Opinion
G040213.
1-29-2009
MARK DRENNER, Petitioner, v. CITY OF ORANGE et al., Respondents, OLD TOWNE PRESERVATION ASSOCIATION, Real Party in Interest.
Law Offices of Alan T. Holmes and Alan T. Holmes for Petitioner. David A. De Berry, City Attorney, for Respondents. No Appearance for Real Party in Interest.
Not to be Published in Official Reports
Petitioner Mark Drenner submitted building plans for a two-story garage and second unit on his parcel of residential property located in Old Towne Historic District (historic district) in the City of Orange (City). Although the Citys design review committee and planning commission approved the plans the city council upheld an appeal by real party in interest Old Towne Preservation Association (Association) and denied the project. In exercising discretionary review of the project and holding a public hearing, the city council relied in part on the Citys requirement that structures exceeding a height of over one and one-half stories require issuance of a conditional use permit. Drenner filed a petition for writ of mandate to require the City to approve the project. The petition alleged the project fell within Government Code section 65852.2, governing the addition of second units on residential property, which prohibits discretionary review or public hearing of the project. The trial court denied the writ petition, finding Drenner failed to timely serve the City with the petition, and that the project was subject to discretionary review because it involved more than simply a second unit.
Drenner challenges the trial courts denial of his writ petition. Drenner contends Code of Civil Procedure section 1107 authorized his service on the City by mail was allowed because he was seeking an alternative writ. He also contends Government Code section 65852.2s requirement that all second unit applications be reviewed ministerially and without public hearing superseded the Citys Conditional Use Permit (CUP) requirement for two-story buildings.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
We conclude Drenner failed to properly serve the City with the writ petition within 90 days of the Citys denial as required by Government Code section 65009, subdivision (c)(1)(E). Although section 1107 authorizes service of an application for alternative writ by mail under the procedures of section 1010 et seq., this does not satisfy Government Code section 65009, which requires personal service in accordance with section 412.10 et seq. Because Drenner failed to properly serve the City with the writ petition, we conclude the trial court did not err in denying his writ petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
As part of its effort to increase the housing supply in California, the Legislature in 1982 enacted Government Code section 65852.2, sometimes referred to as the "`granny flat" statute. (Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 546.) "That statute encourages local governments to enact their own ordinances allowing and regulating `second units in single-family and multifamily zones where they otherwise would be prohibited. If the local governments do not enact such an ordinance, then they must grant a `conditional use permit for any second units which meet the requirements enumerated in the statute." (Id. at pp. 545-546.) The local ordinance may, inter alia: "Impose standards on second units that include, but are not limited to, parking, height, setback, lot coverage, architectural review, maximum size of a unit, and standards that prevent adverse impacts on any real property that is listed in the California Register of Historic Places." (Gov. Code § 65852.2, subd. (a)(1)(B).) The statute provides that when an application is submitted for approval of a second unit, "the application shall be considered ministerially without discretionary review or a hearing, notwithstanding Section 65901 or 65906 or any local ordinance regulating the issuance of variances or special use permits." (Gov. Code § 65852.2, subd. (a)(3).)
In accordance with Government Code section 65852.2, subdivision (a), the City enacted its own granny flat regulations, Ordinance No. 8-03. Among the regulations governing second units is the following: "All construction shall conform to the municipal code requirements of height, setback, lot coverage, local building architectural compatibility standards, fees, charges, and other zoning requirements applicable to residential construction in the applicable zone." (Orange Mun. Code, ch. 17.14.050]
Drenner owns a home located in the historical district. Drenner submitted a proposal to demolish the single-car garage on his property and construct a two-story 1,327 square-foot detached second building behind his primary residence. The first floor of the proposed structure is a 700 square-foot three-car garage. The second floor is a 629 square-foot residential "granny flat" unit, consisting of a kitchen, living room, two bedrooms and one bathroom. The Citys zoning code requires a CUP for all residential development in the historic district taller than one and one-half stories. Because the proposed project exceeded two stories, Drenners application included a request for a CUP.
After Drenner made several design changes requested by the City, the Citys design review committee approved the project by a four-to-one vote, with minor modifications. The proposed project then moved to the Citys planning commission, which granted its approval by a three-to-one vote. The Association appealed the planning commissions approval to the city council, arguing in part that the bulk and mass of the project had not been fully addressed before approval. After a public hearing, the city council upheld the Associations appeal, denied the requested conditional use permit for a two-story building, and denied the request for a negative declaration allowing demolition of the single car garage.
The city council adopted its resolution rejecting the project on May 22, 2007. On August 17, 2007, Drenner instituted the present proceedings by filing a petition for writ of mandate and/or prohibition; memorandum of points and authorities, declaration, and proposed orders. The same day, Drenner served the papers on the City by mail. Three days later, on August 20, the Citys clerk received the papers. The mailing contained no acknowledgment of receipt. On August 31, 2007, the Citys attorney received by mail a document entitled "`Ex Parte Application to Issue Alternative Writ and Set for Hearing," from Drenners counsel. At the Ex parte hearing, the court denied the application, finding Drenner failed to make any showing entitling him to relief.
On September 14, 2007, in response to the Citys contention it had not been properly served, Drenner hand delivered the petition to the City clerk. The City filed its answer, asserting as an affirmative defense that Drenner failed to timely effectuate personal service. After hearing, the trial court denied the writ petition, finding (1) the petition had not been timely served; (2) the project included the construction of a granny flat and a garage requiring discretionary approval; and (3) even if the entire project were viewed as a granny flat, proposed construction in the historical district required discretionary review. Drenner now appeals the trial courts ruling.
II
DISCUSSION
Government Code section 65009 provides that "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 bodys decision: [¶] . . . [¶] To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit." (Gov. Code § 65009, subd. (c)(1)(E).) Among the matters listed in Government Code section 65901, include "applications for conditional uses." (Gov. Code § 65901, subd. (a).)
Government Code 65901, subdivision (a), provides: "The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining those matters, and applications for variances from the terms of the zoning ordinance. The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance, and may adopt all rules and procedures necessary or convenient for the conduct of the boards or administrators business."
"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." (Honig v. San Francisco Planning Dept (2005) 127 Cal.App.4th 520, 526 (Honig).) "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. [Citation.] `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 zoning and planning decisions. [Citation.] This delay reduction measure was deemed by the Legislature to be `essential in dealing with the housing crisis in our state." (Id. at p. 528.) "After expiration of the limitations period, `all persons are barred from any further action or proceeding." (Id. at p. 526.) More specifically, "[e]ven if a petition is timely filed under Government Code section 65009, subdivision (c), if it is not personally served as required by statute, the petition must be dismissed." (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1119.)
In Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943 (Wagner), the petitioners challenged a citys issuance of a conditional use permit allowing a neighboring movie house to convert from a single screen theater to a multiplex. The petitioners filed the writ petition on the 90th day after the city made its decision. The same day, the petitioners served the city with a copy of the petition without exhibits by telefacsimile, and a full copy of the petition and a written acknowledgment of service by mail. The following day, the city clerk signed the acknowledgement of service, and returned it to the petitioners. The trial court granted the citys motion for summary judgment on the grounds the proceeding was barred by Government Code section 65009.
The Court of Appeal in Wagner affirmed, holding that service of a writ petition is governed by the procedures for the service of summonses and complaints under section 412.10 et seq., rather than the notice service provisions of section 1010 et seq. (Wagner, supra, 78 Cal.App.4th at p. 948.) The court determined that notice service under section 1010 et seq., "does not achieve the ends of certainty and promptitude" the Legislature sought in enacting Government Code section 65009. (Wagner, supra, 78 Cal.App.4th at p. 949.) Recognizing that service under section 415.30, subdivision (c), is deemed complete on the date the recipient executes an acknowledgment of service, the court ruled the city clerks execution of the acknowledgement on the 91st day after the citys decision rendered the petitioners service untimely. Although service was only one day late, the court rejected application of the doctrine of substantial compliance, observing: "[T]he need for timeliness and certainty influenced the Legislature in devising the statutory scheme of Government Code section 65000. Accordingly, the statute mandates strict compliance with the statute of limitations and service periods. . . . `The rule of narrowly interpreting statutes of limitation [citation] does not apply when the statute is unambiguous and reflects a policy judgment by the Legislature . . . ." (Wagner, supra, 78 Cal.App.4th at p. 950.)
Section 415.30, subdivision (c) provides: "Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender."
Drenner does not dispute he failed to serve the City with a copy of the writ petition under the service procedures of section 412.10 et seq. Instead, he contends section 1107 authorizes notice service of the writ petition by mail under section 1010 et seq. in situations where an alternative writ is requested. We disagree.
Section 1107 provides, in relevant part: "When an application is filed for the issuance of any prerogative writ, the application shall be accompanied by proof of service of a copy thereof upon the respondent and the real party in interest named in such application. The provisions of Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 shall apply to the service of the application. However, when a writ of mandate is sought pursuant to the provisions of Section 1088.5, the action may be filed and served in the same manner as an ordinary action under Part 2 (commencing with Section 307)." As Drenner points out, section 1107 contemplates two methods of pursing a petition for writ of mandate.
Section 1088.5 provides: "In a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court."
Under the "noticed motion" writ procedure, the petitioner files the petition and serves it on the respondent in the same manner as an ordinary civil proceeding. (Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2008) § 5.10, pp. 91-92.) The respondent answers or otherwise responds to the writ petition. (Id. at p. 93.) When the petitioner is ready, he or she files a noticed motion for issuance of the requested writ. (Ibid.)
Under the alternative writ procedure, the petitioner commences the proceeding by filing a writ petition, an application for an alternative writ, supporting memoranda, and any supporting evidence, and submits them to the court on an ex parte basis. (Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2008) § 5.15, p. 93.) If the trial court denies the writ, but does not dismiss the petition, the case continues under the noticed motion procedure. If the court issues the alternative writ, "[t]he writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court." (§ 1096.) A copy of the writ petition must be served with the alternative writ. (§ 1088.) The alternative writ will set forth the date for a return, and for a hearing on the merits.
Here, Drenner included a request for an alternative writ in his writ petition, but did not submit an application to the court for the issuance of the writ until well after the 90-day limitations period had expired. Because he did not timely file an application for issuance of an alternative writ, the service procedure specified in section 1107 is inapplicable. Indeed, Drenners position is nearly identical to that of the petitioners in Wagner, who argued that their request for an alternative writ in their writ petition was sufficient to invoke the notice service provision of section 1107. The Wagner court rejected that argument because the petitioners never filed an application. (Wagner, supra, 78 Cal.App.4th at p. 950.)
Even if Drenner had timely submitted an alternative writ application, section 1107 addresses only the service of the application itself. Nothing in section 1107 purports to direct the manner in which a writ petition or alternative writ must be served, or alter the usual service requirement for obtaining jurisdiction over a party. Instead, section 1096 expressly requires that the alternative writ "be served in the same manner as a summons in a civil action." (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 840 (Board).) Section 1088 expressly requires that a copy of the writ petition be served with it. As one court recognized, due process requires that "[a]t one stage or another, personal service of either the alternative writ or the petition must be made." (Board, supra, 23 Cal.App.4th at p. 840.)
Drenner asserts section 1096 applies only to petitions for a writ of administrative mandamus under section 1094.5, and not to petitions for a writ of traditional mandamus under section 1085. He cites no case law supporting this assertion and we have discovered none. There is nothing in the text or structure of this part of the code limiting the application of section 1096 to administrative mandamus proceedings.
Finally, in his reply brief, Drenner asserts that the 90-day limitation in Government Code section 65009, subdivision (c)(1), does not apply to the denial of a granny flat permit, and that we should instead apply the one-year limitation period in subdivision (d) relating to affordable housing. Drenner did not make this argument in the trial court or in his opening brief. Accordingly, we deem the argument waived. Employers Mutual Casualty Co. v. Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340, 350 ["Fairness militates against our consideration of arguments first raised in a reply brief"].)
We conclude Drenners failure to properly serve the City within the 90-day limitations period of Government Code section 65009, subdivision (c)(1)(E), bars relief on his writ petition. We recognize Drenner timely filed his petition. But section 65009 requires both timely filing and service. As courts have noted: "`Requiring an aggrieved citizen to file an action within 90 days but permitting him or her to withhold service for months or even years would effectively suspend the effective date of local land use and development decisions and leave such matters at the mercy of the complainant." (Honig, supra, 127 Cal.App.4th at p.526.) We therefore affirm the trial courts dismissal of Drenners writ petition.
III
DISPOSITION
The judgment is affirmed. The City is entitled to its costs of this appeal.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.