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June 25, 2011 I Volume 5 I No. 12 Zoning Bulletin <br />The Plaintiffs argued that the suit was governed by the one-year <br />limitations period of § 65009(d) because it pertained to affordable <br />housing and alleged violations of housing element law. <br />The trial court agreed with the City that § 66499.37 applied. <br />It held that the Plaintiffs' claims were untimely because they were <br />filed more than 90 days after the City took action on the Cedros <br />Crossing project. <br />The Plaintiffs appealed. On appeal, they again argued that the <br />one-year limitations period of § 65009(d) applied. <br />DECISION: Affirmed. <br />The Court of Appeal, Forth District, Division 1, California, <br />concluded that, even assuming the Plaintiffs were correct that <br />§ 65009(d) applied, their action was untimely because they filed it <br />more than one year after the limitations period commenced. <br />Section 65009(d)(2) states in relevant part: "A cause of action <br />brought pursuant to [% 65009(d)] shall not be maintained until 60 <br />days have expired following notice to the city ... by the party bring- <br />ing the cause of action .... A cause of action brought pursuant to <br />[S 65009(d)] shall accrue 60 days after notice is filed or the legisla- <br />tive body takes a final action in response to the notice, whichever <br />comes first." <br />The court found that the City's "final action" on the Plaintiffs' <br />notice occurred before "60 days after notice [was] filed"; the City's <br />"final action" in response to the Plaintiffs' notice was its August <br />27, 2008 resolution. Thus, here, the City's final action came first <br />(occurring prior to 60 days postnotice). It was therefore from Au- <br />gust 27, 2008, that the one-year limitations period ran. Thus, under <br />§ 65009(d), the limitations in the case ended on August 28, 2009, <br />concluded the court. Since the Plaintiffs did not file their complaint <br />until September 2, 2009, it was untimely. <br />Case Note: The Plaintiffs had contended that under § 65009(d), <br />the statute did not begin to accrue until 60 days after the City <br />took "final action" on the notice. This argument was based on <br />a grammatical construction of § 65009(d)(2). The court reject- <br />ed that interpretation, finding it would violate the fundamental <br />statutory interpretation principles because the statutory phrase <br />"whichever occurs first" would become meaningless. <br />8 © 2011 Thomson Reuters <br />