Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. CIV 451798
Swager, J.
Lynn B. Jacobson (Jacobson) appeals the trial court’s order ruling that her petition for writ of mandate filed against the Town of Portola Valley (Town) and Tom Lodato (Lodato) is barred by the statute of limitations. The Town appeals the court’s order denying recovery of costs it incurred in preparing the administrative record. We affirm both orders.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
Jacobson lives in Woodside. Her property borders Sausal Creek, which represents the boundary between Woodside and the Town. On the other side of the creek across from her property is a site owned by Sausal Creek Associates (SCA), which has been seeking for many years to construct a small housing development consisting of five units. Lodato is the president of Searsville Land Company, SCA’s managing general partner.
On December 6, 1995, the Town’s planning commission approved a conditional use permit (CUP), which, among other things, restricted the development’s future residents to senior citizens.
Condition 15 required: “The applicant shall submit a PUD statement that specifically pertains to the project and is in compliance with the Town’s PUD requirements specified in the Town’s Municipal Code. The PUD statement shall adequately ensure that the houses will be only for seniors. The PUD statement shall be prepared to the satisfaction of the ASCC and Planning Commission.”
On January 5, 1996, one of Jacobson’s neighbors appealed the planning commission’s decision to the Town’s council.
On March 13, 1996, Jacobson wrote a letter to the council objecting to the development. One of her contentions was that the project did not comply with the Unruh Act because it did not consist of the minimum number of dwelling units required for a senior citizen housing development.
On March 27, 1996, the council denied the appeal, upholding the findings of the planning commission.
On September 4, 2002, the planning commission approved modifications to the CUP. The modifications did not relate to the senior citizen housing condition.
On July 6, 2005, the planning commission approved SCA’s tentative subdivision map (TSM), site development permit for creek restoration (SDP), and project plans. Jacobson appealed the commission’s decision to the council.
On September 28, 2005, the council denied Jacobson’s appeal.
On December 22, 2005, Jacobson filed a petition for writ of mandate under Code of Civil Procedure section 1085 (section 1085) challenging the council’s decision. She asserted, among other grounds, that the Town’s actions violated the Unruh Act and Government Code section 65008 because the senior citizen housing limitation constituted illegal age discrimination. She asked the court to issue a peremptory writ commanding the Town to rescind the July 6, 2005 action approving the TSM and SDP.
On February 17, 2006, the Town lodged the administrative record pertaining to this action with the trial court.
On March 16, 2006, the Town filed its answer, along with a motion to strike Jacobson’s declaration and certain allegations in the petition. As an affirmative defense, the Town alleged that her Unruh Act claim was barred by the 90-day statute of limitations under Government Code section 65009. It also alleged that her claim should have been brought under Code of Civil Procedure section 1094.5 (section 1094.5) because she was objecting to an administrative decision to sustain the TSM and SDP. The motion to strike Jacobson’s declaration was also based on the assertion that the writ petition was one for administrative mandamus under section 1094.5 and that therefore the court was limited to reviewing evidence contained in the administrative record only.
Lodato filed his answer on March 17, 2006. On April 4, 2006, Lodato joined in the Town’s opposition to the petition and its motion to strike.
On June 2, 2006, the trial court filed its order denying the motion to strike Jacobson’s declaration, granting her motion to amend the petition to name SCA as the real party in interest, and denying her writ petition. The court found that the petition was barred by the three-year statute of limitations under Code of Civil Procedure section 388.
On August 24, 2006, the trial court granted Jacobson’s motion to tax the costs incurred by the Town in producing the administrative record. The court deemed the costs unrecoverable because the writ petition was for traditional mandamus pursuant to section 1085, as opposed to administrative mandamus under section 1094.5. These consolidated appeals followed.
DISCUSSION
I. Standards of Review
Whether a statute of limitations applies is generally a question of law. (People ex rel. Dept. of Conservation v. Triplett (1996) 48 Cal.App.4th 233, 246.)
We review the trial court’s determination regarding the reasonableness of costs for abuse of discretion. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556–1557.) The Town contends, however, that the court committed legal error in finding that this was a traditional mandamus action under section 1085, thus requiring our independent review. As will be seen below, our conclusion is the same under either standard of review.
II. Jacobson’s Claim is Untimely
Jacobson claims that the trial court erred in finding that her petition was barred by the three-year statute of limitations found in Code of Civil Procedure section 388. The court found that the statute began running in 1996, when the Town council denied her neighbor’s appeal of the planning commission’s approval of the CUP, thereby rendering her action untimely.
Jacobson contends the Town’s approval of the CUP with the senior citizen restriction was “null and void ab initio and therefore subject to challenge at any time.” Alternatively, assuming the three-year statute applies, she claims the petition was timely since it was filed within three years of the Town’s “unlawful” September 28, 2005 action approving the TSM and SDP.
A. Government Code Section 65009
Unlike the trial court, we believe the 90-day statute of limitations under Government Code section 65009 applies to the present case. This section “sets forth the limitations period for filing and serving a petition challenging a conditional use permit: ‘[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: [¶] . . . [¶] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903, or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit.’ (Gov. Code, § 65009, subd. (c)(1)(E).)[] After expiration of the limitations period, ‘all persons are barred from any further action or proceeding.’ [Citations.]” (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1119, first bracketed fn. added, italics added.)
“Government Code sections 65901 and 65903 provide for hearing and decision on, and administrative appeals concerning, applications for variances, conditional use permits, and other permits.” (Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2.)
“The short limitations period provided by Government Code section 65009, subdivision (c) serves the important legislative purpose of permitting the rapid resolution of legal challenges to local zoning and planning decisions. [Citation.] ‘The express and manifest intent of section 65009 is to provide local governments with certainty, after a short 90-day period for facial challenges, in the validity of their zoning enactments’ and their zoning and planning decisions. [Citation.] This delay reduction measure was deemed by the Legislature to be ‘essential’ in dealing with the housing crisis in our state.” (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 528.)
Government Code section 65009, subdivision (a)(2), provides in part: “The Legislature . . . finds and declares that a legal action or proceeding challenging a decision of a city, county, or city and county has a chilling effect on the confidence with which property owners and local governments can proceed with projects. Legal actions or proceedings filed to attack, review, set aside, void, or annul a decision of a city, county, or city and county pursuant to this division . . . can prevent the completion of needed developments even though the projects have received required governmental approvals.”
Since Jacobson challenged the senior citizen housing condition that is attached to the CUP, her claim accrued no later than March 27, 1996, the date on which the Town’s council sustained the CUP. We believe her claim falls squarely within the 90-day period set by Government Code section 65009, subdivision (c)(1)(E). In any event, the writ petition is still untimely even if one assumes that the three-year limitations period of Code of Civil Procedure section 388 applies.
B. Travis v. County of Santa Cruz (2004) 33 Cal.4th 757 (Travis)
We also agree with the Town’s assertion that the outcome of this case is controlled by the Supreme Court’s decision in Travis. In Travis, a county passed an ordinance allowing property owners to construct affordable second dwelling units on their property. The ordinance required that permits for such units must contain conditions restricting the tenants’ income level and the amount of rent that can be charged. Two property owners who obtained permits with such conditions petitioned for a writ of mandate to remove the permit conditions, in part because the conditions allegedly violated the Unruh Act. (Travis, supra, 33 Cal.4th 757, 764.) They also sought to enjoin enforcement of the ordinance on the grounds that it had been preempted by state law.
Citing to Government Code section 65009, subdivision (c)(1)(E), the court characterized the challenge to the permit condition as an action seeking to “ ‘determine the . . . validity’ of conditions imposed on their permits and to ‘void, or annul’ the decisions imposing those conditions.” (Travis, supra, 33 Cal.4th 757, 766.) The court held that action was time-barred with respect to one of the plaintiffs because it was filed more than 90-days after that plaintiff’s permit application had been approved. (Id. at p. 767.)
The court also found that the plaintiffs’ challenge to the ordinance itself was untimely. (Travis, supra, 33 Cal.4th 757, 773.) With respect to the plaintiffs’ argument that there was no applicable statute of limitations period because the ordinance was preempted by state law and was therefore void, the court found the claim to be unsupported by legal authority and unappealing “as a matter of logic.” (Id. at p. 775.)
Like the plaintiffs in Travis, Jacobson argues that “statutes of limitation have no application here because neither [her] nor the community’s challenges to the project were limited to a particular proceeding, condition or facet thereof, whether regarding the [CUP] or those proceedings that followed concerning the Tentative Map and Site Development Permit.” Jacobson claims SCA’s project has been “patently unlawful” from the its inception because it has only five units and the Unruh Act requires “at least 35 dwelling units” for a senior citizen housing development. Her argument is not compelling.
Civil Code section 51.3, subdivision (b)(4), defines a “ ‘senior citizen housing development’ ” as “a residential development developed, substantially rehabilitated, or substantially renovated for, senior citizens that has at least 35 dwelling units.” Subdivision (b)(1) defines “ ‘qualifying resident’ ” or “ ‘senior citizen’ ” as “a person 62 years of age or older, or 55 years of age or older in a senior citizen housing development.”
As the Supreme Court stated in Travis, “A plaintiff . . . may not avoid the short 90-day limit of section 65009 by claiming that the permit or condition is ‘void’ and thus subject to challenge at any time.” (Travis, supra, 33 Cal.4th 757, 768.) The opinion further observes: “A preempted ordinance, while it may lack any legal effect or force, does not cease to exist; if it did cease to exist, any challenge to it would have no object.” (Id. at p. 775.) Here, while the senior citizen condition may be invalid under the Unruh Act (an issue that we need not address), there can be no doubt that the permit condition actually exists at this time.
Moreover, we note that Jacobson raised her Unruh Act challenge in 1996, during the proceedings that lead to the approval of the CUP. We thus perceive no reason why she could not have filed a writ petition much earlier. The fact that she waited some 10 years before bringing this issue to the trial court, during which time SAC and the Town have expended time and resources in an effort to move the project forward, highlights for us the wisdom of the Legislature’s directive requiring parties challenging housing developments to bring their legal claims in a timely manner: A “subsidiary aim of the statute of limitations [is] promptly to resolve disputes in order that commercial and other activities can continue unencumbered by the threat of litigation.” (Elkins v. Derby (1974) 12 Cal.3d 410, 417, fn. 4.)
C. Government Code section 65008
Apparently recognizing that Travis is controlling, Jacobson attempts to distinguish her case by arguing that “the basis for applying the statue of limitations [in Travis], the need for finality in general, has no application here and for good reason. Protection from age discrimination in housing is one of our fundamental civil rights. And governmental engagement in such action is exactly what the Legislature addressed in Government Code section 65008(a)(1)(A).”
Government Code section 65008, subdivision (a)(1)(A), states that “[a]ny action” by a local government agency “is null and void if it denies to any individual or group of individuals the enjoyment of residence” on the basis of “age.” Jacobson claims that the Town’s approval of SCA’s TSM and SDP was an “action” denying younger adults housing. She claims the statute of limitations on her writ petition accrued upon the occurrence of this “action” and that therefore the petition was timely. We disagree.
The Town council’s 2005 decision to uphold the TSM and SDP did not involve the senior citizen housing condition, which was approved when the CUP was upheld by the Town council in 1996. As a deputy town planner noted in a memorandum to the Town council prior to the 2005 hearing, “The key matter relative to the tentative map and site development actions is that neither was a reconsideration of the original ‘seniors’ housing provisions established with the 1996 use permit approval. These remain in place.” Thus, the 2005 action itself has only a tangential relationship to Jacobson’s Unruh Act claim, which is clearly founded on the CUP’s senior citizen housing condition. We are thus unpersuaded that section 65008 has any application to the present case.
Moreover, the fact that Jacobson bases her claim on an alleged Unruh Act violation does not defeat the operation of Government Code section 65009. In Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888, the plaintiff argued that a conditional use permit was invalid because one of the decision makers had a conflict of interest in violation of the Political Reform Act. The court rejected the argument that the permit was subject to collateral attack at any time, noting: “former section 65907 [now section 65009] ‘contains no exceptions,’ and uses ‘unqualified language’ manifesting a plain intent on the part of the Legislature ‘to limit the time to seek review’ of an agency decision. There is no exception for actions filed under the Political Reform Act. It is a basic rule of statutory construction that specific statutes control general ones. [Citations.] . . . [W]e conclude that an action or proceeding under the Political Reform Act challenging a local permit appeal board decision must comply with the specific limitations provisions of [section 65009].” (Ching, supra, at pp. 894–895.)
In sum, we hold that Jacobson’s claim accrued in 1996 and is therefore barred by the 90-day statute of limitations of Government Code section 65009. Accordingly, we need not address the Town’s alternate arguments for sustaining the trial court’s ruling.
III. The Town is Not Entitled to Costs for the Administrative Record
On February 23, 2006, the Town sent a letter to Jacobson’s attorney, requesting payment in the amount of $3,478.49 for preparation of the six-volume administrative record, covering the costs of four copies: one for the Town’s counsel, one for the court, one for SAC, and one for Jacobson. The letter acknowledged that her petition had been brought for traditional mandamus, but attempted to distinguish it: “Although the petition cites CCP 1085 as its basis, this section is inapplicable to petitions of mandamus to review either a site development permit or the approval of a tentative subdivision map, and the court must review the petition under CCP 1094.5.” Jacobson did not make any payment.
On August 24, 2006, the trial court granted Jacobson’s motion to tax the costs incurred by the Town in producing the six-volume administrative record. The Town appeals, claiming it is entitled to its costs for preparing the record. We disagree.
A. Writs of Mandamus
In denying the Town’s motion to strike Jacobson’s declaration, the trial court stated: “Code of Civil Procedure section 1085 is the appropriate standard of review where the challenge is not to the administrative proceeding per se, but to the decision being in violation of a duty under the law. Liberally construing Petitioner’s claims, the Court views them as challenging the decisions of Respondent as violations of duties imposed by law.”
A traditional writ of mandate under section 1085 is brought to compel the performance of a legal, usually ministerial duty. In contrast, the purpose of an administrative mandamus proceeding under section 1094.5 is to review the final adjudicative action of an administrative body.
Section 1085, subdivision (a), provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.”
The distinction between the two species of writs becomes important when considering who should bear the cost of preparing an administrative record. The last sentence of subdivision (a) of section 1094.5, states: “If the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.” Section 1085 does not contain a similar provision.
Jacobson purported to bring her writ petition under the traditional mandamus procedure set forth in section 1085. However, the styling of her petition is not determinative: “Although petitioner brought this proceeding under section 1085, this court can treat it as if it were brought under section 1094.5, if section 1094.5 applies.” (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1125.) The Town claims that this action is most properly characterized as one for administrative mandamus because the Town’s council was acting in an adjudicatory capacity when it approved the TSM and SDP in 2005.
“While the Legislature, in its 1945 enactment of section 1094.5 of the Code of Civil Procedure, did not thereby bring into being ‘a separate and distinctive legal personality . . . removed from the general law of mandamus . . .’ [citation], it did establish a specialized procedure for the review by mandate of certain types of administrative decisions, whose characteristics it specifically delineated in the statute. That procedure, the Legislature provided, was to be used in all cases ‘[where] the writ [i.e., the writ of mandate] is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law [1] a hearing is required to be given, [2] evidence is required to be taken and [3] discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . .’ [Citation.] Thus, by the very terms of the statute, the procedure there set forth is to be utilized in all cases in which review of a final adjudicatory order[] is sought by mandate[] and the three indicated elements are present.[]” (Anton v. San Antonio Community Hos. (1977) 19 Cal.3d 802, 814, fns. omitted.)
While the present case was commenced after the Town council’s action approving the TSM and SDP, we are not convinced Jacobson’s writ falls under section 1094.5. Jacobson’s appeal centered on the application of the Unruh Act, an issue which did not require the court to conduct a fact-intensive review of an administrative decision. The factual basis for Jacobson’s petition was fairly straightforward and the essential facts were not disputed. The issue centered on the legal implications of the permit condition’s requirement that the housing units be reserved for senior citizens, not on any of the factual findings made by the Town in approving the TSM or SDP.
Whether an action is reviewed under section 1094.5 may also depend on whether the court is required to review the administrative record: “[W]here a section 1094.5 review is not necessarily mandated simply by the fact that an administrative agency is the subject of the action, where, however, the review necessitates looking into the administrative record itself, the trial court must proceed under section 1094.5 and not section 1085.” (Professional Engineers in Cal. Government v. State Personnel Bd. (1980) 114 Cal.App.3d 101, 111.) As we discuss below, we do not believe that review of the entire administrative record was necessary in this case. Accordingly, we find that the trial court did not err in concluding that Jacobson’s petition falls under section 1085.
B. Production of the Administrative Record was Not Required
Even if Jacobson’s writ petition falls under section 1094.5, that does not necessarily mean that she is required to reimburse the Town for the cost of the record. In the first place, we observe that the Town was not statutorily required to produce the record as the burden of proof was on Jacobson. “Under section 1094.5, subdivision (a), ‘[a]ll or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent’s points and authorities, or may be ordered to be filed by the court.’ Even though section 1094.5, subdivision (a) allows both parties in a mandamus proceeding to file either ‘all or part’ of the record of the administrative proceeding for review by the court, this does not mean respondent is required to file the administrative record or that petitioner is relieved from the burden of providing a sufficient enough record to establish error.” (Elizabeth D. v. Zolin (1993) 21 Cal.App.4th 347, 354, first italics added, second italics omitted.)
Similarly, we note that Code of Civil Procedure section 1094.6, subdivision (c), provides, in part: “The complete record of the proceedings shall be prepared by the local agency or its commission, board, officer, or agent which made the decision and shall be delivered to the petitioner within 190 days after he has filed a written request therefor.” While the statute does not forbid an agency from preparing an administrative record in the absence of a request, it clearly contemplates that the preparation and delivery of such a record with be triggered by the petitioner’s request. And, as the Town itself notes, where a petitioner fails to request the preparation of an administrative record, the appropriate sanction is dismissal of the action for insufficient evidence.
In Black Historical Society v. City of San Diego (2005) 134 Cal.App.4th 670, the court upheld the public entity’s withholding of the record due to nonpayment by petitioner and dismissed the petitioner’s case. The court noted that “statutory law generally requires a petitioner for a writ of mandate to bear the costs of preparing the record. [Citations.] This court has observed ‘taxpayers . . . should not have to bear the cost of preparing the administrative record in a lawsuit brought by a private individual or entity.’ [Citation.]” (Id. at p. 677.) Before dismissing the underlying case, however, the trial court had issued an order requiring the petitioner to advance the costs of preparing the administrative record. No such order was issued in the present case. The Town does not cite us to a reported case holding that a petitioner can be required to pay for an administrative record that it does not request, and our research has disclosed no such case.
Additionally, because Jacobson’s challenge primarily rested on legal rather than factual grounds, it appears to us that a complete review of the administrative record was not necessary: “[W]hen the validity of the administrative decision is being challenged only on a question of law and the ground appears on the face of the decision, a complete evidentiary record of the administrative proceedings may be unnecessary to the court’s review.” (Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2007) § 10.4, p. 362.) Moreover, “a court may review a matter in the absence of the entire administrative record if the relevant facts are adequately pleaded in the petition and admitted in the respondent’s answer.” (Ibid., citing Anderson v. City of La Mesa (1981) 118 Cal.App.3d 657, 660.)
In its reply brief, the Town claims that it “was forced to prepare and deliver to the trial court and the parties the entire administrative record of development approvals for this project” in order to present its statute of limitations defense. We have examined the record, and while portions of it are pertinent, much of it is not. For example, the administrative record includes several oversized maps and detailed environmental reports. We believe the Town could instead have requested that the court take judicial notice of salient portions of the record as exhibits. Indeed, in conducting our de novo review of the statute of limitations issue above, we were required to review only a small portion of the six-volume administrative record.
We also have concerns regarding the Town’s request for reimbursement for multiple copies of the record. “Section 1094.5, subdivision (a), ensures that the prevailing party may obtain the costs of preparing the original administrative record.” (Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442, 1446.) It has been held, however, that the costs of preparation of additional copies of the administrative record are not recoverable costs. Referring to the last sentence of Code of Civil Procedure section 1094.5, subdivision (a), the court in Cooper v. State Board of Public Health (1951) 102 Cal.App.2d 926, stated: “We think it patent that the statute refers to the record of the proceeding filed in the superior court and not to a copy of the record obtained for the use of counsel.” (Cooper, supra, at p. 933; in accord, see also Escrow Guarantee Co. v. Savage (1963) 213 Cal.App.2d 595, 598.)
It also appears to us that the six volumes of material may be in excess of the material that was actually considered by the Town’s council when it made its decision in 2005. The material appears to cover the entire history of this proposed development dating from approximately 1989.
In sum, it appears that the Town took it upon itself to prepare multiple copies of the administrative record, with the knowledge that the writ had been brought under section 1085, that Jacobson had not requested such a record, and that the court had not ordered that such a record be prepared. While we agree with the principle that ordinarily taxpayers should not be required to incur costs to further the conduct of private litigants, here the Town voluntarily took it upon itself to prepare the record. We believe Jacobson should not be compelled to reimburse the Town for a record that it was not required to produce in the first place.
The Town alternatively claims that even if the proceedings were governed by section 1085, it was entitled to its costs as a discretionary matter under Code of Civil Procedure sections 1032 and 1033.5, subdivision (c). It claims the record was a cost “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5, subd. (c)(2).) We believe that the record is unnecessarily excessive and that the Town could have achieved the same legal result by taking a more focused approach to its document production. Accordingly, we find no abuse of discretion in the trial court’s denial of costs.
DISPOSITION
The orders are affirmed. Jacobson and the Town shall bear their own costs on appeal. Lodato and SCA shall recover costs on appeal.
We concur: Stein, Acting P. J., Margulies, J.