Schmier v. City of Berkeley CA1/1, 76 Cal.App.5th 549

In 1996 Schmier converted two Berkeley apartments to condominiums and, as a condition of approval, executed recorded lien agreements obliging payment of an "Affordable Housing Fee" calculated under Berkeley Mun. Code §21.28.060(A).
The lien agreements expressly stated the fee would be paid on sale and contained a clause: if the Affordable Housing Fee is "determined to be invalid" or "rescinded by the City of Berkeley, this lien shall be void and have no effect."
In 2008 Berkeley replaced §21.28.060(A) with §21.28.070 adopting a different (lower) fee formula.
In February 2019 Schmier opened escrow on a sale; Berkeley demanded a fee calculated under the long-ago rescinded formula (much higher than the new formula). Schmier protested; Berkeley rejected the protest on July 29, 2019.
Schmier filed suit on September 25, 2019 seeking declaratory/related relief alleging the lien became void when the city rescinded the then-applicable ordinance and that the city misinterpreted the lien language.
The trial court sustained Berkeley’s demurrer without leave to amend, concluding Gov. Code §66499.37’s 90-day statute barred the suit; the Court of Appeal reversed, holding the limitations and demurrer rulings were improper on the pleadings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gov. Code §66499.37’s 90‑day limitations bar the suit	§66499.37 does not apply because Schmier challenges the lien’s meaning, not the original condition of approval; accrual occurred when the 2019 dispute arose	The suit attacks a condition of subdivision approval, so the 90‑day period began when the lien was recorded in 1996 and is time‑barred	§66499.37 does not bar the claim as pleaded; even if it did, accrual occurred when Berkeley rejected Schmier’s interpretation in 2019 (statute did not clearly bar suit on face of complaint)
Whether Schmier’s contractual interpretation (that rescission voided the lien) is a legally infirm construction justifying dismissal	The lien language is ambiguous; plaintiff pleaded a reasonable construction that the lien is void if the city rescinded the regulating ordinance	The city’s reading is correct; rescinding the ordinance did not rescind the fee as defined by the lien	The lien language is reasonably susceptible to Schmier’s interpretation; on demurrer his construction must be accepted and resolution requires factual/extrinsic evidence
Whether sustaining the demurrer without leave to amend was appropriate	Demurrer should be overruled and plaintiff allowed to proceed	Demurrer proper because claim was untimely and interpretation is incorrect	Reversed: trial court must vacate its order and overrule the demurrer; plaintiff entitled to appellate costs

Coalition for Clean Air v. City of Visalia, 209 Cal.App.4th 408 (Cal. Ct. App. 2012) (statute‑of‑limitations demurrer requires untimeliness to clearly and affirmatively appear on complaint).
Honchariw v. County of Stanislaus, 51 Cal.App.5th 243 (Cal. Ct. App. 2020) (limitations accrues when agency action giving rise to dispute occurs; challenge to agency interpretation accrues on later correspondence).
Aiuto v. City & County of San Francisco, 201 Cal.App.4th 1347 (Cal. Ct. App. 2011) (90‑day limit applies to facial attacks on adoption of an ordinance).
Aragon‑Haas v. Family Security Ins. Services, Inc., 231 Cal.App.3d 232 (Cal. Ct. App. 1991) (on ambiguous contract, plaintiff’s pleaded construction is accepted for purposes of a demurrer).
Wolf v. Superior Court, 114 Cal.App.4th 1343 (Cal. Ct. App. 2004) (extrinsic evidence may expose latent ambiguity and must be provisionally received).