Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GS010925. Joseph F. DeVanon, Jr., Judge.
Michael B. Montgomery for Plaintiffs and Appellants.
Jones & Mayer, Kimberly Hall Barlow and Krista MacNevin Jee for Defendants and Respondents.
CHAVEZ, J.
Petitioners and appellants Robert O. Cook, Genevieve G. Flores, and Peter Tripodes (petitioners) appeal from the judgment entered in favor of defendants and respondents Sally Kilby as City Clerk of South Pasadena, and City Council of the City of South Pasadena (collectively, the City) after the trial court denied a petition for writ of mandate seeking to require the City to amend its zoning code to conform to an initiative adopted by the City in 1983 (the 1983 initiative) and to enjoin violation of the 1983 initiative. We affirm the trial court’s denial of the writ petition.
BACKGROUND
1. The 1983 Ballot Initiative
In 1983, the City adopted a ballot initiative approved by the voters relating to certain zoning restrictions. The 1983 initiative stated: “No Commercial, Office, Manufacturing, or Residential building shall be built to a height in excess of forty-five (45) feet and that no variance or conditional use permit shall be granted to exceed this limit. Furthermore, that no parking variance shall be granted to exceed five percent (5%) of the required spaces.”
On December 16, 1998, the City adopted an ordinance incorporating the parking restrictions imposed by the 1983 initiative. The ordinance added municipal code section 36.100-1, which provides:
“(a) No parking variance shall be granted to exceed five percent (5%) of the required spaces.
“(b) The language in subsection (a), above, was adopted by a voter approved initiative and, therefore, cannot be modified or repealed without the approval of a majority of the electors voting on such a measure.”
2. 2002 Municipal Code Amendments
In 2002, the City amended its zoning code. Section 36.310.020(D) of the amended zoning code provides: “As required by a 1983 initiative in the City of South Pasadena, no Variance to parking requirements shall be granted that reduces parking requirements by more than five percent.”
Section 36.410.080(B) states: “The Commission may grant a Variance from the requirements of this Zoning Code governing any development standard, provided all Variances shall comply with the limitations established by the City of South Pasadena 1983 initiative. A Variance shall not allow a use of land not otherwise allowed by the applicable zoning district.”
The 2002 amendments also added section 36.310.060, which allows “shared parking” among separate commercial parcels:
“A. Applicability. Separate commercial uses on separate parcels not more than 1,500 feet from each other within any commercial zoning district may jointly use parking facilities subject to the approval of a Parking Use Permit in compliance with Section 36.410.090 when the review authority determines that either of the following conditions exist:
“1. Different peak hour parking demands exist between the separate uses; and
“2. Single vehicle trips are likely to be made to two or more of the businesses proposed to share the parking.”
3. The Writ Petition
In 2008, Decoma Developers proposed a project in the City’s downtown area, as part of the City’s downtown revitalization project (the Decoma project). The Decoma project included approval of a planned development permit, as well as other permits and zoning approvals. On April 16, 2008, the City’s planning commission recommended approving the Decoma project.
On May 15, 2008, petitioners filed a verified petition for writ of mandate and for injunctive and declaratory relief. In their writ petition, petitioners allege that in 2002, the City “illegally revised” the language of the 1983 initiative by adopting municipal code section 36.310.020(D). Petitioners contend section 36.310.020(D) “[m]isstates the intent of the voters” and “emasculates” the 1983 initiative by “modifying its effect to an application for a variance, rather than a condition that... applies to every development no matter how proposed or determined.” Petitioners further allege that municipal code section 36.410.080(B) modifies the language of the 1983 initiative in an “unauthorized, unwanted, misleading, and prejudicial” manner.
Petitioners also challenge the shared parking provisions of municipal code section 36.310.060, which they contend also violates the 1983 initiative. Petitioners allege that the Decoma project uses the “shared parking” concept to reduce parking requirements mandated by the zoning code, in violation of the 1983 initiative.
In their first cause of action for mandate, petitioners seek to compel the City “to correct the City’s municipal code to correctly state the language adopted by the voters in the INITIATIVE.” In their second cause of action, for injunctive relief, petitioners seek “temporary, interim and permanent orders enjoining violation of the INITIATIVE, unless and until amended by a vote of the residents,” and in their third and fourth causes of action, petitioners seek “rulings on the subjects requiring declaratory relief.”
The City opposed the petition, contending that petitioners’ claims were barred by Government Code section 65009, subdivision (c). The City further contended that petitioners failed to join Decoma Developers as an indispensible party to the action. In response, petitioners argued that the City was the only indispensible party because their action was “brought to challenge the legality of certain ordinances adopted subsequent to the [1983] voter initiative.” Petitioners further argued that Decoma Developers was not an indispensible party because although the petition specifically referred to the Decoma project, the action was “brought to uphold the initiative against any and all projects.”
The trial court denied petitioners’ requests for a temporary restraining order and a preliminary injunction. Following an October 3, 2008 hearing, the trial court then denied the petition in its entirety, finding that all of petitioners’ claims consisted of facial challenges to the City’s zoning ordinances that were barred by the 90-day limitations period imposed by Government Code section 65009, subdivision (c)(1)(B). Judgment was thereafter entered in the City’s favor, and this appeal followed.
DISCUSSION
I. Standard of Review
“On appeal following a trial court’s decision on a petition for a writ of mandate, the reviewing court ‘“need only review the record to determine whether the trial court’s findings are supported by substantial evidence.”’ [Citations.] However, we review questions of law independently. [Citation.] Where, as here, the facts are undisputed and the issue involves statutory interpretation, we exercise our independent judgment and review the matter de novo. [Citation.]” (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129.)
II. Government Code section 65009
Government Code section 65009 “imposes relatively short statutes of limitations on legal challenges to local land use decisions. [Citation.]... [I]t does so in order to ‘“provide certainty for property owners and local governments regarding decisions made pursuant to this division” [citation] and thus to alleviate the “chilling effect on the confidence with which property owners and local governments can proceed with projects.” [Citation.]’” (Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1571 (Urban Habitat).)
Government Code section 65009, subdivision (c) sets a 90-day limitations period for challenging a local government’s “decision... to adopt or amend” a zoning ordinance, development agreement, or permit condition. (Gov.Code, § 65009, subds. (c)(1)(B)-(E).) The 90-day limitations period begins to run from the date the decision is made. (Urban Habitat, supra, 164 Cal.App.4th at p. 1571.) If the challenge is to the facial validity of a land use ordinance, the 90-day period commences upon the effective date of the ordinance. (Howard Jarvis Taxpayers Ass’n v. City of Los Angeles (2000) 79 Cal.App.4th 242, 247 (Jarvis).) A facial challenge to an ordinance “‘considers only the text of the measure itself, not its application to the particular circumstances of an individual.’” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 767 (Travis), quoting Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) In contrast, if the challenge concerns application of an ordinance to a specific property or development, the statute of limitations for an action challenging that adjudicatory decision runs from the date of the final adjudicatory administrative decision. (Travis, supra, at pp. 767-771; Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.)
Government Code section 65009, subdivision (c)(1) provides in relevant part: “[N]o action or proceeding shall be maintained in any of the following cases by and 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 decision of the legislative body to adopt or amend a zoning ordinance. [¶]... [¶] (D) To attack, review, set aside, void, or annul the decision of a legislative body to adopt, amend, or modify a development agreement.... [¶] (E)... or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.”
III. The Writ Petition
A. First, Third, and Fourth Causes of Action
Petitioners challenge three different City ordinances -- municipal code sections 36.310.020(D), 36.410.080(B), and 36.310.060. Petitioners claim all three ordinances misstate or controvert the language and intent of the 1983 initiative.
In their first cause of action, petitioners seek an order requiring the City “to correct the City’s municipal code to correctly state the language adopted by the voters in the [1983] INITIATIVE.” In their third and fourth causes of action, petitioners seek a declaration that municipal code section 36.310.020(D) distorts the requirements of the 1983 initiative, and that those requirements should apply under all circumstances of development and new property use. Petitioners also seek a declaration that municipal code section 36.310.060 violates the 1983 initiative.
Petitioners’ first, third, and fourth causes of action challenge the enactment and continued existence of the ordinances, not their application to any particular circumstances or development. The gravamen of these causes of action is thus a claim that the ordinances at issue are facially invalid. (Travis, supra, 33 Cal.4th at p. 767.) The statute of limitations applicable to such a facial challenge to the City’s zoning ordinances is 90 days after the effective date of the ordinances. (Gov. Code, § 65009, subd. (c)(1)(B); Jarvis, supra, 79 Cal.App.4th at p. 247.)
All of the zoning ordinances challenged by petitioners became effective in 2002. Because petitioners did not commence this action until May 2008, their causes of action for mandate and declaratory relief are barred by Government Code section 65009, subdivision (c)(1)(B).
Petitioners cite Urban Habitat and Travis as support for their argument that Government Code section 65009 does not apply to their action. Those cases, however, are distinguishable. Both Travis and Urban Habitat involved challenges to land use ordinances that conflicted with state laws enacted after the ordinances were adopted. An action challenging the ordinances accordingly could not have been brought within 90 days of their effective date. Travis concerned an action against a municipality for failure to amend an ordinance that was preempted by a state law enacted after the ordinance was adopted. (Travis, supra, 33 Cal.4th at p. 772.) Urban Habitat concerned a claim that certain ordinances conflicted with a subsequently enacted state law requiring a minimum number of low income housing units. (Urban Habitat, supra, 164 Cal.App.4th at pp. 1567-1569, 1575-1578.) The instant case does not involve similar circumstances. Petitioners do not seek to compel the City to amend its ordinances to conform to any subsequently enacted law. Rather, petitioners challenge zoning ordinances that purportedly conflict with a local law that was in effect before those ordinances were adopted. “[W]hen an ordinance conflicts with statutory or constitutional provisions already in effect when the ordinance is passed, then the claim begins to accrue when the ordinance is passed.” (Urban Habitat, at p. 1577.)
During argument, petitioners cited Citizens for Planning Responsibly v. County of San Luis Obispo (2009) 176 Cal.App.4th 357 as support for their challenge to the City’s zoning ordinances. That case, however, is inapposite. Citizens for Planning Responsibly concerned the validity of a local ballot initiative amending the County of San Luis Obispo’s general plan in order to allow a mixed use development near a county airport. A citizens group filed a petition for writ of mandate contending the State Aeronautics Act (Pub. Util. Code, § 21001 et seq.) (SAA) establishes a comprehensive system of land use regulation near airports and precluded use of the initiative power to alter such land use regulation. The trial court issued a writ of mandate invalidating the initiative and prohibiting its enforcement, finding that the SAA preempted the field and of land use regulation within the area subject to the authority of the airport land use commission. Division Six of this court reversed, holding that the SAA did not preempt local land use regulation or preclude the electorate from exercising the initiative power to amend the county’s general plan. The instant case does not involve the same issues.
Petitioners’ claims accrued in 2002, when the challenged ordinances became effective. Because petitioners did not commence this action until 2008, their claims are barred under section 65009, subdivision (c)(1)(B). (Jarvis, supra, 79 Cal.App.4th at p. 247.)
B. Second Cause of Action
Petitioners’ second cause of action seeks “temporary, interim and permanent orders enjoining violation of the INITIATIVE, unless and until amended by a vote of the residents.” Petitioners allege that the City’s adoption, on April 16, 2008, of a resolution recommending approval of a proposed development agreement for the Decoma project “arbitrarily reduces certain parking requirements of the City Code by 25%” in violation of the 1983 initiative.
Petitioners’ second cause of action is framed as a challenge to the City’s adjudicatory decision to approve a proposed development agreement for a specific development project. The time limit for commencing such a challenge is 90 days from the date of that adjudicatory decision. (Travis, supra, 33 Cal.4th at pp. 767-771.) Because the City’s decision to approve the Decoma project was made on April 16, 2008, and petitioners filed this action on May 15, 2008, petitioners’ challenge to that adjudicatory decision would have been timely filed under Government Code section 65009 subdivision (c)(1)(D).
Government Code section 65009, subdivision (c)(1)(D) provides that an action “[t]o attack, review, set aside, void, or annul the decision of a legislative body to adopt, amend, or modify a development agreement” must be commenced within 90 days after the legislative body’s decision.
Petitioners abandoned this cause of action, however, in the trial court below. In pleadings filed below, petitioners made clear that their action was limited to a facial attack on the City’s zoning ordinances, and that they were not challenging the application of those ordinances to any specific project or party. Petitioners stated that their action was “brought to challenge the legality of certain ordinances adopted subsequent to the voter initiative” in order to obtain “a judgment defining [their] [r]ights to enforce the City’s ordinances, without regard to any third-party.” Petitioners further stated: “Notwithstanding that a pending project has been mentioned... this action is brought to uphold the [1983] initiative against any and all projects.”
Petitioners’ facial challenge to ordinances at issue had to be brought within 90 days of the effective date of those ordinances. (Gov. Code, § 65009, subd. (c)(1)(B); Jarvis, supra, 79 Cal.App.4th at p. 247.) The challenged ordinances became effective in 2002. Because petitioners did not bring this action until 2008, their action is barred by Government Code section 65009, subdivision (c)(1)(B).
DISPOSITION
The judgment is affirmed. The City is awarded its costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.