1

Filed 2/8/19 after rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAVE LAFAYETTE TREES et al.,

Plaintiffs and Appellants,

v.

CITY OF LAFAYETTE,

Defendant and Respondent;

PACIFIC GAS AND ELECTRIC COMPANY,

Real Party in Interest and Respondent.

A154168

(Contra Costa County

Super. Ct. No. MSN17-1142)

Petitioners Save Lafayette Trees, Michael Dawson, and David Kosters 

(collectively Save Lafayette Trees) appeal an order sustaining without leave to amend a

demurrer to their petition for writ of mandate challenging the City of Lafayette’s (city) 

approval of a letter of agreement for tree removal (agreement) with real party in interest 

Pacific Gas and Electric Company (PG&E). Save Lafayette Trees contends the trial court 

erred in concluding that service of its petition for a writ of mandate was untimely under

Government Code

1

section 65009. In an opinion filed on October 23, 2018, we concluded

that the claims asserted under the planning and zoning law (§ 65000 et seq.), the city’s 

general plan, and the city’s tree protection ordinance (Lafayette Mun. Code, § 6-1701 

et seq. (tree ordinance)) are barred by section 65009, subdivision (c)(1)(E), but that the 

claim asserted under the California Environmental Quality Act (CEQA) (Pub. Resources 

Code, § 21000 et seq.) was timely filed and served under Public Resources Code 

sections 21167, subdivision (a) and 21167.6, subdivision (a). Accordingly, we affirmed 

the order sustaining the demurrer as to the second, third, and fourth causes of action but 

reversed the order sustaining the demurrer to the first cause of action.

 

1 All statutory references are to the Government Code unless otherwise noted.
2

Thereafter, both PG&E and Save Lafayette Trees filed petitions for rehearing. We 

denied the petition filed by Save Lafayette Trees but granted PG&E’s petition to allow

reconsideration of our conclusion regarding the CEQA claim. Having considered

supplemental briefs filed by both parties, we find no reason to alter our original 

conclusions and, therefore, reissue the opinion with limited modification.

Background

On March 27, 2017, the city approved the agreement with PG&E which 

authorized and imposed conditions on the removal of up to 272 trees within its local 

natural gas pipeline rights-of-way.

2

The staff report prepared in connection with the 

agreement explains, “The removal of 216 protected trees constitutes a Major Tree 

Removal Project per the [Lafayette Municipal Code]. Under the tree protection

regulations, for this tree removal project PG&E would be required to (1) provide 

information regarding the project, (2) obtain a tree removal permit, and (3) provide 

mitigation for the removed trees. [¶] PG&E is willing to comply with the intent of the 

tree protection regulations and will provide the requested information and all applicable 

mitigation. However, PG&E has taken the position that it is exempt from obtaining any 

discretionary permits, including a tree removal permit. City staff disagrees with this

position. To ensure that the [community pipeline safety initiative] can move forward and 

to protect the public safety, PG&E and City staff have agreed to process the [community 

pipeline safety initiative] tree removal project under [Lafayette Municipal Code] section 

6-1705(b)(S). This section allows the city to allow removal of a protected tree ‘to protect 

the health, safety and general welfare of the community.’ City staff is willing to process 

the [community pipeline safety initiative] under this provision as long as PG&E provides 

all requested information and pays all applicable mitigation fees.”

On June 26, 2017, Save Lafayette Trees filed a petition challenging the city’s 

action. The petition was served the following day.

 

2

PG&E’s request for judicial notice of the agreement and related documents in the 

administrative record is granted. 
3

The petition’s first cause of action alleges the city failed to comply with CEQA 

before approving the agreement. The second cause of action alleges that the city 

approved the agreement in violation of the substantive and procedural requirements of the 

planning and zoning law, the city’s general plan, and the tree ordinance (collectively,

planning and zoning law claims). The third cause of action alleges the city violated the 

due process rights of the individual petitioners by failing to provide sufficient notice of 

the hearing at which the agreement was approved. The fourth cause of action alleges the 

city “proceeded in excess of its authority and abused its discretion in approving the tree 

removal agreement without compliance with CEQA, the [planning and zoning law], the 

city’s general plan, the Municipal Code, and the due process clause of the California 

Constitution” in violation of Code of Civil Procedure sections 1085 and 1094.5. An 

amended petition was filed in August 2017 realleging the same causes of action.

PG&E filed a demurrer to the amended petition on the ground that it was barred 

by section 65009, subdivision (c)(1)(E), which requires that an action challenging a 

decision regarding a zoning permit be filed and served within 90 days of the decision. 

PG&E explained that while the original petition was timely filed on June 26, 2017, the 

original petition was not served until after the 90-day deadline. The city joined in 

PG&E’s demurrer. Save Lafayette Trees opposed the demurrer on the ground its claims 

fall outside the scope of section 65009 and that, even if section 65009 applies to its 

planning and zoning law claims, its CEQA claim was timely filed and served under the 

longer limitations period provided under the Public Resources Code.

The trial court sustained the demurrer without leave to amend, finding that the 

“action was not served on either [the city or] PG&E within the 90-day period for filing 

and service required by the applicable statute of limitations set forth in [section]

65009(c)(1)(E), and is thus time-barred.” The court entered a judgment dismissing the 

petition.

Save Lafayette Trees then filed a motion to vacate the judgment arguing, among 

other things, that its planning and zoning law claims were subject to the statute of 
4

limitations found in section 6-236 of the city’s Municipal Code rather than section 65009. 

The court denied the motion.

Save Lafayette Trees timely filed a notice of appeal from the judgment and denial 

of its motion to vacate.

Discussion

1. Standard of Review

The trial court's decision to sustain the demurrers without leave to amend is 

reviewed de novo. In conducting the review, this court exercises its independent 

judgment to determine whether the action can proceed under any legal theory. (Honig v. 

San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524.) Leave to amend should

not be granted if the pleadings disclose the action is barred by a statute of limitation. 

(Ibid.)

2. The causes of action based on violations of the planning and zoning law claims

were not timely served under section 65009.

The planning and zoning law establishes the authority of most local government 

entities to regulate the use of land. (Topanga Assn. for a Scenic Community v. County of 

Los Angeles (1974) 11 Cal.3d 506, 518-519, fn. 18.) Under the planning and zoning law, 

each county and city must “adopt a comprehensive, long-term general plan for the 

physical development of the county or city . . . .” (§ 65300.) The general plan consists of 

a “statement of development policies . . . setting forth objectives, principles, standards, 

and plan proposals.” (§ 65302.) “Subordinate to a general plan are zoning laws, which 

regulate the geographic allocation and allowed uses of land. [Citation.] [¶] ‘Zoning laws 

regulate land uses in two basic ways. Some uses are permitted as a matter of right if the 

uses conform to the zoning ordinance. Other sensitive land uses require discretionary 

administrative approval pursuant to criteria in the zoning ordinance. [Citation.] They 

require a conditional use permit.’ ” (Gonzalez v. County of Tulare (1998) 65 Cal.App.4th 

777, 784-785.) To provide certainty for property owners and local governments regarding 

decisions by local agencies made pursuant to the planning and zoning law, the 
5

Legislature enacted “a short, 90-day statute of limitations, applicable to both the filing 

and service of challenges to a broad range of local zoning and planning decisions.” 

(Honig v. San Francisco Planning Dept., supra, 127 Cal.App.4th at p. 526; § 65009, 

subds. (a)(3), (c)(1).) 

As relevant here, section 65009, subdivision (c)(1), provides that “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 body’s decision: [¶] . . . [¶] (E) To attack, review, set aside, 

void, or annul any decision on the matters listed in Sections 65901 and 65903, or to 

determine the reasonableness, legality, or validity of any condition attached to a variance, 

conditional use permit, or any other permit.” The “matters listed” in sections 65901 and 

65903 include “conditional uses or other permits when the zoning ordinance provides 

therefor” and “variances from the terms of the zoning ordinance.” (§ 65901, subd. (a); see 

also Travis v. County of Santa Cruz (2004) 33 Cal.4th 757, 766, fn. 2 [Sections 65901 

and 65903 “provide for hearing and decision on, and administrative appeals concerning, 

applications for variances, conditional use permits, and other permits.”]; Royalty Carpet 

Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1119, fn. 6 [same] (Royalty

Carpet).) Section 65009, subdivision (c)(1)(E) is to be applied broadly to all types of 

challenges to permits and permit conditions, as long as the challenge rests on a “decision” 

of a local authority relating to a permit or seeks to “determine the reasonableness, 

legality, or validity of any condition attached to a . . . conditional use permit, or any other 

permit.” (Travis, supra, at pp. 766-768.) In short, an action challenging “any decision” by 

a “legislative body” regarding a variance, a conditional use permit, or other permit 

provided for by a local zoning ordinance must be filed and served within 90 days of the 

decision.

The Open Space and Conservation Element of the city’s general plan includes 

findings reflecting the value of protected trees to the city and calls for “protection for 

significant native trees and woodlands” under the tree ordinance. (City of Lafayette 

General Plan, Open Space and Conservation Element, Res. No. 2002-56 (Oct. 28, 2002) 
6

§ III-7.) The tree ordinance is a zoning ordinance, located in the “Planning and Land 

Use” title of the city’s Municipal Code. Section 6-1704 requires a permit for the removal 

of a protected tree and sections 6-1706 and 6-1707, authorizes the imposition of 

reasonable conditions on the permit. Depending on the level of permit sought, either the 

planning and building department director or, among others, the planning commission or 

city council, is charged with approving the permit. (Lafayette Mun. Code, §§ 6-1706, 6-

1707.) Under section 6-1705(b)(5), an applicant may seek an exception to the 

requirements of the tree ordinance when “the city must remove a protected tree to protect 

the health, safety and general welfare of the community.”

Although here the city entered into an agreement approving the removal of trees 

under section 6-1705 of the city’s Municipal Code, rather than issuing a “permit” for 

their removal, there is no meaningful difference between the two in this instance. In its 

original petition, Save Lafayette Trees characterized the city’s decision as a “permit[] 

allowing land use” and in its amended complaint as an “approval[] allowing land use.”

Both are properly considered decisions relating to the matters listed in sections 65901 and 

65903. Accordingly, the city’s decision falls squarely within the scope of section 65009.

The arguments made by Save Lafayette Trees to the contrary are not persuasive. 

Save Lafayette Trees argues, “section 65009 is a statute adopted to address California’s 

‘housing crisis’ by ‘reduc[ing] delays and restraints upon expeditiously completing 

housing projects.’ (. . . § 65009(a)(1).) It does not by its terms, or even by implication, 

apply to the city’s contract with PG&E to remove mature trees along public hiking 

trails.” Although one of the three findings made by the Legislature with respect to section 

65009 relates to housing,

3

nothing in section 65009, subdivision (c)(1), restricts its

application to decisions involving housing. As set forth above, courts have interpreted the 

statute as applying to challenges to a broad range of local zoning and planning decisions. 

(See, e.g., Urgent Care Medical Services v. City of Pasadena (2018) 21 Cal.App.5th 

 

3

Section 65009, subdivision (a)(1) reads, “The Legislature finds and declares that there 

currently is a housing crisis in California and it is essential to reduce delays and restraints 

upon expeditiously completing housing projects.”
7

1086, 1096 [ordinance prohibiting medical marijuana dispensaries]; Okasaki v. City of 

Elk Grove (2012) 203 Cal.App.4th 1043, 1048, [variance to landowners, in order to 

authorize pool and spa in setback zone].)

Next, Save Lafayette Trees argues that section 65009 is not applicable because the 

city was not “acting in one of the roles specified in sections 65901 and 65903, i.e., as a 

board of zoning adjustment, zoning administrator or a board of appeal.” However, section 

65009 expressly incorporates the “matters” listed in sections 65901 and 65903, regardless 

of the legislative body charged with making the decision. The courts “have rejected the 

notion that the reviewing body, rather than the underlying decision being reviewed, 

determines the applicability of Section 65009.” (AIDS Healthcare Foundation, Inc. v. 

City & County of San Francisco (2016 N.D.Cal.) 208 F.Supp.3d 1095, 1101, and cases 

there cited.) To the extent that People v. Gates (1974) 41 Cal.App.3d 590, 596-598,

decided under subsequently repealed section 65907, implies the contrary, we disagree.

“The language of Section 65009 is broad. It covers ‘any decision’ on the ‘matters listed’ 

in Sections 65901 and 65903” (AIDS Healthcare Foundation, Inc., supra, at p. 1100) and 

it therefore applies to the decision approving the tree removal contract.

Save Lafayette Trees also argues that its action is subject to the longer, 180-day 

statute of limitations found in the city’s Municipal Code section 6-236, which formerly 

read, “An action . . . to attack, review, set aside or annul a decision of the city council 

under this title . . . shall not be maintained by any person unless the action . . . is brought 

within 180 days after the date of the decision.”4 Although the city raises several sound 

procedural grounds for rejecting this argument, we, like the trial court, choose to reject 

the claim on the merits. We agree with the trial court that Municipal Code section 6-236 

was preempted by section 65009. 

Section 65009 makes clear that no action or proceeding challenging a local

legislative body’s decision regarding matters listed in sections 65901 and 65903 shall be 

 

4

PG&E’s request for judicial notice of the documents relating to the repeal of section 6-

236 and of an ordinance adopted by the City of Temecula is denied on the ground of 

relevance.
8

maintained unless it is filed and served within 90 days of the challenged decision. 

(§ 65009, subds. (c)(1), (c)(1)(E).)5 Otherwise valid, local legislation that conflicts with 

state law is preempted by such law and is void. (Sherwin-Williams Co. v. City of Los 

Angeles (1993) 4 Cal.4th 893, 897.) “ ‘A conflict exists if the local legislation 

“ ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly 

or by legislative implication.’ ” ’ [Citations.] [¶] Local legislation is ‘duplicative’ of 

general law when it is coextensive therewith. [Citation.] [¶] Similarly, local legislation is 

‘contradictory’ to general law when it is inimical thereto.” (Id. at pp. 897-898.) Insofar as 

section 65009 applies to the present action and expressly conflicts with the local 

ordinance, it preempts the local ordinance.

Relying on Pan Pacific, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244, 

252 (Pan Pacific), Save Lafayette Trees argues that the local ordinance is not preempted 

by section 65009 because the Legislature has not “evinced an intent to occupy the field in 

the planning and zoning law area.” Because the state and local statutes directly conflict, 

we need not decide whether section 65009 preempts the local ordinance on this 

alternative ground. We note, however, that the reasoning in Pan Pacific arguably is no 

longer persuasive in light of subsequent legislative action expanding the scope of the 

statute of limitations under the planning and zoning law. (See Barclay & Gray, California 

Land Use and Planning Law (35th ed. 2016) p. 529 [“In Pan Pacific Properties, Inc. v. 

County of Santa Cruz, the court held that a county ordinance that established a 30-day 

statute of limitations for judicial review of county zoning ordinances was not preempted 

by state law, since at the time the Planning and Zoning Law contained no statute 

specifically applicable to such challenges. [Citation]. However, since Pan Pacific was 

decided, the Legislature has enacted and amended . . . section 65009 to establish statutes 

of limitation applicable to most, if not all, planning and zoning decisions.”].)

 

5 Although the statute provides an exception for any law with a shorter limitations period 

(§ 65009, subd. (g)), former Municipal Code section 6-236 plainly did not provide a 

shorter limitations period.
9

Finally, Save Lafayette Trees argues that it is excused from compliance with 

section 65009 because the city failed to provide its members with written notice prior to 

the city council’s meeting as required by section 6-211 of the city’s Municipal Code,

6

section 65905,

7

and the due process clause of the California Constitution. According to

Save Lafayette Trees, respondents “cannot avail themselves of section 65009’s statute of 

limitations because the city failed to provide the public access, due process and

procedural uniformity required by the [planning and zoning law].” Save Lafayette Trees 

has failed to allege, however, facts to support its contention that its members were 

entitled to personal notice. The amended complaint alleges generally that “Many 

members of Save Lafayette Trees and their supporters, and other members of the public, 

reside within 300 feet of the trees slated for removal pursuant to the tree removal 

agreement.” The specific allegations regarding petitioners state only that Michael 

Dawson is “a city resident and homeowner” and that David Kosters “resides in the city,” 

that they and their families “regularly use and enjoy the healthy, mature trees that PG&E 

proposes to remove pursuant to the tree removal agreement,” and that they “reside in 

proximity to trees that would be removed” under the agreement. These facts do not 

establish that either petitioner lives within 300 feet of any of the trees to be removed or

 

6 Under section 6-211, subdivision (a) of the city’s Municipal Code, the notice 

requirement for a public hearing on a “land use permit” includes “Mailing notice postage 

prepaid and at least ten calendar days before the hearing to owners of property which is 

contiguous to the subject property, and to the owners of other property which, in the 

opinion of the planning director, is directly affected by the proposal. . . .”

7

Section 65905 reads: “(a) Except as otherwise provided by this article, a public hearing 

shall be held on an application for a variance from the requirements of a zoning 

ordinance, an application for a conditional use permit or equivalent development permit, 

a proposed revocation or modification of a variance or use permit or equivalent 

development permit, or an appeal from the action taken on any of those applications. 

[¶] (b) Notice of a hearing held pursuant to subdivision (a) shall be given pursuant to 

Section 65091.” Section 65091, subdivision (a)(4) requires that “Notice of the hearing 

shall be mailed or delivered at least 10 days prior to the hearing to all owners of real 

property as shown on the latest equalized assessment roll within 300 feet of the real 

property that is the subject of the hearing. . . .”
10

was entitled to greater service than other members of the general public.8 As respondents 

note, the public was given notice under the Brown Act (§ 54950 et seq.) in advance of the 

March 27 hearing that the city council would be reviewing “the PG&E Community 

Pipeline Safety Initiative requiring the removal of 216 protected trees” and deciding 

whether to authorize the city manager to execute the agreement with PG&E.

Accordingly, the trial court properly sustained without leave to amend the city’s 

demurrer to the second, third and fourth causes of action.9

 

8

Save Lafayette Trees argued in its petition for rehearing that if given leave to amend it 

could allege with greater specificity which of its “many members” live within 300 feet of 

trees slated for removal. The proposed amendment comes too late. Not only did Save 

Lafayette Trees fail to make this request in the trial court, in its opening appellate brief it

argued only that the city’s failure to provide notice by mail to “affected property owners, 

including petitioners here” tolled the limitations period. In reply, respondents argued that 

“[f]ully crediting the [first amended complaint’s] properly pleaded factual allegations,” 

Save Lafayette Trees failed to establish a “right[] to notice as ‘directly affected’ owners.”

In their reply brief, Save Lafayette Trees repeated its argument that its complaint alleges

a right to notice because the agreement provides for the removal of “iconic trees in 

proximity to petitioners’ homes.” The belated amendments first proposed by Save 

Lafayette Trees in its petition for rehearing do not establish that the trial court abused its 

discretion in denying leave to amend to allege facts not brought to its attention. 

9

Save Lafayette Trees acknowledges, “Under settled law, the statute of limitations 

applicable to [its] due process claims derives from the statute or ordinance on which 

those claims are based.” Thus, because its due process claim “arises from the city’s 

failure to comply with the 10-day public notice provisions” before approving the 

agreement, this claim is also barred. Similarly, the question of which statute of limitation 

applies to a Code of Civil Procedure section 1085 mandamus action is to be resolved “not 

by the remedy prayed for but by the nature of the underlying right or obligation that the 

action seeks to enforce.” (Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 

Cal.App.4th 914, 926.) Save Lafayette Trees cannot rely on the Code of Civil Procedure 

section 338’s three-year statute of limitations that is applicable to actions “upon a liability 

created by statute” to extend the limitations period on its barred claims. (Cf. Travis v. 

County of Santa Cruz, supra, 33 Cal.4th at p. 771; Urban Habitat Program v. City of 

Pleasanton (2008) 164 Cal.App.4th 1561, 1576-1577.)
11

3. The CEQA cause of action was timely filed and served under Public Resources 

Code sections 21167 and 21167.6.

Save Lafayette Trees contends that section 65009 is not applicable to the CEQA 

cause of action because it conflicts with the more specific CEQA limitations period found 

in Public Resources Code sections 21167, subdivision (a) and 21167.6, subdivision (a). 

Under Public Resources Code section 21167, subdivision (a), an action “alleging that a 

public agency is carrying out or has approved a project that may have a significant effect 

on the environment without having determined whether the project may have a 

significant effect on the environment shall be commenced within 180 days from the date 

of the public agency’s decision to carry out or approve the project.” Under Public 

Resources Code section 21167.6 subdivision (a), the complaint or petition “shall be 

served personally upon the public agency not later than 10 business days from the date 

that the action or proceeding was filed.” Thus, under the Public Resource Code 

provisions, the complaint in this action was timely filed and served. 

“As a general rule, when two statutes relate to the same subject, the more specific 

one will control unless they can be reconciled. [Citations.] When the two statutes can be 

reconciled, they must be construed ‘in reference to each other, so as to “harmonize the 

two in such a way that no part of either becomes surplusage.” ’ ” (Royalty Carpet, supra, 

125 Cal.App.4th at p. 1118.)

There is no dispute that section 65009, subdivision (c)(1)(E) and Public Resources 

Code sections 21167 and 21167.6 both relate to the same subject: the time period within 

which service of a petition challenging approval of a zoning permit must be made.

(Royalty Carpet, supra, 125 Cal.App.4th at p. 1121 [“[C]hallenges under the Public 

Resources Code constitute a subset of general challenges to conditional use permits.”].) If 

the statutes cannot be harmonized, the more specific Public Resources Code provisions

govern. (Committee for a Progressive Gilroy v. State Water Resources Control Bd. 

(1987) 192 Cal.App.3d 847, 859 [CEQA statute of limitations, rather than statute of 

limitations of Porter-Cologne Water Quality Control Act, govern CEQA claims.]; see 
12

also Pub. Resources Code, § 21167.6 [CEQA service requirements apply 

“notwithstanding any other law.”].) 

In Royalty Carpet, the court found that the service requirements under the two 

provisions could be reconciled because the time period for service under the Public 

Resources Code is not a strict time limit. (Royalty Carpet, supra,125 Cal.App.4th at p. 

1122, citing Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 848 

[Compliance with the time requirements set forth in Public Resources Code section 

21167.6 may be excused for “good cause.”].) To give effect to the language of both 

statutes, the court reasoned that the shorter 40-day period for filing and service of the 

action, provided by Public Resources Code sections 21167, subdivision (b)10 and 

21167.6, was effective absent a showing of good cause for an extension of the time for 

service, and the longer period, provided by section 65009, subdivision (c)(1)(E),

established the outer limit by which the action must be served. The court explained that

“To accomplish the Legislature’s purpose of limiting the time in which a decision 

regarding a conditional use permit can be challenged by filing and serving a petition, in 

no event can service of the petition be accomplished beyond the 90-day time bar 

contained in the Government Code. To conclude otherwise would be to ignore the 

absolute limitations bar contained in . . . section 65009.” (Royalty Carpet, supra, at 

p. 1123.)

Save Lafayette Trees correctly distinguishes the holding in Royalty Carpet on the 

ground that this case involves the longer time limit in Public Resources Code section 

21167, subdivision (a) rather than the 30-day limit found in subdivision (b). In Royalty

Carpet the more specific provision in the Public Resources Code imposed a shorter 

limitation period, whereas in this case requiring service within 90 days would 

 

10 Under Public Resources Code section 21167, subdivision (b), “An action or proceeding 

alleging that a public agency has improperly determined whether a project may have a 

significant effect on the environment shall be commenced within 30 days from the date of 

the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of 

Section 21152.”
13

impermissibly cut in half the180-day period allowed for filing the CEQA action under the 

Public Resources Code. That conflict cannot be reconciled.11

Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 

relied on heavily by PG&E in its petition for rehearing, is distinguishable for the same 

reason. In that case, the Friends of Riverside’s Hills timely filed its CEQA action within 

the shorter 30-day time limit but failed to comply with the 90-day service of summons 

requirement found in section 66499.37 of the Subdivision Map Act (§ 66410 et seq.). 

Relying on Royalty Carpet, supra, 125 Cal.App.4th 1110, the court concluded that the 

CEQA claims were barred because “[b]oth CEQA and section 66499.37 can be 

harmonized. Friends could easily have complied with the [Subdivision Map Act] service 

of summons requirement without running afoul of the CEQA procedures; it simply failed 

to do so.” (168 Cal.App.4th at p. 753.) As noted above, the 180-day statute of limitations 

found in Public Resources Code section 21167, subdivision (a) cannot be harmonized 

with the 90-day service period required by section 65009, subdivision (c)(1)(E).

Alternatively, even if the 90-day statute of limitations for filing an action under 

section 65009 is considered the more specific statute and governs the deadline for filing 

 

11 This reasoning was well articulated in an unpublished 2006 opinion of Division 8 of 

the Second Appellate District. While we do not rely on the unpublished opinion as 

authority, we adopt as our own its reasoning: “In this case, [Public Resources Code] 

section 21167, subdivision (a) cannot be harmonized with section 65009, and as a result 

does not control the first cause of action. Unlike Royalty Carpet, where the shorter 

limitations period could be extended for good cause up to the strict 90-day period 

specified by section 65009, the shorter limitations period in this case is the strict 90-day 

period specified by section 65009. Because the shorter period is strictly construed, it 

cannot be harmonized with the longer period specified by [Public Resources Code] 

section 21167, subdivision (a). In Royalty Carpet, the shorter period was effective absent 

a showing of good cause for an extension, and the longer period established an absolute 

bar to an action. The language of both statutes was thus given effect. In this case, 

however, the longer period specified by [Public Resources Code] section 21167, 

subdivision (a) cannot be given effect due to the strict nature of section 65009. Since 

[Public Resources Code] section 21167, subdivision (a) and section 65009 cannot be 

harmonized, section 21167, subdivision (a) controls because it is the more specific of the 

two statutes.” (Friends of the Raymond Theatre v. City of Pasadena (Oct. 17, 2006, 

B184315) [nonpub. opn.].)
14

the complaint, the complaint was timely filed within the 90 day period. Although service 

was not made until after the 90th day, the period for service is governed by Public 

Resources Code section 21167.6, which applies “[n]otwithstanding any other law.”

Section 21167.6 governs when in conflict with section 65009. (Board of Supervisors v. 

Superior Court (1994) 23 Cal.App.4th 830, 841 [“[T]he provisions of section 21167.6 

must prevail over directly contradictory provisions in other statutes.”].) While the two 

service provisions may be harmonized when a shorter statute of limitations for filing 

applies (Royalty Carpet, supra, 125 Cal.App.4th at pp. 1122-1123), if filing is required 

by the 90th day, application of the 90-day limitation to the service requirement would 

nullify and, thus, directly conflict with, the 10 days allotted for service under Public 

Resource Code section 21167.6. Since service was made within the period provided in 

section 21167.6, the CEQA cause of action has been timely prosecuted even if the action 

were required to have been filed within 90 days. 

Accordingly, the trial court erred in sustaining the demurrer to the first cause of 

action. 

Disposition

As to causes of action two, three, and four, the order sustaining the demurrers is 

affirmed. As to cause of action one, the order sustaining the city's demurrer is reversed, 

and the trial court is directed to enter an order vacating its previous order and enter an 

order overruling the demurrer as to that cause of action. The parties shall bear their own 

costs on appeal.

_________________________

Pollak, J.*

 

*

Presiding Justice of the Court of Appeal, First Appellate District, Division Four, sitting 

by assignment pursuant to article VI, section 6 of the California Constitution.
1

SIGGINS, P. J. and ROSS, J., Concurring.

We concur fully in the reasoning and holding that the claims Save Lafayette Trees, 

Michael Dawson, and David Kosters alleged under the Planning and Zoning Act, the 

city’s general plan and the city’s tree protection ordinance (planning and zoning law 

claims) were not timely served, and that we must affirm the demurrer without leave to 

amend on those claims. We also agree that the California Environmental Quality Act 

(CEQA) claim was timely served, as required under the controlling statute, Public 

Resources Code section 21167.6. Thus, we concur fully in the judgment.

We write separately because it is unnecessary to address whether the time for 

filing the CEQA claim was governed by Public Resources Code section 21167, or the 

shorter period provided in Government Code section 65009.1The petition was timely 

filed even if we assume, without deciding, that the shorter section 65009 limitations 

period applied to all the alleged claims. The critical question that bears on the CEQA 

claim is whether it was timely served.

As the lead opinion concludes, the CEQA service provision in Public Resources 

Code section 21167.6 applies “[n]otwithstanding any other law.” While section 65009 

states that “no action or proceeding shall be maintained . . . by any person” to challenge a 

conditional use permit, or any other permit “unless the action or proceeding is 

commenced and service is made on the legislative body within 90 days after the 

legislative body’s decision,” here, because the complaint alleges claims under both 

CEQA and the planning and zoning law, section 65009 must be read in light of Public 

Resources Code section 21167.6. 

“ ‘As a general rule, when two statutes relate to the same subject, the more 

specific one will control unless they can be reconciled. [Citations.] When the two statutes

can be reconciled, they must be construed “in reference to each other, so as to ‘harmonize 

the two in such a way that no part of either becomes surplusage.’ ” ’ [Citations.] Put 

another way, ‘If we can reasonably harmonize “[t]wo statutes dealing with the same 

 

1 All statutory references are to the Government Code unless otherwise noted. 
2

subject,” then we must give “concurrent effect” to both, “even though one is specific and 

the other general.” ’ ” (Friends of Riverside’s Hills v. City of Riverside (2008) 168 

Cal.App.4th 743, 753.)

The result we achieve today gives effect to the plain language of both statutes. The 

planning and zoning law claims addressed in section 2 of the lead opinion must be both 

filed and served within 90 days of a local agency decision on a permit. (Lead opn. ante, at 

p. 4; accord, § 65009, subd. (c)(1)(E).) The complaint was filed within 90 days of the 

agency decision. If section 65009 controlled the date for service, it should have been 

served within the same period. But as to service of the first cause of action, Public 

Resources Code section 21167.6 applies “[n]otwithstanding any other law” and 

subdivision (a) provides that a CEQA claim “shall be served personally upon the public 

agency not later than 10 business days from the date that the action or proceeding was 

filed.” Here, the complaint was served personally upon the agency too late to comply 

with the planning and zoning law, but within the time allowed under CEQA. For this 

reason, we would give effect to both statutes, and agree that the planning and zoning law 

claims are barred, but the CEQA claim can proceed. 

As stated in Friends of Riverside’s Hills, “when two statutes relate to the same 

subject, the more specific one will control unless they can be reconciled.” (Friends of 

Riverside’s Hills v. City of Riverside, supra, 168 Cal.App.4th at p. 753.) The lead opinion 

follows the analysis of Committee for a Progressive Gilroy v. State Water Resources 

Control Bd. (1987) 192 Cal.App.3d 847 to conclude that the CEQA statute of limitations 

in Public Resources Code sections 21167 and 21167.6 is a narrower statutory scheme 

than the planning and zoning law limitations period in section 65009. The lead opinion

also discusses Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110.

Both Progressive Gilroy and Royalty Carpet compare the statutes’ limitations periods to 

determine which is narrower and therefore applicable. An alternative approach is to 

consider the “purposes served by the competing statutes to determine which controls.”

(Shoemaker v. Myers (1990) 52 Cal.3d 1, 21.)
3

Because the CEQA claim was timely filed and served this case does not require us 

to decide whether CEQA or the planning and zoning law is narrower and controls. We 

would defer that issue until presented with a case where its resolution will be material to 

the outcome. 

Thus, we concur in the judgment.

_________________________

SIGGINS, P. J.

I CONCUR:

_________________________

ROSS, J.*
1

Trial court: Contra Costa County Superior Court

Trial judge: Honorable Steven K. Austin

Counsel for Plaintiffs and Appellants: LAW OFFICES OF STEPHAN C. VOLKER

Stephan C. Volker

Alexis E. Krieg

Stephanie L. Clarke

Jamey M.B. Volker

Counsel for Defendant and Respondent: BEST BEST & KRIEGER LLP

Malathy Subramanian

Sarah E. Owsowitz

Counsel for Real Party in Interest and 

Respondent:

MILLER STARR REGALIA

George B. Speir

Arthur F. Coon

A154168