Legal Challenges to Land Use Decisions Governed By Strict Statutes Of Limitation, Including Those Based Upon Non Compliance with the Housing Element Requirements

By William W. Abbott

California land use law, as we know it today, has evolved over a 40 year time period. One notable feature of this body of law is, when compared to the overall body of civil law, the relatively short filing period for bringing legal challenges. The California Environmental Quality Act ("CEQA") potentially has the shortest time period of 30 days, depending upon the fact pattern. For legal challenges alleging non compliance with provisions of the state Planning, Zoning and Development law, the relevant statutes are slightly longer at 90 days, however the Legislature has created an even longer filing period based upon challenges under the affordable housing laws. A recent decision of the Fourth Appellate District illustrates the overlapping and potentially conflicting application of the various statutes. Haro v. City of Solano Beach (2011) ____ Cal.App.4th ____.

The chronology begins with the City of Solano Beach submitting a draft housing element to the Department of Housing and Community Development. The Department found the element in compliance, subject to approving an application for a site referenced as Site 8 in the Housing Element for 131 units, including 13 affordable units, and successful implementation of a Housing Element policy to encourage residential capacity in mixed-use developments. In the following year, the City processed an application for Site 8, and after a number of public hearings, directed the applicant to revise the project design based upon inconsistency with local zoning and specific plan requirements. As a result of not obtaining project approval by a grant deadline, the project did not qualify for a 6 million dollar grant, and became financially infeasible. Roughly 2 months later on July 8, 2008, the plaintiffs gave notice to the City that failure to approve the Site 8 project violated its housing element. On August 27, 2008, the City Council adopted Resolution 2008-152, retaining outside legal counsel to defend the City in its defense of the anticipated legal challenge to its housing element. On September 2, 2009, the plaintiffs filed a complaint and writ of mandate. The petitioners presented eight causes of action, all linked to alleged compliance with various requirements of state affordable housing requirements applicable to planning, zoning and land development laws. The City responded by filing a demurrer, arguing that the claims were barred either by the 90 day provisions of Government Code sections 66499.37 (90 days; Subdivision Map Act) or alternatively 65009(d) (1 year; housing element challenges). The City also argued that as a matter of law, that the plaintiffs failed to state a cause of action. The trial court ruled for the City on both the statute of limitations as well as the substantive legal issues.

On appeal, the Fourth Appellate District ruled for the City on the statute of limitations grounds, and as that disposed of all of the claims, declined to rule of the substantive allegations. The Court’s ruling on the statute of limitations focused on 65009(d) as it was most favorable the plaintiffs. Litigation under this code provision first requires the future plaintiff to give written notice to the city or county before it files suit. The code then provides that the cause of action accrues “60 days after notice is filed or the legislative body takes final action in response to the notice, whichever occurs first.” A plaintiff then has one year from when the cause of action under housing element law accrues.  As pled, the complaint established that the City Council took action on August 27, 2008. This became the controlling date in calculating the statute of limitations and as a result, plaintiff’s complaint, filed on September 2, 2009, did not meet the one year requirement. Therefore, the Appellate Court concluded that case was appropriately dismissed.

­­­­­­­­­­­­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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