A challenge to a planning commission decision rejecting plaintiff’s claim under the City’s scenic view ordinance was time-barred because it was not served within 90 days Weiss v. City of Del Mar (Torrey Pacific Corporation), 39 Cal. App. 5th 609 (2019)

The City of Del Mar has a scenic view ordinance providing relief under certain circumstances for property owners whose views have become unreasonably obstructed by vegetation on nearby property. The city designates its planning commission to consider and rule on scenic view applications. Applicants have a right to appeal planning commission decisions to the city council.

In 2016, the plaintiff applied under the local scenic view ordinance to compel a neighboring property owner to trim and maintain its landscaping. The city planning commission denied her application and the city council denied her appeal. She then petitioned for an administrative writ of mandate in superior court, challenging the city’s denial of her application. The superior court granted the city’s motion to dismiss due to her failure to comply with the 90-day service rule contained in Section 65009(c)(1)(E) of the Government Code.

The Court of Appeal affirmed the superior court’s dismissal. There was no dispute that the plaintiff did not serve the city until more than 90 days after the city council denied her appeal. Instead, the plaintiff argued that the ninety-day deadline under Section 65009 did not apply. She claimed the 90-day service deadline in that section applies only to certain local zoning or planning decisions and does not extend to determinations under the scenic view ordinance.

The court disagreed, finding that Section 65009 provides the applicable 90-day deadline for service. Under that section, the 90-day service deadline applies to “any decision on the matters listed” in Section 65901. That list, in turn, includes a zoning board or zoning administrator’s “exercise [of] any other powers granted by local ordinance.” The court concluded that the city’s denial of the plaintiff’s application under the scenic view ordinance was an “exercise of powers granted by” that local ordinance; therefore the 90-day deadline in Section 65009 applied.