(Super. Ct. No. 34200980000391CUWMGDS) APPEAL from a judgment of the Superior Court of Sacramento County, Michael P. Kenny, Judge. Affirmed.
The opinion of the court was delivered by: Mauro , J.
CERTIFIED FOR PUBLICATION
Appellants David and Cathryn Okasaki petitioned for a writ of administrative mandamus against the City of Elk Grove, the Elk Grove City Council (collectively the City), and real parties in interest Chisorum and Emmanuel Okwuosa. The writ petition challenged a variance issued by the City of Elk Grove allowing the Okwuosas to build a pool and spa within a setback bordering the Okasakis' property. The trial court, among other things, sustained the City's demurrer to three of the Okasakis' causes of action without leave to amend, ruling that the first and second causes of action were barred by the applicable statute of limitations (Gov. Code, § 65009), and that the third cause of action failed to state a claim.
The Okasakis contend on appeal that their first and second causes of action, which challenge the City's approval of the variance, are not barred by the 90-day limitations period set forth in Government Code section 65009. They argue that Government Code section 65009 must be harmonized with Code of Civil Procedure section 1094.6, subdivision (d), which provides that if a petitioner makes a timely request to the local agency for the administrative record, the limitations period is extended to the 30th day following delivery of the record. The Okasakis contend that because they made a timely request to the City for the administrative record, and the City has not yet provided the record, their first and second causes of action are not barred.*fn1
We conclude that Government Code section 65009 applies more specifically to this particular challenge to the City's variance decision, and that Code of Civil Procedure section 1094.6 does not extend the limitations deadline on these particular facts.
We will affirm the judgment.
In reviewing an order sustaining a demurrer without leave to amend, we assume the truth of all material factual allegations, together with those matters subject to judicial notice. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The Okwuosas own property in a rural area of Elk Grove known as The Shires project, a residential development consisting of 12 two-acre residential home sites. The Okasakis own property adjacent to the Okwuosa property and have lived there for more than 25 years.
In April 2009, the Okwuosas requested a permit to build a swimming pool and spa on the northern portion of their property. The City issued a permit and the Okwuosas started construction. But after a code enforcement complaint was filed, it was determined that the pool and spa would encroach into the 75-foot building setback required for the parcel. Construction on the project stopped.
The Okwuosas filed an action for declaratory relief in federal court against the City and others. They also applied to the city planning commission for a variance allowing them to construct the pool and spa. The Okwuosas subsequently settled with the City and voluntarily dismissed the federal lawsuit without prejudice. Nonetheless, the planning commission denied the Okwuosas' variance request despite staff recommendation to the contrary. The Okwuosas appealed the denial to the city council. The Okasakis asked council members to disqualify themselves from hearing the appeal, arguing that the settlement of the federal lawsuit created a conflict of interest. The disqualification request was denied.
Following a public hearing on August 26, 2009, the city council approved the variance. The Okwuosas were allowed to construct a swimming pool and spa within the setback, 50 feet from the property line.
On December 9, 2009, more than 90 days after the city council approved the variance, the Okasakis filed a petition for writ of administrative mandamus pursuant to Code of Civil Procedure sections 1094.5 and 1088.5. The City demurred and the Okasakis filed a first amended petition.
Among other things, the first amended petition asserted a first cause of action alleging that the City failed to make the requisite factual findings and granted the variance on improper grounds; a second cause of action alleging that the City abused its discretion and violated state and local land use law by issuing the variance; a third cause of action alleging that the City had a conflict of interest created by the settlement of the federal lawsuit; and a fourth cause of action alleging violation of the Brown Act (Gov. Code, § 54950 et seq.). The Okasakis further asserted that the 90-day limitations ...