Tchejeyan v. City Council of City of Thousand Oaks
(Case No. B309108)

GDB Partner Kevin Sullivan and Associate Yana Ridge recently obtained a court of appeal decision, upholding a trial court judgment, dismissing a challenge to city permit approvals for a client’s telecommunications project. The entire trial court and appellate court proceedings collectively were concluded in about 10 months.

In California, challenges to local zoning and planning decisions typically face very short statutes of limitations, as recently made clear by the California Court of Appeal’s Second District, Division Six. (Tchejeyan v. City Council of City of Thousand Oaks (July 7, 2021, Case No. B309108 [nonpub. opn.].)

In Tchejeyan, the City of Thousand Oaks approved land use permits for Verizon Wireless to install a wireless telecommunication facility. A nearby homeowner opposed the permits and filed a lengthy petition challenging the City’s approvals. GDB represented the City in its motion to dismiss the petition for failure to timely serve the petition. The trial court granted the motion and dismissed the petition, and the Court of Appeal affirmed, in a well-reasoned 11-page unpublished opinion.

The Tchejeyan Court held that petitioner’s deadline to serve the petition was 90 days from the City’s decision. Specifically, no action or proceeding to attack, review, set aside, void, or annul any decision related to conditional use or other permits shall be maintained by any person unless the action or proceeding is commenced and served on the legislative body (here, the City) within 90 days after the legislative body’s decision. (Gov. Code, §65009, subd. (c)(1)(E).) Here, the Court found that the petition concerning the approval of Verizon’s land use permit for a telecommunications facility was an action governed by the 90-day deadline, and rejected petitioner’s various arguments that other — longer — deadlines should apply.

Thus, if a court challenge is not both filed and served on the public entity within 90 days from the public entity’s decision, “all persons are barred from any further action or proceeding” and any such action or proceeding must be dismissed. (Gov. Code, §6009, subd. (e).) Here, petitioner served the petition on the 92nd day after the City’s decision on the permit. As such, his action was time-barred and properly dismissed. Because the statute of limitations is mandatory, petitioner’s failure to meet the deadline could not be excused on grounds of “mistake, inadvertence, surprise, or excusable neglect.” Accordingly, the trial court properly denied petitioner’s motion for relief under these grounds pursuant to Code of Civil Procedure section 473, subdivision (b).

Notably, the 90-day time period commences on the date of “final administrative action.” Here, the City Council denied the challenger’s appeal and adopted a Resolution upholding the approval of the land use permit. Two days later, the city clerk certified the Resolution. The Tchejeyan Court found that the date the City Council rendered its decision and adopted the Resolution on the permit — and not the later date that the city clerk certified the Resolution — was the date of the final administrative action that commenced petitioner’s 90-day deadline. The Court noted that the Resolution was effective immediately, and the clerk’s certification not a “legislative body’s decision,” but rather a mere clerical act that did not impact the underlying decision.

In short, Tchejeyan is an important reminder that land use matters typically involve very short limitations periods in which petitioners must file and serve lawsuit challenges — or their challenges will be dismissed. The purpose of such short deadlines is to provide certainty for property owners and local governments regarding these decisions. (Gov. Code, §65009, subd. (a).) Challenges to land use approvals have a chilling effect on the confidence in which property owners and local governments can proceed with development projects. (Ibid.) Thus, in California, land use challenges are barred if they are not brought within the relatively short required deadlines, as Tchejeyan makes clear.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]