Tag: land use planning

SECOND DISTRICT HOLDS 90-DAY LIMITATIONS PERIOD FOR ACTIONS TO “ATTACK, REVIEW, SET ASIDE, VOID, OR ANNUL” LAND USE DECISIONS, RATHER THAN 4-YEAR PERIOD PROVIDED BY POLITICAL REFORM ACT, APPLIED TO ACTION CHALLENGING ALLEGEDLY CORRUPT PERMITTING DECISIONS

General Posted by   

In AIDS Healthcare Foundation v. City of Los Angeles (2022) 86 Cal.App.5th 322, the Second District Court of Appeal held that the 90-day statute of limitations in Government Code section 65009, for actions to “attack, review, set aside, void, or annul” certain land use decisions, barred challenges to land use decisions made by City officials alleged to be involved in an extensive bribery scheme.

Background

The Los Angeles City Council planning and land use management (PLUM) committee has various roles, including reviewing and recommending proposed real estate development projects. In 2020, one former member of the PLUM committee was arrested, and another was indicted, for allegedly accepting bribes and engaging in other corrupt behaviors in relation to PLUM committee work. Both members left the PLUM committee in the fall of 2018.

In August 2020, AIDS Healthcare Foundation (AHF) filed suit against the City, alleging that an “ongoing corruption scandal regarding the approval of real estate projects” violated the Political Reform Act of 1974 (PRA or Act). AHF sought an order restraining all building permits granted by the City while the corrupt former members served on the PLUM committee, as well as an order restraining the City from supporting any of the affected projects with taxpayer money.

The City demurred to AHF’s complaint, arguing that the claims were time-barred. The superior court sustained the demurrer, concluding that the action had not been brought within the applicable 90-day statute of limitations. AHF appealed.

Court of Appeal’s Decision

Applicable Statute of Limitations

In the trial court, AHF argued that the PRA provided the applicable statute of limitations. The PRA permits suits for injunctive relief where public officials are alleged to have used their official position to influence government actions for their own personal financial interests. Relevant here, the PRA permits courts to set aside official actions tainted by violations of the Act. The PRA includes a four-year statute of limitations for civil actions brought under the Act.

On appeal, AHF argued instead that the three-year “catch-all” statute of limitations for statutorily-created liability in Code of Civil Procedure section 338, subdivision (a) applied to the action. The City consistently argued that the 90-day limitations period provided by Government Code section 65009 for actions “to attack, review, set aside, void, or annul” various land use and zoning decisions applied to the action.

The Second District agreed with the City that the 90-day statute of limitations barred the action. Citing Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888 (Ching), which addressed a similar question, the court reasoned that the plain language of section 65009 encompassed AHF’s action. The Ching court noted that section 65009 had no exceptions for actions brought under the PRA. Additionally, the Ching court explained that “specific statutes control general ones” and thus held that the more specific 90-day statute of limitations in section 65009 applied to the type of challenge at issue, rather than the general limitations period provided by the PRA. After reviewing Ching and other similar opinions, the court concluded that section 65009 provided the applicable limitations period for AHF’s action.

Gravamen of the Complaint

Seeking to avoid the 90-day limitations period, AHF argued that the gravamen of its action was a challenge to corruption by City officials, even if the ultimate relief sought was the invalidation of improperly-issued permits.

The court rejected AHF’s argument, explaining that AHF could not escape the short limitations period by characterizing its claim as “necessarily dependent on a finding of a violation of the PRA,” rather than a challenge of project approvals by the PLUM committee.

Constitutional Considerations

Acknowledging that the California Constitution generally limits the Legislature’s power to amend or repeal initiative statutes, the court nevertheless rejected AHF’s argument that applying the limitations period in section 65009 to the action constituted “an unconstitutional legislative amendment to a duly-enacted voter initiative” for several reasons.

First, the court noted that the PRA contained express provisions allowing amendments to the Act by the Legislature, and that AHF failed to address these provisions in its briefing. Second, recognizing that the limitations period in section 65009 pre-dated the PRA by almost 10 years, the court remarked that the Legislature could not have intended to limit or amend the PRA in enacting section 65009. Third, the court explained that the four-year limitations period in the PRA was added by a later legislative amendment, not by voter initiative. Thus, the limitations period in the PRA was not enacted by voter initiative, as AHF claimed. Finally, even if the electorate had enacted the PRA’s four-year limitations period through an initiative, the court reasoned that the electorate did nothing to expressly abrogate other existing and potentially applicable statutes of limitations when it passed the PRA. For these reasons, the court held that the application of the pre-existing 90-day limitations period provided in section 65009 to the PRA action did not conflict with or amend the original PRA.

Policy Arguments

While AHF urged that important policy reasons justified the application of a longer limitations period to “discover and ferret out corruption,” the court declined to consider the policy goals underlying both the PRA and section 65009. The court explained that the statutory language of 65009 contained no ambiguity, and thus, it was required to apply the 90-day limitations period contained therein to AHF’s action.

— Louisa Rogers

SECOND DISTRICT FINDS LOS ANGELES’S 15 PERCENT AFFORDABLE HOUSING SET-ASIDE INOPERATIVE

General Posted by   

In AIDS Healthcare Foundation v. City of Los Angeles (2022) 78 Cal.App.5th 167, the Second District Court of Appeal rejected claims challenging the City of Los Angeles’s decision to approve the development of a large mixed-use apartment building in Hollywood. The court upheld the decision of the Superior Court, finding that a 15 percent low income set-aside requirement had been voided by 2011 legislation and, even if it had not, the set-aside requirement applied only to the aggregate amount of dwelling units within a planning area, not to individual projects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, the (now dissolved) Community Redevelopment Agency of the City of Los Angeles (CRA-LA) established the “Hollywood Redevelopment Plan” (HRP) in accordance with the City of Los Angeles’s (City’s) “Community Redevelopment Law” (CRL). Both the HRP and CRL included a requirement that at least 15 percent of all new and rehabilitated dwelling units within a total project area be reserved for families of “low or moderate income.” However, the local redevelopment agencies charged with preparing and executing these plans had no power to tax, and instead funded their activities using “tax increment” financing.

Under this financing scheme, public entities that were entitled to receive property tax revenue received such revenues from properties within the planning area based on their assessed value prior to the effective date of the applicable redevelopment plan. Any tax revenue received in excess of that amount was a “tax increment.” However, in 2011, the Legislature enacted the “Dissolution Law,” which dissolved redevelopment agencies and repealed any provisions of the CRL that depended upon tax increment financing. “Successor agencies” acquired the former redevelopment agencies’ “housing functions and assets,” but were to have no “legal authority to participate in redevelopment activities, except to complete any work related to an approved enforceable obligation.”

In January 2019, the City’s Advisory Agency approved a tentative tract map for a 26-story mixed-use building on a 0.89-acre plot within the HRP planning area (developed by 6400 Sunset, LLC, the real party in interest). The project involves approximately 200 dwelling units, of which 5 percent will be reserved for “very low income households.” Coalition to Preserve LA (CPLA) appealed the Advisory Agency’s approval to the City Planning Commission, arguing that a reservation of only 5 percent of units for affordable housing would violate the CRL/HRP requirement of 15 percent. The Planning Commission denied CPLA’s appeal in March 2019. CPLA’s appeal of that decision, to the City Council’s Planning and Land Use Management Committee, was also denied in June 2019.

In July 2019, CPLA (joined by AIDS Healthcare Foundation) filed a petition for writ of mandate. The superior court denied the petition on the grounds that the pertinent provisions of the CRL had been repealed and, even under the CRL’s language, the 15 percent requirement “need not be imposed on each individual project,” but only to buildings within the planning area “in the aggregate.” CPLA and AIDS Healthcare Foundation timely appealed.

THE COURT OF APPEAL’S DECISION

The Court of Appeal agreed with the superior court on both counts, holding that the Dissolution Law had effectively repealed the 15 percent requirement and that, even if it had not, the requirement applied to the number of dwelling units within the CRL planning area as a whole—not individual projects.

Under the Dissolution Law, “all provisions of the [CRL] that depend on the allocation of tax increment to redevelopment agencies . . . shall be inoperative.” The court agreed that because enforcement of the 15 percent requirement depended upon redevelopment agencies, and redevelopment agencies in turn depended upon the funds supplied by the tax increment, this requirement was also rendered inoperative. The appellants countered that redevelopment agencies could raise funds by issuing bonds, but the court reasoned that “bonds . . . have to be repaid, and the former agencies repaid the bonds, generally, from the same source of funds used to pay other obligations—from the tax increment.”

The appellants also argued that the 15 percent requirement was an “enforceable obligation” under the Dissolution Law, which the successor agency (here, the City) was required to perform. The court, however, found that such obligations related only to “monetary and existing contractual obligations,” not to statutory affordable housing requirements. The appellants countered that the City, as the former CRA-LA’s successor agency, is not limited to the statutory powers enumerated under the CRL and, therefore, the 15 percent requirement could be enforced under the City’s “inherent police power.” The court remained unpersuaded. Even assuming that the City is CRA-LA’s successor agency, the Dissolution Law did not grant the successor any powers that the former redevelopment agency did not have (such as general police powers).

The court also rejected appellants’ argument that, even if the Dissolution Law rendered the CRL’s 15 percent requirement inoperative, the HRP’s own 15 percent requirement remained intact. According to the court, the HRP and its powers applied only to CRA-LA (not the City), and that agency was dissolved by the Dissolution Law.

Finally, beyond the nullifying effects of the Dissolution Law, the court held that under the plain language of both the CRL and HRP, the 15 percent requirement would apply only “in the aggregate,” and “not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” Because CRA-LA never determined otherwise, individual projects were not subject to a strict 15 percent minimum.

 —Griffin Williams