While land use litigation per se is not overly complex, it contains two procedural rules that occasionally trip up project opponents. A San Diego community group that challenged a condominium project recently tripped on both hurdles.

First, the California Environmental Quality Act (CEQA) requires that the petitioner in a lawsuit request a hearing within 90 days (Public Resources Code § 21167.4). An oral request is insufficient. Second, if the challenge is to a tentative map approval, the petitioner must also obtain from the court and serve a summons (Government Code § 66499.37). In Torrey Hills Community Coalition v. City of San Diego, the Fourth District Court of Appeal affirmed a trial court's dismissal of a lawsuit on both grounds.

In September 2008, the City of San Diego approved a 484-unit condominium project for a collection of developers and landowners. The city's action included certification of an environmental impact report, rezoning, and approval of a vesting tentative map. Torrey Hills Community Coalition sued, arguing the city had violated CEQA and the Subdivision Map Act.

With respect to the dismissal of the CEQA claim, the Fourth District ruled that the coalition's oral request for hearing was insufficient because it failed to comply with the statutory obligation to serve the request on all parties.

The Map Act dismissal was more intriguing. The coalition claimed impossibility as a form of relief for failing to request a summons. The coalition pointed to declarations establishing that the San Diego Superior Court has routinely declined to issue a summons in cases involving CEQA. Notwithstanding the evidence that a summons would not have been issued in this case, the appellate court concluded that the coalition had failed to establish sufficient facts to claim impossibility and relief from the mandatory obligation to serve a summons within 90 days.

The appellate court followed its earlier reasoning set forth in Friends of Riverside's Hills v. City of Riverside, (2008) 168 Cal.App.4th 743 (see CP&DR Legal Digest, January 2009). In the Friends case, the court dismissed CEQA claims based upon the noncompliance with the Subdivision Map Act rules for service of a summons. While the holding in Friends was published on November 24, 2008, and the 90-day period in Torrey Pines expired on December 15, 2008, there was no evidence that the coalition had requested a summons between the publication date and the end of the 90-day service period.

"[T]hus, there is no showing of diligence to support an impossibility theory," Presiding Justice Judith McConnell wrote for the court.

The Case:

Torrey Hills Community Coalition v. City of San Diego, No. D055579, 2010 DJDAR 19397. Filed July 2, 2010.

The Lawyers: 

For Torrey Hills: Julie M. Hamilton, (619) 278-0701. 

For the city: Carmen A. Brock, deputy city attorney, (619) 236-6220.

For the developers: Daniel P. Brunton, Latham  & Watkins, (619) 236-1234.