Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CPF-09-509984
Margulies, J.
The San Francisco Planning Commission (the Commission) approved a conditional use application for a planned unit development to be constructed near Stephen Ryan’s place of residence. The effective date of the Commission’s action was July 16, 2009. More than 90 days later, Ryan filed a petition for a writ of mandate in the superior court seeking to overturn the decision. The City and County of San Francisco (CCSF) successfully demurred to the petition on the grounds it was time-barred under Government Code section 65009. Ryan contends the trial court erred in sustaining the demurrer because the time to petition for a writ of mandate did not begin to run until the date the clerk of the San Francisco Board of Supervisors (Board of Supervisors) rejected Ryan’s attempted administrative appeal due to noncompliance with the appeal ordinance. We disagree, and affirm the dismissal.
I. BACKGROUND
Real party in interest, 2655 Bush Street, LLC, filed a conditional use application with the San Francisco Planning Department for a mixed use residential/commercial planned unit development to be constructed at the corner of Bush Street and Divisidero Street in San Francisco (the Project). The Commission approved the Project by motion adopted on July 16, 2009, following a public hearing. Ryan is a resident of the Bush and Divisidero neighborhood who opposes the Project.
The Commission’s motion to approve the application stated in bold letters: “APPEAL AND EFFECTIVE DATE OF MOTION: Any aggrieved person may appeal this Conditional Use Authorization to the Board of Supervisors within thirty (30) days after the date of this Motion.... The effective date of this Motion shall be the date of this Motion if not appealed (After the 30-day period has expired) OR the date of the decision of the Board of Supervisors if appealed to the Board of Supervisors.”
Ryan filed a notice of appeal of the Commission’s decision to the Board of Supervisors on August 14, 2009, under the authority of section 308.1 of the San Francisco Planning Code. Section 308.1, subdivision (a), entitled “Right of Appeal, ” states an action of the Commission in approving an application for a conditional use authorization “shall be subject to appeal to the Board of Supervisors in accordance with this Section, ” and “[a]n action of the Commission so appealed from shall not become effective unless and until approved by the Board of Supervisors in accordance with this Section.” San Francisco Planning Code section 308.1, subdivision (b) provides (1) appeals from decisions of the Commission approving applications for conditional use authorizations “shall be taken by filing written notice of appeal with the Board of Supervisors within 30 days after the date of action by the Planning Commission, ” and (2) the notice of appeal “shall be subscribed by either (i) the owners of at least 20 percent of the property affected by the... conditional use or (ii) five members of the Board of Supervisors.”
Subdivision (b) goes on to define the property affected by the proposed conditional use, generally, as “all property within 300 feet of all exterior boundaries of the property for which the conditional use has been approved by the Planning Commission, excluding the property for which the approval has been given.” (S.F. Planning Code, § 308.1, subd. (b)(2).) Under the ordinance, publically owned property is excluded from the calculation and a procedure is specified for determining the weight to be given to the signatures of joint owners of affected property. (Id., subds. (b)(3), (4).)
Ryan’s notice of appeal was rejected by the clerk of the Board of Supervisors on or about August 20, 2009, upon a determination by the city and county surveyor that the signatures subscribing to the appeal represented owners of only 13.55 percent of the property affected by the conditional use approval. The clerk advised Ryan by letter dated August 21, 2009, that the appeal was being filed without action by the Board because the signatures submitted with it were insufficient to meet the requirements of San Francisco Planning Code section 308.1. The letter returned Ryan’s check for $500.
Ryan alleges he submitted approximately 51 signatures of property owners affected by the proposed Project.
On November 10, 2009, Ryan filed a petition for writ of mandamus under Code of Civil Procedure sections 1085 and 1094.5, seeking in its third cause of action to set aside the Commission’s approval of real party’s conditional use application on various procedural and substantive grounds. CCSF demurred, contending among other things Ryan’s mandate petition was time-barred under Government Code section 65009. The trial court sustained CCSF’s demurrer without leave to amend, finding Ryan’s challenge to the Commission’s decision was untimely because it was not filed within 90 days of the July 16, 2009 effective date of the decision. This appeal from the May 7, 2010 order sustaining CCSF’s demurrer without leave to amend was filed on June 14, 2010.
Ryan’s first, second, and fourth causes of action addressed various asserted deficiencies in the Project’s approval process arising under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Ryan does not appeal from the dismissal of these causes of action, which he concedes were time-barred under CEQA.
Government Code section 65009 provides in relevant part, “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: [¶]... [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903....” (Gov. Code, § 65009, subd. (c)(1)(E).) Government Code section 65901 addresses applications for conditional use permits.
“An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order.” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) That rule applies to mandate petitions as well as civil complaints. (Hanke v. McLaughlin (1912) 20 Cal.App. 204.) But an appellate court may deem the order sustaining a demurrer to all of a petition’s causes of action to incorporate a judgment of dismissal “since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.” (Sisemore, at p. 1396.) We will accordingly deem the trial court’s May 7, 2010 order sustaining CCSF’s demurrer without leave to amend to incorporate a judgment of dismissal and will review it on that basis.
II. DISCUSSION
Ryan contends his 90-day window to seek judicial review of the Commission’s decision under Government Code section 65009 should have run from August 20, 2009—the date his attempted appeal to the Board of Supervisors was rejected by the clerk of the Board—not from the July 16, 2009 effective date of the Commission’s original decision. Because Ryan had no choice but to seek Board of Supervisor review in order to exhaust his administrative remedies, he contends he should not be penalized by losing 35 days of his 90-day window to seek judicial relief while he attempted to do so. Furthermore, according to Ryan, the clerk’s rejection of the appeal was based on arbitrary and onerous technical requirements, and was therefore unfair and unreasonable. He points out there is apparently no time limit under San Francisco Planning Code section 308.1 for the clerk to notify a party of defects in his notice of appeal, thus creating the possibility a San Francisco property owner seeking to exhaust his administrative remedies could lose all or most of the 90-day period to seek judicial review while waiting for the sufficiency of his notice of appeal to be determined.
We review de novo the trial court’s sustaining of a demurrer. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 122.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We also consider matters which may be judicially noticed. (Ibid.)
This case turns on the interpretation of Government Code section 65009. Our task in such a case has been explained as follows: “The interpretation of statutes presents questions of law subject to de novo review on appeal. [Citation.] When construing statutes or ascertaining legislative intent, an appellate court is not limited either by the trial court’s interpretation or by the evidence presented on the issue below. [Citation.] [¶] We are guided by the fundamental precept that, when construing a statute, a court strives to ascertain and effectuate the Legislature’s intent. [Citation.] We ascertain intent by looking first to the statutory language, giving it the usual and ordinary meaning, and if the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.] However, where the statutory language is susceptible of more than one reasonable construction, we examine the context and apparent purposes of the statute to aid in ascertaining the legislative intent with the goal of adopting a construction that will effectuate that intent.” (Rankin v. Longs Drug Stores California, Inc. (2009) 169 Cal.App.4th 1246, 1252–1253.)
Government Code section 65009 contains its own express statement of legislative intent: “(a)(1) The Legislature finds and declares that there currently is a housing crisis in California and it is essential to reduce delays and restraints upon expeditiously completing housing projects. [¶] (2) The Legislature further finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division... can prevent the completion of needed developments even though the projects have received required governmental approvals. [¶] (3) The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division.” (Gov. Code, § 65009, subd. (a).)
Thus, “[t]he 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.]... This delay reduction measure was deemed by the Legislature to be ‘essential’ in dealing with the housing crisis in our state.” (Honig v. San FranciscoPlanning Dept. (2005) 127 Cal.App.4th 520, 528.) The express legislative intent of this statute “mandates strict compliance with [its] statute of limitations and service periods.” (Wagner v. City of South Pasadena (2000) 78 Cal.App.4th 943, 950 [holding service of a writ petition on the 91st day after a challenged decision did not meet statutory requirements under the doctrine of substantial compliance].) “ ‘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 [that litigation of the type specified must be resolved expeditiously].’ ” (Ibid., quoting Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1109.)
The operative language of the statute is unequivocal. Government Code section 65009, subdivision (c) provides: “[N]o action or proceeding shall be maintained [to challenge the granting of a conditional use application and other specified decisions]... unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision.” (Italics added.) Subdivision (e) further provides: “Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding.” The statute contains no language authorizing the courts to count the 90-day period from any date other than the effective date of the decision being challenged. In particular, the statute does not contemplate any event or circumstance in which the 90-day limitations period may be tolled or extended for any reason. In our view, the statute’s plain meaning is inconsistent with Ryan’s position that the time to seek court review is extended by the submission of a procedurally defective administrative appeal.
Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis) and Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22 (Hensler) are instructive. In Travis, the California Supreme Court found the 90-day limitations period in Government Code section 65009 begins to run on the date of “ ‘the final adjudicatory administrative decision.’ ” (Travis, at p. 767, quoting Hensler, at p. 22.) Hensler construed an analogous 90-day limitations period for property subdivision approvals found in Government Code section 66499.37. (Hensler, at p. 22.) The court in Hensler held the limitations period for bringing challenges to such decisions ran from the date of the last adjudicatory decision, approving a tentative subdivision map, rather than from the date of the ensuing ministerial act of approving a final map substantially conforming to the tentative map. (Id. at p. 22, fn. 11; see also McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265.)
In this case, the final adjudicatory decision was the decision of the Commission. The act of the clerk of the Board of Supervisors in determining Ryan had failed to perfect his appeal was a purely ministerial decision that, under Travis and Hensler, did not postpone the running of the limitations period for challenging the Commission’s approval of the Project. The motion approving real party’s conditional use application and San Francisco Planning Code section 308.1 are consistent with those Supreme Court decisions. The motion specified its effective date would be the date of the motion if not appealed or the date of the Board of Supervisors’ decision if it was appealed. Section 308.1 provides that actions of the Commission (including the approval of a conditional use application) “shall be subject to appeal to the Board of Supervisors in accordance with this section, ” and actions “so appealed from shall not become effective unless and until approved by the Board of Supervisors in accordance with this Section.” (S.F. Planning Code, § 308.1, subd. (a).) In other words, appeals “in accordance with this Section”— including the 20 percent subscription requirement—would delay the effective date of the decision appealed from until the Board of Supervisors rendered its final adjudicatory decision approving the decision. But the effective date of actions not “so appealed”—either not appealed at all or not appealed in accordance with the section’s requirements—would not be affected by section 308.1 because the final adjudicatory decision concerning them would be that of the Commission, not the Board of Supervisors.
The strict construction we give to the statute does not work an injustice in this case. Ryan had 30 days to file his appeal under San Francisco Planning Code section 308.1, subdivision (b). He filed his appeal on the 29th day, a Friday. His appeal was rejected four business days after its submission. At that point, Ryan still had 54 days left to file a timely mandate petition. On the other hand, adopting Ryan’s interpretation of Government Code section 65009 would allow parties to temporarily stop the running of the 90-day statutory deadline by filing sham or untimely appeals to the Board of Supervisors, frustrating the purpose of the statute to reduce delays and uncertainties in the construction of housing projects.
As for Ryan’s contention the 20 percent subscription requirement in San Francisco Planning Code section 308.1 is arbitrary and unduly onerous, we cannot determine that question in his favor on the limited record before us. There is no evidence in the record to establish that satisfying the requirement is so difficult in practice it amounts to a denial of the right to appeal. Concerned Citizens of Murphys v. Jackson (1977) 72 Cal.App.3d 1021, cited by Ryan, holds only that a local agency providing for appeals of land use decisions as authorized by Government Code section 65903 cannot adopt procedures that completely deny affected property owners the right to appeal from the granting of a conditional use permit. Short of such a drastic limitation, section 65903 must be construed to provide “only a minimum of limitation” over zoning appeal procedures “in order that counties and cities may exercise the maximum degree of control over local zoning matters.” (Gov. Code, § 65800.) In fact, as a charter city that has not adopted the zoning provisions in Government Code section 65800 et seq., San Francisco would not be governed or limited by section 65903 in any event. (Gov. Code, § 65803; Cypress Security, LLC v. City and County of San Francisco (2010) 184 Cal.App.4th 1003, 1011.) We know of no reason why a charter city cannot condition the right to an administrative appeal from the granting of a conditional use permit on a showing of more than de minimus neighborhood concern about the proposed use.
Government Code section 65903 states: “A board of appeals, if one has been created and established by local ordinance, shall hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator, as the case may be. Procedures for such appeals shall be as provided by local ordinance. Such board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as should be made, and such action shall be final.” (Italics added.)
We do not reach CCSF’s further contention that Ryan failed to timely serve his mandate petition even assuming it was timely filed under Government Code section 65009.
We find no error in the dismissal of Ryan’s petition for writ of mandate.
III. DISPOSITION
The judgment of dismissal is affirmed.
We concur: Marchiano, P.J., Banke, J.