Litigation challenging a land use decision is subject to short statute of limitations. While Government Code section 65009 sets forth several different time frames depending upon the legal theory, subdivision (c) requires a plaintiff to file and serve the complaint and summons within 90 days of most decisions concern planning, zoning, and other types of land use permits. (Most claims pursuant to the Subdivision Map Act are subject to a similar 90-day statute found at Government Code section 66499.37.) Subdivision (c) provides as follows:
(c) (1) Except as provided in subdivision (d), no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced, and service is made on the legislative body within 90 days after the legislative body’s decision:
(A) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a general or specific plan. This paragraph does not apply where an action is brought based upon the complete absence of a general plan or a mandatory element thereof but does apply to an action attacking a general plan or mandatory element thereof on the basis that it is inadequate.
(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.
(C) To determine the reasonableness, legality, or validity of any decision to adopt or amend any regulation attached to a specific plan.
(D) To attack, review, set aside, void, or annul the decision of a legislative body to adopt, amend, or modify a development agreement. An action or proceeding to attack, review, set aside, void, or annul the decisions of a legislative body to adopt, amend, or modify a development agreement shall only extend to the specific portion of the development agreement that is the subject of the adoption, amendment, or modification. This paragraph applies to development agreements, amendments, and modifications adopted on or after January 1, 1996.
(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.
(F) Concerning any of the proceedings, acts, or determinations taken, done, or made prior to any of the decisions listed in subparagraphs (A), (B), (C), (D), and (E).
The scope of this statute was brought into question in a legal challenge to the application of a view protection ordinance adopted by the City of Del Mar. The ordinance protects neighbors whose views are unreasonably obstructed by vegetation on nearby property. Weiss, a property owner in Del Mar, filed an application with the City for a determination that her view had been blocked by vegetation on a neighbor’s property. By the time the planning commission heard the matter, the neighbor had pruned back the vegetation, but Weiss still sought a determination of an ongoing obligation of the neighbor to comply in the future. The planning commission denied the request, and the City Council denied the appeal on July 17, 2019. In September, Weiss file a petition for writ of mandate, but did not serve the City with the petition until December 19, 2017. The City and neighbor successfully moved to dismiss the case on the grounds that it had not been timely served. Weiss appealed and the Court of Appeal affirmed.
While the appeal involved several nuanced arguments involving statutory interpretation, the most interesting issue was: did this statute of limitations provision apply to an ordinance (the view protection ordinance, adopted as Title 23) which was adopted by the City in a separate title outside of the designated zoning ordinance (Title 30)? The appellate court interpreted 65009 broadly, concluding that the implementation of the view ordinance was assigned to the planning commission, and that the subject matter was similar to land use matters typically found as a land use regulation covered by zoning and vested with the planning commission. Accordingly, while the view ordinance was not embedded in the City zoning ordinance, the 90-day statute of limitations, including service of the summons, did apply. The appellate court affirmed.
William W. Abbott is a shareholder 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.