Failure to Challenge Use Permit Conditions

City of Berkeley v. 1080 Delaware, LLC

(2015) 184 Cal.Rptr.3d 177

Recently, in City of Berkeley v. 1080 Delaware, LLC (2015) 184 Cal.Rptr.3d 177, despite holding that the city’s affordable housing ordinance was not enforceable, the court still upheld conditions in a use permit based on the unenforceable ordinance because the property owner failed to challenge the conditions within the statutory period.

In 2004, the City of Berkeley issued a use permit for the construction of a mixed-use building. The permit, in compliance with the city’s inclusionary housing ordinance, contained certain conditions regarding affordable housing. Independently, in 2009, an appellate court decision found that California state law preempted the city’s inclusionary ordinance. The city acknowledged that court decision invalidated its affordable housing ordinance, but nonetheless it filed a declaratory action alleging the affordable housing conditions were valid and enforceable in the use permit.

The court upheld the permit condition. The court found that use permit conditions, as governed by the Civil Code, must be challenged within a 90-day period. Failure to challenge the permit within that period waives the property owner’s ability to challenge the permit conditions in a subsequent proceeding. As the permit conditions were not challenged within the applicable statutory time frame, it remained enforceable despite subsequent preemption.

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