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Challenge Under Planning and Zoning Law Time-Barred for Failure to Comply with 90-Day Limitations Period


In Stockton Citizens for Sensible Planning v. City of Stockton (2012) 2012 Cal.App. LEXIS 1175, the appellate court affirmed a trial court decision dismissing petitioner’s lawsuit seeking a writ of mandate to compel the City of Stockton to vacate its approval of a Wal-Mart supercenter based on alleged violations of planning and zoning laws. The court found that the action was time barred under Government Code section 65009(c)(1)(E) because it was not commenced within 90 days after the city approved the project.

In 1989, the city approved a plan for development of a 1,239-acre site in northwest Stockton, which included a mix of residential, commercial, recreational and open-space uses.  In 2001, due to changed market conditions, the developer proposed revisions to the plan to reduce the densities and revise the land use designations originally approved.  The city approved a master development plan incorporating these changes and certified a supplemental environmental impact report (EIR) on January 29, 2002.  The master development plan included provisions allowing for approval of specific projects within the plan area by the city planning director if staff determined the project was consistent with the master development plan, subject to appeal to the planning commission.

In the fall of 2003, a proposal and plans for a 207,000-acre Wal-Mart retail store on a 22.38-acre portion of the site were submitted to the city’s design review board.  On December 15, 2003, the director of the city’s community development department sent a letter stating that staff had completed its initial review and had determined that the plans were in substantial conformance with the master development plan, subject to minor listed corrections.  On February 5, 2004, Wal-Mart wrote to the director seeking confirmation that the director’s letter had constituted approval of the project for purposes of appeal.  The director initialed and returned a copy of the letter as requested, confirming that he had approved the project as consistent with the master development plan as of December 15, 2003.

On February 17, 2004, the city director filed a notice of exemption (NOE) for the project with the county clerk.  On July 22, 2004, more than five months after the filing of the NOE and seven months after issuance of the letter from the director, petitioners filed their petition for writ of mandate in the superior court.

On appeal of the trial court’s ruling that the petition was time barred, petitioners argued that the city’s approval of the project, in the form of a letter from the director of city’s community development department, did not trigger the 90-day limitations period because section 65009(c)(1)(E) is limited to challenges concerning variances and permits issued after a decision by a legislative body. The court found, however, that section 65009(c)(1)(E) is not so limited. The plain language of that section states that it applies to actions challenging any decision on matters listed in section 65901; in turn, that section lists any action in which the zoning administrator exercises powers granted by local ordinance.

In this case, the director was acting as the city’s zoning administrator and was exercising powers granted by local ordinance when he approved the project.  The director’s approval was thus subject to the 90-day statute of limitations.

Key Point:

This case is a follow up to the California Supreme Court’s ruling issued in 2010 in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, which held that petitioners’ challenge under the California Environmental Quality Act (CEQA) to city approval of a Wal-Mart Supercenter was likewise time barred because the suit was not commenced within the 35-day statute of limitations following posting of a facially valid NOE.  As noted by the Supreme Court, the limitations periods set forth in CEQA are unusually short and are meant to ensure finality and predictability in land use planning decisions.  As illustrated by this related appellate court ruling, the same is true of limitations periods under planning and zoning law.

Written By: Tina Thomas and Amy Higuera
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



dateNovember 30th, 2012byby


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