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.