Challenging a Decision of a City and County After 90 Days

Government Code section 65009, subdivision (c)(1) states that no action may be maintained "unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision." Thus, the plain language of the statute indicates that service must occur within 90 days. Indeed, the statute itself declares that time is of the essence, and certainty in development projects is crucial. Section 65009, subdivision (a) states, in part: "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 . . . pursuant to this division, including, but not limited to, the implementation of general plan goals and policies that provide incentives for affordable housing, open-space and recreational opportunities, and other related public benefits, can prevent the completion of needed developments even though the projects have received required governmental approvals. The purpose of this section is to provide certainty for property owners and local governments regarding decisions made pursuant to this division." Therefore, the legislative intent "is to establish a short limitations period in order to give governmental zoning decisions certainty, permitting them to take effect quickly and giving property owners the necessary confidence to proceed with approved projects." ( Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal. App. 4th 888, 893 [70 Cal. Rptr. 2d 700].) "Indeed, in 1983 the Legislature chose to shorten the limitation period of former [Government Code] section 65907 from 180 days to 90 days." (60 Cal. App. 4th at p. 893, original italics.) Notice service does not achieve the ends of certainty and promptitude, since under Code of Civil Procedure section 1013, subdivision (a), service may be extended by five days for mailing or 10 days if the place of address is outside the State of California but within the United States.