STEVEN TRAVIS et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ, Defendant and Respondent.
No. S109597
Supreme Court of California
July 29, 2004
33 Cal. 4th 757
Steven Travis, Stanley M. Sokolow and Sonya Sokolow, in pro. per.; Pacific Legal Foundation, James S. Burling and Harold E. Johnson for Plaintiffs and Appellants.
Paul B. Campos for The California Building Industry Association, Home Builders Association of Northern California and Building Industry Legal Defense Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.
Harold Griffith as Amicus Curiae on behalf of Plaintiffs and Appellants.
Law Offices of Rosario Perry and Rosario Perry as Amici Curiae on behalf of Plaintiffs and Appellants.
Samuel Torres, Jr., and Dana McRae, County Counsel, and Dwight L. Herr, Assistant County Counsel, for Defendant and Respondent.
Dennis J. Herrera, City Attorney (San Francisco), Andrew W. Schwartz, William Chan and Ellen Forman, Deputy City Attorneys, for City and County of San Francisco and League of California Cities as Amici Curiae for Defendant and Respondent.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Assistant Attorney General, Joseph Barbieri, Christiana Tiedemann and Alice Busching Reynolds as Amici Curiae.
OPINION
WERDEGAR, J.—A Santa Cruz County ordinance imposes certain restrictions on second dwelling units on residential property. Plaintiffs Steven Travis and Stanley and Sonya Sokolow sought a writ of mandate to enjoin enforcement of the ordinance and remove permit conditions imposed pursuant thereto. Plaintiffs claim the ordinance conflicts with and is preempted by state statutes and that its enforcement unconstitutionally took their property without compensation. The question before us goes not to the merits of plaintiffs’ challenge, but to whether it was timely brought.
We conclude that insofar as the action seeks removal of conditions imposed on Travis‘s development permit, it was timely brought within 90 days of the final decision imposing the conditions. (
We will thus affirm in part and reverse in part the decision of the Court of Appeal, which affirmed the superior court‘s denial of plaintiffs’ writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
In December 1981, the Board of Supervisors of the County (the Board) adopted an ordinance, effective January 15, 1982, allowing residential property owners to construct “affordable second dwelling units” on their property. The ordinance requires a development permit, limits second units to parcels of a certain minimum size, sets a maximum unit size, and restricts both the income of second unit tenants and the rent that can be charged for such units.
The ordinance is codified at section 13.10.681 of the Santa Cruz County Code (the Ordinance). Its restrictions on occupancy and rent, of particular importance in this litigation, are set forth as follows in subdivision (e): “The following occupancy standards shall be applied to every second unit and shall be conditions for any approval under this section:
“(1) Occupancy Restrictions: . . . Rental or permanent occupancy of the second unit shall be restricted for the life of the unit to either: [] (A) Households that meet the Income and Asset Guidelines established by the Board of Supervisors resolution for lower income households; or [] (B) Senior households, where one household member is sixty-two (62) years of age or older, that meet the Income and Asset Guidelines requirements established by Board resolution for moderate or lower income households; or [] (C) Persons sharing residency with the property owner and who are related by blood, marriage, or operation of law, or have evidence of a stable family relationship with the property owner. [¶] . . . [¶]
“(4) Rent Levels: If rent is charged, the rent level for the second unit, or for the main unit, if the property owner resides in the second unit, shall not exceed that established by the Section 8 Program of the Department of Housing and Urban Development (HUD) or its successor, or the rent level allowed for affordable rental units pursuant to Chapter 17.10 of the County Code, whichever is higher.”
Subdivision (e)(7) of the Ordinance requires property owners, before receiving a building permit, to record a declaration, binding on successors in interest, to the effect that the rent and occupancy standards of the Ordinance will be observed.
Plaintiffs filed their petition for writ of mandate on September 7, 1999. They alleged the County had a duty to “keep its Second Unit Dwelling ordinance . . . in compliance with State and Federal laws and constitutions,” a duty the County violated by placing Ordinance-dictated occupancy and rent conditions on second unit permits and by failing to amend the Ordinance so as to remove the restrictions. They prayed for a writ requiring the County to stop conditioning second unit permits on the Ordinance‘s occupancy and rent restrictions, to amend the Ordinance so as to remove those restrictions, to compensate second unit owners for lost rents and to refund any fines assessed, and to record with the County Recorder a document expunging all unlawful deed restrictions on second unit properties recorded pursuant to the Ordinance.
In a memorandum of points and authorities supporting their petition, plaintiffs explained their claims that the Ordinance violates state law and is unconstitutional. Plaintiffs contend the Ordinance‘s rent restriction conflicts with, and is preempted by, the Costa-Hawkins Rental Housing Act (
The Court of Appeal affirmed solely on statute of limitations grounds. In the appellate court‘s view, all plaintiffs’ claims were facial, rather than as applied, because plaintiffs did not allege the Ordinance was applied differently to their properties than to others or that the Ordinance had a “disparate fiscal effect” on them compared to other property owners. All claims were therefore subject to the limitation of
We granted plaintiffs’ petition for review.
DISCUSSION
As this case principally concerns the applicability and effect of two subdivisions of
To this end, section 65009 establishes a short statute of limitations, 90 days, applicable to actions challenging several types of local planning and zoning decisions: the adoption of a general or specific plan (
Of particular interest in this case are paragraphs (B) and (E) of section 65009, subdivision (c)(1). Including the introductory text of subdivision (c)(1), they read as follows: “Except as provided in subdivision (d),1 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: [¶] . . . [¶]
“(B) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance. [] . . . []
“(E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903,2 or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.”
We proceed to consider whether and how each of these provisions, as well as other statutes of limitations raised by plaintiffs, apply to the present action.
I. Plaintiffs’ Attack on Permit Conditions Imposed on Their Properties Under the Ordinance
Plaintiffs’ action, in our view, is in part one to “determine the . . . validity” of conditions imposed on their permits and to “void, or annul” the decisions imposing those conditions. (
The action was brought within 90 days of final administrative action on Travis‘s permit; it thus is timely as to Travis‘s claim the conditions imposed on his permit are invalid. (See Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22 [32 Cal.Rptr.2d 244, 876 P.2d 1043] (Hensler) [limitations period for challenge to application of land use regulation to specific property runs from “the final adjudicatory administrative decision“].) But the action was brought almost 11 months after the Sokolows’ permit application was approved; it is thus untimely as to their claim of invalid permit conditions.
Despite the plain language of section 65009, subdivision (c)(1)(E), the County insists the subdivision is inapplicable to Travis‘s claims because Travis has challenged the permit conditions generally, as imposed pursuant to a preempted or unconstitutional ordinance, “rather than challenging the application of the ordinance to a particular permit.” The County urges us to hold that paragraph (B) of section 65009, subdivision (c)(1), rather than paragraph (E), applies to all Travis‘s claims because the petition presents only facial claims of invalidity, without alleging any disparate application or effect on his property compared to other second units subject to the Ordinance.
We find the County‘s reasoning unpersuasive. True, plaintiffs’ legal challenge to the Ordinance is properly characterized as facial in that it “considers only the text of the measure itself, not its application to the particular circumstances of an individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145].) Yet plaintiffs object not only to the Ordinance‘s enactment and continued existence, but also to its application to their second dwelling unit permits. Plaintiffs’ claim of unconstitutionality, for example, is not “a facial challenge to the . . . ordinance predicated on a theory that the mere enactment of the . . . ordinance worked a taking” (Hensler, supra, 8 Cal.4th at p. 24), but, rather, a claim that the County effected a taking by demanding invalid exactions as a condition of issuing them second unit permits. Plaintiffs’ preemption arguments, to be sure, go solely to the Ordinance‘s facial validity, but their complaint, as we have seen, is aimed not only at the Ordinance‘s enactment or existence but also at the County‘s enforcement of the Ordinance against plaintiffs’ own property.
Section 65009, subdivision (c)(1)(E), in setting a time limit for actions challenging permit conditions, does not purport to restrict the legal theories or claims that may be made in such an action, and we see no justification for reading such a substantive limitation into the clear procedural language of the statute. Subdivision (e) of section 65009 provides that after
The County relies on Hensler, supra, 8 Cal.4th at page 22, in which this court stated: “If the challenge is to the facial validity of a land-use regulation, the statute of limitations runs from the date the statute becomes effective. Government Code section 65009 establishes a 120-day period of limitation for such actions.”3 But in Hensler we were not concerned with delineating the issues that could be raised in a timely challenge to permit conditions. The point of the cited passage was, rather, that an action in inverse condemnation based on an allegedly invalid subdivision ordinance, brought several years after the city had applied the ordinance to the plaintiff‘s property, was untimely, whether considered as an attack on the ordinance itself or on the city‘s application of the ordinance. (Hensler, supra, at pp. 7-8, 21-22.) Indeed, elsewhere in the decision we explained that a claim of regulatory taking, arising from imposition of a “development restriction,” requires a showing that “the ordinance, regulation, or administrative action is not lawful or constitutionally valid if no compensation is paid.” (Id. at p. 25, italics added.) Hensler thus does not stand for the proposition that a challenge to a permit or permit condition, timely under section 65009, subdivision (c)(1)(E), is rendered untimely merely because the theory of challenge is the facial invalidity of the ordinance upon which the permit or condition is based.
That the Ordinance could have been facially attacked in an appropriate action at an earlier time, before it was applied to Travis‘s property, does not make section 65009, subdivision (c)(1)(E) inapplicable to Travis‘s claim for removal of invalid conditions. This is not a case in which the plaintiff complains of injury solely from a law‘s enactment. (See Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 824 [107 Cal.Rptr.2d 369, 23 P.3d 601] [“Here, in contrast, the City‘s allegedly illegal
In the related context of local government development fees, the Court of Appeal has distinguished between a “legislative decision” adopting a generally applicable fee and an “adjudicatory decision” imposing the fee on a particular development. (N.T. Hill Inc. v. City of Fresno (1999) 72 Cal.App.4th 977, 986 [85 Cal.Rptr.2d 562].) Adjudicatory fee decisions, the court held, are subject to the protest procedures and limitations period set forth in
The County‘s construction of section 65009 would, in addition, tend to produce unjust and potentially unconstitutional results, which we do not believe the Legislature intended. If a preempted or unconstitutional zoning ordinance could not be challenged by a property owner in an action to prevent its enforcement within 90 days of its application (
We conclude, therefore, that Travis‘s challenge to the imposition of conditions on his second unit permit was timely brought, though the Sokolows’ was not. The remaining question is whether plaintiffs’ other claims for relief—that the County has, and is violating, a duty to repeal or amend the Ordinance or to cease enforcing it—are timely. We examine now the limitations statutes assertedly applicable to those claims.
II. Plaintiffs’ Attack on the County‘s Maintenance and Continued Enforcement of the Allegedly Preempted Ordinance
As noted earlier,
Plaintiffs contend the 90-day limitation prescribed by section 65009, subdivision (c)(1)(B) does not apply to their preemption claim because their challenge is not to the Board‘s decisions to “adopt or amend” the Ordinance, but to the Board‘s failure to repeal or amend the Ordinance and its continued enforcement despite having been preempted by the Costa-Hawkins Act in 1996. Application of section 65009 to claims of preemption by a later enacted statute is unworkable, they argue, because it would preclude any challenge to an ordinance that was valid when enacted but later preempted by state
The County maintains that facial attacks on such assertedly preempted laws are subject to the 90-day limitation, but that here (as the Court of Appeal held) the period ran from the Ordinance‘s last substantive amendment in 1997, rather than from its 1981 adoption.
We agree with plaintiffs that their challenge to the Ordinance, to the extent it is based on preemption by later enacted state statutes (i.e., the Costa-Hawkins Act and
Plaintiffs’ petition for declaratory and injunctive relief against the Ordinance‘s future enforcement is, nevertheless, untimely. The newest of the state statutes upon which plaintiffs rely for their preemption claim, the Costa-Hawkins Act, came into effect on January 1, 1996, more than three years before the petition was filed. Assuming the Costa-Hawkins Act subjects the County to a duty to repeal or amend the Ordinance to conform to state law, that duty first arose—and was first violated by the County‘s inaction—when the Costa-Hawkins Act became effective. As the period in
Plaintiffs argue their action was brought “fewer than 3 years following the January 1, 1999, fully-effective date of Costa-Hawkins,” apparently alluding to provisions of that law phasing in, between January 1, 1996, and January 1, 1999, vacancy decontrol on existing units already subject to local rent control ordinances. (See
The theory of continuous accrual under
To adopt plaintiffs’ theory would thus be to thwart the legislative purpose behind section 65009 without any necessity in justice or fairness. 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 decisions. We hold (pt. I, ante) that the statute nonetheless provides a property owner full opportunity to challenge the validity of a zoning ordinance, as pertinent to the validity of permit conditions, when it is applied to him or her—the earliest time such conditions can be challenged. The policy requiring prompt challenges to a zoning ordinance also gives way in cases of preemption by a later enacted state statute. Property owners or taxpayers must be permitted to challenge the ordinance on the basis of such preemption after the preemptive state statute has taken effect—a challenge that could not have been made when, perhaps years earlier, the ordinance was first adopted. Both property owners and watchdog groups thus have, under our understanding of the statutes, full opportunity to challenge preempted ordinances on their face and in their application.
Alternatively, plaintiffs argue their taking claim comes within the five-year limitations period for an action “arising out of the title to real property, or to rents or profits out of the same.” (
Finally, plaintiffs suggest that preemption by state law renders a local ordinance not only unenforceable but also “null and void,” and that consequently in this case “there is no applicable limitations period because there is essentially no ordinance.” Plaintiffs’ claims would thus be timely whenever brought. Plaintiffs cite no authority for this approach, and we have discovered none. Nor does it appeal as a matter of logic. A preempted ordinance, while it may lack any legal effect or force, does not cease to exist; if it did cease to exist, any challenge to it would have no object. Plaintiffs here, for example, could not sensibly pray for an order that the County amend or
CONCLUSION
To the extent it challenges the validity of conditions the County imposed on Travis‘s development permit and seeks removal of those conditions, the action was timely brought. (
DISPOSITION
We affirm in part and reverse in part the judgment of the Court of Appeal and remand the cause to that court for further proceedings consistent with this opinion.
George, C. J., Kennard, J., Baxter, J., Chin, J., and Moreno, J., concurred.
BROWN, J., Concurring and Dissenting.—I concur with the majority‘s conclusion that Steven Travis‘s action challenging the validity of the conditions imposed by the County of Santa Cruz (hereafter County) on his development permit is timely and that Travis can raise a facial attack on the ordinance‘s validity under
Plaintiffs contend that the passage of the Costa-Hawkins Rental Housing Act (
The fundamental purpose served by statutes of limitations—even the stringent limitations of validation actions—is to prevent stale claims. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 787 [157 Cal.Rptr. 392, 598 P.2d 45].) They thus provide repose to individuals subject to legal actions or criminal prosecution. Statutes of limitations ” ‘are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’ ” (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362 [142 Cal.Rptr. 696, 572 P.2d 755].) “Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost.” (Wilson v. Garcia (1985) 471 U.S. 261, 271 [85 L.Ed.2d 254, 105 S.Ct. 1938], italics added.) Similarly, litigants may not ” ‘attack ancient administrative determinations on the ground they constitute a necessary foundation for current administrative action’ ” because it would ” ‘inject unacceptable uncertainty’ ” into administrative decision making and ” ‘emasculate the purposes of the statute of limitations.’ ” (Traverso v. Department of Transportation (2001) 87 Cal.App.4th 1142, 1148 [105 Cal.Rptr.2d 179], quoting Miller v. Board of Medical Quality Assurance (1987) 193 Cal.App.3d 1371, 1376-1377 [238 Cal.Rptr. 915].)
In similar respects, statutes of limitations allow public entities to implement new enactments without concern for contingent liabilities that may not become manifest for many years. This latter concern justified the restrictions this court imposed in Hensler v. City of Glendale (1994) 8 Cal.4th 1 [32 Cal.Rptr.2d 244, 876 P.2d 1043]: “The purpose of statutes and rules which require that attacks on land-use decisions be brought by petitions for administrative mandamus, and create relatively short limitation periods for those actions, and actions which challenge the validity of land-use statutes, regulations, and/or decisions, is to permit and promote sound fiscal planning by state and local governmental entities.” (Id. at p. 27.)
The discussion in Palazzolo suggests a way to harmonize the countervailing interests at issue here. In rejecting the state‘s argument that a property owner who takes title to land after enactment of a regulation cannot assert a takings claim, the high court observed: “Just as a prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned, other enactments are unreasonable and do not become less so through passage of time or title. Were we to accept the State‘s rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.” (Palazzolo v. Rhode Island, supra, 533 U.S. at p. 627, italics added.)
Justice Stevens‘s concurring and dissenting opinion also endorsed the principle that future generations have a right to challenge unreasonable limitations on the use and value of land. “If a regulating body fails to adhere to its procedural or substantive obligations in developing land-use restrictions, anyone adversely impacted by the restrictions may challenge their validity in an injunctive action. If the application of such restriction to a property owner would cause her a ‘direct and substantial injury,’ [citation], I have no doubt that she has standing to challenge the restriction‘s validity whether she acquired title to the property before or after the regulation was adopted.” (Palazzolo v. Rhode Island, supra, 533 U.S. 606, 638 (conc. & dis. opn. of Stevens, J.).) However, he stopped short of saying that a succeeding owner may obtain compensation for a taking of property from her predecessor in interest. (Ibid.)