California provides relatively short statutes of limitations for challenges in the land use context. For example, Government Code section 65009(c)(1) provides that “no action or proceeding shall be maintained [for a wide range of development approvals] 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 . . . .” Under section 65009(c)(1)(E), any challenge to a “variance, conditional use permit, or any other permit” must be made within 90 days of the decision. And section 65009(e) provides that once the time limit has expired “all persons are barred from any further action or proceeding.”
These types of short limitations periods are intended to provide certainty for property owners and local governments regarding land use decisions and to alleviate the chilling effect on the confidence with which property owners and local governments can proceed with projects involving potential legal challenges to land use decisions.
On April 20, 2017, the Court of Appeal for the Fourth Appellate District granted requests to publish Citizens for Beach Rights v. City of San Diego, __ Cal. App. 5th __ (2017) (Case No. D069638), an important decision that addresses this 90-day statute of limitations. The case arose out of a lawsuit filed to stop construction of a new lifeguard station on Mission Beach. The station was approved in 2006 under a site development permit that stated the failure to utilize the permit within 36 months of its issuance would automatically void the permit.
The City also sought to obtain a required Coastal Development Permit and worked to obtain funding for the project. Largely because of the economic downtown, however, the City struggled to find financing, and no construction occurred until 2015. The City issued building permits in April of that year and its contractor began work on the project until an annual summer moratorium on beach construction between Memorial Day and Labor Day. To issue the building permit the City first had to determine that the site development permit remained valid. The City made that determination based on a long-standing policy and practice of considering a site development permit valid if a project proponent was processing a Coastal Development Permit and seeking funding.
In August of 2015, before the end of the summer moratorium, a citizens group sued to stop construction on the grounds that the site development permit issued in 2006 had expired. The trial court agreed with the group and permanently enjoined further construction without a new site development permit.
The Court of Appeal reversed the trial court, agreeing with the City’s arguments that (1) the 90–day statute of limitations barred the group’s challenge to the 2006 site development permit, (2) the site development permit was not void, and (3) the group failed to timely challenge the building permit within 90 days of its issuance. In particular, the Court held that any challenge to the site development permit had to be made within 90 days of its issuance, or at the latest when the group discovered its existence. The Court also held that an opponent had to raise any challenge to the City’s decision that the site development permit remained valid within 90 days of the issuance of the building permit.
Citizens for Beach Rights provides important and needed clarity on the scope and application of Government Code 65009. The decision confirms that a building permit is “any other permit” under section 65009(c)(1)(E), and thus any challenge to such a permit is subject to a 90-day statute of limitations period. In addition, the decision demonstrates the importance of local land use regulatory provisions and the interpretation and application of those provisions in the context of the relevant regulatory scheme.
Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.
For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.