Statute of Limitations Claim to Amend a Zoning Ordinance
The statute of limitations applicable to this lawsuit is 90 days, pursuant to former Government Code section 65009, subdivision (c)(2) (now id., subd. (c)(1)(B)), which provides that an action "To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance" must be brought within 90 days "after the legislative body's decision."
The 90-day period commences on the date the ordinance becomes effective. (Hensler v. City of Glendale (1994) 8 Cal. 4th 1, 22 32 Cal. Rptr. 2d 244, 876 P.2d 1043).
In the present case, the action seeks to void an ordinance that amended the City's zoning code. Therefore, the action had to be brought within 90 days of the Ordinance's effective date.
Its effective date was January 4, 1997, and the deadline for bringing suit was thus April 4, 1997. Since the Association waited until October 24, 1997, 293 days after the effective date of the Ordinance, to file this challenge to its legality, the suit is time-barred under the 90-day statute of limitations period.
The Association urges the 90-day statute of limitations period should not apply because it does not directly challenge the Ordinance and does not seek to void it. However, this assertion is belied by the Association's complaint, which specifically seeks to declare the Ordinance "illegal" and "invalid" and to enjoin its enforcement.
The Association also urges that the general three-year limitations period ( Code Civ. Proc., 338, subd. (a)), applicable by its terms to actions "upon a liability created by statute," applies here. However, as explained in Trend Homes, Inc. v. Central Unified School Dist. (1990) 220 Cal. App. 3d 102 269 Cal. Rptr. 349, the shortened limitations period applies where, as in the present case, the lawsuit claims that a zoning ordinance violates a constitutional spending limitation.
In Trend Homes, the court applied a 120-day limitations period (former Gov. Code, 54995, repealed by Stats. 1990, ch. 1572, 4, p. 7494), then applicable to land use and zoning actions, to a lawsuit alleging that a zoning ordinance imposing a fee violated Proposition 13.
The court expressly found the shortened limitations period applicable was a direct response to Proposition 13.
The shortened limitations period " 'represented a legislative recognition that the planning requirements of financially constrained local agencies in post-Proposition 13 California necessitate a relatively short statute of limitations so that local agencies will be promptly informed of any challenges to their ability to collect fees and spend the revenues thereby generated.' " ( Trend Homes, Inc. v. Central Unified School Dist., supra, 220 Cal. App. 3d at p. 109.)
Likewise, contrary to the Association's argument, the alleged violation of the constitutional spending limitations in Proposition 218 does not preclude application of the shortened 90-day limitations period of former Government Code section 65009, subdivision (c)(2) (now id., subd. (c)(1)(B)).
The "relatively short limitations periods" applicable to actions challenging zoning provisions "is to permit and promote sound fiscal planning by state and local governmental entities." ( Hensler v. City of Glendale, supra, 8 Cal. 4th at p. 27).
If the Association were permitted to wait three years before suing and then seek a three-year refund of fees and business taxes paid by all persons operating businesses out of their residences, the City's ability to plan fiscally would be improperly compromised.
Moreover, it is well settled that where, as here, a specific limitations period applies, the more general period codified in Code of Civil Procedure section 338 is inapplicable.
"A specific limitations provision prevails over a more general provision." ( Creditors Collection Service v. Castaldi (1995) 38 Cal. App. 4th 1039, 1043 45 Cal. Rptr. 2d 511).
Where a specific shortened limitations period applies, the general limitations period of section 338 does not apply, since "general statutes of limitation 'are applicable only if no "different limitation is prescribed by statute." ' " ( People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal. App. 4th 233, 246-247 55 Cal. Rptr. 2d 610).
Accordingly, the lawsuit is barred by the 90-day statute of limitations in former Government Code section 65009, subdivision (c)(2) (now id., subd. (c)(1)(B)), and summary judgment was properly granted.
In view of the statute of limitations bar, it is unnecessary to address a second allegedly fatal procedural defect. We need not discuss the failure to raise the Ordinance's claimed violation of Proposition 218 at public hearings prior to its enactment, as required by statute (Gov. Code, 65009, subd. (b)(1)), and whether the required public notice given by the City was adequate to apprise the Association of the problem it perceived with the Ordinance.