Save Lafayette Trees v. City of Lafayette, 32 Cal. App. 5th 148

Background

In March 2017 the City of Lafayette approved a letter of agreement with PG&E authorizing removal of up to 272 trees (216 protected) in pipeline rights-of-way; city staff processed the action under the city tree ordinance exception for health/safety.
Save Lafayette Trees filed a petition for writ of mandate on June 26, 2017 and served it the next day, alleging (1) CEQA violations, (2) planning & zoning/general plan/tree ordinance violations, (3) inadequate notice/due process, and (4) excess of authority/abuse of discretion.
PG&E and the city demurred, arguing the action was time-barred under Gov. Code § 65009(c)(1)(E), which requires filing and service within 90 days for challenges to permit-type decisions; the trial court sustained the demurrer without leave to amend and dismissed.
On appeal the court affirmed dismissal of causes 2–4 as barred by § 65009(c)(1)(E) but reversed as to the CEQA cause of action (cause 1), holding CEQA service rules governed service timing.
The appellate court rejected Save Lafayette Trees’ arguments that § 65009 is limited to housing, depends on the deciding body, or is preempted by the city's longer local limitations ordinance; it also rejected tolling based on alleged lack of mailed notice because the complaint did not plead members lived within 300 feet.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 65009(c)(1)(E)’s 90‑day filing/service rule applies to the city's tree‑removal agreement (a permit‑style decision)	§ 65009 targets housing projects; it does not apply to this PG&E tree‑removal agreement	The agreement is a decision authorizing land use equivalent to a permit and falls within § 65009’s scope	§ 65009 applies; the agreement is a decision relating to matters listed in §§ 65901/65903, so planning/zoning claims are subject to the 90‑day rule (causes 2–4 barred)
Whether the city’s local 180‑day limitation (former Mun. Code § 6‑236) controls instead of § 65009	Local ordinance provides a longer period (180 days) and should govern	State statute § 65009 preempts conflicting local shorter/longer limitations	§ 65009 preempts the local ordinance; local 180‑day period rejected
Whether lack of mailed notice (10‑day/300‑foot rule) tolled or invalidated § 65009’s time bar	City failed to give required mailed notice to affected property owners, so limitations should be tolled or inapplicable	Complaint does not plead facts showing plaintiffs’ members were entitled to mailed notice (within 300 feet)	Tolling/invalidation rejected; plaintiffs failed to plead entitlement to special notice; due process/notice‑based claims barred
Whether CEQA’s filing/service rules (Pub. Resources Code §§ 21167 & 21167.6) govern timing over § 65009	CEQA provides its own filing/service windows (180 days to file under §21167(a); 10 business days to serve under §21167.6) and should control where they conflict	§ 65009’s 90‑day rule applies broadly to permit challenges and would bar CEQA claims not filed/served within 90 days	CEQA service provision (§21167.6) governs service timing “[n]otwithstanding any other law”; CEQA cause was timely served under §21167.6, so cause 1 may proceed. The longer CEQA filing period (§21167(a)) cannot be harmonized with §65009’s strict 90‑day rule, but because service complied with §21167.6 the CEQA claim survives.

Key Cases Cited

Royalty Carpet Mills, Inc. v. City of Irvine, 125 Cal.App.4th 1110 (explaining harmonization of CEQA service rules with §65009 when CEQA imposes a shorter filing period)
Travis v. County of Santa Cruz, 33 Cal.4th 757 (broad application of §65009 to challenges to permit decisions)
Board of Supervisors v. Superior Court, 23 Cal.App.4th 830 (CEQA service provisions prevail over directly contradictory statutes)
Sherwin‑Williams Co. v. City of Los Angeles, 4 Cal.4th 893 (preemption principles for conflicting local ordinances)
Friends of Riverside's Hills v. City of Riverside, 168 Cal.App.4th 743 (harmonization analysis of competing statutory limitations)