A notable feature of California land use law, when compared to the overall body of civil law, is the relatively short filing period for bringing legal challenges. This constraint came into full view in Haro v. City of Solano Beach, in which the would-be builder of a mixed use development claimed that the city violated the terms of its own housing element.
The California Environmental Quality Act potentially has the shortest time period in which legal challenges can be filed—as few as 30 days, depending upon the fact pattern. For legal challenges alleging noncompliance with provisions of the state Planning, Zoning and Development law, the relevant statutes are slightly longer at 90 days. However, the Legislature has created an even longer filing period based upon challenges under the affordable housing laws. A recent decision of the Fourth Appellate District illustrates the overlapping and potentially conflicting application of CEQA and other land use statutes.
The northern San Diego County city of Solano Beach submitted a draft housing element to the Department of Housing and Community Development in 2007. The department found the element in compliance. However, compliance was subject to approving a then-pending application for a site referenced as Site 8 in the Housing Element for 131 units, including 13 affordable units. Site 8, which is near the Solano Beach train station, was one of nine such sites identified by the Housing Element as appropriate for mixed use and residential development. In fact, Site 8 was considered crucial for the implementation of a Housing Element policy to encourage residential capacity in mixed-use developments. The Housing Element claimed that Site 8 would "be a key to the City's ability to meet not only its regional share for new construction but also its quantified objectives by income category."
In the following year, the city processed a developer's application for Site 8. After a number of public hearings, the city directed the applicant to revise the project design based upon inconsistency with local zoning and specific plan requirements. This decision meant that project approval could not meet a grant deadline. The project ultimately failed to qualify for a $6 million grant and thus became financially infeasible.
Roughly two months later, on July 8, 2008, plaintiffs gave notice to the city that failure to approve the original Site 8 project violated its housing own element. On August 27, 2008, the City Council adopted Resolution 2008-152, retaining outside legal counsel to defend the city against anticipated legal challenges to its housing element. On September 2, 2009, the plaintiffs filed a complaint and writ of mandate. The petitioners presented eight causes of action, all linked to alleged compliance with various requirements of state affordable housing requirements applicable to planning, zoning and land development requirements.
The city responded by filing a demurrer, arguing that the claims were barred either by the 90-day provisions of Government Code sections 66499.37 (90 days; Subdivision Map Act) or alternatively 65009(d) (1 year; housing element challenges). The city also argued that, as a matter of law, the plaintiffs failed to state a cause of action. The trial court ruled for the city on both the statute of limitations as well as the substantive legal issues.
On appeal, the Fourth Appellate District ruled for the city on the statute of limitations grounds; because that ruling disposed of all of the claims, the court declined to rule on the substantive allegations. The court's ruling on the statute of limitations focused on 65009(d) as it was most favorable to the plaintiffs. Litigation under this code provision first requires the future plaintiff to give written notice to the city or county before it files suit. The code then provides that the cause of action accrues "60 days after notice is filed or the legislative body takes final action in response to the notice, whichever occurs first."
As pled, the complaint established that the City Council took action on August 27, 2008. This became the controlling date in calculating the statute of limitations and as a result, plaintiff's complaint, filed on September 2, 2009, did not meet the one-year requirement. Therefore, the appellate court concluded that the case had been appropriately dismissed.
Haro v. City of Solano Beach, No. D057304, 2011 DJDAR. Filed May 12, 2011. Ordered published May 12, 2011
For Plaintiff: Affordable Housing Advocates and Catherine A. Rodman
For the City of Solano Beach: Burke, Williams & Sorensen, Thomas B. Brown, Matthew D. Visick and John J. Welsh; McDougal, Love, Eckis, Boehmer & Foley and Johanna N. Canlas; Goldfarb & Lipman and Barbara E. Kautz