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.