First District Finds CEQA Claim Timely Filed in Case Challenging Approval of Tree Removal

In Save Lafayette Trees v. City of Lafayette (Oct. 23, 2018, A154168 ___ Cal.App.5th___, the First District Court of Appeal held that the 90-day statute of limitations period set forth in the Planning and Zoning Law did not apply to petitioners’ CEQA cause of action. Therefore, although the trial court correctly granted the demurrer to petitioners’ Planning and Zoning Law claim, the trial court erred in dismissing petitioners’ CEQA claim.

The case involves the City of Lafayette’s approval of an agreement with Pacific Gas and Electric Company (PG&E) authorizing the removal of up to 272 trees within PG&E’s natural gas pipeline rights-of-way. City staff and PG&E disagreed as to whether PG&E was required to comply with the city’s tree protection ordinance. Rather than requiring PG&E to comply with the city’s tree protection ordinance, however, the city agreed to allow PG&E to remove the trees under a provision of the Lafayette Municipal Code allowing removal of protected trees “to protect the health, safety, and general welfare of the community.”

Petitioners filed a lawsuit challenging the city’s approval of the tree-removal agreement. The petition alleged that the city failed to comply with the Planning and Zoning Law and CEQA in approving the agreement. It also alleged that the city violated the petitioners’ due process rights by failing to give sufficient notice of the hearing at which the agreement was approved.

PG&E filed a demurrer, in which the city joined, asserting that the petition was barred by Government Code section 65009, subdivision (c)(1)(E), which requires that an action challenging a zoning permit be filed and served within 90 days of the decision. The trial court sustained the demurrer without leave to amend, finding that the petition had not been served within the 90-day filing and service period. Based on this, the trial court dismissed the petition in full.

The Court of Appeal agreed with the trial court that petitioners’ Planning and Zoning Law claim was time-barred because petitioners had not served the petition within 90 days, as required by Government Code section 65009, subdivision (c)(1)(E). Government Code section 65009 applies to “any decision” by a legislative body regarding a permit. Although the approval of the agreement was not labeled a “permit,” it was, in effect, a permit authorizing the removal of trees, so section 65009, subdivision (c)(1)(E) applied. Although section 65009’s legislative findings discuss the need for a short limitations period to provide certainty to housing developers, nothing in section 65009 restricts its application to decisions involving houses. The longer statute of limitations found in the city’s Municipal Code did not apply because the shorter limitations period of the Government Code preempted that of the city’s code. Because the due process cause of action derived from the Planning and Zoning Law, the 90-day statute of limitations under the Planning and Zoning Law also barred petitioners’ due process claim.

The 180-day statute of limitations found in Public Resources Code section section 21167.6, subdivision (a), applied to the CEQA cause of action. Because the petition had been filed and served within that time, the trial court erred in dismissing the CEQA claim. Because the CEQA limitations period was twice as long as that of the Government Code, the two statutes of limitations could not be reconciled. Therefore, the statute of limitations under the Planning and Zoning Law did not control the CEQA cause of action.