Consumer Watchdog Urges California Supreme Court to Grant Review in Land Use Approval Corruption Case

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Think you’ve heard everything? Under a recent California Court of Appeal decision, if you wanted to drop a dime on suspected corruption over local building permits (as if that’s ever a problem…), you’d have to file your lawsuit before any information about the corruption would likely be public—within 90 days of the building permit being approved.  

If you miss that ridiculously narrow window, tough luck – the approvals for the corrupt projects will not be revoked, even if everyone knows about the corruption. That can’t be right. And that’s why Consumer Watchdog filed a friend of the court (“amicus”) letter brief with the California Supreme Court on Friday.

Consumer Watchdog’s letter brief was filed in support of a lawsuit filed by AIDS Healthcare Foundation (“AHF”) under the Political Reform Act (“PRA”), a voter-approved initiative that was adopted in the wake of Watergate to prevent financial interests from corrupting public officials. 

AHF’s lawsuit challenged land use approvals that were obtained via corruption–specifically, approvals made by former Los Angeles City Councilmembers Mitch Englander and Jose Huizar, who are each now facing prison time for their misconduct. 

After Englander’s and Huizar’s corrupt actions became publicly known in the first half of 2020 as the result of a federal criminal investigation, AHF filed suit against the City of Los Angeles in August of 2020, seeking a court order revoking land use approvals tainted by the corruption. But rather than considering the merits of AHF’s claims, the trial court dismissed the case by importing a very short statute of limitations from a different statutory scheme related to permit approvals, instead of the PRA, under a common law doctrine known as the “gravamen” test. 

Then the Court of Appeal affirmed the trial court ruling for the same reason.

The “gravamen” test requires courts to determine the applicable statute of limitations by identifying the nature of a cause of action. Here, the courts concluded that the “gravamen” of AHF’s PRA action was a challenge to land use approvals, which were subject to a ninety-day statute of limitations (as opposed to the PRA’s four-year statute of limitations), rather than a challenge to the corrupt acts that led to the approvals.

The problem is that the PRA was enacted with the express purpose of providing “[a]dequate enforcement mechanisms . . . to public officials and private citizens in order that [the PRA] will be vigorously enforced.” (Gov. Code §§ 81001-02.) How can that goal be fulfilled if the public has 90 days from the date a permit is approved to root out the corruption? 

Applying a statute of limitations regarding building permits to a lawsuit about political corruption virtually assures that the public won’t be able to effectively fight back against the corruption. That has proven to be the case here, where the approvals gained through bribing Englander and Huizar remain on the books. 

Supreme Court review of this case is essential because, as a matter of pure legal interpretation, the lower court opinions were not incorrect. But as a practical matter, the

upshot of applying the “gravamen” test to claims of land use corruption under the PRA is that, if public officials and developers are able to keep their corruption hidden for just ninety days after an approval, the approval becomes effectively irreversible. 

That’s not what the voters intended, and therefore the Supreme Court should grant review and ensure that judges are not bound to apply a test that renders nearly all PRA actions challenging corrupt land use approvals a nullity.

The case at the California Supreme Court is AIDS Healthcare Foundation v. City of Los Angeles et al., No. S278269.

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