By James Rusk
A letter of approval finding a project consistent with a City’s Master Development Plan triggers the running of the 90-day statute of limitations under Government Code subsection 65009(c)(1)(E), the Third District Court of Appeal has held. Stockton Citizens for Sensible Planning v. City of Stockton involved the approval of a Wal-Mart store by the City of Stockton’s Community Development Department Director. Plaintiffs argued that the Director’s approval did not fall within the types of actions covered by section 65009 because it did not involve a “variance or permit” and was not made by a legislative body. The Court of Appeal disagreed, holding that section 65009’s short statute of limitations extends to land use approvals issued by zoning administrators and zoning boards exercising delegated authority.
The California Supreme Court had already held, in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, that plaintiffs’ CEQA claims in the same suit were time-barred because not filed within 35 days after the City’s Notice of Exemption. In that opinion, the Supreme Court also held that the Director’s letter constituted final approval of the Wal-Mart project. Thus, the only issue before the court in this appeal was one of statutory interpretation: whether the Director’s approval was sufficient to trigger the statute of limitations in subsection 65009(c)(1)(E), which applies to a broad range of local planning and zoning decisions.
Plaintiffs argued that the Director’s approval did not trigger the statute of limitations because (1) it was not a “variance, conditional use permit, or any other permit” within the meaning of the Code, and (2) it was not a decision by a legislative body. The Court rejected both arguments, holding that subsection 65009(c)(1)(E) is not so limited. The 90-day statute of limitations in that subsection applies not only to proceedings challenging a “variance, conditional use permit, or any other permit,” but also to actions attacking “any decision on the matters listed in [Government Code] Sections 65901 and 65903.” Sections 65901 and 65903, in turn, authorize a zoning administrator, zoning board or board of appeals to issue approvals and take other actions authorized by local ordinance. The Director was acting as the City’s zoning administrator and was exercising powers granted by local ordinance when he approved the Wal-Mart project by finding it consistent with the applicable Master Development Plan. This was sufficient to bring the approval within the scope of subsection 65009(c)(1)(E) and trigger the statute of limitations. For the same reason, the Court of Appeal concluded that a reference in subsection 65009(c)(1) to “the legislative body’s decision” was meant to include decisions by zoning administrators or boards pursuant to section 65901 and 65903.
Arthur Friedman and Robert Stumpf of Sheppard Mullin represented Wal-Mart in the case.