Opinion
After the neighbors of Lisa Honig (appellant) obtained a variance and building permit authorizing an expansion of the size of their home, appellant unsuccessfully appealed those decisions to the board of appeals. 1 Appellant then petitioned for a writ of administrative mandate against defendants and respondents, the planning department and the board of appeals (defendants), and real parties in interest and respondents, David Robins and Marge Chambers (real parties). 2 Respondents demurred to the petition on the ground that it was barred by the statute of limitations set out in Government Code section 65009, and the demurrers were sustained without leave to amend.
On appeal to this court, appellant contends that, as to the building permit decision, her petition was timely. Alternatively, she contends the *524 board of appeals should be estopped from asserting the statute of limitations because she was deliberately misled regarding the applicable limitations period. We disagree. Government Code section 65009 applies to a writ petition challenging issuance of a building permit issued in conjunction with a zoning variance, if the gravamen of the petition is that the variance was improperly granted. Because appellant failed to comply with section 65009, the petition was not timely. In addition, we conclude that appellant should not have been misled regarding the limitations period, and we reject her estoppel argument.
Background
We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether, as a matter of law, the complaint (in this case, the petition) states a cause of action on any available legal theory. (See
Lazar
v.
Hertz Corp.
(1999)
Appellant and real parties are the owners of adjoining residential properties in the City’s Bernal Heights neighborhood.
In April 2002, real parties applied to the planning department for a variance to increase the useable floor arеa and add two small balconies and a bay window to the rear of their property. In July 2002, the planning department’s zoning administrator issued a written decision granting the variance, which appellant appealed to the board of appeals. On December 18, 2002, the board of appeals issued its decision to uphold the variance.
*525 In July 2002, shortly after the planning department granted the variance, real parties applied to the department of building inspection 4 for a building permit for the rear extension and balcony work authorized by the variance. In August 2002, appellant filed with the planning commission a request for discretionary review of real parties’ building permit application. 5 On December 5, 2002, following a hearing, the planning commission denied appellant’s request for discretionary review. In February 2003, the department of building insрection issued the building permit application. Attached to the application was a sheet entitled “CONDITIONS AND STIPULATIONS,” signed by planning department personnel which stated, “APPROVED: For rear extension [and] balconies per plans [and] variance No. 20020377V upheld on appeal.”
In March 2003, appellant appealed the issuance of the building permit to the board of appeals, arguing that the variance would allow rеal parties to create a “code violation” resulting in a fire hazard. In May 2003, the board of appeals upheld the issuance of that permit, and, on June 10, 2003, issued its “Notice of Decision [and] Order” to that effect.
On September 8, 2003, appellant filed her petition for writ of administrative mandate pursuant to Code of Civil Procedure sections 1085 and 1094.5 challenging the variance and building permit decisions. The petition allеges, inter alia, that defendants’ decisions were an abuse of discretion because: (1) the decisions conflicted with the purpose and requirements of the Planning Code; and (2) the decisions created a “govemmentally sanctioned code violation upon [appellant’s] premises and a nuisance to her property.” The petition sought to set aside the decisions granting and upholding the variance and to order real parties to remove the portions of their construction authorized under the variance or which created a code violation and nuisance on appellant’s premises.
In November 2003, respondents demurred to appellant’s petition. The demurrers asserted that the petition was time-barred pursuant to Government Code section 65009, subdivision (c)(1)(E) because it was not filed and served within 90 days of the decisiоns of the board of appeals upholding the variance and the building permit. At the demurrer hearing, appellant conceded that as to the board of appeals decision on the variance, her petition was not timely filed or served, and withdrew her petition as to that decision. 6 The court sustained the demurrers because appellant failed to timely serve the *526 petition within 90 days after the decision оf the board of appeals became final, June 10, 2003. 7
Discussion
Statutory Scheme
Section 65009 is located in division 1 (Planning and Zoning) of title 7 (Planning and Land Use) of the Government Code. It is intended “ ‘to provide certainty for property owners and local governments regarding decisions made pursuant to this division’ (§ 65009, subd. (a)(3)) and thus to alleviate the ‘chilling effect on the confidence with which property owners and local governments can proceed with projects’
(id.,
subd. (a)(2)) created by potential legal challenges to local planning and zoning decisions.”
(Travis v. County of Santa Cruz
(2004)
To this end, Government Code section 65009, subdivision (c) establishes a short, 90-day statute of limitations, applicable to both the filing and service of challenges to a broad range of local zoning and planning decisions.
(Gonzalez v. County of Tulare
(1998) 65 Cal.App.4th
777,
782-783, 786 [
As relevant in this case, Government Code section 65009, subdivision (c)(1) provides: “Except as provided in subdivision (d),[ 8 ] no action or proceeding shall be maintained in any of the following cases 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: [][]... [j[] (E) To attack, review, set aside, void, or annul аny decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, *527 legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.”
“Government Code sections 65901 and 65903 provide for hearing and decision on, and administrative appeals concerning, applications for variances, conditional use permits, and other permits.”
(Travis v. County of Santa Cruz, supra,
I. The Petition Is Subject to the Statute of Limitations in Government Code Section 65009, Subdivision (c)(1)(E)
Government Code seсtion 65009, subdivision (c)(1)(E) applies, among other things, to legal challenges that seek to “attack, review, set aside, void, or annul any decision on the matters listed in Section[] . . . 65903.” By its terms, section 65903 only lists a board of appeal’s determination of an appeal from “the board of zoning adjustment or the zoning administrator.” Since the board of appeals decision challenged here did not originate with the zoning board or zoning аdministrator, appellant argues that it is not one of the “matters listed in Section[] . . . 65903,” and, so, should not be subject to the limitations period of section 65009. In construing a statute, we undertake a familiar task. Our primary goal is to implement the legislative purpose, and, to do so, we may refuse to enforce a literal interpretation of the enactment if that interpretation produces an absurd result at odds with the legislative gоal.
(Lungren v. Deukmejian
(1988)
*528
The short limitations period provided by Government Code section 65009, subdivision (c) serves the important legislative purpose of permitting the rapid resolution of legal challenges to local zoning and planning decisions. (§ 65009, subd. (a)(2).) “The express and manifest intent of section 65009 is to provide local governments with certainty, after a short 90-day period for facial challenges, in the validity of their zoning enactments” and their zоning and planning decisions.
(Travis
v.
County of Santa Cruz, supra,
Routinely, a party who obtains a variance then obtains a building permit consistent with that variance to perform the approved work. The particular facts of this case are revealing. The attack on the building permit is, in reality, nothing more than a challenge to the variance. The petition states the approval of the building permit was “based on the granting of the variance,” and, in her challenge to this permit at the board of appeals, appellant argued that the “variance” was inappropriate. Nowhere in the рetition is there any suggestion that the building permit contained a defect unrelated to the variance. Appellant contested the building permit (as well as the variance) on the ground that it violated section 242 of the Planning Code, which establishes the Bemal Heights Special Use District. The decision of the board of appeals upholding the building permit therefore involved issues of zoning and planning, and appellant’s petition seeks to set aside that decision on grounds that the board of appeals violated section 242 of the Planning Code. The variance had been approved by the zoning administrator, and there is no doubt that petitioner’s challenge to the variance was subject to Government Code section 65009. It would exalt form over substance to refuse to apply that section to a challenge to a different zoning and planning decision where that decision rested entirely on the variance. It would allow an opponent of the variance to delay review of that zoning and planning decision by the simple expedient of failing to promptly serve its challenge to the building permit. 10
II. Respondents Are Not Equitably Estopped
For the first time on appeal, appellant contends that respondents should be estopped from asserting the limitations bar of Government Code section *529 65009, subdivision (c)(1)(E), becausе they deliberately misled her as to the applicable limitations period.
The June 10, 2003 notice of decision and order of the board of appeals received by appellant stated: “If this decision is subject to review under Code of Civil Procedure [section] 1094.5, then the time within which judicial review must be sought is governed by [section] 1094.6.” 11 Code of Civil Procedure, section 1094.6 requires that a petition be filed within 90 days of an adverse dеcision, but says nothing about service of the petition for writ of mandate.
The thrust of appellant’s estoppel argument is that the notice of decision and order of the board of appeals is “deceptive” because it states that the time within which judicial review must be “sought” is governed by Code of Civil Procedure section 1094.6, but provides no notice that a writ petition must be served pursuant to Government Code section 65009, subdivision (c)(1)(E). She argues that because the notice states that judicial review “must” be sought under Code of Civil Procedure section 1094.6, the notice “purported to address all the requirements for maintaining a legal action.” She claims the board of appeals deliberately misled her by referencing the filing provisions of Code of Civil Procedure section 1094.6, “so it [could] then invoke the more stringent filing and service requirements” of Government Code section 65009, subdivision (c)(1)(E), so as to “avoid judicial review of its decisions.”
“A defendant will be estopped to assert the statute of limitations if the defendant’s conduct, relied on by the plaintiff, has induced the plaintiff to postpone filing the legal action until after the statute has run. [Citation.]”
(Mills v. Forestex Co.
(2003)
*530
It is well settled that “ ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ ”
(Green v. Travelers Indemnity Co.
(1986)
Even assuming the equitable estoppel issue is cognizable on appeal, it lacks merit. A similar argument was rejected by Division Four of this court in
Beresford Neighborhood Assn. v. City of San Mateo
(1989)
As in Beresford, nothing in the lаnguage of the notice of the Board of Appeals, or in the Code of Civil Procedure sections referenced in that notice, directed appellant to apply an incorrect and untimely limitations period to filing or serving her petition. Contrary to appellant’s assertion, the notice did not indicate that timely filing of her petition would be sufficient to obtain judicial review, did not purport to address the requirеments for serving the petition, and did not state that failure to comply with any service requirements would be excused. Moreover, subdivision (g) of Code of Civil Procedure section 1094.6 (the limitations statute referenced in the notice) cautions that section 1094.6 “shall prevail over any conflicting provision in *531 any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal lаw which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply.” This subdivision was sufficient to put appellant on notice that a conflicting, shorter limitations provision relating to the subject matter might exist. In addition, appellant has failed to provide any authority for her assertion that the board of appeals was required to notify her of the actual statutory provisions contrоlling the limitations period for her petition challenging its building permit decision.
Disposition
The dismissal of appellant’s petition is affirmed. Costs on appeal shall be awarded to all respondents.
Stevens, Acting P. J., and Gemello, 1, concurred.
Notes
All departments, boards and commissions referred to herein are within the City and County of San Francisco (the City).
Defendants and real parties are collectively referred to as respondents.
This court has previously granted requests for judiсial notice of section 4.106 of article 4 of the San Francisco Charter (Charter), section 14 of article 1 of the San Francisco Business and Tax Regulation Code, section 305 of the San Francisco Planning Code (Planning Code), the building permit for the subject property approved in February 2003, and the July 2002 variance decision. We decline defendants’ request that we take permissive judicial notice of a State Bar оf California “attorney profile” of appellant. (Evid. Code, § 452, subd. (h).)
The department of building inspection was not named as a respondent in appellant’s petition and is not a party to tins appeal.
It appears that appellant’s request for a discretionary review was made pursuant to section 311 of article 3 (zoning procedures) of the Planning Code.
The variance decision is not at issue on appeal.
The trial court assumed, without deciding, that appellant’s petition from the building permit decision was timely filed.
Government Code section 65009, subdivision (d) creates a one-year statute of limitations for certain actions brought in support of affordable housing developments. Appellant does not contend that her administrative mandate petition comes within subdivision (d).
Charter section 4.106(b) provides: “The [board of appeals] shall hear and determine appeals with respеct to any person who has been denied a permit or license, or whose permit or license has been suspended, revoked or withdrawn, or who believes that his or her interest or the public interest will be adversely affected by the grant, denial, suspension or revocation of a license or permit, except for a permit or license under the jurisdiction of the Recreation and Park Commission or Department, or the Port Commission, or a building or demolition permit for a project that has received a permit or license pursuant to a conditional use authorization.”
Having concluded that Government Code section 65009 governs because appellant’s petition arose under Government Code section 65903, we need not address respondents’ alternate contention that section 65009 applies because the petition challenges a condition attached to a permit.
Code of Civil Procedure section 1094.6 provides in relevant part: “(a) Judicial review of any decision of a local agency, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thereof, may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section. []D (b) Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final.... [f]... HD (g) This section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal law which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply.” (Italics added.)