1305 Ingraham, LLC v. City of Los Angeles, (2019) 32 Cal.App. 5th 1253

On June 15, 2016, the City of Los Angeles (“the City”) issued a “Specific Plan Compliance Review Density Bonus & Affordable Housing Incentives” (the “Determination”) for a mixed-use affordable housing project. The Determination provided that it would become final unless an appeal was filed within 15 days. Another property owner timely filed a appeal. The appeal was set for hearing by the area planning commission on July 28, 2016, but as allowed for by local ordinance, no hearing was held. Pursuant to the City Code, the project was considered approved as of August 1, and the City filed a notice of determination on August 8. Nine months later, the appellant file suit. The City and real party in interest demurred on the grounds of the expiration of the CEQA statute of limitations as well as the 90-day statute of limitations specified in Government Code section 65009 for land use claims. Dropping its CEQA claim, appellant filed an amended petition arguing Due Process claims, claiming it was entitled to an appeal hearing. The City and real party demurred again arguing the 90-day limitations period under the Government Code. The trial court sustained the demurrer without leave to amend, and the appeal followed.

On appeal, appellant asserted that section 65009 by its own terms applied solely to actions by legislative bodies which by strict definition would not include departmental decisions. Relying upon Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App. 4th 1484, the appellate court rejected this argument by looking at the statute as a whole and determining that the 90-day limitations period also applied to inferior administrative bodies and individuals charged with making a land use decision. Appellant next argued that the general three-year statute of limitations found in Code of Civil Procedure section 338(a) should apply to a claim asserting that the City was obligated to conduct a hearing. The appellate court also rejected this argument, concluding the City’s action to approve the project fell squarely within section 65009, and as the more specific code section, was controlling.

Commentary:  This case illustrates that local governments have flexibility in triaging entitlement approvals. While it is common for non-legislative land use decisions to be appealable all the way up the line to the city council or board of supervisors, that is not compelled by statute or due process considerations. 

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.