Tag: Statute of Limitations

Second District Court of Appeal Upholds Ruling that Mitigation Measures are Inadequate and EIR is Required for Mixed-Use Development Project in Agoura Hills

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On February 24, 2020, the Second Appellate District in Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al. (2020) 46 Cal.App.5th 665 affirmed the trial court’s decision to require an EIR instead of an MND for a mixed-use development on 8.2 acres because the adopted mitigation measures deferred action, lacked performance criteria, and/or were otherwise inadequate.

Background

The “Cornerstone Mixed-Use Project,” proposed by Agoura and Cornell Roads, LP, and Doron Gelfand (“Appellants”), consists of 8.2 acres of development, including 35 residential apartment units, retail, a restaurant, and office space on an undeveloped hillside in the City of Agoura Hills. The project site is covered mostly by the Agoura Village Specific Plan (adopted in 2008 after its final EIR was certified) with a small portion located within a Significant Ecological Area. After Appellants submitted applications for a development permit, conditional use permit, oak tree permit, and tentative parcel map, the City prepared and finalized an MND for the project in November 2016. The Planning Commission voted to approve the project and adopt the MND. The local chapter of the California Native Plant Society (CNPS) appealed the Planning Commission’s decision, but the City Council approved the project and adopted the MND. The City Council found “no substantial evidence that the project would have a significant effect on the environment” because the project included feasible mitigation measures, reducing all effects to less than significant.

Save the Agoura Cornell Knoll filed a petition for writ of mandate followed by a first amended petition on August 10, 2017, adding CNPS as a petitioner (“Petitioners”), alleging multiple CEQA violations, a violation of planning and zoning law, and a violation of the City’s oak tree ordinance. The trial court granted the petition as to the CEQA and oak tree ordinance claims, denied the planning and zoning law claim, and issued a peremptory writ of mandate directing the City to set aside its project and permit approvals, and to set aside the MND to make way for preparation of an EIR. The project applicants appealed.

The Court of Appeal’s CEQA Decision

The Court reviewed Appellants’ claims under the “fair argument” standard, which requires finding that a lead agency abused their discretion if substantial evidence in the record supports a fair argument that that the project may have a significant effect on the environment. This standard creates a relatively low threshold for requiring an EIR pursuant to “‘legislative preference for resolving doubts in favor of environmental review.’” Three CEQA resource areas were litigated—cultural, biological, and aesthetic. Appellants asserted, repeatedly, that mitigation was adequate and an EIR was not required, and the Court repeatedly disagreed. Overall, the Court found that certain mitigation measures set forth in the MND were “not feasible,” “improperly defer[] mitigation,” or were “inadequate to mitigate the project’s potentially significant impacts.” Affected resource areas are briefly discussed below.

Cultural Resources

The project site contains an identified prehistoric archaeological site that was previously determined to be eligible for inclusion in the California Register of Historical Resources. Three mitigation measures were included in the MND to address potential impacts to the site: (1) construction monitoring, notification of finds, and preservation in place of any resources (i.e., avoidance); (2) notification if human remains are encountered; and (3) a data-recovery excavation program if the site cannot be avoided. The Court found this mitigation constituted improper deferral because, pursuant to an expert opinion on the record, the site could not be avoided as prescribed in the first measure without a project redesign and therefore the third measure would be necessary. The Court also found that the third measure delayed “formulation of several components of the data recovery plan until some future time.” For example, the third measure called for the preparation of a Mitigation Monitoring and Reporting Plan (MMRP), yet did not explain how this MMRP would actually mitigate impacts, and there was no evidence in the record that inclusion of such information was impractical or infeasible prior to project approval. Appellants challenged the “evidentiary value” of the expert opinion, but the Court noted that any “conflict in the evidence” should be resolved in an EIR and that there was no debate as to whether the project would have a significant effect on a cultural resource, just on how it might be mitigated.

Biological Resources

The project site contains three special-status plant species that could be significantly impacted by project grading, landscaping, and fuel modification activities: Agoura Hills Dudley, Lyon’s pentachaeta, and Ojai navarretia. Again, three mitigation measures were included in the MND to reduce impact significance: (1) avoidance if feasible for two of the species, but if not, preparation of a restoration plan that includes plant surveys, onsite restoration, and offsite preservation; (2) the same measure for the third species; and (3) locating and flagging of all three species within the fuel modification zone and the use of buffers, other protocols, and monitoring for protection. The Court found the first two measures inadequately mitigated impacts and were infeasible, largely because of statements on the record asserting that restoration of “‘rare plants is next to impossible’” and “‘experimental’” and because the City relied on outdated surveys conducted during the drought in adopting the measure. The measures called for updated surveys but the record provided no evidence as to why such surveys could not be conducted prior to project approval. The measures also failed to provide performance criteria for determining the feasibility of avoidance or in the alternative, maintenance plans. The third measure was found to be inadequate because it did not properly consider the full expanse of fuel modification zones nor did it account for ongoing fuel modification activities, as it applied only to construction.

The project site also contains native oak trees, 35 of which would be removed by the project. Two mitigation measures were included in the MND to reduce significant impacts: (1) replacement of oak trees either onsite or via in-lieu fees paid to the City to acquire land for new tress; and (2) submittal of an oak tree survey, report, and preservation program to the City for approval. The Court found the first measure to be inadequate because mass grading required for the project would cause a loss of subsurface water to any onsite replacement trees, which could result in failure; yet this water deficit was not addressed in the measure. Also, substantial evidence existed showing that oak woodlands are “‘impossible to recreate’” or at least “‘often unsuccessful.’” Lastly this measure was inadequate because the in-lieu fees to be paid to the City would not be not part of a program that has undergone its own CEQA review, which is required “‘to provide a lawful substitute for the “traditional” method of mitigating CEQA impacts.’” The second mitigation measure was found to potentially lack effectiveness because that same subsurface water deficit was not considered, thereby calling into question any claims of long-term survival of preserved oak trees.

Aesthetic Resources

The project site contains a “distinct” knoll of oak trees that likely would be removed for project development. The MND acknowledged the potential loss of this scenic resource but claimed mitigation reduced the impact to less than significant. This mitigation included some avoidance measures and also pointed to the oak tree measures (discussed above) for restoration and preservation. The trial court found this mitigation to be inadequate. Although Appellants claimed the Petitioners failed to properly exhaust this issue (discussed below), the Court found that evidence in the record demonstrated that the knoll may not be preserved under project design and that, even if it were, the subsurface water deficit would jeopardize its continued existence, and no in-lieu fee could “reduce the impacts on aesthetic resources” of this loss.

The Court of Appeal’s Decision on Appellants’ Other Claims

Administrative Remedies Were Exhausted

Appellants repeatedly contended that Petitioners did not exhaust their administrative remedies and therefore forfeited their claims. They also contended that Petitioners did not address the issue of exhaustion in their first opening brief, and therefore could not submit supporting evidence. Addressing the second claim first, the Court found that Petitioners did preserve the general issue of exhaustion because there is no requirement that the issue must be argued in an opening brief and, nevertheless, their opening brief cited evidence that was later used in Petitioners’ reply brief to show exhaustion. This evidence demonstrated that exhaustion was “not a new legal theory raised for the first time” on reply. The Court also found that Petitioners expressly alleged exhaustion in their petition and “lodged the complete administrative record” as part of the writ proceedings. Further, the trial court’s rejection of Appellants’ supplemental brief on this issue was warranted because in filing it they had directly violated a court order stating that “the issue of exhaustion was thoroughly argued.”
As to the first contention, appellants raised exhaustion as a defense to each of Petitioners’ CEQA claims. The Court considered “the totality of [the] record” by looking to various portions demonstrating that most of Petitioners’ claims were preserved. It looked specifically to public comments, City Council hearing transcripts, other correspondence from environmental groups and experts, and documentation from the City’s own consultants to find again and again that the City was “‘fairly apprised’” of the “underlying concerns behind Petitioners’’ claims and thereby had the “‘opportunity to decide matters [], respond to objections, and correct any errors before the courts intervene.’”

Court Rejected Standing and Statute of Limitations Defenses

Appellants asserted both that Petitioner Save the Agoura Cornell Knoll lacked standing because Petitioners failed to show that they timely objected to project approval and that Petitioner CNPS was barred from the action because they joined the suit after the statute of limitations had run. The Court declined to consider the merits of either claim. It found that Appellants had forfeited their statute of limitations argument by not properly asserting it “‘in a general demurrer or pleaded in answer’” and, therefore, without a statute of limitation violation, CNPS remained a petitioner with uncontested standing. The Court was quick to point out that Appellants claims on these points were made for the first time in their appellate reply brief “[n]otwithstanding their [own] arguments on forfeiture.”

Attorney’s Fees Are Recoverable and Appellants Are Jointly and Severally Liable

The trial court awarded attorneys’ fees to Petitioners and assigned joint and several liability to both the developer Agoura and Cornell Road and its representative Doron Gelfand. Appellants first argued against the award by asserting that Petitioners did not provide notice of the CEQA action to the Attorney General “in accordance with section 21167.7 [of the Public Resources Code] and Code of Civil Procedure section 388” that requires notice be served within 10 days of filing a pleading. On this point, the Court found that, although Petitioners did not serve the Attorney General notice of the first amended petition, they did properly notice their original petition, which was not materially different than the first amended, thereby giving the Attorney General “ample time to intervene.” The Court further pointed to case law emphasizing that a lack of strict compliance with the 10-day notice rule “was not an absolute bar to attorney’s fees.” It further concluded that a declaration from Petitioners’ attorney attesting to notice could stand as evidence in lieu of formal proofs of service of that notice. Appellants then argued that Gelfand could not be held personally liable because he was neither the applicant nor the property owner. But, in utilizing the test articulated in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1181, the Court found that Gelfand was a “real party who pursued a direct interest in the project that gave rise to the CEQA action and actively participated in the litigation” and, therefore, was liable. The record contained ample evidence showing that Gelfand was, at one time, “‘the owner of the property’” and had personally made several requests to the City regarding the project, and was listed “as the sole project applicant” on City resolutions approving project entitlements.

Oak Tree Ordinance Was Violated

The City’s oak tree ordinance allows the cutting of oak trees with a permit but disallows removal of more than 10 percent of a subject property’s total estimated canopy or root structure. The project would result in removal of up to 36 percent of oak trees on site in violation of this ordinance. Appellants did not argue against that fact but did assert Petitioners failed to exhaust their administrative remedies on this claim. The Court addressed both the merits of the claim and exhaustion (see above) and agreed with the trial court in finding that, in approving the oak tree permit for the project, the City violated its own “‘duly adopted law’” and therefore the permit must be vacated.

Casey Shorrock

Fourth District Court of Appeal Holds City’s Scenic View Ordinance Is Considered a Zoning Ordinance under Gov. Code Section 65901 and Therefore Subject to 90-Day Service Deadline for Petition in Section 65009

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In a unanimous opinion, the court in Weiss v. City of Del Mar (2019) 39 Cal.App. 5th 609, upheld the trial court and found that the 90-day service deadline in Government Code section 65009 applied to a planning commission action on a municipal scenic view ordinance. As a result, the court held that a petition for writ of mandate that was served on the City three months after the deadline was time barred.

Background

In August 2016, Petitioner Shirli Weiss submitted an application to the City of Del Mar under its Scenic View Ordinance requesting that Torrey Pacific Corporation, her neighboring property owner, trim its “‘wildly overgrown’” vegetation and trees to restore the ocean view from her property. The Planning Commission held a hearing on the application and, though divided, denied her request. The City Council issued a 2-2 split decision on her appeal in July 2017 which, under the City’s rules, reinstated the Planning Commission’s decision to deny her request.

Weiss filed a petition for writ of mandate against the City and Torrey Pacific in September 2017, but did not serve the City with the petition until December 2017. The respondents jointly moved to dismiss under the 90-day service requirement in Government Code section 65009, subdivision (c)(1)(E). The trial court granted the motion and found it was “‘undisputed’” that this statutory deadline was not met. Weiss appealed. In her appeal, she acknowledged that she served the City more than 90 days after the City Council denied her appeal but contended that section 65009’s deadline did not govern her action.

Time Barred by Section 65009

The Court of Appeal considered the “‘usual and ordinary meanings’” of the plain language in section 65009 within the context of the entire statute. Section 65009, subdivision c, plainly states that a “challenger must file and serve the public entity within 90 days of the challenged decision.” This statute of limitations, the court explained, applies to adoption or amendments of specific plans, general plans, zoning ordinances, development agreements, and regulations attached to specific plans, and all actions “‘done or made prior to any of these decisions.’” (Gov. Code, § 65009, subd. (c)(1).) The service requirement also applies to “‘any decision on the matters listed in Sections 65901 and 65903.’” (Id.) Sections 65901 and 65903 primarily apply to actions related to a zoning ordinance, such as a conditional use permit, variance, or “‘any other powers granted by local ordinance’” to the board of zoning adjustment or zoning administrator. (Id. at § 65901, subd. (a).) The court noted that section 65903 includes zoning board of appeals decisions.

Weiss argued that the City’s Scenic View Ordinance is not a zoning ordinance because it is not within the Municipal Code zoning rules and regulations. The court disagreed, and determined that the Planning Commission was “functionally acting in a zoning board capacity” when it ruled on Weiss’s application. The court explained that the substance of the Scenic View Ordinance required the City to “undertake[] zoning and planning responsibilities,” and therefore it did not matter whether the ordinance was within the City’s Municipal Code. The court cited to Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, where the court held that a tree ordinance was a zoning ordinance. The court noted that any decision made under the Scenic View Ordinance is “quintessentially a public entity decision involving…a land use and zoning determination.” But, the court said, even if it were not a zoning/land use determination, the “‘any other powers’” clause in section 65901 is broad and includes decisions on “a range of issues outside” the categories listed in sections 65901 and 65903.

Weiss also argued that sections 65009 and 65901 only apply to planning or zoning decisions on a project or development, but do not apply to enforcement of an ordinance. Weiss cited section 65009’s stated purpose—to provide “’certainty regarding decisions’” so that owners and governments can “‘proceed with projects.’” The court disagreed with this argument because, particularly where statutory language is “clear and unambiguous,” general statements of statutory purpose “do[] not override the substantive portion” of a statute.  Weiss also argued that the 90-day deadline in section 65009 had only ever been applied to projects or development and never in circumstances like those at issue here. The court agreed with Weiss, but explained that there was no authority stating that section 65009 is triggered only for challenges to projects or developments.

The court also rejected several final arguments from Weiss. First, she argued that the court’s decision to apply the 90-day service rule here would render the statute applicable to all of the Planning Commission’s actions. The court disagreed, pointing back to statutory language that limits 65009 to “zoning and similar land use determinations.” Next, Weiss claimed that the lack of urgency of the current dispute, unlike the expedience necessary for development, precluded applicability of section 65009. The court rejected this argument as an attempt to add language that does not exist in the statute. Additionally, the court explained that tree removal and maintenance issues do need to be resolved promptly. Lastly, Weiss argued that the Scenic View Ordinance specifically mentions Code of Civil Procedure section 1094.6, but does not mention section 65009, so that section must not apply. The court explained that Code of Civil Procedure section 1094.6 addresses filing deadlines but is silent on service of a petition. Both regulations, the court said, can therefore apply simultaneously.

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

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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.

*Previously published at: 28 Cal.App.5th 622, Rehearing Granted, Opinion Not Citeable November 26, 2018.

First District Court of Appeal Holds that the Discovery Rule Does Not Apply to Challenges Brought Under Public Resources Code § 21167

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In Communities For A Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715, the First District Court of Appeal held a petition for writ of mandate as time-barred under Public Resources Code § 21167, subdivision (d). Petitioners argued that the ”discovery rule” should apply because the Bay Area Air Quality Management District (“District”) failed to provide public notice of the ministerial approval and the project itself (a change in operation at a transloading facility from ethanol to crude oil) was “hidden from the public eye.” The court held that the statute governed when the public was deemed to have constructive notice of a project, and the discovery rule postpones the accrual of an action beyond the date of the injury, not beyond the date when the plaintiff is deemed to have constructive notice.

The District issued a ministerial permit for the project in July 2013, which was not subject to CEQA. But the District did not file the optional notice of exemption (“NOE”) and the applicant began transloading crude oil at its facility in October 2013. The conditions of the permit were modified in October and December of 2013, and the District issued a second permit incorporating these modifications in February 2014. On March 27, 2014 petitioners filed a petition for a writ of mandate. The District argued that the petition was time-barred because it should have been brought within 180 days of July 2013, when the permit was issued. Petitioners argued that they only became aware of the project on July 31, 2014, and that the facility is completely enclosed making the change in operation “invisible.” The trial court dismissed the petition without leave to amend as time-barred under 21167.

The First District Court of Appeal distinguished Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (“Concerned Citizens”). In Concerned Citizens, the Court interpreted “the date of commencement of the project” to mean “commencement” of the project approved by the lead agency and analyzed in the EIR. Because the project had changed significantly, the petitioners could bring an action within 180 days of when they knew or reasonably should have known that the project commenced was substantially different from the approved project. Here, petitioners did not argue that there was a substantial change in the project, and instead argued that the discovery rule should postpone the accrual of the action until they had actual notice of the project. The First District found this argument to have been rejected in Concerned Citizens, as contrary to legislative intent.

The Court of Appeal also distinguished Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429 (“Ventura Foothills”). In that case, the height of a planned building was changed from 75 feet to 90 feet, and while a notice of determination (“NOD”) was filed because of the change, the NOD did not disclose the change in height. The court in Ventura Foothills determined that the 30-day statute of limitations for NODs only applied to the determinations announced in the NOD. Since the change in height was not disclosed, the 30-day statute had not run. Here, the petitioners could not point to any deficiencies in a required notice.

The court stated that in both cases the court interpreted the statute so that the triggering date for barring an action did not occur. Because petitioners could not argue for such an interpretation in this case, their claim was time-barred. Similarly, they could not amend their pleadings to show that the dates of constructive notice in 21167 had not occurred more than 180 days prior to their filing suit.

Second District Holds County Violated CEQA by Increasing Project Building Height without Issuing a Supplemental EIR

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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.

Court Holds Petition Over Tree Removal in Community College Expansion Project Came Too Late

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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

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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

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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

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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.

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