Setting the Record Straight on Suit Against City

January 3, 2002

Dear Editor,

I represent Howard Jacobs' companies, Calstar Equities and 2000 Main Street LLC. I am the lawyer principally responsible for handling their lawsuit against the City of Santa Monica in connection with the North Main Street project.

I have read several of your articles concerning the Project in The LookOut News regarding my clients' claim for damages resulting from the City's violation of a State-imposed 12-month time limit in the building permit process. Your articles suggest that the State law deadline is not compulsory, but is instead merely a "goal." Santa Monica's City Attorney is quoted as saying the law merely "gives guidance to the City" and is "directory rather than mandatory."

While it is not my practice to discuss pending litigation matters with the press, I do so here because the comments noted above are not correct, but instead reflect a fundamental misunderstanding and mischaracterization of the applicable legal standards.

The problem here is one of semantics. In the context of the applicable law here, the words "directory" and "mandatory" have special meaning. Rather than meaning that the time limit is "permissive" rather than "obligatory," as suggested by the City in your articles, those words instead denote whether a failure of compliance with the time limit will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.

Thus, even though here the State law is "directory," it is still "obligatory" that the City follow its one-year limitation; instead, "directory" means here that the City's failure to meet the deadline in certifying an Environmental Impact Report on the Project does not excuse the Project from the need to get such a report. The obligation to get the report remains, but the developer has the right to sue the City for money damages resulting from the failure to meet the "obligatory" deadline. On the other hand, if the State law were "mandatory," then the City's failure to meet the deadline would waive the requirement of the Environmental Impact Report and the Project could simply go forward without it.

To prove the point, I refer you to the opinion in the recent Appellate Court case Sunset Drive Court v. City of Redlands (1999) 73 Cal.App.4th 215, which I enclose for your convenient reference.

Starting at Headnote 5, page 233 of the decision, the Court articulates our position with crystal clarity and undercuts the "it is directory and therefore only a goal" analysis completely. We quote from Sunset:

"b. That the Time Limit in Public Resources Code Section 21151.5 May Be Directory Does Not Render It Unenforceable.

Redlands contends that mandate is not available to enforce the one-year deadline of Public Resources Code section 21151.5 because that time limit is directory rather than mandatory. It is again mistaken.

(5) Statutory time limits are usually deemed to be directory (California Correctional Peace Officers Assn. V. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145 [43 Cal.Rptr.2d 693, 899 P.2d 79]), but even directory time limits may be enforced by a writ of mandate compelling the agency to act (id. At p. 1148; Morris v. County of Marin (1977 18 Cal.3d 901, 909, fn. 4 [136 Cal.Rptr. 251, 559 P.2d 606]). That is because generally 'a "'directory' or 'mandatory' designation does not refer to whether a particular statutory requirement is 'permissive' or 'obligatory,' but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedure requirement relates.' [Citation.] If the action is invalidated, the requirement will be termed 'mandatory.' If not, it is 'directory' only." (California Correctional Peace Officers Assn., supra, at p. 1145, quoting from Morris, supra, at p. 908.)

(3c) Redlands has offered no authority suggesting that Public Resources Code section 21151.5 is an exception to that general rule. Accordingly, even assuming that the time limit is directory rather than mandatory, an agency which has missed that deadline may be compelled to act by a writ of mandate."

In light of the Sunset Court's holding, there is simply no plausible argument that the one-year time limit is a mere "goal." The time limit is, without doubt, obligatory.

Thank you for taking the time to read this letter. Hopefully, it will clarify what the law really says and help you to better understand our case for purposes of future articles.