In Topsail Court Homeowners Association v. County of Santa Cruz, 116 Cal.Rptr.2d 145 (2002), the California Court of Appeal held that water treatment plants are not exempt from building and zoning ordinances. The Court also held, on a related issue, that a 90-day statute of limitations applies to challenges of a County Surveyor’s final approval of a subdivision parcel map, even if the surveyor’s approval was based on an erroneous finding that all conditions of approval had been fulfilled.
Facts
In 1990, the County of Santa Cruz (County) conditionally approved an application to subdivide a parcel of county land into four parcels. In 1992, the County Surveyor gave final approval to, and recorded, a parcel map for the subdivision, even though a number of County’s original requirements for approval remained unfulfilled, including recordation of covenants, conditions and restrictions (CC&Rs).
In 1995, Soquel Creek Water District (SCWD) purchased one of the four parcels for the purpose of building a water well and treatment facility. In 1997, the remaining three parcels were sold to individuals who now live in single-family residences on the parcels. The latter owners are members of Topsail Court Homeowners Association (Topsail), which in 1998 recorded CC&Rs restricting the use of parcels in the subdivision to single family residences. Topsail brought this action after SCWD gave notice of its intention to design and construct the well and water treatment plant, and informed Topsail that SCWD was not bound by the CC&Rs.
Topsail sought a court order requiring SCWD to comply with building and zoning laws in its location and construction of the water well and plant. The association also challenged the legality of the 1992 parcel map based on the surveyor’s erroneous approval of it, and asked the court to prohibit County from issuing permits to SCWD until SCWD joined Topsail and became subject to the CC&Rs. SCWD argued it was exempt from building and zoning laws because, by state statute, such ordinances do not apply to the location and construction of certain types of water-related facilities. SCWD also claimed Topsail’s challenge to the legality of the 1992 parcel map was barred by the statute of limitations.
The Court of Appeal’s Decision
The Court of Appeal agreed with Topsail that building and zoning laws apply to the water treatment plant. It agreed with SCWD, however, that Topsail’s challenge to the parcel map was time-barred.
The zoning question required the Court to interpret Government Code § 53091, which subjects local agencies (such as water districts) to zoning and building ordinances but exempts facilities “for the production [or] generation . . . of water.” The exemption was intended to extend only to facilities that would "directly and immediately" produce or generate water, the Court said, meaning that the water well proposed by SCWD was exempt because a well clearly “produces” groundwater by moving it from below to above ground. However, water treatment plants were not clearly within the exemption, as such plants are more concerned with conditioning a drinking water supply for public consumption than with simply producing or generating water. Further, treatment plants do not necessarily have to be located next to a well. Given the general intent of § 53091 to subject local agencies to zoning regulations, and the lack of clear legislative intent to exempt facilities connected primarily with drinking water production, the Court held the statutory exemption did not extend to water treatment plants, and SCWD’s proposed plant would be required to conform to local building and zoning laws.
The Court held Topsail’s challenge to County’s approval of the parcel map for the subdivision was too late, however. Under Government Code § 66499.37, challenges to the legality of a decision concerning a subdivision by an advisory agency – such as the County Surveyor’s office – must be made within 90 days after the decision. Here, though Topsail tried to characterize its challenge in a number of other ways, the Court found the decision being challenged was in fact the County Surveyor’s final approval and recordation of the parcel map in 1992. Under § 66499.37, that decision became impervious to attack 90 days later even though approval was based on an erroneous finding that County’s conditions to approval had been satisfied. “The mere fact that a determination is erroneous does not transform it into something other than a decision” to which the limitations period, established by the state Legislature, clearly applied, the Court said. As such, Topsail’s challenge to the approval was too late, and its request for an order finding the parcel map illegal was denied.