg. Sess.).) Included within the statutory scheme is Health and Safety Code section 437.11, a “grandfather clause” exempting specified types of projects from the scope of the legislation. This appeal tests the validity of section 90603, subdivision (e) of title 22 of the California Administrative Code, a regulation purportedly implementing the “grandfather clause.”

Health and Safety Code section 437.11 exempts projects which were commenced prior to September 9, 1976, provided other specified requirements are met. Subdivision (e)(3) of section 90603 of title 22, California Administrative Code, excludes among other items: (1) the acquisition of diagnostic and therapeutic equipment as a factor in determining the commencement of a project; and (2) adds the requirement that a project is deemed commenced only if prior to…