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IS IT SAFE TO GO INTO THE WATER YET? OR WHEN IS A LAND USE PROJECT SAFE FROM LEGAL ATTACK?

It’s frequently important to know when a land use project’s approvals are safe from judicial review. Sales often won’t close until the buyer is certain that the project’s approvals won’t be lost and lenders generally won’t lend until they can be certain that the approvals are good. Unfortunately, litigation is an all too often component of the real estate development process in California. Opponents have been presented by the Legislature and the courts with a whole panoply of weapons to attack the approval of a project, the three main ones being the California Environmental Quality Act (“CEQA”), the Planning and Zoning Act and the Subdivision Map Act. However, all of the acts contain statutes of limitations which specify how long an opponent has to start litigation but the time limits and who has to be served differ.

The first thing to know is what level of government is granting the approval and whether it is appealable to a higher level. As an example, many cities and counties will allow a planning commission to approve a tentative subdivision map subject to appeal to the city council or board of supervisors. The appeal must be filed within ten days of the planning commission’s approval of the tentative map. A failure to appeal means that an opponent has failed to exhaust its administrative remedies and is therefore barred from having a court review the approval regardless of the claimed violation of law. The law is similar for conditional use permits and variances which are also generally approved by planning commissions, subject to appeal to the city council or board of supervisors.

Other approvals, such as general plan amendments, rezonings and development agreements, can only be approved by a city council or a board of supervisors. There are no administrative remedies to exhaust because no further appeal is available. The only way to attack these approvals is to file a lawsuit within the time allowed by the appropriate act. For this reason, a transactional document should never condition an action on the time in which to bring an “appeal” has passed without one having been filed when it is the city council or board of supervisors which is the approving entity.

As a general matter, a lawsuit brought claiming a violation of CEQA has to be filed within 30 days if a notice of determination has been filed and posted by the county clerk or 35 days if the project is exempt from CEQA and a notice of exemption has been filed and posted. If the appropriate notice hasn’t been filed and posted, then an opponent has 180 days from the date the approval was granted. This isn’t as bad as it might appear because the shorter limitation periods discussed below will frequently apply.

A lawsuit claiming a violation of the Planning and Zoning Act must generally be filed within 90 days of an approval. In addition, the city council or the board of supervisors must be served with a summons within the same 90-day period. The statute speaks of 90 days after the legislative body’s decision, but some cases have mentioned, in passing, that the 90 days runs from the effective date of an ordinance which adds another 30 days for a total of 120 days.

A lawsuit claiming a violation of the Subdivision Map Act must be filed within 90 days and both the city council or board of supervisors and the subdivider must be served with a summons within 90 days.

As a practical matter, almost any lawsuit challenging a land use approval will contain a cause of action alleging a failure to comply with CEQA. However, even if the lawsuit is filed after the CEQA statute of limitations period has run, it may claim a violation of one of the other acts. This means that missing the CEQA deadline doesn’t mean that a lawsuit claiming a violation of, say, the Subdivision Map Act is barred.

Thus, the bottom line is that virtually any lawsuit attacking a land use approval should be barred if not filed within 90 days and, often, summons served within the same period. To be on the safe side any action which is conditioned on approvals being immune from judicial review should be deferred for 125 days after the approval – 120 days to take the outer limit and five additional days to review court records and determine if a lawsuit has been filed.