Lawsuit Against City For Failure To Implement Housing Element Was Untimely

In Haro v. City of Solana Beach, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., May 12, 2011), a court of appeal considered whether a lawsuit alleging that a city violated state laws pertaining to land use and affordable housing was barred because the suit was filed more than one year after the city took final action on a notice of deficiencies. The court of appeal held that the claims against the city were barred because the lawsuit was not timely filed.


In 2004, owners and developers (“Developers”) proposed a mixed-use development at the Solana Beach train station in the City of Solana Beach (“City”). The proposed development included offices, restaurants, retail establishments, and 141 residential units, including 13 units that would be affordable to lower income households.

During the time Developers were seeking permits for the project, City adopted a revised housing element (“Housing Element”) as part of its required general plan. The Housing Element determined City’s regional housing needs “to be 131 total units, including 52 units for persons with low or very low income.” The Housing Element identified nine separate sites for residential development. The Solana Beach train station is in Site 8, which the Housing Element identified for possible mixed-use development. The Housing Element also identified Program 1, which is “a plan to implement various ‘activities to encourage mixed-use development.'”

City submitted the Housing Element to the State Department of Housing and Community Development, which found the Housing Element complied with state law “‘conditioned on the approval of’ several factors, including a development application for Site 8 for 131 units, including 13 affordable units, and the successful implementation of Program 1 to encourage residential capacity in mixed-use developments.”

After a hearing held on April 28, 2008, City directed Developers to redesign the proposed project because the submitted design was “inconsistent with certain local zoning and specific plan requirements.” City’s action caused the proposed “project to become financially infeasible because a $6 million grant was conditioned on the approval of the project by April 30, 2008.”

On July 3, 2008, Rosa Haro and Carlos Ibarra (collectively, “Haro”) gave City written notice that its failure to approve the project amounted to a failure to implement the Housing Element and that Haro intended to take legal action if City did not amend or implement the Housing Element. On August 27, 2008, City’s city council adopted a resolution to obtain outside defense council to represent it in Haro’s challenge to the Housing Element. The city council’s action in adopting this resolution on August 27, 2008, constituted City’s “final action” in response to Haro’s notice of deficiencies and intent to take legal action.

Haro filed a petition for writ of mandate and a complaint on September 2, 2009, alleging several causes of action including allegations City failed to implement the Housing Element by rejecting the proposed project and failed to comply with the requirements of Program 1. The trial court found Haro’s lawsuit was untimely because it was filed more than 90 days after City took its final action on the proposed project.


The trial court found Haro’s claims were governed by Government Code section 66499.37, which provides that a 90-day limitations period applies “for claims challenging a public entity’s actions ‘concerning a subdivision,’ including ‘the approval of a tentative map or final map.’” Haro asserted the 90-day statute of limitation found in section 66499.37 does not bar her challenge to City’s actions because the one-year statute of limitations set out in Government Code section 62009(d) governs this lawsuit. The court concluded that even assuming Haro’s argument is correct and section 62009(d) applies to her claims, her lawsuit is untimely because she filed her “action more than one year after the limitations period commenced.”

As a general rule, actions that challenge zoning decisions and governmental planning are governed by the 90-day limitations period set out in section 66499.37. However, section 62009(d) creates an exception to this general rule and establishes a one-year limitations period for actions that are “‘brought in support of or to encourage or facilitate’ affordable housing . . . if the action is brought with respect to certain governmental actions, including specified actions taken pertaining to housing element law.” A cause of action under this statutory provision “shall not be maintained until 60 days have expired following notice to the city or clerk of the board of supervisors by the party bringing the cause of action, or his or her representative, specifying the deficiencies of the general plan, specific plan, or zoning ordinance.” A cause of action under section 65009(d) “shall accrue 60 days after notice is filed or the legislative body takes a final action in response to the notice, whichever occurs first.” (Emphasis added.)

City’s final action on Haro’s notice occurred before 60 days had elapsed from the time she gave notice to City of the alleged deficiencies. Haro gave notice July 3, 2008, but she contends the notice was not actually filed until July 8, 2008. Regardless of whether July 3 or July 8, 2008 is used as a starting point, “the ‘60 days after’ date would be no earlier than September 1, 2008 or September 6, 2008, both of which are after the date of the final action (August 27, 2008).” The court concluded Haro’s “claims accrued on the date of the City’s final action, August 27, 2008.”

Haro did not file her lawsuit until September 2, 2009. The court held Haro’s “action was untimely even assuming section 65009(d)’s one-year limitations period applied.” The court rejected Haro’s argument that the statute did not begin to accrue until 60 days after City took its final action. The court of appeal affirmed the judgment of the trial court finding Haro’s claims were untimely.


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Jeffrey L. Massey | 916.321.4500