Round two of a citizen group’s challenge to approval of a WalMart ended with a decisive knock-out by the City of Stockton.  The appellate court ruled that the petitioners’ planning and zoning law claims were barred by the 90-day statute of limitations in Government Code § 65009, rejecting petitioners’ argument that the statute did not apply to decisions of a zoning administrator. 

The first round of the lawsuit (discussed in our October 18 post) involved the statute of limitations governing petitioners’ CEQA claims.  The California Supreme Court ruled the claims untimely because they were filed more than 35 days after the posting of a notice of exemption for the project under CEQA.  The court refused to look behind the notice of exemption, holding that the 35-day limitations period applied irrespective of the validity of the underlying decision.

Petitioners had no better luck with their planning and zoning claims. Petitioners argued that the 90-day statute of limitations under Government Code § 65009 was inapplicable because it included only variances and permits issued by a “legislative body.”  Here, they contended, the approval was by a zoning administrator, in the form of a letter, which could not be equated with approval by a legislative body after a public hearing. 

The court of appeal acknowledged that Section 65009 states that the 90-day limitations period runs from “the legislative body’s decision.”  However, Section 65009 expressly applies to “any decision on the matters listed in [Government Code] Section 65901,” which includes decisions of a zoning administrator exercising powers granted by local ordinance.  The court harmonized the two parts of the statute, finding that the Legislature had necessarily intended that decisions by a zoning administrator, under authority delegated by the legislative body, constituted decisions by a “legislative body” under Section 65009(c)(1)(E).  Petitioners’ interpretation, the court pointed out, would render the statutory provisions regarding decisions of a zoning administrator “meaningless.”     

The decision provides important clarification regarding an apparent internal inconsistency in the principal statute of limitations governing land use disputes.

Stockton Citizens for Sensible Planning v. City of Stockton, 210 Cal. App. 4th 1484 (2012).