Can a party bring an action under section 65751 of the California Civil Code of Civil Procedure to challenge the denial or invalidation of a conditional use permit?

California, United States of America


The following excerpt is from Neighborhood Action Group v. County of Calaveras, 156 Cal.App.3d 1176, 203 Cal.Rptr. 401 (Cal. App. 1984):

9 Section 65751 provides: "Any action to challenge a general plan or any element thereof on the grounds that such plan or element does not conform to the requirements of Article 5 (commencing with Section 65300) shall be brought pursuant to Section 1085 of the Code of Civil Procedure." Unlike the provisions of section 65680, section 65751 applies to "[a]ny action to challenge a general plan" as not in conformity with state standards. Accordingly, it provides an exclusive remedy by which to challenge such an infirmity whenever it is put in issue. This introduces some complexity into the remedial means by which this requirement is to be meshed with the challenge to the sufficiency of a permit predicated upon a defect in the general plan. The administrative body cannot be compelled to consider the defect in the administrative proceeding because the exclusive remedy lies in the ordinary mandamus proceeding. Consequently, there is no administrative remedy to be exhausted. (See Woods v. Superior Court, supra, 28 Cal.3d at pp. 680-681, 170 Cal.Rptr. 484, 620 P.2d 1032.) Thus, whenever the denial or invalidation of a conditional use permit is sought on numerous grounds, some of which must be raised in the administrative proceeding and some of which must be pursued by ordinary mandamus (as in cases like this one which arise after the effective date of 65751), the protesting parties will have to fashion a combination of remedies in administrative mandamus, ordinary mandamus and injunctive relief. This cumbersome procedure is a consequence of the rigidities introduced by section 65751.

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