A lawsuit challenging a building permit granted by San Francisco was not filed and served before the statute of limitations deadline, the First District Court of Appeal has ruled. The court also held that the city's notice of decision and order did not deceive the project opponent regarding the deadline.
In April 2002, David Robins and Marge Chambers applied for a variance to add onto their house in the Bernal Heights district. After receiving the Planning Department's approval of the variance, Robins and Chambers applied for a building permit. Their neighbor Lisa Honig then filed a request for discretionary review of the building permit application. After a hearing in December 2002, the Planning Commission denied the request for discretionary review. Two months later, the city issued the building permit. However, Honig appealed the permit issuance to the Board of Appeals. She argued that the variance would allow Robins and Chambers to create a code violation and a fire hazard. In a notice and order dated June 10, 2003, the Board of Appeals upheld issuance of the building permit.
On September 8, 2003, Honig filed a lawsuit against the city and her neighbors, alleging that the city's decisions conflicted with the municipal Planning Code, and that the decisions created a code violation and nuisance. Honig asked the court to set aside the variance and order removal of her neighbors' addition.
The city said Honig was too late. In Superior Court, Honig conceded that she had missed the deadline for filing and serving a lawsuit over the variance but contended she could still challenge the building permit. San Francisco Superior Court Judge Ronald Quidachay ruled that Honig had 90 days to file and serve the lawsuit, and that she missed the service deadline. On appeal, a unanimous three-judge panel of the First District upheld the lower court.
Government Code §§ 65009 and 65903 set the time limits for challenging local land use decisions. Essentially, they give someone 90 days to commence and serve a lawsuit that contests a land use decision. The short deadline is intended to provide certainty to the government agency and the property owner. Honig argued that those statutes did not apply because she was attacking the building permit, not the variance, which was clearly covered by the statutes.
The First District would have none of this argument. “The attack on the building permit is, in reality, nothing more than a challenge to the variance,” Justice Mark Simons wrote for the court. “Nowhere in the petition is there any suggestion that the building permit contained a defect unrelated to the variance.” The issue involved zoning and planning; therefore, the court held, the 90-day statute of limitations applied.
Honig also argued that the city's notice of decision and order was deceptive. It stated that the time to file for judicial review of the decision was governed by Code of Civil Procedure § 1094.6. That statute requires the filing of an action within 90 days but says nothing about service of the lawsuit. Thus, Honig argued she received no notice of the 90-day service requirement.
The court said Honig needed to read the entire statute, which says that any conflicting, shorter statutes of limitations apply.
“[N]othing in the language of the notice of the Board of Appeals, or in the Code of Civil Procedure sections referenced in that notice, directed appellant to apply an incorrect and untimely limitations period to filing or serving her petition,” Justice Simons wrote.
Honig v. San Francisco Planning Department, No. A106305, 05 C.D.O.S. 2166, 2005 DJDAR 2975. Filed March 10, 2005.
For Honig: Clifford Fried, Wiegel & Fried, (415) 552-8230.
For San Francisco: Judith Boyajian, deputy city attorney, (415) 554-4636.
For Robins and Chambers: Joel Yodowitz, Reuben & Junius, (415) 567-9000.