Second District Holds County Violated CEQA by Increasing Project Building Height without Issuing a Supplemental EIR
December 17th, 2014 by Gwynne Hunter
The Second District Court of Appeal held the County of Ventura violated CEQA when it increased the height of a proposed building by 15 feet without filing a supplemental EIR. The county had filed an addendum considering the impact of the building’s change in location, but the addendum neglected to mention a change in building height from 75 feet to 90 feet. The court considered this a substantial change in the project requiring major revisions to the EIR. Ventura Foothill Neighbors v. County of Ventura, Case No. B254120 (Dec. 15, 2014).
In 1993, the County Board of Supervisors decided to construct a five-story ambulatory care clinic on the county’s Medical Center campus. The 1993 EIR stated that the building would be up to 75 feet tall. The county delayed construction until 2005, when the board decided the clinic should be relocated a few hundred feet northwest of the original location to reduce environmental impacts and to utilize a more parking-centric location. The county prepared an addendum for the relocation and filed a notice of determination (NOD). Neither the addendum nor the NOD stated that the clinic would exceed 75 feet. In 2008, a nearby resident inquired about the presence of a rig on the site, and learned that the relocated clinic was to be 90 feet tall. The height difference, petitioners claimed, would “significantly diminish the superior ocean view setting” of the Foothill residences. The trial court held in favor of the residents, and the court of appeal affirmed.
The court of appeal denied the county’s argument that the Ventura Foothill Neighbors were time-barred from challenging the decision to proceed with an addendum because the challenge fell outside CEQA’s 30-day statute of limitations. The court distinguished the California Supreme Court decision in Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, in which the Court held that filing of a valid NOD triggers a 30-day statute of limitations. Since the neither the addendum or the NOD made any mention of the increase in the building’s height, the timeline ran from the time of the neighbor’s inquiry.
July 1st, 2014 by John Wheat
A published opinion by the First District Court of Appeal emphasizes the importance of filing timely CEQA lawsuits. In Citizens for a Green San Mateo v. San Mateo Community College District, the court determined that, even under the most generous interpretation of CEQA’s statute of limitations, a petitioner’s lawsuit was time-barred under Public Resources Code section 21167.
The controversy arose when the San Mateo Community College District removed and pruned over 200 invasive eucalyptus trees on the northern edge of the community college campus. The district began removing trees on December 28, 2010. On January 5, 2011, a member of Citizens for a Green San Mateo contacted the district expressing concern over the tree removal and pruning. Citizens for a Green San Mateo filed a petition for writ of mandate on July 1, 2011, alleging that the district violated CEQA and was required to prepare an EIR to study the tree removal. The trial court determined the challenge was timely and granted the petition, finding the district had violated CEQA. The district appealed.
The Appellate Court’s Decision
On appeal, the district argued the 30-day statute of limitations period established by Public Resources Code section 21167, subdivisions (b) or (e) applied to bar the CEQA lawsuit because the district filed a Notice of Determination. The NOD described the mitigated negative declaration prepared by the district when it approved the Facility Improvements at College of San Mateo project, or the “CSM Project,” in 2007.
The CSM Project included renovation, demolition, replacement, or new construction of about 25 buildings, numerous pedestrian and automobile circulation enhancements, and other improvements to modernize the campus. The negative declaration also determined that the proposed project would result in the removal and pruning of an unknown number of trees, but tree plantings proposed as part of the project would mitigate any unavoidable tree removal, resulting in a less than significant impact. At the hearing, a district trustee expressed concern regarding campus-wide tree removal proposed as part of the CSM Project, but noted that, due to the mitigation required by the negative declaration, “the number of newly planted trees will be greater than that of removed trees.” No public comments were offered at the hearing.
The appellate court rejected the petitioner’s claim that the tree removal was “materially different” from the activities discussed in the mitigated negative declaration and subsequent NOD that the community college district filed for the CSM Project. The court emphasized that the term “project,” for the purposes of CEQA, does not mean each separate governmental approval that may ultimately be required to complete the proposed action. The court concluded that the record demonstrated the tree removal was a subsequent activity encompassed within the scope of the CSM Project. Since the district filed an NOD recording its approval of the CSM Project, and the public was on notice that trees could be removed anywhere on campus as a result of the CSM Project, the 30-day statute of limitations established by section 21167, subdivisions (b) and (e) applied to bar the lawsuit.
Even if the 180-day limitations period, which applies when no NOD is filed, applied to this case, the appellate court determined the lawsuit was still time-barred. Assuming, for the purposes of analysis, that the district failed to adequately notify the public of the tree removal, any challenge would need to be filed within 180 days from the date of the district’s decision to carry out or approve the project, according to section 21167, subdivision (a). Here, the district committed to the tree removal at the public trustee meeting on November 17, 2010. The appellate court emphasized that section 21167, subdivision (a), does not require any special notice requirement to start the 180-day clock; all that is required is a formal decision by a public agency to carry out or approve the project. Therefore, the petition was time-barred, even assuming the tree removal was not described in the mitigated negative declaration certified for the CSM Project.
Finally, the appellate court was not persuaded by the efforts of Citizens for a Green San Mateo to avoid the result of filing its complaint outside CEQA’s statute of limitations. Citizens asserted it had no notice of the potential for tree removal activities until a neighbor/member observed the trees being cut down on January 5, 2011. To support this argument, the citizens cited the California Supreme Court’s opinion in Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929. But the appellate court noted that the citizens interpreted the test established in that case incorrectly. In Concerned Citizens, the agency approved a fairground on six acres that would have seated 5,000. As constructed, the theater actually seated 7,000 across 10 acres, so the project constructed was materially different than the project the agency initially approved. Further, the agency never alerted the public to these changes. Therefore, the Supreme Court determined the 180-day statute of limitations ran from when the public reasonably should have known the project being constructed was different than the project approved. In contrast, the mitigated negative declaration prepared by the community college district notified the public that the district intended extensive landscaping improvements across campus that could require the removal of mature trees. Further, the tree removal activities conducted were not materially different from those approved by the district at an open hearing in November 2010. So even under the most generous interpretation of section 21167 and the case law established by the Supreme Court, Citizens for a Green San Mateo’s petition was time-barred.
RMM partners James Moose and Sabrina Teller represented the San Mateo Community College District.
Sixth District Finds CEQA Action Barred by 30-Day Statute of Limitations in Government Code Section 65457, Which Prevails Over an Earlier-Enacted and Less-Specific Statute of Limitations in CEQA That May Conflict
July 19th, 2013 by Amanda Berlin
In May v. City of Milpitas (2013) __Cal.App.4th__ (Case No. H038338), a California Environmental Quality Act (CEQA) challenge was found time-barred by a 30-day statute of limitations in the Government Code even though appellants argued that a 35-day statute of limitations in CEQA should control. The Sixth District Court of Appeal affirmed the trial court’s decision to sustain the city’s demurrer on the basis that the later-enacted and more-specific statute of limitations in Government Code section 65457, which provided an exemption applicable to the residential development project, must prevail over a statute of limitations in CEQA that may conflict.
Facts and Procedural Background
The City of Milpitas certified a programmatic Environmental Impact Report (EIR) for the Transit Area Specific Plan on June 3, 2008. Three years later, a 732-unit condominium project was proposed within the area covered by the Transit Area Specific Plan. On November 1, 2011, the city adopted a resolution approving amendments to permits and a tentative map for the residential development project. The city’s resolution also found the project to be exempt from CEQA review because it was consistent with the 2008 specific plan and did not have any significant effects on the environment. On November 3, 2011, the city filed a Notice of Exemption (NOE) for the project. Both the resolution and the NOE expressly reference CEQA Guidelines section 15168, subdivision (c)(2), and section 15061, subdivision (b)(3).
On December 7, 2011, petitioners Michael May and Carpenters’ Local Union No. 405 filed a CEQA challenge to the city’s approval of the resolution on November 1, 2011. The city and real parties in interest demurred on the ground that the action was time-barred by the 30-day statute of limitations under Government Code section 65457, subdivision (b), and CEQA Guidelines section 15182. The petitioners argued that the action was not time-barred because the filing of the NOE triggered the 35-day statute of limitations in Public Resources Code section 21167, subdivision (d), and CEQA Guidelines sections 15112 and 15062 instead. The trial court sustained the demurrer, finding that Government Code section 65457 governed, and the November 1, 2011 approval had triggered the 30-day limitation period in section 65457.
Court of Appeal’s Decision
The court began its discussion with an overview of CEQA, the application of exemptions to projects, and the “usual limitations periods for CEQA challenges” provided by Public Resources Code section 21167. In particular, the court emphasized that even meritorious lawsuits may be time-barred because the legislative intent behind CEQA and section 21167 was to ensure “extremely prompt resolution” of legal challenges brought under CEQA.
Proceeding to the merits, first the court explained why the 30-day statute of limitations in Government Code section 65457 controls. Enacted in 1984 as part of the Planning and Zoning Law, Government Code section 65457 provides an exemption from CEQA for residential development projects that are consistent with a specific plan for which an EIR was certified after January 1, 1980. Section 65457 only provides a qualified exemption, however, because a supplemental EIR for the specific plan must be prepared if any event listed in Public Resources Code section 21166 occurs. Therefore, if substantial changes to the specific plan occur, or substantial changes to the circumstances surrounding the specific plan occur, or new information that could not have been known at the time the specific plan’s EIR was certified becomes available and major revisions to the EIR are required, then a supplemental EIR for the specific plan must be certified before section 65457’s exemption may be used for the residential development project.
Under subdivision (b) of Government Code section 65457, where a public agency approves a project using the exemption in section 65457, a legal challenge alleging that a supplemental EIR for the relevant specific plan was required must be filed within 30 days of the agency’s decision to “carry out or approve the project.” This limitations period is mirrored in CEQA Guidelines section 15182, subdivision (e).
The court found that the City’s resolution factually invoked Government Code section 65457’s exemption and that the petition essentially alleged that a supplemental EIR for the 2008 specific plan is required because substantial changes to the circumstances have occurred and new information has come to light. Although neither the resolution nor the NOE explicitly references section 65457, the court concluded that the resolution invoked section 65457’s exemption because it stated that the project was “consistent with the certified EIR for the Transit Area Specific Plan.” The court also found that the resolution’s reference to CEQA Guidelines section 15168, subdivision (c)(2), implied that the City had concluded no events listed in Public Resources Code section 21166 had occurred. Similarly, the court found that the resolution’s reference to CEQA Guidelines section 15061, subdivision (b)(3), reflected the City’s conclusion that the residential development project would not cause any new environmental effects.
Having established that Government Code section 65457 applied, the court found that the 30-day statute of limitations under subdivision (b) of section 65457 had started running upon the City’s decision to approve the project on November 1, 2011. Consequently, the trial court properly sustained the demurrer because the action filed on December 7, 2011 was time-barred.
Then, the court turned to the reasons why it rejected appellants’ arguments. The court noted that appellants’ argument that they are requesting a “free-standing EIR” or a mitigated negative declaration (MND) for the development project, not a supplemental EIR for the 2008 specific plan, was in conflict with their petition’s factual allegations and ignored the appropriate use of tiering allowed by CEQA. To support its conclusion, the court provided a brief examination of the legislative history of Government Code section 65457 and its predecessor former section 65453 to establish that the purpose of section 65457 is to excuse residential development projects from having to do a “free-standing EIR” or MND if they are consistent with a prior-approved specific plan.
The court also set forth reasons why Public Resources Code section 21167, and CEQA Guidelines sections 15062 and 15112 do not apply. Public Resources Code section 21167, subdivision (d), provides a 35-day statute of limitations that runs from the filing of a NOE in actions alleging that a public agency has improperly determined that a project is not subject to CEQA pursuant to section 21080. The court found section 21167 did not apply because the exemptions listed in section 21080 do not include Government Code section 65457. In particular, the court noted that the exemption applied in this case was not one of the 33 categorical exemptions designated pursuant to of Public Resources Code section 21084 and specifically referenced by section 21080, subdivision (b)(9). Therefore, the 35-day statute of limitations in section 21167 could not be controlling.
Regarding CEQA Guidelines section 15062, which provides a 35-day statute of limitations triggered by the filing of a NOE where a public agency finds a project exempt pursuant to section 15061, the court similarly concluded that section 15062 did not apply because Government Code section 65457 does not fall within the scope of exemptions described by CEQA Guidelines section 15061. Concluding that section 15062 did not apply, the court also rejected the argument that the 35-day limitations period in CEQA Guidelines section 15112, subdivision (c)(2), applied because section 15112, subdivision (c)(2), only applies to situations where a NOE is filed in compliance with section 15062.
Finally, the court held that, to the extent any conflict existed between the statute of limitations in Government Code section 65457 and statutes of limitations in CEQA, the later-enacted and more specific statute of limitations controls. Since Government Code section 65457 and Public Resources Code section 21167 both apply to CEQA challenges, they are equally specific to CEQA claims. Therefore, because Government Code section 65457 was enacted after Public Resources Code section 21167, the statute of limitations in the former must prevail.
Third District Court of Appeal Upholds Trial Court’s Conclusion that Petition for Writ of Mandate Challenging Placer County’s Approval of a Development Project is Time-Barred under CEQA
April 4th, 2013 by Laura Harris
On April 4, 2013, the Third District Court of Appeal ordered published its decision in Alliance for the Protection of the Auburn Community Environment et al. v. County of Placer (2013) ___Cal.App.4th___ (Case No. C067961). Real party in interest, Bohemia Properties, LLC (Bohemia), was represented by James Moose and Howard Wilkins of Remy Moose Manley, LLP. The Court of Appeal upheld the trial court’s sustainment of a demurrer filed by Bohemia and joined by Placer County. The court found that petitioner’s petition for writ of mandate was time barred under the statute of limitations set forth in Public Resources Code section 21167. Further, Code of Civil Procedure section 473, subdivision (b), which provides relief from an otherwise applicable statute of limitations for excusable mistakes, did not apply.
On July 8, 2010, the County of Placer certified an EIR prepared by Bohemia for the development of a 155,000-square-foot building. Alliance for the Protection of the Auburn Community Environment (Alliance) filed an appeal of the certification on Jul 16, 2010. On September 28, 2010, the County held a public hearing on Alliance’s appeal and again certified the final EIR. The county filed its notice of determination (NOD) for the project on September 29, 2010, triggering the 30-day statute of limitations set forth in Public Resources Code section 21167. Under this limitations period, the deadline to bring a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. Alliance did not file its petition until three days later, on November 1, 2010.
In January 2011, Bohemia filed a demurrer to Alliance’s petition, alleging that it was not filed within the limitations period. Alliance filed a motion for relief under Code of Civil Procedure 473. The trial court determined that Alliance’s petition was time barred and entered an order sustaining Bohemia’s demurrer without leave to amend and denying Alliance’s motion seeking relief under Code of Civil Procedure section 473.
On appeal, Alliance argued that the trial court erred in sustaining Bohemia’s demurrer, because, according to Bohemia, Code of Civil Procedure section 473 provides relief from its excusable mistake that resulted in the late filing of the CEQA petition. Code of Civil Procedure section 473, subdivision (b), states that a “‘court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect,’” provided that the relief is sought within a reasonable time. The provisions of section 473 are to be liberally construed.
Alliance argued that the late filing was the result from a miscommunication from its filing service as to the deadline for receipt of the writ at the superior court. Alliance submitted the petition to the filing service prior to the statute of limitation’s deadline, in order to ensure its timely filing. Although Alliance’s counsel requested the petition be filed on October 29, 2010, the filing service arrived too late and did not file the petition until three days later. Based on these facts, Alliance argued that Code of Civil Procedure section 473 applies and the trial court should have overruled the demurrer.
The court of appeal, however, found Alliance’s argument unpersuasive under the Supreme Court’s decision in Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court found that section 473, subdivision (b) does not generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to initiate a lawsuit. Rather, that section only provides relief from the consequences of many procedural errors committed during the course of a proceeding. Because the trial court in this case sustained the demurrer based on Alliance’s failure to file its initial petition within the applicable limitations period, the Court of Appeal found that relief was not available under section 473, subdivision (b).
Finally, citing a series of cases in which courts have provided relief from CEQA’s short limitations period, Alliance argued that the court should provide similar relief here. The court disagreed, finding each of the cases relied upon by Alliance distinguishable in that they did not address a petitioner’s failure to timely file a petition for writ of mandate in the first instance.
Instead, the court found persuasive the Second District Court of Appeal’s decision in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961. In that case, the court noted that nearly every dismissal for failing to comply with CEQA’s timelines is “due to mistake, inadvertence or neglect on the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were applied to such dismissals.’” As such, the dismissal statute would be “‘effectively nullified, and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted would be defeated.’” Based on this reasoning, the Court of Appeal found that the trial court did not err in sustaining Bohemia’s demurrer without leave to amend.
Third District Court of Appeal Finds Plaintiff’s Claims Time-Barred under Government Code Section 65009 Because the Suit was not Commenced Within 90 Days After Project Approval
November 16th, 2012 by Jeannie Lee
On November 13, 2012, the Third District Court of Appeal in Stockton Citizens for Sensible Planning v. City of Stockton (2012) __Cal.App.4th__ (Case No. C067164) affirmed a trial court’s judgment that claims brought under the State Planning and Zoning Law were time-barred because the suit was not commenced within 90 days after the City of Stockton approved the project at issue.
On February 17, 2004, the City filed a Notice of Exemption (NOE) regarding the City’s approval of a shopping center project. The NOE identified the project location and indicated that it fell within a fully entitled master planned development adopted on January 9, 2002. The City determined the site plan, grading plan, landscaping plan, and building elevations and design conformed to standards set forth in the master development plan. The City took the position that these determinations of compliance constituted ministerial actions not subject to CEQA review.
On July 22, 2004, the plaintiffs filed a petition for writ of mandate alleging that the City violated CEQA and planning and zoning laws. The Supreme Court ultimately held that the CEQA claims were untimely under the 35-day limitations period set forth in Public Resources Code, section 21167, subdivision (d). The Supreme Court declined to address the timeliness of the remaining causes of action, as neither the trial court nor the Court of Appeal had ruled on the issue. The remaining claims were remanded, and the trial court granted the City’s motion for judgment on the pleadings, holding the non-CEQA claims were barred by Government Code, section 65009, subdivision (c)(1)(E) because they were not brought within 90 days after the City’s approval of the project. The plaintiffs appealed.
On appeal, plaintiffs argued a letter of approval issued for the project did not trigger the 90-day statute of limitations because it was not a permit issued after a decision by a legislative body of the City. The appellate court found that plaintiffs’ argument ignored the express language of Government Code, section 65009, subdivision (c)(1)(E). This subdivision states that the 90-day limitations period applies to actions or proceedings “[t]o attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903…” Section 65901 enumerates the powers of the board of zoning adjustment or zoning administrator and states. In part, “The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance.”
The court determined the Stockton City Council, by local ordinance, created the office of Community Development Department Director and vested with this office the authority to review development projects “in compliance with” section 65901. The letter of approval was issued by the City’s Director, who the court found clearly qualified as the City’s “zoning administrator.”
The court also rejected the plaintiffs’ assertion that the Director’s letter or approval did not trigger the limitation period because section 65009 is only applicable to the decision of a legislative body. The appellate court found, when considered as a whole, the language of section 65009 supports a finding that the Legislature intended to include decisions by zoning administrators in the 90-day limitations period.
Finally, the plaintiffs argued the application of Government Code section 65009 requires a public procedure and an opportunity for hearing. Plaintiffs asserted this requirement was implied in the section. Real Parties pointed out that this assertion is refuted by the statute’s express language. Section 65009, subdivision (c)(1)(e), specifically applies to matters listed in section 65901. Section 65901 distinguishes cases involving the authority to hear and decide applications for conditional uses or other permits from the exercise of other powers granted by local ordinance. Additionally, section 65901 expressly authorizes local jurisdictions to allow the grant of certain variances without a public hearing. The appellate court agreed. After finding the plaintiffs’ planning and zoning claims time-barred, the court dismissed the remaining derivative claims.
Second District Court of Appeal Holds that Challenge to Project is Time-Barred, Since Statute of Limitations Starts Running with Initial Lease Approval, Not Subsequent Execution of Lease
June 14th, 2012 by Amanda Berlin
Van De Kamps Coalition v. Board of Trustees of Los Angeles Comm. College District (2d Dist. May 8, 2012) ___ Cal.App.4th ___ (Case No. BS129238)
The Second District Court of Appeal upheld the trial court’s ruling sustaining a demurrer without leave to amend on the ground that a petition for writ of mandate challenging a community college district’s leasing of a campus site was time barred.
The project at issue involved the two-acre Van de Kamps Bakery building site (Building) in Los Angeles which the Los Angeles Community College District (LACCD) purchased in 2001 to construct a community college. An EIR had previously been prepared for the site when a real estate developer had proposed to demolish the Bakery building and build a Home Base store. An EIR update and to addenda were prepared to analyze the environmental impacts of the community college.
In 2008, the LACCD realized that due to state budget cuts, it would be unable to operate the campus. In 2009, in order to use the site for educational purposes, the LACCD Board adopted resolutions approving an interim use of the property and authorized a five-year lease of the Building to an outside tenant (Resolutions). The LACCD Board, however, decided that the lease agreement did not warrant additional environmental review, since the site would be used for the same educational functions contemplated in the EIR update and addenda. The same year, the Board furthered its Resolutions through various actions, such as approving a $40,000 building redesign expenditure and approving the purchase of a neighboring property (Purchase Agreement).
In 2010, appellant Van De Kamps filed suit against the Board, challenging the adequacy of CEQA review for the Resolutions and subsequent 2009 actions (CEQA I). Following the filing of CEQA I, in 2010, LACCD undertook additional actions furthering its Resolutions. These actions included leasing a portion of one building for employment training, adding indemnification provisions to the Purchase Agreement, and amending a contract to allow for additional architectural services. Appellant moved to amend its CEQA I petition to include claims based on the Board’s 2010 actions. When the trial court denied appellant’s motion, appellant filed a second petition (CEQA II) challenging the 2010 actions. LACCD filed a demurrer to the CEQA I petition, which was unopposed and sustained without leave to amend. LACCD thereafter filed a demurrer to the CEQA II petition claiming it was time-barred, since the 180-day statute of limitations had started running with the 2009 Resolutions, not the subsequent 2010 actions. The trial court sustained the demurrer without leave to amend and the appellate court upheld the trial court’s decision.
The court based its holding on the fact that the 2010 actions were not separate “projects” under CEQA, but were instead mere modifications to the 2009 Resolutions. The court analogized this case to City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, where the court found that the executed agreement did not differ substantially from the original agreement, and was thus not a separate project for purposes of triggering a new statute of limitations. As in Chula Vista, the execution of the lease was not different enough from the lease formation to warrant independent CEQA review.
In reaching its conclusion, the court looked to when projects take legal effect, i.e., are approved, and thus trigger their statutes of limitation. Citing Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134, the Court stated that approval occurs “when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” Under this definition, LAACD “approved” the project in 2009 when it committed itself to the lease and the Purchase Agreement, and approved the $40,000 expenditure. The subsequent approvals in 2010 did not substantially change the project or its environmental effects. The court reiterated Save Tara’s policy objection to the notion that “any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency’s future discretion.”
In conclusion, the court found that the 2010 actions were merely mechanisms for implementing the 2009 Resolutions. As such, they did not re-trigger the 180-day statute of limitations. That statute had run, and appellant’s action was therefore time-barred.
First District Determines Local Land Use Ordinance Does Not Violate Map Act and Properly Characterized Certain Approvals as Ministerial Acts Exempt from CEQA.
May 4th, 2012 by John Wheat
Sierra Club v. Napa County Bd. of Supervisors (1st Dist. April 20, 2012) __Cal.App.4th__ (Case No. A130980)
Sierra Club challenged an ordinance adopted by the Napa County Board of Supervisors clarifying lot line adjustments. Sierra Club argued the ordinance violated the Subdivision Map Act (Map Act) and CEQA. The appellate court disagreed, rejecting Sierra Club’s facial attack on the ordinance and upholding the county’s interpretation that lot line adjustments could be ministerial approvals and therefore exempt from CEQA.
Background and Procedure
In 1976, amendments to section 66412 of the Map Act exempted from the act any lot line adjustment between two or more adjacent parcels. Thus, land could be taken from one parcel and added to an adjacent parcel, but no additional parcels could be created. This exemption was later restricted to four or fewer existing adjoining parcels. This amendment also required lot line adjustments to be approved by the local agency or advisory agency. Further, the agency’s review was limited to a determination of whether the parcels resulting from an adjustment conformed with the local general plan, any applicable specific or coastal plan, and any zoning or building ordinances.
In 2002, Napa County revised its local ordinance governing lot line adjustments to reflect the amendments limiting the scope of section 66412. The revised ordinance also prohibited lot line adjustments that transformed non-building parcels into buildable ones. The ordinance did not comment on whether sequential adjustments affecting four or fewer parcels would be permitted.
Around 2007, Napa County addressed this issue, as it had pending applications from one owner for lot line adjustments affecting 16 contiguous parcels. Each application affected only four parcels, but were sequential in that a lot adjusted under one application was further adjusted under a following application. Napa County determined some counties prohibited this approach to lot line adjustments while others required a waiting period between each application. A final option would be to allow all of the application to be processed without a waiting period. The Board directed that an ordinance be prepared addressing sequential applications for lot line adjustments.
In 2009, a draft ordinance was presented to the Board that distinguished between major and minor lot line adjustments. Major adjustments depended on discretionary approval subject to CEQA, while minor adjustments were considered ministerial and outside CEQA’s purview. The final ordinance adopted by the county continued the existing administrative practice of allowing lot line adjustments impacting four or fewer parcels to re-adjust lots included in a prior application if the prior adjustments had been completed and recorded. Approval of these adjustments remained characterized as ministerial acts not subject to CEQA. The Board determined approval of the ordinance itself was exempt from CEQA based on a class 5 categorical exemption and the “general rule” exempting actions with no possibility of adverse impact to the environment (CEQA Guidelines, § 15061(b)(3)).
Sierra Club challenged the approval of the ordinance, claiming it violated the Map Act’s lot line adjustment exemption and violated the Map Act and CEQA by classifying adjustments as ministerial. Sierra Club requested that the county stipulate to a court order extending the time to prepare the administrative record. The county agreed and the court ordered the deadline extended. The county later argued that Sierra Club failed to effect summons within 90 days as required by section 66499.37 of the Map Act. The trial court held that the county’s stipulation to extend time to prepare the administrative record was a general appearance, and therefore, the county waived any irregularities in the service of summons. The trial court rejected Sierra Club’s other challenges to the ordinance, and Sierra Club appealed.
Sierra Club’s Action Not Time-Barred
The appellate court agreed with the trial court that Sierra Club’s action was not time-barred. The appellate court determined that the county made a general appearance when it agreed to the stipulation extending the time to prepare the administrative record. California Code of Civil Procedure section 1014 lists acts that constitute an appearance, but the appellate court noted this list is not exclusive. The determining factor is whether the defendant takes a part in the action and in some manner recognizes the authority of the court to proceed. In this case, the county clearly acknowledged the trial court’s authority to proceed when it stipulated to the order granting Sierra Club an extension. As a result of this appearance, the county waived all irregularities in service.
Compliance with the Map Act
Sierra Club argued the county’s ordinance violated the Map Act by circumventing its limited exemption for lot line adjustments. The appellate court interpreted this as an argument that section 66412 preempted the local ordinance, or that the local ordinance facially conflicted with this section.
The appellate court noted the difficult burden Sierra Club faced in making its facial challenge to legislation. Local land use regulations conflict with general laws and are void if the local legislation duplicates, contradicts, or enters an area fully occupied by the general law. The court determined Napa County’s ordinance did not conflict with section 66412, as the ordinance did not conflict with any of the criteria established by the Map Act for procedural exclusions of lot line adjustments.
Further, the court rejected Sierra Club’s argument that the county’s ordinance would reopen the loopholes closed by the amendments to section 66412. Specifically, the ordinance did not allow an unlimited number of lot lines to be adjusted at the same time. The ordinance required landowners to obtain approval of adjustments of no more than four adjoining lots at one time and record the deeds reflecting those adjustments before another application could be processed. The court determined that if the legislature had intended to remove all sequential lot line adjustments from the section 66412 exemption, it could have used language to make this intention clear.
Application of CEQA to Sequential Lot Line Adjustments Under County Ordinance
Sierra Club argued that approval of sequential lot line adjustments is a discretionary action subject to CEQA. Approval of discretionary projects requires the exercise of judgment or deliberation, while ministerial projects involve little or no personal judgment by the relevant public official. The public official merely applies the law to the facts presented.
The ordinance classified lot line adjustments as ministerial and not subject to CEQA except where such adjustments required approval of a variance or were processed concurrently with a related application for a use permit or other discretionary approval. Otherwise, if an application complies with 12 specific standards under the ordinance, a public official must accept the application. The court held fixed approval standards left officials with no ability to exercise discretion to reject or shape the project in any way. Therefore, approvals of lot line adjustments under the ordinance that met these criteria were appropriately classified as ministerial.
This case offers an important civil procedure reminder that if a party makes a general appearance before a court, it waives the ability to later challenge sufficiency of service. Stipulating to a court order extending the deadline for filing the administrative record in a CEQA action was characterized as a general appearance in this case. In addition, the case demonstrates the heavy burden petitioners face when attempting to argue a local land use regulation conflicts with a general law. Finally, the case reiterates past precedent distinguishing discretionary acts subject to CEQA and ministerial acts falling outside the jurisdiction of the act.
Third District Upholds Dismissal of CEQA Petition Where Petitioner Corporation Had Been Suspended Until After Statute of Limitations Had Run
January 15th, 2012 by admin
Friends of Shingle Springs Interchange v. County of El Dorado
2011 200 Cal.App.4th 1470
The Third District Court of Appeal held that dismissal of a CEQA petition by demurrer was proper where the petitioner corporation had been suspended and did not obtain revival within the statute of limitations. The Friends of Shingle Springs Interchange, Inc. (FSSI) filed a verified petition for writ of mandate challenging the certification and approval of a Circle K mini-mart and gas station complex off Highway 50 in Shingle Springs. FSSI challenged approval of the project asserting three causes of action in its petition: violations of the CEQA, violations of the Planning and Zoning Law, and “violating the traffic safety provisions” of a County Regulation.
At the time FSSI filed its petition, its corporate powers had been suspended for two and a half years. The Real Party in Interest and the County demurred to the petition, asserting that FFSI did not have the legal capacity to file the petition and that FFSI’s corporate powers were not revived until after the applicable statute of limitations had run. The trial court sustained the demurrer without leave to amend.
The appellate court first determined that dismissal of the petition by demurrer was proper. The court then considered whether the petition could be saved by the “substantial compliance” doctrine. The court held that a suit filed by a corporation while its powers were suspended does not toll the statute of limitations. The suit is ineffective because of the suspension, so that statute continues to run. The court invited supplemental briefing on the issue of whether the doctrine of substantial compliance with corporate suspension and reviver statutes apply in CEQA and Planning and Zoning Law challenges to avoid the statute of limitations for such actions. The court held that the substantial compliance doctrine cannot be used by a suspended corporation to defeat the short statutes of limitation in actions involving CEQA or the Planning and Zoning Law.