Posted by: Patricia Salkin | January 12, 2019

CA Appeals Court Holds Ninety-Day Statute of Limitations Period for Causes of Action Based on Violations of Zoning Law

This post was authored by Matthew Loeser, Esq.

In 2017, the City of Lafayette approved an agreement with Pacific Gas and Electric Company (“PG&E”), which authorized and imposed conditions on the removal of up to 272 trees within its local natural gas pipeline rights-of-way. To ensure that the community pipeline safety initiative could move forward, and to protect the public safety, PG&E and City agreed to process the community pipeline safety initiative tree removal project under the Lafayette Municipal Code section 6-1705(b)(S). This section permitted the city to allow for the removal of a protected tree in order to protect the health, safety and general welfare of the community. Save Lafayette Trees filed a petition challenging the city’s action. The city joined in PG&E’s demurrer, and the trial court sustained the demurrer without leave to amend, finding that the “action was not served on either the City or PG&E within the 90-day period for filing and service required by the applicable statute of limitations.

Pursuant to section 65009, subdivision (c)(1), “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”. The matters listed in sections 65901 and 65903 included “conditional uses or other permits when the zoning ordinance provides therefor” and “variances from the terms of the zoning ordinance.” The court found that even though the City entered into an agreement approving the removal of trees under section 6-1705 of the City’s Municipal Code, rather than issuing a “permit” for their removal, there was no meaningful difference between the two in this instance. Accordingly, the City’s decision was found to have fallen within the scope of section 65009. Additionally, despite Lafayette Trees’ contention that its action was subject to the longer, 180-day statute of limitations provided for in the City’s Municipal Code section 6-236, the court upheld the trial court’s determination that Municipal Code section 6-236 was preempted by section 65009.

Save Lafayette Trees next argued that section 65009 was not applicable to the CEQA cause of action as it conflicted with the more specific California Environmental Quality Act (“CEQA”) limitations period found in Public Resources Code sections 21167, subdivision (a) and 21167.6, subdivision (a). The court agreed, finding the more specific provision imposed a shorter limitation period, whereas in this case requiring service within 90 days would impermissibly cut in half the 180-day period allowed for filing the CEQA action under the Public Resources Code. Accordingly, the court held the trial court erred in sustaining the demurrer to this cause of action.

Save Lafayette Trees v City of Lafayette, 239 Cal. Rptr. 3d (CA App. 3 Div. 10/23/2018)

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