Local governments use zoning decisions to organize land use across cities. The City and County of San Diego have zoning ordinances that establish which types of buildings and uses for buildings are permitted in various parts of the city, and investors need to be familiar with the zoning requirements in a given area before purchasing or repurposing property in that area. We previously discussed zoning as one of the important legal issues to consider before flipping a home in California. It is possible to challenge or change a zoning designation, although the process is not easy and often requires the help of a knowledgeable San Diego real estate attorney.
The Zoning Decision Process
Chapters 11 through 14 of San Diego’s Municipal Code detail the Land Development Code, which sets the types of zones in the city and the processes for zoning and rezoning areas. If an area is not zoned, the landowner may apply to zone the property. Sections 123.0103 and 112.0102 of the Municipal Code detail the application process. The code also details how the City Council should make a zoning or rezoning decision, based on “public necessity or convenience, the general welfare, or good zoning practice.”
The Code lays out different numbered “processes” for the Council to evaluate property owner applications regarding land use. “Process Five” applies to evaluating zoning or rezoning applications; it is detailed in sections 112.0501 and 112.0509. The four-step process includes: (1) a landowner application with a plan; (2) city staff review; (3) a Planning Commission recommendation hearing, followed by a decision within 60 days; and finally (4) a City Council hearing. Hearings are public, and both the landowner and any other affected or interested parties may have the chance to comment.
Challenging Zoning Decisions
If you receive an unfavorable zoning decision, such as the denial of a permit to use land for a particular purpose, you may wish to challenge or appeal the decision. Process Five decisions do not have an agency appeal process, so your typical recourse is to file a lawsuit.
Any lawsuit challenging a zoning decision must be filed within 90 days of the zoning decision. You must have a valid legal basis other than simply disliking the decision, and courts tend to be very deferential to zoning decisions. Typically, for a challenge to be successful, you must be able to prove that the decision was an abuse of discretion or involved unlawful discrimination or the violation of some constitutional right.
90-Day Limitation Does Not Apply to Facial Challenges to San Diego City Ordinances
There is an exception to the 90-day rule for challenging zoning decisions. If you are challenging a zoning ordinance on its face, rather than as applied in a particular decision, then the 90 day rule does not apply.
For example, in 2016, a company called Architecture Art, LLC had certain mural painting permits rescinded and denied by the city of San Diego. The company claimed the ordinances violated the Free Speech Clause of the First Amendment to the U.S. Constitution and sued the city under 42 U.S.C. § 1983. The federal court denied the city’s motion to dismiss based on the 90-day limitations period, clarifying that § 1983 claims borrow the forum state’s limitations period for personal injury lawsuits, which is 2 years in California. Moreover, a facial violation of the First Amendment is an ongoing harm until the statute is repealed or invalidated, meaning a successful First Amendment claim is timely as long as the unconstitutional law continues to apply.
If you’re a real estate investor facing a legal issue in California, get help from seasoned and professional legal counsel by contacting San Diego real estate attorney Jon Alan Enochs at 619-421-3956.