Drenner v. City of Orange
Petitioner Mark Drenner submitted building plans for a two-story garage and second unit on his parcel of residential property located in Old Towne Historic District (historic district) in the City of Orange (City). Although the Citys design review committee and planning commission approved the plans the city council upheld an appeal by real party in interest Old Towne Preservation Association (Association) and denied the project. In exercising discretionary review of the project and holding a public hearing, the city council relied in part on the Citys requirement that structures exceeding a height of over one and one-half stories require issuance of a conditional use permit. Drenner filed a petition for writ of mandate to require the City to approve the project. The petition alleged the project fell within Government Code section 65852.2, governing the addition of second units on residential property, which prohibits discretionary review or public hearing of the project. The trial court denied the writ petition, finding Drenner failed to timely serve the City with the petition, and that the project was subject to discretionary review because it involved more than simply a second unit.
Court conclude Drenner failed to properly serve the City with the writ petition within 90 days of the Citys denial as required by Government Code section 65009, subdivision (c)(1)(E). Although section 1107 authorizes service of an application for alternative writ by mail under the procedures of section 1010 et seq., this does not satisfy Government Code section 65009, which requires personal service in accordance with section 412.10 et seq. Because Drenner failed to properly serve the City with the writ petition, Court conclude the trial court did not err in denying his writ petition.
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