James F. Rigali, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1320579)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
We hold that an action challenging a legislative body's decision to
deny a zone change is subject to a 90-day limitation period set forth
in Government Code section 65009, subdivision (c)(1)(B).*fn1
Section 65009 subdivision (c)(1) provides that "no
action or proceeding shall be maintained . . . 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:
. . . [¶] . . . . [¶] (B) To attack, review, set aside, void, or
annul the decision of a legislative body to adopt or amend a zoning
General Development Co., L.P. (Developer) appeals from a judgment of dismissal entered in favor of the City of Santa Maria (City) after the trial court ruled that GDC's petition for writ of mandate was time barred by section 65009, subdivision (c)(1)(B). We affirm.
Facts and Procedural History
In June 2009, Developer applied for a zone change for 4.68 acres of vacant land located at 1000 East Betteravia Road, Santa Maria. In January 2010, the City Planning Commission recommended that the City Council approve the zone change. But on February 16, 2010, after a duly noticed public hearing, the City Council, the appropriate legislative body, denied the application for a zone change.
Developer challenged the decision by writ petition and served the petition by notice and acknowledgement on May 24, 2010, 97 days after the decision. (Code Civ. Proc., § 415.30, subd. (c).)
Sustaining City's demurrer without leave to amend, the trial court ruled that the writ petition was time-barred by section 65009, subdivision (c)(1)(B) which requires that the writ petition be filed and served within 90 days of the City Council's decision.
Our review is de novo because the appeal is from a judgment on demurrer (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415) and is one of statutory construction. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.)
Denial of Rezoning is a Decision
Section 65009 of the Planning and Zoning Law (§ 65000 et seq.) "establishes a short statute of limitations, 90 days, applicable to actions challenging several types of local planning and zoning decisions . . . ." (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 765.) The statute was enacted "to alleviate the 'chilling effect on the confidence with which property owners and local governments can proceed with projects' [citation] created by potential legal challenges to local planning and zoning decisions." (Ibid.)
Developer argues that denial of a rezoning application is not "a
decision" because City did not "adopt or amend a zoning ordinance"
within the meaning of section 65009, subdivision (c)(1)(B).*fn2
It claims that the 90-day limitation period only applies
to "decisions" granting a zone change, not "decisions" denying a zone
change. In Guru Nanak Sikh Society v. County of Sutter (E.D.Cal.
2003) 326 F.Supp.2d 1128 (Guru), the court rejected this contention.
It said that section 65009 "does not appear to point towards this
[grant v. denial] distinction. On the contrary, the statute limits
the period of time in which an action may be filed to 'attack, review,
set aside, void, or annul any ...