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Court of Appeal:
Challenge to Alleged Corruption-Tinged Decisions Untimely
Planning Decisions Must Be Contested Within 90 Days, Opinion Says, Rejecting Contention That Influence of Then-Council Members Englander, Huizar Renders Applicable the Limitations Period in Political Reform Act
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that even if projects approved by the City of Los Angeles were tainted by the corruption of former Council members Mitchell Englander and Jose Huizar, it’s too late to bring a suit to block the affected real estate developments from going forward.
Both of the discredited former city lawmakers were members of the Planning and Land Use Management (“PLUM”) committee which paved the way for the projects. Englander pled guilty in U.S. District Court for the Central District of California to obstructing a corruption investigation and was sentenced to 14 months in prison, while Huizar is awaiting trial on federal racketeering charges.
The nonprofit AIDS HealthCare Foundation (“AHF”), a frequent challenger to city planning decisions, in 2020 sought an order “restraining building permits granted by the City of Los Angeles during” the time when either Huizar or Englander “sat on the PLUM committee and engaged in violations” of the Political Reform Act (“PRA”) “with respect to the permits.”
Englander was a member of the PLUM Committee from 2012 until he resigned from office on Dec. 31, 2018, to accept other employment and Huizar was a member or chair of the committee from 2007 until Nov. 15, 2018, when then- City Council President Herb Wesson stripped him of all committee assignments based on the federal criminal investigation of him. Both were indicted in 2000.
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MITCHELL ENGLANDER |
JOSE HUIZAR |
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former city council members
Byrdsong Affirmed
Div. Seven’s decision yesterday affirms a judgment of dismissal that followed Los Angeles Superior Court Judge Rupert A. Byrdsong’s action in sustaining a demurrer, without leave to amend, to AHF’s complaint.
“This appeal pits the anti-corruption objectives of the Political Reform Act of 1974 (PRA) (Gov. Code, § 81000 et seq.) against the desire for certainty in real estate development that animates the 90-day statute of limitations period in Government Code sections 65009 and 66499.37,” Marin Superior Court Judge Geoffrey M. Howard, sitting on assignment, wrote.
The limitations bar under the PRA is four years. It was that period AHF invoked in the trial court.
On appeal, however, it relied on Code of Civil Procedure §338(a) which establishes a three-year an on actions founded on “on a liability created by statute, other than a penalty or forfeiture.”
90-Day Limit
What actually applies, Howard declared, is the 90-day limitations period set forth in Secs. 65009 and 66499.37.
“In particular,” he said, “section 65009 governs any action designed to ‘attack, review, set aside, void, or annul’ a wide variety of land use decisions, including ‘to adopt or amend a general or specific plan,’ zoning, development agreements, and any conditions attached to variances, conditional use permits, ‘or any other permit.’ ”
The pro tem justice noted that §65009 says that “[n]o civil action alleging a violation” of the sort AHF alleges may be maintained unless a pleading is served and filed “within 90 days after the legislative body’s decision”—and additional provisions confirm “that ‘no action’ means no action.”
AHF argued, however, that it was not targeting particular planning decisions but, rather, was mounting “a challenge to the corruption.”
Howard responded:
“True, the gravamen of AHF’s action dictates the applicable statute of limitations….
“While AHF may challenge corruption under the PRA, the gravamen of AHF’s action is an attack on, or review of, the PLUM committee’s decisions related to permitting and real estate project approvals. Section 65009 applies directly to that challenge. AHF cannot escape the statutory time bar by couching its claim as ‘necessarily dependent on a finding of a violation of the PRA’ when the violation itself involves challenging the PLUM committee’s project approvals.”
In a footnote, he said:
“In the proceedings below AHF contended that Huizar and Englander’s fraudulent concealment ought to toll any applicable statute of limitations, and that if the requisite allegations were not pleaded in its complaint, leave to amend should be granted ‘to provide more detailed allegations for this defense to the statute of limitations.’ AHF does not raise, and therefore forfeits, these contentions on appeal.”
The case is AIDS HealthCare Foundation v. City of Los Angeles, 2022 S.O.S. 6084.
AHF was represented by staff attorneys Thomas A. Myers, Jonathan M. Eisenberg, Kirra N. Jones and David M. Gruen and acting for the City of Los Angeles and the Los Angeles City Counsel was Deputy City Attorney Michael M. Walsh.
Copyright 2022, Metropolitan News Company