By William W. Abbott
The adjective “short” best describes California’s land use and CEQA statutes of limitation. From CEQA’s 30/35 day limitation periods, to the 90 day limits for the planning and zoning matters (Government Code section 65009), to the Subdivision Map Act (Government Code section 66499.37), time waits for no litigant. The most recent case addressing the Planning and Zoning law wrestles with the interface of the ninety day statute in Government Code section 65009, with the time line found in Code of Civil Procedure section 1094.6. These later timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d))
Okasaki challenged a variance granted to a neighbor by the City of Elk Grove. Roughly one week after the City’s decision, Okasaki requested that the City prepare the administrative record. Eventually, ninety days passed without the City preparing the record and without Okasaki having filed suit. Okasaki eventually filed suit soon after the 90 day period passed. The City successfully demurred on the basis of Government Code section 65009. The court of appeal affirmed. Okasaki argued the timeline for filing the writ was extended by the City’s failure to deliver the record. Not so, according to the appellate court. Rather, in reconciling these two provisions, the appellate court noted that 65009 was the more specific section and therefore prevailed over the terms of the broader provisions found in Code of Civil Procedure section 1094.6. Okasaki v. City of Elk Grove (February 24, 2012, C066203) ___ Cal.App.4th ___.
William W. Abbott is an attorney 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, or 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.