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City's Oversight Does Not Extend 90-Day Limitation Period

The adjective "short" best describes California's land use and CEQA statutes of limitation, and Okasaki v. City of Elk Grove illustrates this principle perfectly. 

From CEQA's 30- and 35-day limitation periods, to the 90-day limits of the planning and zoning matters (Government code section 65009), to the Subdivision Map Act (Government Code section 66499.37, time waits for no litigant. The most recent case addressing the planning and zoning law wrestles with the interface of the 90-day statute in Government Code section 65009, with the timeline found in Code of Civil Procedure section 1094.6. These latter timelines call for an extension of time periods in circumstances in which the petitioner has requested the agency to prepare the administrative record, in which case, the statute extends to 30 days from the delivery of the record. (Section 1094.6(d))

Okasaki challenged a variance granted to a neighbor by the City of Elk Grove. Roughly one week after the city's decision, Okasaki requested that the city prepare the administrative record. Eventually, 90 days passed without the city preparing the record and without Okasaki having filed suit. Okasaki eventually filed suit soon after the 90-day period passed. 

The city successfully demurred on the basis of Government Code section 65009. The court of appeal affirmed. However, Okasaki argued the timeline for filing the writ was extended by the city's failure to deliver the record. Not so, according to the appellate court. Rather, in reconciling these two provisions, the appellate court noted that 65009 was the more specific section and therefore prevailed over the terms of the broader provisions found in Code of Civil Procedure section 1094.6.

The Case: 

Okasaki, et. al.  v. City of Elk Grove, et. al.  (February 24, 2012, C066203) Cal.App.4th 

The Attorneys:

Jerry Sandefur for Plaintiffs and Appellants.

Best Best & Krieger and Stacey N. Sheston for Defendants and Respondents.

Wiliam W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.