Judge Curtis A. Kin, Case Number: 24STCP03393, Date: 2025-02-18 Tentative Ruling

Respondent City of Los Angeles and real party in interest 2323 Scarff LA, LLC demur to the first cause of action for Violation of State Planning and Zoning Law and the second cause of action for Violations of City Municipal Code contained in the Petition for Writ of Mandate.

In a separate motion, real party in interest seeks to strike the third cause of action for Violation of California Environmental Quality Act, or in the alternative, the first sentence of paragraph 68 of the Petition.

This proceeding concerns a five-story affordable housing development with 78 residential dwelling units (“Project”). (Pet. ¶ 1.) The Project is located in south Los Angeles within the University Park Historic Preservation Overlay Zone (“HPOZ”) and the South Community Plan. (Pet. ¶¶ 1, 32, 33.) The Project owner and applicant is real party in interest 2323 Scarff LA, LLC. (Pet. ¶¶ 28, 29.)

Pursuant to a Letter of Compliance (“LOC”), dated July 23, 2024, the Project was approved. (Pet. ¶ 2.) Petitioner alleges that the Project does not comply with the objective standards of the HPOZ, which includes the University Park Preservation Plan. (Pet. ¶¶ 2, 3.) Despite the alleged lack of compliance with the HPOZ, the assigned planner granted HPOZ clearance on September 9, 2024. (Pet. ¶ 4.)

The Project was ministerially approved pursuant to Mayor Karen Bass’ Declaration of Local Emergency concerning homelessness in the City of Los Angeles and Executive Directive 1 (“ED1”). (Pet. ¶ 6.) According to petitioner, ED1 was not ratified by the City Council and therefore had no effect. (Pet. ¶¶ 7, 68.) Even if ED1 was available without Council adoption, petitioner contends that projects that deviate from development standards are not eligible for ministerial approval, including module design, setbacks, massing, scale, and lot coverage. (Pet. ¶¶ 8, 47, 49, 63, 68.) The zone in which the Project would be located has an allowable Floor Area Ratio (“FAR”) of 3:1, but the Project has a FAR of 4.72:1. (Pet. ¶ 9.)

Petitioner also alleges that the City required real party to submit missing information by May 8, 2024 or else the application would expire and have no further effect. (Pet. ¶¶ 14, 15.) The application purportedly was not complete until May 24, 2024, and therefore, contends petitioner, a new application was required. (Pet. ¶ 15.)

The Project is also allegedly subject to the South Community Plan, which governs architectural compatibility and landscaping, with the goal of protecting the historical and architectural character of existing residential neighborhoods. (Pet. ¶¶ 8, 24.) Real party obtained a waiver for 100% of the tree requirements, which petitioner alleges is not justifiable. (Pet. ¶¶ 58, 59.)

For the foregoing reasons, petitioner alleges that the LOC should be rescinded. (Pet. ¶¶ 16, 21.)

Petitioner’s request to take judicial notice of Exhibit I is DENIED as it is not judicially noticeable under Evidence Code § 452. All other requests for judicial notice filed by petitioner and real party are GRANTED. (Evid. Code § 452(b), (c), (d), (h).)

A. The Letter of Compliance is Subject to the 90-Day Statute of Limitations Under Government Code Section § 65009(c)

Respondent and real party demur to the first cause of action for Violation of State Planning and Zoning Law and the second cause of action for Violations of City Municipal Code on the ground that both causes of action are time-barred under Government Code § 65009.[1]

Section 65009 provides, in relevant part: “[N]o 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, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit…(F) Concerning any of the proceedings, acts, or determinations taken, done, or made prior to any of the decisions listed in subparagraph[ ]…(E).” (§ 65009(c)(1).)

It is undisputed that the decision challenged here is the Letter of Compliance issued on July 23, 2024. (Pet. ¶ 1; Resp. RJN Ex. 4.) Petitioner alleges that, due to violations of the South Community Plan, the HPOZ requirements, and the University Park Preservation Plan, the LOC should not have been issued. (Pet. ¶¶ 18, 23, 49, 56-59, 61-63.) The operative Petition was filed on October 21, 2024, which was within 90 days from July 23, 2024. (Resp. RJN Ex. 4.) However, petitioner did not serve the Petition on the City until October 29, 2024 and did not serve the Petition on real party until November 4, 2024. (Resp. RJN Exs. 1, 2.) Such service occurred more than 90 days after the LOC issued on July 23, 2024.

Petitioner contends that the time to serve the Petition under section 65009(c)(1) does not apply to projects that were approved under the Mayor’s ED1. The Court disagrees.

“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.) “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 decisions.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 774.) Section 65009 “was deemed by the legislature to be ‘essential’ in dealing with the housing crisis in our state.” (Honig, 127 Cal.App.4th at 528, citing § 65009(a)(1).)

Under section 65009(c)(1), the 90-day period to file and serve a petition applies to decisions concerning matters listed in section 65901. Section 65901 states: “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 board’s or administrator’s business.” (§ 65901(a), emphasis added.)

The Project at issue here, a density bonus affordable housing project, was approved pursuant to ED1’s ministerial review process. (Resp. RJN Ex. 4.) As part of the approval, as evidenced in the LOC, the Department of City Planning waived maximum controls on density and granted incentives to real party, including a reduction in setbacks required under zoning regulations, an increase in Floor Area Ratio required under zoning regulations, as well as a reduction in the amount of open space and number of trees required under the Los Angeles Municipal Code. (Resp. RJN Ex. 4 at Conditions of Approval, ¶ 7.) Petitioner challenges the Project’s purported lack of compliance with “objective development standards” of the zoning code and the University Park Preservation Plan. (Pet. ¶¶ 10, 35.) Petitioner, in effect, challenges the conditions on which the Project was approved, thereby subjecting petitioner’s challenge to the approval of the Project to the 90-day period set forth in section 65009(c)(1). (Resp. RJN Ex. 4 [Conditions of Approval]; § 65009(c)(1) [90-day statute of limitations applies to challenges to determine legality or validity of conditions attached to permits].)

Under section 65901, as incorporated by section 65009(c)(1), so long as the challenge to a decision concerns the legality or validity of conditions attached to a permit, the 90-day statute of limitations under section 65009(c)(1) applies. The mechanism under which the Project was approved, i.e., ED1, is of no moment. In any event, the Mayor’s authority to issue ED1 was derived from local authority. (Los Angeles Administrative Code 8.29 [Mayor has emergency powers that allow the Mayor to issue directives that are necessary to protect life and property]; Pet. ¶ 5 [Mayor declared emergency “concerning homelessness in the City of Los Angeles”]; Charter § 231(j) [Mayor implements policies through executive directives]; Pet. RJN Ex. 5 [ED1].)

Under ED1, the Mayor ordered all City departments to process 100% affordable housing projects “using the streamlined ministerial review process currently used for projects eligible under Government Code section 65913.4.” (Pet. RJN Ex. 5.) The review process for density bonus projects employed by the Department of City Planning is set forth in LAMC 12.22 A.25. (See LAMC 12.22 A.25(g).) Because local authority granted the Mayor the authority to issue ED1, and ED1 orders City departments—including the zoning administrators within the Department of Planning[2]—to grant ministerial approval to 100% affordable housing projects pursuant to a process codified in LAMC 12.22 A.25, the LOC implicates the zoning administrator’s exercise of powers granted by local ordinance and adoption of “all rules and procedures necessary or convenient for the conduct of the…administrator’s business.” The LOC thus falls within section 65901 and the 90-day statute of limitations under section 65009(c)(1)(E) and (F).

As discussed above, the Petition was served more than 90 days after the LOC was issued. Petitioner’s first and second causes of action are time-barred.

B. Section 65009’s Limitations Period is Based on Issuance of the Letter of Compliance

Attempting to avoid the time bar of section 65009, petitioner argues that the statute of limitations under section 65009(c)(1) was triggered by September 9, 2024—the date that the Project allegedly received HPOZ clearance. (Pet. ¶ 4.) Petitioner’s assertion is unavailing.

The Petition explicitly and unequivocally alleges: “This action challenges the City of Los Angeles’… issuance of a Letter of Compliance…for a new five-story, 58 foot and 7-inch-tall residential development with 78 residential dwelling units…located in south Los Angeles….” (Pet. ¶ 1.) Petitioner seeks rescission of the LOC throughout the Petition. (Pet. ¶¶ 14, 21, 23, 26, 49, 62.) Petitioner never alleges the HPOZ clearance as the source of her grievance. Even though the later-issued HPOZ clearance was part of the approvals of the Project, section 65009’s express intent of reducing delays for housing projects is effectuated by having the 90-day time limit “run[ ] from the earliest date the action could be brought.” (Travis, 33 Cal.4th at 775.) Here, such “earliest date” is the date the LOC was issued, whereby the Project was approved. Accordingly, petitioner’s assertion that the 90-day time limit runs from the date of HPOZ clearance must be rejected.

C. The City is Not Equitably Estopped from Asserting the Statute of Limitations Under Section 65009

Petitioner also argues that, based on language in the LOC, the City is equitably estopped from claiming that the action is time-barred.

“‘A defendant will be estopped to assert the statute of limitations if the defendant's conduct, relied on by the plaintiff, has induced the plaintiff to postpone filing the legal action until after the statute has run. [Citation.]’ The elements of equitable estoppel are: (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the party asserting the estoppel must reasonably rely on the conduct to his or her injury.” (Honig, 127 Cal.App.4th at 529.)

The portion of the LOC upon which petitioner relies in making her estoppel claim states:

The time in which a party may seek judicial review of this determination is governed by California Code of Civil Procedures Section 1094.6. Under that provision, a petitioner may seek judicial review of any decision of the City pursuant to California Code of Civil Procedure Section 1094.5, only if the petition for writ of mandate pursuant to that section is filed no later than the 90th day following the date on which the City's decision becomes final.

(Resp. RJN Ex. 4 at 12.) Petitioner faults the City for not having notified her that additional statute of limitations requirements might apply, pointing out that, in a separate Letter of Determination, the City had stated “[t]here may be other time limits which also affect your ability to seek judicial review.” (Pet. RJN Ex. F at 2.)

Petitioner’s claim of estoppel fails. To begin with, petitioner cites no authority for the proposition that the City was under any obligation to inform her of any and all applicable statutes of limitations. Indeed, the opposite appears to be true. (See May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1338 [“a party’s . . . failure to remind the other party about a statute of limitations cannot give rise to an estoppel”].)

In any event, the LOC was not misleading, and petitioner’s claimed reliance upon its language was not reasonable. The LOC references CCP § 1094.6, which states in subsection (b) that “[a]ny such petition shall be filed not later than the 90th day following the date on which the decision becomes final.” (CCP § 1094.6(b).) The LOC recounts the 90-day time limit for filing in subsection (b) but makes clear that judicial review of LOC “is governed by California Code of Civil Procedure Section 1094.6.” Code of Civil Procedure section 1904.6 also contains subsection (g), which states: “This section shall prevail over any conflicting provision in any otherwise applicable law relating to the subject matter, unless the conflicting provision is a state or federal law which provides a shorter statute of limitations, in which case the shorter statute of limitations shall apply.” (CCP § 1904.6(g).) Thus, section 1904.6 makes clear there may be other applicable statutes of limitations, including, as relevant here, Government Code section 65009(c)(1), which sets forth the 90-day statute of limitations with respect to when the petition must be served.

Petitioner’s requests to take judicial notice of Exhibits 1, 7, and 8 are DENIED as irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [“Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed”].) All other requests for judicial notice filed by petitioner and real party are GRANTED. (Evid. Code § 452(b), (c), (d), (h).)

Citing CCP § 425.19, real party moves to strike the third cause of action for Violation of California Environmental Quality Act (“CEQA”) in its entirety. Real party argues that, because the Project was subject to ministerial review under ED1, the Project was exempt from CEQA review. (14 C.C.R. § 15268(a).) In the alternative, real party seeks to strike the sentence “For the reasons set forth above, the Project does not qualify for ministerial ED 1 approval” from paragraph 68 of the Petition.

CCP § 425.19 states: “In all civil actions brought by any plaintiff to challenge the approval or permitting of a priority housing development project, including, but not limited to, actions brought pursuant to Section 21167 of the Public Resources Code, a defendant may bring a special motion to strike the whole or any part of a pleading. The court shall deny the motion to strike if it determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (CCP § 425.19(b)(1)(A) [emphasis added].) “Priority housing development” is defined as “a development in which 100 percent of the units, exclusive of any manager’s unit or units, will be reserved for lower income households, as defined in Section 50079.5 of the Health and Safety Code, for at least 55 years.” (CCP § 425.19(c).)

Real party does not meet its threshold burden to demonstrate that the Project at issue was a “priority housing development,” as defined in CCP § 425.19. The judicially noticed LOC states that the Project was a “100% Affordable Housing Development (as defined in CA Govt. Code Section 65915(b)(1)(G)), for a project totaling 78 dwelling units, reserving one (1) Manger’s Unit, 61 units for Low Income, and 16 units for Moderate Income household occupancy for a period of 55 years.” (Resp. RJN Ex. 4.) Section 65915(b)(1)(G), part of the Density Bonus Law, defines an affordable housing development as one where:

[o]ne hundred percent of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code.

Thus, according to the terms of the LOC, which adopts section 65915(b)(1)(G)’s definition of affordable housing development, the Project permits an 80-20 ratio of lower income household units to moderate income household units.

By contrast, the definition of “priority housing development” does not allow any units to be designated for moderate income households. All units, except for the manager’s unit, must be reserved for lower income households. Because some of the units in the Project are reserved for moderate income households, the Project is not a priority housing development as defined in CCP § 425.19. Accordingly, whatever the merits of real parties’ contentions that petitioner’s CEQA cause of action cannot go forward, a CCP § 425.19 special motion to strike is not an unavailable vehicle for such contentions to be heard.

The Demurrer to the first and second cause of action is SUSTAINED. The Court will hear from petitioner as to whether there is any reasonable possibility that the defects identified here might be cured through amendment.

[1] All statutory references are to the Government Code, unless otherwise stated.

[2] According to the LAMC General Planning Department Information, the Office of Zoning Administration is one of the divisions overseen by the Director of Planning, the chief administrative officer of the City Planning Department. The Office of Zoning Information is responsible for “investigating and making determinations on all applications for variances from zoning ordinances, many conditional uses and other special zoning permits.”