Honig v. San Francisco Planning Dept.

• Decision Date: 10 March 2005
• Docket Number: No. A106305.,A106305.
• Citation: 127 Cal.App.4th 520,25 Cal.Rptr.3d 649
• Court: California Court of Appeals Court of Appeals
• Parties: Lisa HONIG, Plaintiff and Appellant, v. SAN FRANCISCO PLANNING DEPARTMENT et al., Defendants and Respondents; David Robins et al., Real Parties in Interest and Respondents.

25 Cal.Rptr.3d 649

127 Cal.App.4th 520

Lisa HONIG, Plaintiff and Appellant, v. SAN FRANCISCO PLANNING DEPARTMENT et al., Defendants and Respondents David Robins et al., Real Parties in Interest and Respondents.

No. A106305.

Court of Appeal, First District, Division 5.

March 10, 2005.

Wiegel & Fried, Clifford E. Fried, San Francisco, and John P. Baba for Plaintiff and Appellant Lisa Honig.

Dennis J. Herrera, City Attorney, Judith A. Boyajian and Sarah E. Owsowitz, Deputy City Attorneys for Defendants and Respondents San Francisco Planning Department and Board of Appeals of the City and County of San Francisco.

Reuben & Junius, Joel Yodowitz, San Francisco, and Tuija I. Catalano for Real Parties in Interest and Respondents David Robins and Marge Chambers.

SIMONS, J.

After the neighbors of Lisa Honig (appellant) obtained a variance and building permit authorizing an expansion of the size of their home, appellant unsuccessfully appealed those decisions to the board of appeals.¹ Appellant then petitioned for a writ of administrative mandate against defendants and respondents, the planning department and the board of appeals (defendants), and real parties in interest and respondents, David Robins and Marge Chambers (real parties).² Respondents demurred to the petition on the ground that it was barred by the statute of limitations set out in Government Code section 65009, and the demurrers were sustained without leave to amend.

On appeal to this court, appellant contends that, as to the building permit decision, her petition was timely. Alternatively, she contends the board of appeals should be estopped from asserting the statute of limitations because she was deliberately misled regarding the applicable limitations period. We disagree. Government Code section 65009 applies to a writ petition challenging issuance of a building permit issued in conjunction with a zoning variance, if the gravamen of the petition is that the variance was improperly granted. Because appellant failed to comply with section 65009, the petition was not timely. In addition, we conclude that appellant should not have been misled regarding the limitations period, and we reject her estoppel argument.

BACKGROUND

We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether, as a matter of law, the complaint (in this case, the petition) states a cause of action on any available legal theory. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368.) In doing so we assume the truth of all material factual allegations, and we are required to accept them as such, together with those matters subject to judicial notice.³ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) Statutory interpretation is a question of law subject to our independent review. (Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, 89 Cal.Rptr.2d 760.) A demurrer is properly sustained without leave to amend where the pleading discloses on its face that the action is barred by the applicable statute of limitations. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1204, 51 Cal.Rptr.2d 328.) With these principles in mind, we report the facts as stated in the petition and matters judicially noticed.

Appellant and real parties are the owners of adjoining residential properties in the City's Bernal Heights neighborhood.

In April 2002, real parties applied to the planning department for a variance to increase the useable floor area and add two small balconies and a bay window to the rear of their property. In July 2002, the planning department's zoning administrator issued a written decision granting the variance, which appellant appealed to the board of appeals. On December 18, 2002, the board of appeals issued its decision to uphold the variance.

In July 2002, shortly after the planning department granted the variance, real parties applied to the department of building inspection⁴ for a building permit for the rear extension and balcony work authorized by the variance. In August 2002, appellant filed with the planning commission a request for discretionary review of real parties' building permit application.⁵ On December 5, 2002, following a hearing, the planning commission denied appellant's request for discretionary review. In February 2003, the department of building inspection issued the building permit application. Attached to the application is a sheet entitled "CONDITIONS AND STIPULATIONS," signed by planning department personnel which states, "APPROVED: For rear extension [and] balconies per plans [and] variance No. 20020377V upheld on appeal."

In March 2003, appellant appealed the issuance of the building permit to the Board of Appeals, arguing that the variance would allow real parties to create a "code violation" resulting in a fire hazard. In May 2003, the board of appeals upheld the issuance of that permit, and, on June 10, 2003, issued its "Notice of Decision [and] Order" to that effect.

On September 8, 2003, appellant filed her petition for writ of administrative mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5 challenging the variance and building permit decisions. The petition alleges, inter alia, that defendants' decisions were an abuse of discretion because: (1) the decisions conflicted with the purpose and requirements of the Planning Code; and (2) the decisions created a "governmentally sanctioned code violation upon [appellant's] premises and a nuisance to her property." The petition sought to set aside the decisions granting and upholding the variance and to order real parties to remove the portions of their construction authorized under the variance or which created a code violation and nuisance on appellant's premises.

In November 2003, respondents demurred to appellant's petition. The demurrers asserted that the petition was time-barred pursuant to Government Code section 65009, subdivision (c)(1)(E) because it was not filed and served within 90 days of the decisions of the board of appeals upholding the variance and the building permit. At the demurrer hearing, appellant conceded that as to the board of appeals decision on the variance, her petition was not timely filed or served, and withdrew her petition as to that decision.⁶ The court sustained the demurrers because appellant failed to timely serve the petition within 90 days after the decision of the Board of Appeals became final, June 10, 2003.⁷

DISCUSSION

Statutory Scheme

Section 65009 is located in division 1 (Planning and Zoning) of title 7 (Planning and Land Use) of the Government Code. It is intended "`to provide certainty for property owners and local governments regarding decisions made pursuant to this division' (§ 65009, subd. (a)(3)) and, thus, to alleviate the `chilling effect on the confidence with which property owners and local governments can proceed with projects' (id., subd. (a)(2)) created by potential legal challenges to local planning and zoning decisions." (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765, 16 Cal.Rptr.3d 404, 94 P.3d 538.)

To this end, Government Code section 65009, subdivision (c) establishes a short 90-day statute of limitations, applicable to both the filing and service of challenges to a broad range of local zoning and planning decisions. (Gonzalez v. County of Tulare (1998) 65 Cal.App.4th 777, 782-783, 786, 76 Cal.Rptr.2d 707 [construing former § 65009, subd. (c) which contained a 120-day limitations period (Stats.1987, ch. 218, § 1, p. 1190)].) "Requiring an aggrieved citizen to file an action within 90 days but permitting him or her to withhold service for months or even years would effectively suspend the effective date of local land use and development decisions and leave such matters at the mercy of the complainant." (Gonzalez, at p. 790, 76 Cal.Rptr.2d 707, fn. omitted.) After expiration of the limitations period, "all persons are barred from any further action or proceeding." (§ 65009, subd. (e); Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 766, 16 Cal.Rptr.3d 404, 94 P.3d 538.) By its terms, section 65009 applies to charter cities, such as the City. (§ 65009, subd. (f).)

As relevant in this case, Government Code section 65009, subdivision (c)(1) provides: "Except as provided in subdivision (d),[⁸] no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision: [¶] ... [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness legality, or validity of any condition attached to a variance, conditional use permit, or any other permit."

"Government Code sections 65901 and 65903 provide for hearing and decision on, and administrative appeals concerning applications for variances, conditional use permits, and other permits." (Travis v. County of Santa Cruz, supra, 33 Cal.4th at p. 766, fn. 2, 16 Cal.Rptr.3d 404, 94 P.3d 538.) Section 65903 provides, "A board of appeals, if one has been created and established by local ordinance, shall hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator, as the case may be. Procedures for such appeals shall be as provided by local ordinance. Such board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as should be made, and such action shall be final." In its Charter, the City created the board of appeals to hear and decide appeals regarding the issuance of permits. (Charter, § 4.106(a) & (b).)⁹

I. The Petition Is Subject to the Statute of...