Branden BICKEL et al., Plaintiffs and Appellants, v. CITY OF PIEDMONT et al., Defendants and Respondents.
Branden Bickel and Claudia Cate (appellants) applied for planning commission approval of a proposed second-story addition to their home in the City of Piedmont. Following eventual denial by the commission and an unsuccessful appeal to the Piedmont City Council, they sought a writ of mandamus and declaratory relief against the city, various agencies and its mayor (collectively the city), contending that failure to approve or deny the application within the time prescribed by the Permit Streamlining Act (the Act) (Gov.Code, § 65920 et seq.; all undesignated section references are to that code) constituted a “deemed approval” (§ 65956, subd. (b)). The court denied relief based on waiver and estoppel because appellants had secured a continuance beyond the time limit. We reverse.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellants first applied for design review approval in March 1991, seeking to renovate their two-bedroom, single-story Piedmont home and add a second floor containing three bedrooms, two baths, a family room and deck. They paid an application fee of $400, notice was given to neighbors, and a public hearing was set for April. However, learning of opposition from several neighbors, appellants had the matter dropped from calendar and did not pursue the application further. They withdrew the plan, secured permits later that year to remodel their existing kitchen and dining room (needing only staff approval), and submitted revised second-floor plans along with a new application for design review.1
The planning commission considered the design on April 13, 1992, and, after hearing neighbors speak in opposition, found it incompatible with the immediate neighborhood, out of character in mass and style with adjacent (single-story ranch style) homes, and disruptive to the streetscape. While a full second story “appeared impossible” for the property, the commission suggested that a partial one “may be acceptable.” The minutes reflect that appellant Bickel, characterized without objection in papers below as a practicing attorney who specialized in real estate law and the representation of homeowners' associations, “requested [sic] continuance to consider the Commission's comments and address its concerns.” A continuance not to exceed six months was granted, and appellants were told by letter that their application would be taken up again at the next regular meeting after they submitted revised plans.
Appellants submitted revised plans in September and, pending a hearing date of October 12, spoke with several commission members, one of whom, Chairman Fred Karren, came out to their house and suggested additional changes. Appellants spoke with him about getting a further continuance to make revisions, and got one. At the October 12 meeting, which appellants did not attend, the commission by consent calendar continued the matter, “at request of the applicant,” for a period not to exceed three months. Appellants again received letter notice.
Appellants submitted revised plans, and the matter was heard on November 9, at which time the disputed continuance was granted. With respect tothis hearing, we have only an agreed-upon excerpt, the minutes and appellant Cate's declaration. A staff report shows that some stylistic features of the proposed design had been changed since the April hearing but that the massing and floor plan “remained essentially the same.” Appellants and two neighbors spoke for approval; one neighbor spoke for neighbors against it. The minutes reflect that Chairman Karren “supported the concept of a second story” but “opposed the submitted design” and made mitigating suggestions. The other four members also opposed the plan, “for design and massing reasons,” and suggested again the idea of a partial second story. A “period not to exceed three months further consideration” was then granted although the commission's minutes do not indicate specifically at whose initiative the action was taken.2
According to Cate's declaration, neither she nor Bickel suggested or asked for a continuance. Rather, she had urged conditional approval, and the commission implicitly rejected that idea and “offered” the continuance on its own after some private discussion, inquiring of Bickel only whether that was “what he wanted.” The city disputes that interpretation, urging that appellants in effect requested the continuance. While the parties differ in their interpretations, they do accept the following colloquy at the hearing as accurate:
Chairman Karren: “[I]t's not going to pass tonight ․ so it looks like we're on a continuance.”
Commission member: “Yeah ․ if that's what the applicant would like.”
Applicant (Bickel): “That's what the applicant would like.”
Chairman Karren: “Alright.”
Commission member: “Move for a three month continuance.”
Chairman Karren: “Is there a second?”
Commission member: “Uh, I'll second the motion.”
Chairman Karren: “Fine. There'll be a continuance for three months.”
Appellants were again mailed notice that they could submit revised plans within the time extension granted and that the matter would then be set for the next available hearing date. They submitted revised plans in January 1993, toward the end of that time, and the commission heard and decided the matter on February 8. The newest revisions entailed more style changes and a modest floor-area reduction. Neighbors again spoke against the plan, and the commission denied approval, citing essentially the same basic concerns as before.
On appeal to the city council, appellants for the first time invoked the Act's time limits, arguing that a deemed approval had occurred due to delayed commission action. The council affirmed the commission ruling; appellants' superior court petition followed.
The case was submitted to the trial court based on the petition for a writ of mandamus and declaratory relief, the supporting declarations of the two petitioners, the city's opposition thereto, and oral argument. As noted above, the trial court ruled in favor of the city based on “the grounds of waiver and estoppel.”
A. The Background and Purposes of the Act
The Act traces its ancestry to the difficulties encountered by Dow Chemical Company in the mid–1970s in connection with that firm's plans to build a petrochemical plant on the lower Sacramento River in Contra Costa County. At least according to some versions of these events, the permitting process Dow encountered became so bogged down in bureaucratic red tape and delay that the proposed plant came to naught. In any event, these events apparently generated an alliance between the Governor's Office and various business-oriented groups, an alliance which successfully sponsored the 1977 passage of the Act. (See Ciani v. San Diego Trust & Savings Bank (1991) 233 Cal.App.3d 1604, 1609, fn. 1, 285 Cal.Rptr. 699; Palmer v. City of Ojai (1986) 178 Cal.App.3d 280, 293, fn. 8, 223 Cal.Rptr. 542 [hereafter Palmer ] and authorities cited therein; Wilson, Down Stream from Streamlining (Aug. 1987) Cal.Law., pp. 67 et seq.)
The Act itself, in section 65921, provides some evidence of its purpose. It states:
“The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects. Consequently, the provisions of this chapter shall be applicable to all public agencies, including charter cities.”
The Palmer court found this statement of legislative intent to be “unmistakably clear” but nonetheless expanded on it in the following words: “There was a dual concern for (1) establishing guidelines for communication between developer-applicants and public agencies, communication intended to remove gamesmanship from the application process, and (2) establishing time limitations which would allow full and fair consideration of applications for development by public agencies while protecting the applicants from the arbitrariness and caprice associated with unjustifiable delay.” (Palmer, supra, 178 Cal.App.3d at p. 290, 223 Cal.Rptr. 542.)
Insofar as pertinent here, the methods by which the Act accomplishes the latter goal are threefold: (1) it sets a specific period of time by which the approving agency must act, one way or another, on a pending application (§ 65950), (2) it provides that this time period may be extended once—and only once—by agreement between the parties (§ 65957), and (3) it states that failure to act within the mandated time period will be deemed to mean that the relevant application is approved (§ 65956, subd. (b)).
The year following the adaption of the Act, the Legislature was presented with a so-called “clean-up bill” to correct a few perceived defects in its 1977 efforts. One of these corrections was with respect to section 65957 which, as enacted in 1977, read: “The time limits established by Sections 65950 and 65952 may be extended for a period not to exceed 90 days upon consent of the public agency and the applicant.” The 1978 amendment added the already-noted, emphatic and, we believe, significant word “once” after the word “extended” in this provision.
Interested parties wrote the Governor's Office with their views as to whether or not he should approve the 1978 “clean-up” bill; one such group was the League of California Cities. In September of 1978, that group's General Legislative Counsel wrote the Governor generally supporting the bill, but with one major reservation. His reservation clearly pertained to the newly-reinforced section 65957: “There are some elements of the bill with which we disagree—notably that part which precludes mutual agreement of an applicant and a local entity to extend permit processing times. This provision was advocated by the Governor's Office of Planning and Research as representing the Governor's and the ‘private sector's' wishes. Their viewpoint does not coincide with the experience of local government on this point.” (Governor's Chaptered Bill File (1978) ch. 1113; letter of September 15, 1978.)
The obvious conclusion from this, i.e., that local government did not “get its way” on the question of time extensions in the Act as “cleaned up” in 1978, is strongly reinforced by the Palmer court which, after reviewing all the legislative materials, concluded that the Act's time limitations were mandatory and not simply directory. In so concluding, that court stated: “The legislative materials all support the view that the intent of the Legislature was to place reasonable but firm time limitations on the deliberations of public agencies concerning land use decisions.” (Palmer, supra, 178 Cal.App.3d at p. 293, 223 Cal.Rptr. 542, emphasis added.) 3
We shall return shortly to the implications of the legislation's purpose and history.
B. The Impact of the Act on the Bickel Application
The Act had two undisputed effects on the approval process for the application at issue here.4 First, because the city did not determine in writing “within 30 days after receipt of the application” on March 12, 1992, that it was incomplete, the application was “deemed complete” at the end of that time, i.e., on April 11. (§ 65943, subd. (a).) Second, under the Act as it then read, the project, which did not require an environmental impact report, had to be “approved or disapproved within six months” from the date on which it was deemed complete “unless the project proponent request[ed] an extension of the time limit․” 5 (Former § 65950; Stats.1989, ch. 847, § 1, p. 2786.)
The six-month time limit of former section 65950 thus required agency action by October 11, 1992, unless appellants, the project proponents, requested an extension of time. Section 65957, moreover, provided that “[t]he time limits of Section 65950 ․ may be extended once for a period not to exceed 90 days upon consent of the public agency and the applicant.” Reading those provisions together, the parties agree that plaintiffs requested an extension of time or, to use section 65957's language, consented with the city to extend the time. More specifically, appellants, after discussions with commission members and a site visit by its chairman, obtained a continuance “for a period not to exceed three months” via the consent calendar at the commission's October 12 hearing.
Strictly calculating a 90–day extension from the six-month date of October 11 yields a new action deadline of January 9, 1993.6 However, because the commission did not take final action until its denial of February 8, the question is what effect the disputed further time extension at the November 9 hearing had in view of the provisions of section 65956, subdivision (b), that failure to act to approve or disapprove a project within the time limit “shall be deemed approval of the permit application” for the project.
C. The Issue of “Waiver” in the Context of the Purposes of the Act
Notwithstanding section 65956, subdivision (b), the trial court reasoned that no “deemed approval” occurred, apparently because it concluded that appellants' act of securing a continuance at the November 9 hearing had waived the time limit. Appellants argue that waiver has no place in the policy and provisions of the Act. Alternatively, they argue that waiver is not supported factually on this record. The city argues that waiver is both consistent with the Act and supported here. The trial court obviously agreed with the latter. We agree with the former; we do so based on three principal considerations.
1. First of all, it seems clear from the discussion of the legislative purposes of the Act (see ante ), that the Act was intended to do far more than simply benefit individual applicants by providing them speedy—or at least speedier—answers to their developmental problems. In addition, it was obviously designed to provide other parties, and indeed the public in general, with benefits.
For example, one group benefiting by the time limitations of the Act are persons affected by or otherwise interested in the outcome of the application, i.e., neighboring landowners, landowners whose view or property value or both might be impaired by the planned improvements, etc. Such individuals surely have an interest in seeing consideration of an application such as the instant one come to closure (if, for no other reason, than to permit them to make other plans for evenings when the planning commission is meeting).
Another group benefiting from the time limitations provided by the Act are other applicants: they benefit by having the commission “get on” with pending applications and give more and/or prompter attention to their problems.
And, of course, there is the body whose interests we assume the Legislature has in mind with regularity: the taxpayers. It is clearly against their interests to have matters drag on indefinitely before local land use commissions.
To permit quick and easy circumvention of the time limitations of the Act via the doctrine of “waiver” would run contrary to all of these interests. Additionally, it would run afoul of the principle laid down by Civil Code section 3513 which reads: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” We have previously relied upon this statutory “maxim” in holding that “while as a general rule anyone may waive the advantage of law intended solely for his benefit, a law established for a public reason cannot be waived or circumvented by a private act or agreement.” (Covino v. Governing Board (1977) 76 Cal.App.3d 314, 322, 142 Cal.Rptr. 812.)
Admittedly, and particularly in this day and age, it is difficult to find statutes that were enacted solely for either a private or a public purpose; the instant statute is a good example of a typical “hybrid”, i.e., one having both public and private benefits. Be that as it may, Civil Code section 3513 says what it says and, bearing in mind its language, it simply cannot be said that the Act was adapted “solely” for the benefit of applicants.
2. We think the legislative history, and particularly the 1978 addition of the word “once,” suggests rather clearly that the Legislature had in mind a “bright line” rule: permitting agencies must act within six months plus (by agreement) a 90 day once-only extension, or else be deemed to have approved the application.7
The necessary corollary to any such “bright line” rule is that the only ways time may be extended for the various steps encompassed by the Act are those specified in it. By our count, the Act includes the following provisions dealing with one type of permissible time extension or another: sections 65940.5, 65950, 65950.1, 65951, 65952.1, subdivision (b), and 65957. In view of this apparent “occupation of the field” regarding time extensions, we are loath to judicially create a new one via the doctrine of “waiver,” especially on these facts.
This reluctance stems in part from two subsidiary considerations. In the first place, if an applicant can be deemed to have “waived” the statute's time limits once, why could he/she not be deemed to have “waived” it twice, three or a dozen times? And what does that do to the clear legislative purpose of speeding up and finalizing this process? Second, grafting onto the Act's time limitation/deemed approval provisions a “waiver” rule would, in our view, open the door to subtly coerced “waivers,” particularly in the land use area. It takes no particular imagination to envision a commission not ready or willing to approve an application, but “up against” the Act's deadline, politely suggesting that perhaps more time might be the solution but that, because of the Act, such would have to come via a formal request from the applicant complete with a “waiver” of the Act. Most applicants would, we venture, be under severe pressure to acquiesce in such a “suggestion.” In no time at all, indeed, perceptive municipal staffs and their attorneys would surely have designed a “Permit Streamlining Act Waiver” form. We are unwilling to open up the processes under the Act to these possibilities.
3. There is a third basic reason why we are unwilling to apply a “waiver” rule here: under no stretch of the imagination was there such here. A review of the November 9 circumstances makes manifest that what happened then was nothing more nor less than an extension of time via mutual consent. The parties quibble over who offered what to whom on that occasion, but however one comes out on that the fact remains that the parties agreed to the extension to February: it was simply not a unilateral waiver of rights by the appellants. (Cf. Orsi v. City Council (1990) 219 Cal.App.3d 1576, 1587, 268 Cal.Rptr. 912.) 8
Beyond that, and particularly bearing in mind the Act's purposes as discussed above, we would be disinclined to find a “waiver” unless and until an applicant is shown to have knowingly and unmistakably waived the very specific statutory rights at issue. Our Supreme Court has stated the applicable rule in the following words: “ ‘[I]t is settled law in California that a purported “waiver” of a statutory right is not legally effective unless it appears that the party executing it has been fully informed of the existence of that right, its meaning, the effect of the “waiver” presented to him, and his full understanding of the explanation.’ ” (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 389, 216 Cal.Rptr. 733, 703 P.2d 73, citing Bauman v. Islay Investments (1973) 30 Cal.App.3d 752, 758, 106 Cal.Rptr. 889.)
Another court of appeal has written on this point: “[t]o constitute a waiver, it is essential that there be an existing right, benefit, or advantage, a knowledge, actual or constructive, of its existence, and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished.” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41, 124 Cal.Rptr. 852.) 9 The events of November 9 in this case are not consistent with these principles, particularly regarding a statutory scheme in which the subject of extensions of time was so thoroughly addressed and as to which “time ․ was the essence․” (Palmer, supra, 178 Cal.App.3d at p. 291, 223 Cal.Rptr. 542.)
Although the trial court cited both waiver and estoppel as the bases for its ruling in favor of respondents, both parties' briefs concentrate almost entirely on the issue of waiver. This is understandable because, in our view, the estoppel issue is not even a close one.
Division Four of this court summarized the requirements for equitable estoppel as follows: “As the case law explains, four elements are essential to the application of the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citations.] There can be no estoppel where one of these elements is missing.” (Green v. Travelers Indemnity Co. (1986) 185 Cal.App.3d 544, 556, 230 Cal.Rptr. 13; see also 11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 177.)
None of the pleadings before the trial court—specifically including respondents' opposition and answer to the petition filed by appellants—allege any facts upon which the trial court could conceivably find either factors (2) or (3) above present here; indeed, the record affirmatively suggests their absence.
The judgment appealed from is reversed and the case is remanded to the trial court with instructions to proceed in a manner not inconsistent with this opinion.
I concur in holding that waiver is not adequately shown in this particular case. I dissent, however, from the broader holding that the Act (Gov.Code, § 65920 et seq.) 1 does not allow time-limit waivers by applicants, supported or not.
Waiver and the Act
Unless otherwise provided by law, any person may waive the advantage of a law intended for his benefit. “The doctrine of waiver is generally applicable to all the rights and privileges to which a person is legally entitled, including those conferred by statute unless otherwise prohibited by specific statutory provisions. [Citations.]” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41, 124 Cal.Rptr. 852.)
Does any “specific statutory provision” in the Act prohibit time-limit waivers by applicants? No. Waiver is not mentioned. What the Act does mention are extensions of time “upon consent of the public agency and the applicant,” and it limits those to 90 days and a single instance. (§ 65957.) That limitation on mutually-consented extensions does not govern waiver. “[W]aiver is the affirmative act of one party and does not require any act or conduct by the other party. [Citation.]” (11 Witkin, Summary of Cal.Law (9th ed. 1990) Equity, § 178, p. 861.) It so happens that the waiver by the applicants here did coincide with consent on the other side by the planning commission. However, I believe that a well-informed waiver in this situation, if it involved no foot-dragging or coercion by the agency, would pose no conflict with the Act's policies.
Waiver by applicants is compatible with those policies. The Act was passed in 1977 to meet “a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects” (§ 65921); its purpose “to expedite decisions” (§ 65921) is advanced by time limits “protecting the applicants from the arbitrariness and caprice associated with unjustifiable delay” (Palmer v. City of Ojai (1986) 178 Cal.App.3d 280, 290, 223 Cal.Rptr. 542). The aim is to compel public agencies to act quickly on development applications—to eliminating abuse by placing “a time limitation on that exercise of discretion․” (Id. at p. 291, 223 Cal.Rptr. 542.) “[D]elay can constitute denial” as a practical matter, and so the Act makes time “the essence” of the scheme. (Ibid.)
While the Act speaks of a “statewide need” (§ 65921), it is a need to protect applicants from harm by the government, not vice versa. Protecting applicants from “governmental red tape” is the driving impetus. (Ciani v. San Diego Trust & Savings Bank (1991) 233 Cal.App.3d 1604, 1609, fn. 1, 285 Cal.Rptr. 699.) Given that purpose, it is consistent to allow applicant time waivers. The Act forbids agencies from demanding time waivers as conditions of accepting or processing applications (§ 65940.5, subds. (b), (c)), for that would be coercive. Mutually-consented extensions may also coercively defeat the time goals of the Act, as for example where an agency “ ‘up against’ the Act's deadline,” to use the majority's example (maj. opn. at p. 792), promises further consideration in order to buy time for itself. But while the Act forbids or limits coerced time waivers, nothing in it forbids applicants from waiving time for their own benefit, free of coercion. In fact, the Act expressly allows them to request extensions of time. (§ 65950.)
My colleagues stress the 1978 clean-up bill which inserted the word “once” into section 65957: “The time limits established by Sections 65950, 65950.1, and 65952 may be extended once for a period not to exceed 90 days upon consent of the public agency and the applicant.” (Italics added.) However, that change only clarified what otherwise might have been read as allowing unlimited 90–day extensions by mutual consent. It did not address the doctrine of waiver, and it reinforces my view that the Act is principally concerned with the coercive potential inherent in extensions consented to by the agency. Nor does the majority's reliance on the League of California Cities letter urging Governor Brown to sign the clean-up bill shed light on the legislative intent regarding waiver. The letter, like section 65957, addresses only extensions by mutual agreement. Moreover, a letter to a governor urging the signing or veto of a bill, even if from an author or sponsor of the bill, does not reveal the intent of the Legislature unless the letter is shown to be part of the legislative discussion or communicated to the general membership of either house. (E.g., Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157, fn. 6, 278 Cal.Rptr. 614, 805 P.2d 873; People v. Overstreet (1986) 42 Cal.3d 891, 900, 231 Cal.Rptr. 213, 726 P.2d 1288; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 700–701, 170 Cal.Rptr. 817, 621 P.2d 856; Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 618, 194 Cal.Rptr. 294 [Kline, P.J.].) There is no such showing here.
I am therefore persuaded that an extension effected by an applicant's waiver of time limits is not inconsistent with the Act if not coerced or secured for the time-delaying advantage of the agency. The commission's consent here was for no apparent benefit or need of its own. It was only to accommodate appellants. The commission stood ready to act—to deny the permit application for gross incompatibility with the surrounding neighborhood.2 Before taking that action, the commission simply inquired about and acceded to appellants' desire to try one more time.3 The record shows that the continuance was for plaintiffs' benefit alone and so did not offend the Act's policies in that regard.
My colleagues' fear of coerced and unlimited waivers undermining the Act is unfounded. After one 90–day extension, any waiver obtained coercively, to buy time for the agency, is against policy and invalid. As for endless non-coerced waivers, the agency is in control and, therefore, may and presumably will take final action to prevent such applicant conduct. An agency has every incentive to do so.
To hold that applicants cannot waive time will disadvantage them. Having no leeway, agencies will have to deny applications and send the applicants back to square one, with the burdens of new applications, application fees ($400 or $500 here) and professional services. Lack of waiver in those cases turns a benefit into a burden. For every Dow Chemical Company project, there are thousands of home remodels and additions, projects whose proponents often have limited resources and little experience with local review criteria. Beneficial flexibility is gained by recognizing waiver.
My view comports with the sole precedent on point, which assumed that applicants can waive time limits by their conduct. (Orsi v. City Council (1990) 219 Cal.App.3d 1576, 1587, 268 Cal.Rptr. 912 [but finding no waiver in fact].) I suspect that agencies throughout the state have relied in good faith on that authority in working with applicants.
Civil Code section 3513
Civil Code section 3513 provides: “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” 4
Appellants and the majority view the Act's time limits as unwaivable because established for a “public reason.” I disagree. The primary beneficiary of the time limits is the applicant, the Act being designed to prevent the agency from foot-dragging and coercing time waivers at the applicant's expense. The general public may incidentally benefit from expedited land use decisions, aided progress of important large-scale developments, reduced delay for other applicants and perhaps an enhanced business environment generally. However, some incidental public benefit is evident in most legislation, and “public reason” for purposes of Civil Code section 3513 is construed more narrowly. “A law has been established ‘for a public reason’ only if it has been enacted for the protection of the public generally, i.e., if its tendency is to promote the welfare of the general public rather than a small percentage of citizens. [Citations.]” (Benane v. Internat. Harvester Co. (1956) 142 Cal.App.2d Supp. 874, 878, 299 P.2d 750.) There is also a serious risk of potential public detriment here. Deemed approval could “result in construction of an improvement which would violate applicable zoning laws” which serve “[t]he public interest in preserving community patterns․” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725, 125 Cal.Rptr. 896, 543 P.2d 264 [declining to decide whether public policy precluded invoking the doctrine of estoppel against a county which had ratified construction plans].) Being able to articulate some incidental public benefit does not control.
I see the Act's time limits on agency action functioning like statutes of limitations benefiting applicants, and statutes of limitations have always been held waivable, despite Civil Code section 3513. “[N]o law established for a public reason is contravened by a private agreement to waive the statute of limitations․ [¶] ․ [T]he privilege conferred by the statute of limitations is not a right protected under the rule of public policy but is a mere personal right for the benefit of the individual which may be waived.” (Brownrigg v. deFrees (1925) 196 Cal. 534, 541, 238 P. 714; Tebbets v. Fidelity & Casualty Co. (1909) 155 Cal. 137, 139, 99 P. 501.) This is so even though statutes of limitations, like the time limits here, also incidentally benefit the public, promoting prompt resolution of actions, lessening the time that others' cases must wait and enhancing the general economic climate. The analogy to statutes of limitations is compelling.
Waiver by Appellants
I agree that the waiver finding here is not supported, but my reasons differ from the majority's. “Waiver is the voluntary relinquishment of a known right. [Citation.] To constitute a waiver, it is essential that there be an existing right, benefit, or advantage, a knowledge, actual or constructive, of its existence, and an actual intention to relinquish it or conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished․” (Outboard Marine Corp. v. Superior Court, supra, 52 Cal.App.3d 30, 41, 124 Cal.Rptr. 852; State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 460, 241 Cal.Rptr. 812.) Waiver may be express or implied from conduct. (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 753–754, 161 Cal.Rptr. 322.)
I have no problem finding that appellants knew of the time limits. The Act mandates, “Each public agency shall notify applicants for development permits of the time limits established for the review and approval of development permits pursuant to Article 3 (commencing with Section 65940) and Article 5 (commencing with Section 65950)․” (§ 65941.5.) “It is presumed that official duty has been regularly performed․” (Evid.Code, § 664.) That presumption applies to acts required of a city planning commission (e.g., Rehfeld v. San Francisco (1933) 218 Cal. 83, 85, 21 P.2d 419; Miller v. Planning Commission (1956) 138 Cal.App.2d 598, 602, 292 P.2d 278 [report presumably made]; Childs v. City Planning Com. (1947) 79 Cal.App.2d 808, 810–811, 180 P.2d 433) and ordinarily applies where the record fails to show that a required notice was not given (Kachadoorian v. Calwa County Water Dist. (1979) 96 Cal.App.3d 741, 745–746, 158 Cal.Rptr. 223). Our record contains no such showing. We must therefore presume that notice was given and that appellants thus had actual notice of their time-limit rights. Moreover, knowledge may be constructive, and the record shows that appellant Bickel is a practicing attorney specializing in real estate and the representation of homeowners' associations. He of all people should know the rudimentary time limits of the Act.5
The obstacle for me is in finding an implied-by-conduct relinquishment of those rights. With the time-period set to expire on January 9, 1993, appellants at the November 9 commission hearing agreed to a continuance. The question whether they, or instead the commission, “requested” it is not critical. The Act's provisions for mutual “consent” to (§ 65957) or applicant “requests” for (§ 65950) extensions do not control the issue of waiver. Rather, we ask whether a party demonstrated “conduct so inconsistent with the intent to enforce the right ․ as to induce a reasonable belief that it has been relinquished․” (Outboard Marine Corp. v. Superior Court, supra, 52 Cal.App.3d 30, 41, 124 Cal.Rptr. 852.) Here the commission chairman said, “[I]t's not going to pass tonight ․ [s]o it looks like we're on a continuance,” and another commissioner added, “Yeah ․ if that's what the applicant would like.” Obviously, the commission was saying it was prepared to deny the application outright but was offering to accommodate appellants once more if that was their preference. Any reasonable person would view Bickel's answer (“That's what the applicant would like”) as a waiver of immediate action. (See fn. 3, ante.)
However, the commission granted “a continuance for three months” without asking appellants how long they wanted. Waiver is a mostly factual issue subject to substantial-evidence review and demanding deference to the trial court's resolution of conflicting factual inferences (In re Marriage of Paboojian (1987) 189 Cal.App.3d 1434, 1438, 235 Cal.Rptr. 65), but I find no substantial evidence that appellants waived the January 9 time limit on November 9. The first mention of “three months” was by a commission member, after appellants indicated that they wanted a continuance of unspecified length. (Fn. 3, ante.) Appellants were then notified in writing of the three months and that they could submit revised plans anytime within that period, the matter to be set for the next available hearing date. No clear understanding emerges from the hearing that appellants presently waived the right to have a decision by January 9. In light of the Act's policy barring coercion by agency decision makers, I would require that any waiver in a face-to-face setting be fully informed and express. That could have been done here by clarifying that appellants were waiving their right to have commission action taken by January 9, that was solely for their benefit and that the commission was prepared to act timely without a continuance beyond that date.
I concur in the judgment of reversal not because applicant waiver is impossible under the Act, but because none occurred here.
1. In discerning the facts, we regard as properly considered the city's unverified answer to the petition. Although appellants noted below that it was unverified and now insist here that they “object to use of the ‘verification’ in this proceeding,” they in fact conceded in their written papers below that “the defective verification is probably immaterial inasmuch as Code of Civ.Proc. § 446 apparently does not require a governmental body or officer sued in an official capacity to verify an answer.” Not only was their concession apparently correct (cf. Murrieta Valley Unified School Dist. v. County of Riverside (1991) 228 Cal.App.3d 1212, 1222–1223, 279 Cal.Rptr. 421; Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334, 342, 275 Cal.Rptr. 86), but their equivocal objection/concession in our opinion waived any issue below and, therefore, here as well (see generally Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761, 20 Cal.Rptr.2d 768).We similarly deem waived, but by the city, any objection to a declaration filed below by appellant Cate. The city asserts in its respondent's brief that the declaration was “improperly served after respondents filed their opposition,” that it should have been filed with the original moving papers (Code Civ.Proc., § 1005, subd. (b)), and that the city “objected to its introduction at the initial hearing, and once again object[s] to its presence in the Clerk's Transcript.” However, we have no hearing transcript or other record to show that the objection was made.
2. The minutes say only (after a few sentences on the factual issues): “RESOLVED, that the Planning Commission continues for a period not to exceed three months further consideration of Mr. Branden Bickel's design review application․”
3. To the same general effect, see Selinger v. City Council (1989) 216 Cal.App.3d 259, 269, 264 Cal.Rptr. 499, which describes the statute as one “which requires the city to act on an application” within a specified time period (emphasis supplied).
4. Appellants contended in their petition below that their first application as well as their second was deemed approved for failure to act. Their argument on appeal appears to focus only on the second one, and the record in any event supports an implied factual finding that plaintiffs—by filing a new application a year later, making no further efforts toward the first and using the fee for the first to pay for the second—withdrew their first application. That was evidently how the city treated it, its city planner writing in a memorandum to the planning commission on April 13, 1992, that the first plan “was withdrawn ․ prior to consideration by the Planning Commission․”
5. Section 65950 has since been amended, effective January 1, 1994, to require action within three months, but from the date of adopting a negative declaration or determining the project to be exempt. (Stats.1993, ch. 1068, § 2, No. 11 West's Cal.Legis.Service, p. 4780.)
6. Appellants are looser in their calculations. Apparently reading the 30–day and 90–day periods as one and three months, they arrive at a deemed-complete date of April 12, 1992, a six-month date of October 12 and an extension date of January 12, 1993. However, the three-day difference between their January 12 date and our stricter January 9 date has no practical bearing on the issues we address.
7. Our dissenting colleague suggests that the correct analogy is to statutes of limitation which, of course, may be waived. We accept the analogy and respond that if, as and when the Legislature says, as explicitly as it has said here, that a given statute of limitation may be extended “once only” for a given period, hopefully our courts would interpret that provision as we are interpreting the one at hand.
8. Orsi suggests, without specifically holding, that waiver of the Act's extension limitation provisions is theoretically possible. We do not, by our holding herein, intend to rule to the contrary retroactively. We intend only that our ruling shall be effective prospectively (but including the present case, obviously) to purported waivers postdating the finality of this opinion. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 813–814, pp. 795–798.)
9. Respondents argue that one of the appellants was a real estate attorney and, therefore, may be deemed to have “constructive knowledge” of the Act and its requirements. To this we will only observe that experience suggests that an attorney—even a purportedly specialized one—is not necessarily familiar with all of the statutory thickets present in his or her area of practice.
1. All undesignated further section references are to the Government Code.
2. Appellants' home remodeling plans are not in the record, but the commission minutes for November 9, 1992, reflect: “Chairman Karren supported the concept of a second story addition to 318 Hillside but he opposed the submitted design, citing its incompatibility with the ranch-style character of the existing home and that of its Vista neighbors, its hodge-podge window treatments and sizes, and its out-of-proportion scaling. The Chairman also recommended that in addition to design modifications to address his concerns, the office extension over the garage be deleted to lessen massing impacts on Vista/Bonita neighbors. The remaining Commissioners also opposed the application for design and massing reasons. They felt that a full two-story addition created too much mass for the narrow lot and was too over-powering for the street and the unique grouping of the property's Vista neighbors. They reiterated their October [sic ] suggestion to the Bickels that a partial second story be considered.”The minutes for the February 8, 1993 hearing reflect that the same basic problems remained after token revisions by appellants: “The Commission opposed the application, stating that despite design modifications, the addition remains a ‘misfit’ in terms of its relationship with the existing house and the adjacent Vista residences. The street facade is still too massive and the attempt to add a Tudor-style second story to a 1–story Ranch house is incompatible with City Design Review Guidelines II–2, II–3, II–5 and II–5(c). The Commission felt that any second story addition to the property was unworkable and suggested that ground level expansion alternatives be explored.” The formal resolution of denial found nonconformity with city code criteria and standards, stating, “The design of the improvements is not desirable because it is too massive, too bulky and not in keeping with other homes in the neighborhood.”
3. Chairman Karren: “[I]t's not going to pass tonight ․ [s]o it looks like we're on a continuance.”Commission member: “Yeah ․ if that's what the applicant would like.”Applicant (Bickel): “That's what the applicant would like.”Chairman Karren: “Alright.”Commission member: “Move for a three month continuance.”Chairman Karren: “Is there a second?”Commission member: “Uh, I'll second the motion.”Chairman Karren: “Fine. There'll be a continuance for three months.”
4. I assume that a waiver-by-conduct, as is at issue here, may be deemed a “private agreement” under Civil Code section 3513. (Cf. Covino v. Governing Board (1977) 76 Cal.App.3d 314, 322–323, 142 Cal.Rptr. 812 [applying the section to a waiver “pronounced in the course of a judicial proceeding” rather than “incorporated in an agreement”].)
5. Appellant Cate, herself an attorney for 17 years (now inactive), admitted at oral argument that “all parties knew what the time was,” citing the Act's notice requirements.
HAERLE, Associate Justice.
KLINE, P.J., concurs.