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Advertising Display Systems v. City and County of San Francisco

Advertising Display Systems v. City and County of San Francisco
03:27:2008



Advertising Display Systems v. City and County of San Francisco



Filed 3/21/08 Advertising Display Systems v. City and County of San Francisco CA1/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS









California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION TWO



ADVERTISING DISPLAY SYSTEMS 1, LLC,



Plaintiff and Appellant,



v.



CITY AND COUNTY OF SAN FRANCISCO et al.,



Defendants and Respondents.



A118418



(San Francisco City & County Super. Ct.



No. CPF-06-506631)



The zoning administrator of the City and County of San Francisco[1](zoning administrator) notified Advertising Display Systems 1, LLC (ADS) that it must remove a billboard. ADS appealed the zoning administrators determination to the San Francisco Board of Appeals (board of appeals). At the hearing, the board of appeals stated that it was upholding the zoning administrators determination and, subsequently, it mailed a notice of its order and decision. ADS filed a petition for writ of administrative mandamus in the superior court against San Francisco, the San Francisco Planning Department, and the zoning administrator (collectively, respondents). The petition was filed within 90 days of the mailing of the board of appeals order and decision but it was more than 100 days after the board of appeals had orally announced at the hearing that it was upholding the zoning administrators ruling.



The trial court sustained without leave to amend respondents demurrer against ADSs petition. The court found that the statute of limitations under Government Code section 65009[2]barred ADSs action and that estoppel could not be invoked against respondents. ADS appeals and claims the lower court erred by failing to use the date of the mailing of the board of appeals decision as the date of accrual for purposes of the statute of limitations. We agree that the mailing of the board of appeals notice of decision triggered the running of the statute of limitations and ADSs petition was timely. Accordingly, we reverse the judgment.



BACKGROUND



Since February 5, 2002, when ADS entered into a lease with the property owners and parties of real interest, Faiq Khouri and Diana Khouri (the property owners), ADS has operated a 26-foot by 24-foot general advertising sign or billboard on the west wall of a building on Market Street in San Francisco (the billboard). A billboard has been on the wall since July 22, 1955, when it was lawfully installed.



San Francisco Planning Code section 608.8, adopted in 1970, created the Market Street Special Sign District, prohibiting billboards in this district. The billboard at issue in this case is located within this district. On February 13, 2006, the zoning administrator issued a notice of violation to ADS and to the property owners informing them that the billboard owned by the property owners and operated by ADS was illegal. They were informed that the billboard lacked a permit because San Francisco could not issue a new permit for a sign located within the Market Street Special Sign District. The notice of violation required ADS to remove the billboard.



On February 27, 2006, ADS and the property owners filed a notice of appeal from the notice of violation with the board of appeals. The board of appeals conducted its hearing on May 24, 2006. At the end of the hearing, the board orally voted unanimously to deny the appeal and to uphold the zoning administrators determination that the billboard was illegal. Robert H. Feldman, the executive secretary of the board of appeals, stated: Its five to zero then and the zoning administrator is upheld. The appeal is denied.



On June 12, 2006, the board of appeals mailed its Notice of Decision & Order.[3]The document stated: The aforementioned matter came on regularly for hearing before the Board of Appeals of the City & County of San Francisco on May 24, 2006, and the order was UPHELD by the Board of Appeals. [] PURSAUNT TO [section] 4.106[[4]] of the Charter of the City [and] County of San Francisco and Article 1, [section] 14 of the Business & Tax Regulations Code of the said City & County,[[5]] and the action above stated, the Board of Appeals hereby orders that the subject Notice of Violation by the Zoning Administrator is UPHELD. The document noted that the last day to request a rehearing was June 5, 2006,[6]that no request for a rehearing had been made, and that no rehearing had occurred. At the bottom of the order in small print was the following: If this decision is subject to review under Code of Civil Procedure [section] 1094.5, then the time within which judicial review must be sought is governed by California Code of Civil Procedure [section] 1094.6. The board of appeals served ADS with a copy of this order.



According to ADS president Kevin Hicks, he had a telephone conversation with Victor Pacheco, the legal assistant for the board of appeals. Hicks stated that Pacheco told him that the Code of Civil Procedure section 1094.6 provided the applicable statute of limitations; Pacheco allegedly informed Hicks that the deadline for filing a petition for writ of administrative mandamus did not begin to run until the decision of the board of appeals was mailed. Pacheco, according to Hicks, told him that the petition was due 90 days after the mailing of the board of appeals order.



On September 11, 2006, ADS filed in the superior court its petition for writ of administrative mandamus against respondents. Respondents demurred to the petition on December 6, 2006, on the basis that the statute of limitations barred ADSs action. The trial court found that the petition was untimely; it sustained respondents demurrer and granted ADS leave to amend its petition.



On January 19, 2007, ADS filed its first amended petition for writ of administrative mandamus. The amended petition included allegations that the board of appeals misled ADS about the applicable statute of limitations.



On February 5, 2007, respondents demurred to the amended petition. Respondents contended that the action was untimely and that it was not estopped from asserting that the statute of limitations barred the action.



On March 6, 2007, the trial court sustained without leave to amend respondents demurrer to ADSs first amended petition for writ of administrative mandamus. The court found that the applicable statute of limitations was section 65009, which barred this action. It also concluded, under the holding of Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520 (Honig), that ADS could not invoke estoppel based on a city employees statement of the law. The court issued its judgment in favor of respondents on April 19, 2007.



ADS filed a timely notice of appeal on June 21, 2007.



DISCUSSION



I. Standard of Review



The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)



II. Statute of Limitations



The present case involves a challenge to the board of appeals decision after the board upheld the zoning administrators determination. The parties do not dispute that the statute of limitations under section 65009, subdivision (c)(1), governs ADSs action. However, the parties do dispute the date that triggers the running of the statute of limitations under section 65009.



Section 65009 provides in relevant part: (c)(1) Except as provided in subdivision (d),[[7]] 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 bodys decision: [] (A) . . . [] . . . [] (E) To attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903,[[8]] or to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit. Section 65009, subdivision (e) provides: Upon the expiration of the time limits provided for in this section, all persons are barred from any further action or proceeding.



Under section 65009, subdivision (c)(1), ADS had 90 days after the legislative bodys decision to file its petition. ADS maintains that the legislative bodys decision was when the board of appeals mailed its notice of decision and order. Since the board of appeals mailed its decision on June 12, 2006, and ADS filed its petition on September 11, 2006, which was within 90 days of the mailing of the order, ADS asserts that its petition was timely. Respondents argue that the legislative bodys decision was issued orally at the hearing on May 24, 2006. Under section 6 of the rules of the board of appeal, [w]ritten requests for rehearing must be filed within 10 days from the date of the decision. Thus, the boards decision, according to respondents, became final on the tenth day after the hearing. (See, e.g., City and County of San Francisco v. Board of Permit Appeals (1989) 207 Cal.App.3d 1099, 1105 [power of board of appeals must be exercised within the bounds of all applicable city charter, ordinance and code sections, and any action on its part that exceeds those bounds is void]; see also Long Beach Unified Sch. Dist. v. State of California (1990) 225 Cal.App.3d 155, 169 [addressing finality for purposes of administrative collateral estoppel].) Accordingly, respondents claim the decision became final 10 days after the hearing, on June 5, 2006,[9]and ADS had to file its action 90 days from this date, which was September 4, 2006. Since ADSs petition was filed on September 11, respondents contend that it was time-barred.



We are not aware of any case that addresses the specific issue raised by this appeal. We note, however, that respondents rely heavily on Honig, supra, 127 Cal.App.4th 520 to support their position that section 65009 applies to this case and that estoppel cannot be invoked. Division Five of our court in Honig calculated the running of the statute of limitations under section 65009 from the date of the mailing of the decision and order. (Honig, supra, at pp. 525-526.) No party in Honig, however, appeared to challenge the date of accrual and therefore the mailing date was used with no discussion or analysis. Accordingly, Honig is not especially helpful to the issue presented by this appeal.



When construing the accrual date under section 65009, subdivision (c)(1), we note that the statute simply states that the action must be maintained and service must be made on the legislative body within 90 days after the legislative bodys decision . . . . The statute provides no other information or definition of when a decision is final for purposes of applying the statute of limitations. We therefore must determine when a legislative decision is final for the purposes of this statute.



In independently construing a statute, we strive to ascertain the lawmakers intent so as to effectuate the purpose of the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We look first to the plain meaning of the statutes words, and only if the language is ambiguous do we resort to extrinsic aids such as legislative history. (Ibid.) Our role is not to insert what has been omitted, or to omit what has been inserted (Code Civ. Proc., 1858); therefore, we may add to or alter a statutes words only when necessary to accomplish a purpose apparent on the statutes face or from its legislative history. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.) Where possible, we construe the statute so as to avoid absurd or unreasonable results (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 846) and to preserve its constitutionality (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387).



ADS points out that both section 65009 and Code of Civil Procedure section 1094.6 relate to the judicial review of administrative decisions. The latter provides specific guidelines as to when an administrative decision becomes final, and therefore ADS urges us to apply the definition provided by the Code of Civil Procedure section 1094.6.



Code of Civil Procedure section 1094.6, subdivision (b), sets forth when a decision by any administrative agency becomes final. Code of Civil Procedure, section 1094.6, subdivision (b) provides in relevant part: Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final. If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, in any applicable provision of any statute, charter, or rule, for the purposes of this section, the decision is final on the date it is announced. . . . If there is a provision for reconsideration, the decision is final for purposes of this section upon the expiration of the period during which such reconsideration can be sought; provided, that if reconsideration is sought pursuant to any such provision the decision is final for the purposes of this section on the date that reconsideration is rejected. If there is a provision for a written decision or written findings, the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ. . . .



Respondents assert that, even if the foregoing statute is used to define when a decision becomes final, the board of appeals decision became final 10 days after the board of appeals announced its decision at the hearing. They claim there is no provision for a written decision or written findings and, under section 6 of the rules of the board of appeal, [w]ritten requests for rehearing must be filed within 10 days from the date of the decision. Respondents concede that written decisions are required under section 4.106(d) of the Charter of San Francisco when the zoning administrators decision is not upheld, but no such requirement applies in situations like the present where the board of appeals upholds the zoning administrators decision.[10] Therefore, even under the definition of final provided by the Code of Civil Procedure, section 1094.6, subdivision (b), the decision became final at the latest, according to respondents, 10 days after it was announced at the hearing and on the date when the time to reconsider the decision expired.



We disagree with respondents that there is no provision for a written decision. Section 15 of the Business and Tax Regulations Code of San Francisco states that [a] form of seal shall be adopted by the [board of appeals], which shall be impressed upon all orders and decisions and certified copies thereof. Thus, this ordinance requires a decision to have the impression of a seal and therefore an oral ruling does not constitute a decision. Respondents contend that section 15 merely indicates that the seal must be used when a written decision is issued, and the ordinance does not impose a requirement that all decisions must be in writing. Respondents, however, ignore the clear language of the provision, which is that the seal shall be impressed upon all orders and decisions[.] (Italics added.) The ordinance does not provide for any exceptions. Our role is not to insert what has been omitted, or to omit what has been inserted (Code Civ. Proc.,  1858) and we will not alter the statutes words. (See, e.g., Burden v. Snowden, supra, 2 Cal.4th at p. 562.) This San Francisco ordinance specifies that a decision must include the board of appeals seal and therefore this provision does require all decisions to be in writing. Accordingly, we conclude that the board of appeals decision became final when it was mailed because no decision containing the seal had been issued prior to that date.



At oral argument, respondents argued that if section 15 of the Business and Tax Regulations Code of San Francisco requires a decision to be in writing, section 15 improperly conflicts with the Citys Charter. However, section 4.106(d) of the Charter of San Francisco reads in relevant part: (d) After a hearing and any necessary investigation, the Board may concur in the action of the department involved, or by the affirmative vote of four members . . . overrule the action of the Department. [] Where the Board exercises its authority to modify or overrule the action of a department, the Board shall state in summary its reasons in writing. . . . (Italics added.) The Charter does not imply that no writing is required when the Board upholds the zoning administrators ruling; rather, the Charter simply exempts the Board from having to set forth the reasons for its decision when upholding the prior ruling. Indeed, in the present case, the written order did not provide any reasons for the decision, but merely stated that it was upholding the decision of the zoning administrator. [11] Thus, under section 15, the decision to uphold the zoning administrators ruling has to be in writing but, under the Charter, the reasons for this decision do not have to be written.



Respondents argue that section 65009 cannot be harmonized with Code of Civil Procedure section 1094.6, subdivision (b), to extend the statute of limitations. They assert that applying the latter statute improperly extends the statute of limitations to the mailing of the decision. We, however, are not extending the statute of limitations. The accrual date under section 65009 is the mailing of the decision. Even if we do not consider the definition of a final decision under the Code of Civil Procedure section 1094.6, subdivision (b), and only consider the language of section 65009, our conclusion remains the same.[12] Under section 65009, the date of accrual is when the board of appeals issues its decision. Section 15 of the Business and Tax Regulations Code of San Francisco specifies that a decision must be impressed by a seal. Thus, no decision was issued until the notice of the decision and order, which was impressed with the seal, was mailed to ADS.



Since ADS filed its petition within 90 days of the board of appeals decision, which contained the impressed seal, ADS action was timely under section 65009. Accordingly, we reverse the judgment of the lower court.[13]



DISPOSITION



The judgment is reversed. ADS is awarded the costs of appeal.



_________________________



Lambden, J.



We concur:



_________________________



Kline, P.J.



_________________________



Haerle, J.



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[1] All further references to the City and County of San Francisco are referred to as San Francisco.



[2] All further unspecified code sections refer to the Government Code.



[3] The top part of the document was the Notice of Appeal and the bottom part was the Notice of Decision & Order.



[4] Section 4.106 of the Charter of San Francisco reads in relevant part: (a) The Board of Appeals shall consist of five members . . . . [] . . . [] (c) The Board of Appeals shall hear and determine appeals: [] 1. Where it is alleged there is error or abuse of discretion in any order, requirement, decision or determination made by the Zoning administrator in the enforcement of the provisions of any ordinance adopted by the Board of Supervisors creating zoning districts or regulating the use of property in the City and County; or [] 2. From the rulings, decisions and determinations of the Zoning Administrator granting or denying applications for variances from any rule, regulation, restriction or requirement of the zoning or set-back ordinances, or any section thereof. Upon the hearing of such appeals, the Board may affirm, change, or modify the ruling, decision or determination appealed from, or, in lieu thereof, make such other additional determinations as it shall deem proper in the premises, subject to the same limitations as are placed upon the zoning administrator by this Charter or by ordinance.



(d) After a hearing and any necessary investigation, the Board may concur in the action of the department involved, or by the affirmative vote of four members . . . overrule the action of the Department. [] Where the Board exercises its authority to modify or overrule the action of a department, the Board shall state in summary its reasons in writing. . . .



[5] Section 14 of the Business and Tax Regulations Code of San Francisco provides in pertinent part: The Board of Appeals shall hear the applicant, the permit holder or other interested parties, as well as a representative of the department from whose action the appeal is taken. After said hearing and such further investigations as the Board may deem necessary, but not later than 60 days or a reasonable time after the filing with it of the first appeal, the Board may concur in the action of the department authorized to issue, transfer or revoke the permit, or may overrule the action of said department and order that the permit be granted, restored, denied, or permitted to be transferred, as the case may be. [] Any immediately adjacent property owner who requested discretionary review of a permit by the Planning Commission and prevailed, in whole or in part, shall have the status of a party under this Article or the Boards rules in any appeal of the permit to the Board of Appeals by the project sponsor. Status of a party includes, but is not limited to, the right to any notices provided to parties, the right to receive . . . service of the Boards decision . . . .



[6] Section 6 of the rules of the board of appeals provides in pertinent part: Written requests for rehearing must be filed within 10 days from the date of the decision. Such rehearing request may be filed only by principals in the appeal. . . .



[7] Subdivision (d) of section 65009 extends the limitations period to one year for certain actions brought in support of affordable housing developments.



[8] Section 65903, which provides: A board of appeals, if one has been created and established by local ordinance, shall hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator, as the case may be. Procedures for such appeals shall be as provided by local ordinance. Such board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision, or determination as should be made, and such action shall be final.



[9] The tenth date actually falls on Saturday, June 3, 2006.



[10] Section 4.106(c) and (d) of the Charter of San Francisco reads in relevant part: (c) The Board of Appeals shall hear and determine appeals: [] 1. Where it is alleged there is error or abuse of discretion in any order, requirement, decision or determination made by the Zoning administrator in the enforcement of the provisions of any ordinance adopted by the Board of Supervisors creating zoning districts or regulating the use of property in the City and County; or [] 2. From the rulings, decisions and determinations of the Zoning Administrator granting or denying applications for variances from any rule, regulation, restriction or requirement of the zoning or set-back ordinances, or any section thereof. . . .



(d) After a hearing and any necessary investigation, the Board may concur in the action of the department involved, or by the affirmative vote of four members . . . overrule the action of the Department. [] Where the Board exercises its authority to modify or overrule the action of a department, the Board shall state in summary its reasons in writing. . . . (Italics added.)



ADS contends that the Code of Civil Procedure section 1094.6, subdivision (b), does not mandate that a writing must always be required, but merely requires that there is a provision for a written decision. ADS asserts that section 4.106(d) of the Charter of San Francisco requires a writing in some circumstances and therefore it satisfies the writing requirement under Code of Civil Procedure section 1094.6, subdivision (b). We need not address this argument because we conclude that a writing is required under a provision in the Business and Tax Regulations Code of San Francisco.



[11] We note that the order in the record before us does not have the seal, and the parties in their papers before this court did not suggest that the original order did not have the seal. No party raised the issue that the order did not comply with section 15 of the Business and Tax Regulations Code of San Francisco and we do not consider issues not before us.



[12] Respondents raise various arguments as to why Code of Civil Procedure section 1094.6 should not be used to interpret section 65009. In particular, they argue that these statutes cannot be reconciled and Code of Civil Procedure section 1094.6 emphasizes that it does not apply for the purposes of limitations periods imposed by other statutes. Additionally, respondents point out that section 65009 may only be shortened, not lengthened, when harmonized with other statutes. (See, e.g., Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1122; Gonzales v. County of Tulare (1998) 65 Cal.App.4th 777, 782-783.) We agree that the statute of limitations under section 65009 applies, not the statute of limitations under Code of Civil Procedure section 1094.6. However, that does not preclude us from using one statutes definition of a final decision to interpret the language used in section 65009.



[13] We need not address additional arguments by ADS that section 14 of the Business and Tax Regulations Code of San Francisco required the decision to be written and that ADS did not receive notice as required by Code of Civil Procedure section 1094.6, subdivision (f). Finally, since we conclude that ADSs action is timely, we need not address ADSs contention that respondents should be estopped from asserting a statute of limitations defense.





Description The zoning administrator of the City and County of San Francisco[1](zoning administrator) notified Advertising Display Systems 1, LLC (ADS) that it must remove a billboard. ADS appealed the zoning administrators determination to the San Francisco Board of Appeals (board of appeals). At the hearing, the board of appeals stated that it was upholding the zoning administrators determination and, subsequently, it mailed a notice of its order and decision. ADS filed a petition for writ of administrative mandamus in the superior court against San Francisco, the San Francisco Planning Department, and the zoning administrator (collectively, respondents). The petition was filed within 90 days of the mailing of the board of appeals order and decision but it was more than 100 days after the board of appeals had orally announced at the hearing that it was upholding the zoning administrators ruling.
The trial court sustained without leave to amend respondents demurrer against ADSs petition. The court found that the statute of limitations under Government Code section 65009[2]barred ADSs action and that estoppel could not be invoked against respondents. ADS appeals and claims the lower court erred by failing to use the date of the mailing of the board of appeals decision as the date of accrual for purposes of the statute of limitations. Court agree that the mailing of the board of appeals notice of decision triggered the running of the statute of limitations and ADSs petition was timely. Accordingly, Court reverse the judgment.

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