Trees v. City of Lafayette

239 Cal. Rptr. 3d 222
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 23, 2018
DocketA154168
StatusPublished
Cited by1 cases

This text of 239 Cal. Rptr. 3d 222 (Trees v. City of Lafayette) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trees v. City of Lafayette, 239 Cal. Rptr. 3d 222 (Cal. Ct. App. 2018).

Opinion

Pollak, J.

*224Petitioners Save Lafayette Trees, Michael Dawson and David Kosters (collectively Save Lafayette Trees) appeal an order sustaining without leave to amend a demurrer to their petition for writ of mandate challenging the City of Lafayette's (city) approval of a Letter of Agreement for Tree Removal (agreement) with real party in interest Pacific Gas and Electric Company (PG&E). Save Lafayette Trees contends the trial court erred in concluding that service of its petition for a writ of mandate was untimely under Government Code 1 section 65009. While we agree with the trial court that the claims asserted under the planning and zoning law (§ 65000 et seq.), the city's general plan, and the city's tree protection ordinance (Lafayette Mun. Code, § 6-1701 et seq. (tree ordinance) ) are barred by section 65009, subdivision (c)(1)(E), we agree with Save Lafayette Trees that its claim under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ) was timely filed and served under Public Resources Code sections 21167, subdivision (a) and 21167.6, subdivision (a). Accordingly, we shall affirm the order sustaining the demurrer as to the second, third, and fourth causes of action but reverse the order sustaining the demurrer to the first cause of action.

Background

On March 27, 2017, the city approved the agreement with PG&E which authorized and imposed conditions on the removal of up to 272 trees within its local natural gas pipeline rights-of-way.2 The staff report prepared in connection with the agreement explains, "The removal of 216 protected trees constitutes a Major Tree Removal Project per the [Lafayette Municipal Code]. Under the tree protection regulations, for this tree removal project PG&E would be required to (1) provide information regarding the project, (2) obtain a tree removal permit, and (3) provide mitigation for the removed trees. [¶] PG&E is willing to comply with the intent of the tree protection regulations and will provide the requested information and all applicable mitigation. However, PG&E has taken the position that it is exempt from obtaining any discretionary permits, including a tree removal permit. City staff disagrees with this position. To ensure that the [community pipeline safety initiative] can move forward and to protect the public safety, PG&E and City staff have agreed to process the [community pipeline safety initiative] tree removal project under [Lafayette Municipal Code] section 6-1705(b)(S). This section allows the city to allow removal of a protected tree 'to protect the health, safety and general welfare of the community.' City staff is willing to process the [community pipeline safety initiative] under this provision as long as PG&E provides all requested information and pays all applicable mitigation fees."

On June 26, 2017, Save Lafayette Trees filed a petition challenging the city's action. The petition was served the following day.

The petition's first cause of action alleges the city failed to comply with CEQA before approving the agreement. The second cause of action alleges that the city approved the agreement in violation of the *225substantive and procedural requirements of the planning and zoning law, the city's general plan, and the tree ordinance (collectively, planning and zoning law claims). The third cause of action alleges the city violated the due process rights of the individual petitioners by failing to provide sufficient notice of the hearing at which the agreement was approved. The fourth cause of action alleges the city "proceeded in excess of its authority and abused its discretion in approving the tree removal agreement without compliance with CEQA, the [planning and zoning law], the city's general plan, the Municipal Code, and the due process clause of the California Constitution" in violation of Code of Civil Procedure sections 1085 and 1094.5. An amended petition was filed in August 2017 realleging the same causes of action.

PG&E filed a demurrer to the amended petition on the ground that it was barred by section 65009, subdivision (c)(1)(E), which requires that an action challenging a decision regarding a zoning permit be filed and served within 90 days of the decision. PG&E explained that while the original petition was timely filed on June 26, 2017, the original petition was not served until after the 90-day deadline. The city joined in PG&E's demurrer. Save Lafayette Trees opposed the demurrer on the ground its claims fall outside the scope of section 65009 and that, even if section 65009 applies to its planning and zoning law claims, its CEQA claim was timely filed and served under the longer limitations period provided under the Public Resources Code.

The trial court sustained the demurrer without leave to amend, finding that the "action was not served on either [the city or] PG&E within the 90-day period for filing and service required by the applicable statute of limitations set forth in [ section] 65009(c)(1)(E), and is thus time-barred." The court entered a judgment dismissing the petition.

Save Lafayette Trees then filed a motion to vacate the judgment arguing, among other things, that its planning and zoning law claims were subject to the statute of limitations found in section 6-236 of the city's Municipal Code rather than section 65009. The court denied the motion.

Save Lafayette Trees timely filed a notice of appeal from the judgment and denial of its motion to vacate.

Discussion

1. Standard of Review

The trial court's decision to sustain the demurrers without leave to amend is reviewed de novo. In conducting the review, this court exercises its independent judgment to determine whether the action can proceed under any legal theory. ( Honig v. San Francisco Planning Dept . (2005) 127 Cal.App.4th 520, 524, 25 Cal.Rptr.3d 649.) Leave to amend should not be granted if the pleadings disclose the action is barred by a statute of limitation. ( Ibid . )

2. The causes of action based on violations of the planning and zoning law claims were not timely served under section 65009.

The planning and zoning law establishes the authority of most local government entities to regulate the use of land. ( Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518-519, fn. 18, 113 Cal.Rptr. 836, 522 P.2d 12.) Under the planning and zoning law, each county and city must "adopt a comprehensive, long-term general plan for the physical development of the county or city ...." (§ 65300.) The general plan consists of a "statement of development policies ...

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Cite This Page — Counsel Stack

Bluebook (online)
239 Cal. Rptr. 3d 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trees-v-city-of-lafayette-calctapp5d-2018.