Ama v. City of Riverside

Filed 9/27/06 Ama v. City of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge. Affirmed.

Law Offices of Joshua Kaplan and Joshua Kaplan for Plaintiff and Appellant. Gregory P. Priamos, City Attorney, and Kristi J. Smith, Supervising Deputy City Attorney, for Defendant and Respondent.

Government Code^[1] section 65009 generally provides that actions challenging certain local government decisions must be commenced and served within 90 days of the decision. Section 65009, subdivision (e), provides: “Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding.” The sole issue in this case is whether section 65009 applies to a decision of the Riverside City Council denying a conditional use permit for a commercial project.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff and appellant Kassab Ama applied for a conditional use permit to build a service station, a convenience market, and a supermarket on a one-acre parcel near downtown Riverside. The parcel was zoned C-2 (restricted commercial) but a conditional use permit was required for the specific project.

The Planning Commission denied the application for a conditional use permit on February 3, 2005, and Mr. Ama appealed this decision to the Riverside City Council. On March 1, 2005, The Riverside City Council affirmed the Planning Commission’s denial of a conditional use permit.

Mr. Ama filed his petition for a writ of mandate on May 28, 2005, and served it on June 3, 2005. Although the petition was filed within 90 days of the city council’s decision, the petition was not served until 94 days after the city council’s decision.

The City of Riverside (the city) filed a demurrer. It contended the petition failed to state a cause of action because the action was barred by the statute of limitations. Specifically, the city argued that section 65009 requires that the petition be filed and served within 90 days of the city council’s decision.

Mr. Ama responded by arguing that section 65009 only applied to housing projects, not to commercial projects. Mr. Ama asserted that the petition was timely served under Code of Civil Procedure sections 1094.6 and 583.210.

The trial court agreed with the city. It sustained the demurrer and dismissed the action because service of the petition was untimely under section 65009. Mr. Ama appeals, arguing that section 65009 is inapplicable. We affirm the trial court’s decision.

DISCUSSION^[2]

The city contends that section 65009 bars this action. It relies on subdivision (c)(1): “[N]o 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: . . . (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.” Section 65901, subdivision (a), authorizes a board of zoning adjustment or a zoning administrator to hear and decide applications for conditional use permits. Section 65903 provides that a board of appeals may hear appeals from the decisions of the zoning administrator. Section 65904 provides that, if a board of appeals has not been created, the local legislative body, in this case the Riverside City Council, hears such appeals.

The trial court relied on Honig, supra, 127 Cal.App.4th 520. In that case, a homeowner was issued a variance and building permit which allowed a home addition. A neighbor appealed and sought a writ of mandate. The Honig trial court applied section 65009 and sustained demurrers to the writ petition.

The Honig appellate court affirmed. It described the purpose of the statute: “Section 65009 is located in division 1 (Planning and Zoning) of title 7 (Planning and Land Use) of the Government Code. It is intended ‘”to provide certainty for property owners and local governments regarding decisions made pursuant to this division” (§ 65009, subd. (a)(3)) and thus to alleviate the “chilling effect on the confidence with which property owners and local governments can proceed with projects” (id., subd. (a)(2)) created by potential legal challenges to local planning and zoning decisions.’ [Citation.] To this end, Government Code section 65009, subdivision (c) establishes a short, 90-day statute of limitations, applicable to both the filing and service of challenges to a broad range of local zoning and planning decisions. [Citation.] ‘Requiring an aggrieved citizen to file an action within 90 days but permitting him or her to withhold service for months or even years would effectively suspend the effective date of local land use and development decisions and leave such matters at the mercy of the complainant.’ [Citation.] After expiration of the limitations period, ‘all persons are barred from any further action or proceeding.’ [Citations.]” (Honig, supra, 127 Cal.App.4th at p. 526.) The appellate court therefore applied section 65009 to bar the action.^[3]

Mr. Ama agrees that Honig was a correct application of section 65009 in a housing case, but he contends that it has no relevance to a denial of a permit for a commercial land use. He relies on the introductory language of section 65009: “(a)(1) The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects. (2) The Legislature further finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division, including, but not limited to, the implementation of general plan goals and policies that provide incentives for affordable housing, open-space and recreational opportunities, and other related public benefits, can prevent the completion of needed developments even though the projects have received required governmental approvals. (3) The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.” Mr. Ama argues that, in light of this purpose, the statute is inapplicable to commercial projects.

We disagree. Although the initial impetus for the section may have been to lessen delays which impeded housing projects, the language of section 65009, subdivision (e) is not so limited. Indeed, as the city points out, references to housing projects in section 65009, subdivision (a)(2) were specifically deleted by the 1987 amendments to the section, thus evidencing the Legislative intention to apply the shorter time limitation to all development projects described in subdivision (e). (Stats. 1987, ch. 218, § 1.)

Section 65009, subdivision (a)(3) now specifically provides: “The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.” The “division” is division 1 of title 7, dealing with planning and zoning decisions. Division 1 includes sections 65901 and 65903, as specifically referenced in section subdivision (c)(1)(E). “Therefore, the legislative intent ‘is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.’ [Citation.]” (Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 948-949.)

We have considered section 65009 previously. In City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1284-1285, we noted the reference in subdivision (a)(3) to “this division” and held that section 65009 was inapplicable because a decision to adopt an airport land use plan is not a decision made under title 7, division 1.

Similarly, in Garat v. City of Riverside (1991) 2 Cal.App.4th 259,^[4] we held that section 65009 applied to a challenge to the validity of the County’s general plan. (Id. at pp. 289-290.) We specifically noted the legislative purpose to provide quick and certain finality for the types of decisions specified in the section. (Id. at p. 289.)

There is no exception for conditional use permit decisions relating to commercial property: “The clear legislative intent of this statute is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects.” (Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888, 893.)

In Freeman v. City of Beverly Hills (1994) 27 Cal.App.4th 892, the city denied a conditional use permit for a drive-in facility at a restaurant after adoption of an ordinance requiring a permit for such a use. The appellate court applied section 65009 to this controversy even though the dispute involved a purely commercial land use.

Mr. Ama’s proposed dichotomy between commercial and residential housing projects is untenable. Would, for example, the statute apply to an application to add a commercial rental structure to residential property? (Cf. Travis v. County of Santa Cruz (2004) 33 Cal.4th 757.)

We therefore find no merit to the claim that section 65009 is limited in its application to residential housing projects. We agree with the trial court that, by virtue of subdivision (e), section 65009 applies to all applications for conditional use permits which are within the scope of sections 65901 and 65903.

Nor do we agree with Mr. Ama that the trial court’s decision is a novel application of the law, or a surprise. For example, a leading treatise repeatedly cites section 65009 and states: “The time to challenge any other planning or zoning decision of a local agency is 90 days after the decision becomes final. This period applies to any action to challenge a decision to adopt or amend a general plan, specific plan, development agreement, or zoning ordinance, or to determine the reasonableness, legality, or validity of the adoption or amendment of any regulation . . . or permit, or any acts taken prior to any of such decision. The action must be both filed and served within the 90-day period.” (9 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 25:209, p. 631, fns. omitted.) The same treatise also states: “Generally, there is a 90-day limitation period for a writ of mandate proceeding brought to challenge local government decisions in the land use context.” (Id. at § 30:32, p. 172, fn. omitted.)

Mr. Ama contends that the applicable time limit is found in Code of Civil Procedure sections 1094.5 and 1094.6. Although the time limit for filing a petition for writ of mandate is set at 90 days in Code of Civil Procedure section 1094.6, no time limit for service is prescribed. We therefore find no conflict between Government Code section 65009 and Code of Civil Procedure section 1094.6. But even if there was a conflict, Code of Civil Procedure section 1094.6, subdivision (g), provides: “This section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal law which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply.” Since Government Code section 65009 contains a shorter limitations period, it would govern in such a case. The specific provisions of section 65009 would also prevail over the more general three-year period stated in Code of Civil Procedure section 583.210. (Howard Jarvis Taxpayers Assn. v. City of Los Angeles (2000) 79 Cal.App.4th 242, 247-248; Gonzalez v. County of Tulare (1998) 65 Cal.App.4th 777, 786-787.)

DISPOSITION

The judgment is affirmed. Each party to bear its own costs..

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RAMIREZ

P.J.

We concur:

/s/ RICHLI

J.

/s/ KING

J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] All further statutory references will be to the Government Code unless otherwise indicated.

^[2] We apply the principles stated in Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524 (Honig): “We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether, as a matter of law, the complaint (in this case, the petition) states a cause of action on any available legal theory. [Citation.] In doing so we assume the truth of all material factual allegations, and we are required to accept them as such, together with those matters subject to judicial notice. [Citation.] Statutory interpretation is a question of law subject to our independent review. [Citation.] A demurrer is properly sustained without leave to amend where the pleading discloses on its face that the action is barred by the applicable statute of limitations. [Citation.]” (Fn. omitted.) In this case, the facts are undisputed and the only issue is an issue of law.

^[3] We note that Mr. Ama argues that service is governed by the three-year statute of Code of Civil Procedure section 583.210. Under this theory, filing must occur within 90 days, but service could be delayed for three years. This lack of finality would lead to the same effective suspension of local land use decisions which is condemned in Honig.

^[4] Garat was disapproved on other grounds in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, fn. 11.