Agenda - Planning Commission - 02/07/2019

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December 25, 2018 I Volume 12 I Issue 24 Zoning Bulletin of -way. On June 26, 2017, Save Lafayette Trees, Michael Dawson, and David Kosters (collectively, "Save Lafayette Trees") filed a petition challenging the Agreement. The petition was served the following day. Among other things, the petition alleged that the City: (1) failed to comply with the California Environ- mental Quality Act ("CEQA") before approving the Agreement; and (2) ap- proved the Agreement in violation of the substantive and procedural require- ments of the planning and zoning law, the City's general plan, and the tree ordinance (collectively, "planning and zoning law claims"). PG&E filed a demurrer to the petition. PG&E contended that the petition was time barred by California statutory law —Government Code section 65009, subdivision(c)(1)(E). That statute requires that an action challenging a decision regarding a zoning permit be filed and served within 90 days of the decision. Specifically, section 65009, subdivision (c)(1), provides that: no 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 at- tack, 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. The "matters listed" in sections 65901 and 65903 include "conditional uses or other permits when the zoning ordinance provides therefor" and "variances from the terms of the zoning ordinance." (§ 65901, subd. (a).) PG&E explained that while Save Lafayette Trees' petition was timely filed on June 26, 2017, it was not served until the next day, which was after the 90- day deadline. Save Lafayette Trees maintained that its claims fell outside the scope of sec- tion 65009. Alternatively, it maintained that even if section 65009 applied to its planning and zoning law claims, its CEQA claim was timely filed and served under the statute of limitations provided under the state's Public Resources Code. Public Resources Code section 21167, subdivision (a), allows 180 days from an agency's decision to challenge that decision as having a significant ef- fect on the environment. Finding for PG&E, the trial court sustained the demurrer. The court found that Save Lafayette Trees failed to serve the action within the 90-day period for service set forth in section 65009(c)(1)(E). Save Lafayette Trees ultimately appealed. On appeal, it argued that its plan- ning and zoning law claims were subject to the 180-day statute of limitations for challenging City Council decisions found in section 6-236 of the City's Mu- nicipal Code rather than the 90-day statute of limitations in section 65009 of the state's Government Code. Save Lafayette Trees pointed to the fact that the Agreement for tree removal was not an issuing "permit" regulated under the Government Code, but rather was an agreement making exceptions to the requirements of the City's tree ordinance subject to the City's Municipal Code section 6-1705. Save Lafayette also argued that section 65009 did not apply because, in entering the Agreement with PG&E, the City was not acting in one of the roles specified in sections 65901 and 65903—namely as a board of zon- ing adjustment, zoning administrator, or a board of appeals. Finally, and alternatively, Save Lafayette Trees argued that section 65009 was not applicable to its CEQA cause of action because the statute of limitations in section 65009 8 © 2018 Thomson Reuters