Supreme Court Removes Obstacle to Land Use Challenges

November 18, 2005

In Travis v. County of Santa Cruz, 33 Cal. 4th 757 (2004), the California Supreme Court removed a significant procedural obstacle to developers attempting to challenge certain development conditions or exactions. Prior to Travis courts had routinely held that a developer who wanted to challenge permit conditions on the ground that the statute or ordinance authorizing those conditions was invalid had to bring suit within 90 days of the statute or ordinance's enactment. The Supreme Court has clarified that rule to allow such challenges to be filed within 90 days of the imposition of the conditions to the project at hand, even when the authorizing legislation had been enacted months or years earlier.

The Travis case involved an ordinance enacted by Santa Cruz County in 1981 regulating the rental of second dwelling units. The ordinance set forth criteria for the income of the renter, the rental price and, if an exemption is sought, the relationship of the renter to the owner. Nearly two decades later, in 1999, Travis applied for and was issued a permit to build a second dwelling unit subject to conditions authorized by the ordinance. Travis appealed the imposition of those conditions to the County Board of Supervisors, which appeal was finally denied in June 1999. In September 1999, within 90 days of the denial, Travis filed litigation against the County, arguing that the ordinance was invalid on its face as violating, or preempted by, state law.

The lower court found that Travis' court challenge was time barred under Government Code §60009 because it was not brought within 90 days of the ordinance’s enactment. The Supreme Court recognized that if a plaintiff is challenging an ordinance on its face, without regard to its application to any particular project or property, then indeed the statute of limitations does begin to run from the date of the statute's enactment. However, the Court went on to hold that where a plaintiff is asserting an ordinance is invalid as applied to his project, then the statute begins to run from the date of the final action imposing the challenged conditions on his property – even when the challenge is based on the facial invalidity of the ordinance or statute.

The Supreme Court thus brings a good dose of common sense to its reasoning. A developer should not be required to challenge an ordinance or statute as facially invalid before it is ever applied to his property, or before the developer even owns the property in question. To hold otherwise would place the developer in a difficult bind, requiring him either to expend significant time and money mounting a challenge to a law that may never be applied to his project, or forcing him to forego any such challenge for projects begun more than 90 days after the enactment of the ordinance in question. The Travis decision eliminates that bind, rejecting what the Court described as “an expiration date on the Takings Clause,” and instead holds that, as long as the developer asserts specific harm to him resulting from the ordinance’s application to his project, the statute of limitations begins to run from the time the conditions or exactions are imposed.

Travis is good news for property owners as it recognizes and accommodates some of the practical and economic realities facing developers.