Filed 2/24/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COASTAL ACT PROTECTORS, B308306
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
20STCP00630)
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Gaines & Stacey, Fred Gaines and Alicia B. Bartley for
Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Terry Kaufmann Macias,
Assistant City Attorney, Amy Brothers and Patrick Hagan,
Deputy City Attorneys for Defendant and Respondent.
_______________________________________
INTRODUCTION
The California Coastal Act of 1976 (Pub. Resources Code,
§ 30000 et seq.; Coastal Act) provides a “comprehensive scheme to
govern land use planning for the entire coastal zone of
California.” (Pacific Palisades Bowl Mobile Estates, LLC v. City of
Los Angeles (2012) 55 Cal.4th 783, 793.) One of its goals is to
“[m]aximize public access to” the beach. (Pub. Resources Code,
§ 30001.5, subd. (c).) To that end, the Coastal Act requires a
coastal development permit (CDP) for any “development”
resulting in a change in the intensity of use of, or access to, land
or water in a coastal zone. (Id., §§ 30600, subd. (a), 30106.)
On December 11, 2018, the City of Los Angeles (the City)
adopted the Home Sharing Ordinance No. 185,931 (Ordinance),
which imposes certain restrictions on short-term vacation
rentals, and provides mechanisms to enforce those restrictions. In
February 2020, appellant Coastal Act Protectors (CAP) sought a
writ of mandate to enjoin enforcement of the Ordinance in the
Venice coastal zone until the City obtains a CDP. CAP claims the
Ordinance constituted a “development” under the Coastal Act;
therefore, CAP contends, the City acted illegally in failing to
obtain a CDP before implementing the Ordinance in the Venice
coastal zone.
The trial court denied CAP’s petition for writ of mandate on
two independent grounds: (1) the petition was time-barred by the
90-day statute of limitations in Government Code section 65009,
and (2) the Ordinance does not create a change in intensity of use
and, therefore, is not a “development” requiring a CDP.
As discussed below, we agree with the trial court’s holding
that the 90-day statute of limitations in Government Code section
65009 subdivision (c)(1)(B) applies, and not, as CAP contends, the
2
three-year statute of limitations in Code of Civil Procedure
section 338(a). Because this conclusion is dispositive of the
matter, we need not decide whether the Ordinance constitutes a
“development” subject to the CDP requirements of the Coastal
Act.
FACTUAL AND PROCEDURAL BACKGROUND1
Short term rental activity (i.e., transient stays of 30 days or
less) in the City began accelerating in about 2013 or 2014 due to
the proliferation of internet sites, such as Airbnb and VRBO,
which allow individuals and/or companies to advertise short term
rentals to a large audience.
In June 2015, the Los Angeles City Council adopted a
motion directing the Department of City Planning (the Planning
Department) to prepare and present an ordinance governing
short term rentals in Los Angeles. The motion referenced the City
Council’s desire to allow residents to share their homes with
guests, while prohibiting wholesale conversions of residential
buildings to vacation rentals, which “significantly reduc[es]
rental stock and contribut[es] to increased rents and decreased
affordable housing.” After a multi-year legislative process,
including approximately 10 public hearings, the City Council
adopted the Ordinance on December 11, 2018. On December 17,
2018, the Mayor approved the Ordinance.
Before the Ordinance went into effect, the Planning
Department entered into a contract, effective April 16, 2019, with
Host Compliance, a company that develops online registration
1 Except for background facts included for context, we limit
our recitation of the facts to those relevant to the statute of
limitations issue.
3
systems for short term rental activity, and monitors internet
advertising of short-term rentals for cities throughout the
country. The City Council and the Mayor approved the Planning
Department’s supplemental budget request for approximately
$485,609 to cover Host Compliance’s charges for building an
online registration system for Los Angeles from April 16, 2019, to
June 30, 2019. By July 1, 2019 (the effective date of the
Ordinance), the City was accepting applications from residents
who wanted to participate in home sharing.
The City Council and Mayor also approved $1,456,825 for
the Planning Department to fund the City’s contract with Host
Compliance from July 1, 2019, to June 30, 2020, to maintain the
online registration system, and to begin monitoring the internet
for short term rental advertising in violation of the Ordinance.
In November 2019, the City began enforcing the Ordinance,
sending out warning letters to those suspected of advertising
short term rentals without including the required associated
registration number in the advertisement.
On February 13, 2020, over a year after the City adopted
the Ordinance, CAP filed a petition for writ of mandate and
complaint for declaratory and injunctive relief. The petition
alleged the Ordinance constitutes “development” as defined by
the Coastal Act, and therefore, the City had a “clear legal duty
imposed by statute [citation] to submit an application for a CDP
to the Coastal Commission in order to obtain approval of
the . . . Ordinance.” Because the City did not obtain a CDP before
adopting the Ordinance, CAP sought “a writ of mandate to
invalidate the . . .Ordinance as it applies to the Venice Coastal
Zone.”
4
After considering the evidence and hearing oral argument,
the trial court issued its statement of decision. It concluded the
90-day statute of limitations in Government Code section 65009
subdivision (c)(1)(B) applied, and the petition was untimely. 2 It
reasoned that the City’s purported duty to obtain a CDP was a
procedural task to perform in enacting a lawful Ordinance;
therefore, CAP’s petition challenging the City’s failure to obtain a
CDP constituted an action to “attack, review, set aside void, or
annual” the decision of the City to adopt the Ordinance, bringing
it within the ambit of Government Code section 65009
subdivision (c)(1)(B). The trial court went on to address the
merits of the petition, stating: “If arguendo, the court is wrong,
and [Code of Civil Procedure] section 338(a)’s three-year
limitations period applies, the court will address the merits of
CAP’s claim.”3 It concluded the Ordinance is not a “development”
under the Coastal Act for which the City needed a CDP because
the Ordinance “affects only the permissible use of property for
short-term rentals; the site-specific owner of the property
2 Government Code section 65009, subdivision (c)(1)(B)
states, in relevant part (including the introductory text of
subdivision (c)(1)): “[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:
[¶] . . . [¶] (B) To attack, review, set aside, void, or annul the
decision of a legislative body to adopt or amend a zoning
ordinance.”
3 Code of Civil Procedure section 338, subdivision (a) states
“[a]n action upon a liability created by statute, other than a
penalty or forfeiture” must be brought “[w]ithin three years.”
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actually changes the use . . . . [T]he ordinance itself is not a
change in the intensity of use under the Coastal Act and does not
require a CDP.”
The trial court entered judgment in favor of the City. CAP
timely appeals from the judgment.
DISCUSSION
CAP contends the trial court erred in concluding its action
was time-barred by Government Code section 65009, subd.
(c)(1)(B) (hereafter section 65009(c)(1)(B)) because the City’s
purported failure to comply with the Coastal Act is “not an
‘action’ or ‘decision’ contemplated by [section 65009].” CAP argues
this action is instead subject to the three-year statute of
limitations in Code of Civil Procedure section 338, subdivision (a)
(hereafter section 338(a)) for actions “upon a liability created by
statute.” “‘The determination of the statute of limitations
applicable to a cause of action is a question of law we review
independently.’” (Stockton Citizens for Sensible Planning v. City
of Stockton (2012) 210 Cal.App.4th 1484, 1491.)
Government Code section 65009 “is intended ‘to provide
certainty for property owners and local governments regarding
decisions made pursuant to this division’ (§ 65009, subd. (a)(3))
and thus to alleviate the ‘chilling effect on the confidence with
which property owners and local government can proceed with
projects’ (id., subd. (a)(2)) created by potential legal challenges to
local planning and zoning decisions.” (Travis v. County of Santa
Cruz (2004) 33 Cal.4th 757, 765 (Travis).) “To this end, section
65009 establishes a short statute of limitations, 90 days,
applicable to actions challenging several types of local planning
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and zoning decisions” including, as relevant here, the adoption of
a zoning ordinance. (Ibid.)4
It is undisputed that CAP filed this action more than 90
days after the City’s adoption of the Ordinance. CAP argues its
petition is nevertheless timely under the three-year statute of
limitations in section 338(a). We disagree.
Our Supreme Court’s holding in Travis is instructive.
There, plaintiffs “contend[ed] the 90-day limitation prescribed by
section 65009, subdivision (c)(1)(B) does not apply to their
preemption claim because their challenge is not to the Board’s
decisions to ‘adopt or amend’ the Ordinance, but to the Board’s
failure to repeal or amend the Ordinance and its continued
enforcement despite having been preempted by [a later enacted
statute].” (Travis, supra, 33 Cal.4th at p. 771.) The Travis court
agreed with plaintiffs, reasoning: Plaintiffs’ “challenge to the
Ordinance, to the extent it is based on preemption by later
enacted state statutes . . . is subject to the three-year limit
of Code of Civil Procedure section 338 rather than the 90-day
limit of Government Code section 65009. Plaintiffs, in claiming
the County has breached a duty to bring its zoning code into
compliance with later enacted state law, are not complaining of
the Ordinance’s adoption but of the Board’s failure, since the
enactment of [new state laws], to repeal the Ordinance or amend
it to conform to state law. To this extent, therefore, the action is
not one to “attack, review, set aside, void, or annul the decision of
a legislative body to adopt … a zoning ordinance.” (Id. at p. 772.)
4 In the trial court and in their briefs on appeal, the parties
assume the Ordinance is a zoning ordinance. CAP has therefore
forfeited any argument to the contrary. (Foxen v. Carpenter
(2016) 6 Cal.App.5th 284, 295.)
7
The Travis court further explained: “[A] challenge to the
Ordinance based on its conflict with state laws passed in 1984
and 1995 could not have been brought within 90 days of the
Ordinance’s 1982 effective date. [Citation.] Section 65009 was
intended to require prompt challenges to zoning ordinances, but
not to demand the impossible.” (Id. at p. 773.) “Lest [its] holding
be misunderstood[,]” the Travis court “emphasize[d] it applies
only to claims of preemption by statutes enacted after the
Ordinance's adoption, and not to statutory or constitutional
provisions already in force at the time the Ordinance was
adopted.” (Id. at p. 772, fn. 9.)
Applying the holding in Travis, the Court of Appeal in
Urban Habitat Program v. City of Pleasanton (2008) 164
Cal.App.4th 1561, 1575-1578 (Urban Habitat), held certain
causes of action in the complaint were subject to the three-year
statute of limitations set forth in section 338(a), not section
65009. In Urban Habitat, housing nonprofit Urban Habitat
alleged the City of Pleasanton failed to comply with state laws
requiring it to allocate a specified portion of new housing units
for low-, very-low-, and moderate-income populations. (Urban
Habitat, supra, 164 Cal.App.4th at pp. 1567-1569.) The trial
court sustained the City of Pleasanton’s demurrer on the ground
that Urban Habitat’s causes of action were time-barred under
section 65009(c)(1). (Urban Habitat, at p. 1570.) The Court of
Appeal reversed on the first through fourth causes of action,
which alleged the city failed to meet housing obligations that
arose after the city adopted its zoning ordinances. (Id. at pp.
1575-1578.) Thus, based on Travis, those causes of action were
subject to the three-year limit in section 338(a). (Urban Habitat,
at pp. 1575-1578.)
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Unlike the situations in Travis and Urban Habitat,
requiring CAP to bring its action against the City within 90 days
of the adoption of the Ordinance would not “demand the
impossible.” (See Travis, supra, 33 Cal.4th at p. 773.) The Coastal
Act, including its CDP requirements, predates the Ordinance.
Thus, even assuming the City had a mandatory duty to obtain a
CDP for application of the Ordinance to residences in the Venice
coastal zone, as CAP contends, that duty existed at the time the
City enacted the Ordinance. CAP’s petition, therefore, is an
action to “attack, review, set aside, void, or annul” the City’s
decision to adopt a zoning ordinance applicable to the Venice
coastal zone without first obtaining a CDP. (See section
65009(c)(1)(B).)
In 1305 Ingraham, LLC v. City of Los Angeles (2019) 32
Cal.App.5th 1253 (1305 Ingraham), a different panel of this court
likewise distinguished Urban Habitat. In 1305 Ingraham, the
petitioner filed an administrative appeal challenging the city’s
project permit compliance review in connection with the
development of a mixed-use commercial and affordable housing
project. (1305 Ingraham, supra, 32 Cal.App.5th at p. 1255.) The
city scheduled but never held a hearing on the appeal. (Ibid.) A
few days after the scheduled hearing day, the city approved the
project. (Ibid.) Nine months later, the petitioner filed a petition
for writ of mandate alleging “the city’s failure to hold a hearing
on its [administrative] appeal violated a Los Angeles Municipal
Code provision requiring the area planning commission to hold a
hearing prior to deciding an appeal.” (Ibid.) Relying in part on
Urban Habitat, the petitioner argued section 338(a) should apply
to its petition. (1305 Ingraham, supra, at p. 1265.) The panel
distinguished Urban Habitat as a case concerning “a city’s
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alleged failure to comply with a law requiring the city to enact
zoning regulations by a deadline set several years out; it did not
arise in the context of a specific project or discrete permitting
decision within the scope of section 65009(c)(1). Thus, the more
general three-year statute of limitations applied. Here, the city’s
alleged failure to comply with a statute arose within the context
of its approval of an affordable housing project.” (1305 Ingraham,
supra, at p. 1266.) The panel further explained that “[e]ven
if section 338(a) is applicable in a broad sense, “‘a specific statute
of limitations takes precedence over a general one, even though
the latter “‘would be broad enough to include the subject to which
the more particular provision relates.’”’”” (Ibid.)
In this case, as in 1305 Ingraham, the City’s alleged failure
to comply with its duty to obtain a CDP arose at the time it
adopted the Ordinance, not “several years out.” (1305, supra, 32
Cal.App.5th at p. 1255.) CAP waited over a year, however, to file
its suit seeking to “attack, review, set aside, void and/or annul”
the City’s adoption of the Ordinance without first obtaining a
CDP. (§ 65009(c)(1)(B).) We therefore conclude section 65009’s 90-
day limitation period applies, and the petition is untimely.
Our conclusion comports with the Legislature’s stated
intent to “provide certainty for property owners and local
governments regarding” local zoning and planning
decisions. (§ 65009, subd. (a)(3).) As discussed above, after
allowing for the 90-day period for challenges to the Ordinance,
the City expended significant resources to implement and enforce
the Ordinance, including $485,609 for Host Compliance to build
an online registration system, and approximately $1.4 million for
a one-year monitoring of the system.
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DISPOSITION
The judgment is affirmed. The City is awarded its costs on
appeal.
CERTIFIED FOR PUBLICATION
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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