Land Use Litigation Traps

By William W. Abbott

While land use litigation is not overly complex, it contains two procedural rules which occasionally trip up project opponents. First, CEQA requires that the petitioner request a hearing within 90 days. Public Resources Code section 21167.4 An oral request is insufficient. Second, if the challenge is to a tentative map approval, the petitioner must also obtain and serve a summons. Government Code section 66499.37. In Torrey Hills Community Coalition v. City of San Diego (2010) ___ Cal.App.4th ____, the appellate court affirmed the action of a trial court dismissing a writ petition on both grounds. With respect to the dismissal of the CEQA claim, the court held that an oral request was insufficient as it was non compliant with the statutory obligation to serve the request on all parties. The Map Act dismissal was more intriguing. Petitioner claimed impossibility as a form of relief, based upon declarations establishing that the San Diego superior court routinely declined to issue a summons in cases involving CEQA writs, a scenario we highlighted in an earlier write up. Notwithstanding the evidence that a summons would not have been issued in the case, the appellate court concluded that the petitioner failed to establish sufficient facts to claim impossibility. The appellate court followed its earlier reasoning as set forth in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, wherein the same court dismissed the related CEQA causes of action, based upon the non compliance with the Subdivision Map Act service rules. While the holding in Friends was published on November 24, 2008, and the 90 day period in Torrey Hills expired on December 15, 2008, there was no evidence that the petitioner had requested a summons between the publication date and end of the 90 day service period and consequently made an inadequate showing of impossibility.

William W. Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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