Filing of Notice of Determination Triggers 30-Day Statute of Limitations for CEQA Challenges to Decision Announced in Notice

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In Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 C.4th 32, 105 C.R.3d 181, 224 P.3d 920, a university applied to a county for a general use permit to construct buildings on its campus. In accordance with the California Environmental Quality Act (CEQA; Pub.Res.C. 21000 et seq.), an environmental impact report (Permit EIR) was prepared and certified. Defendant, the county’s Board of Supervisors, approved the permit, with the condition that the university construct and dedicate easements for several trails. Subsequent negotiations between the university and the county produced the Trails Agreement, which was presented to defendant board for approval. Defendant certified a supplemental EIR concerning one of the trail alignments, determined that no further CEQA review was presently required for the other trail alignments, and authorized the county to enter into the Trails Agreement. The county then filed and posted a notice of determination (NOD) that described the trail alignments and defendant’s actions with respect to each one. Plaintiff committee petitioned for writ of mandamus 171 days after the notice of determination was filed and posted, contending that defendant had violated CEQA by approving one of the trail alignments without having conducted the necessary environmental review. The trial court sustained defendant’s demurrer on the ground that the petition was barred by the 30-day statute of limitations in Pub.Res.C. 21167(b), (c), or (e). The Court of Appeal reversed, concluding that the action could fall within the 180-day statute of limitations in Pub.Res.C. 21167(a). Held, reversed. The 30-day statute of limitations of Pub.Res.C. 21167(e) applies.

(a) Pub.Res.C. 21167 establishes statutes of limitations for all actions and proceedings alleging CEQA violations. (48 C.4th 43.) Which subdivision of Pub.Res.C. 21167 applies depends on the nature of the violation alleged. (48 C.4th 44.) Except for Pub.Res.C. 21167(a), each of the limitations periods in the statute is triggered by a notice of determination or exemption and continues for only 30 or 35 days. Subdivision (a), which continues for 180 days, applies to actions alleging that an agency has approved or undertaken a project without having determined whether the project may have a significant effect on the environment. In those cases, the agency usually will not file a notice of determination because it has made no determination. Here, however, the board determined that no environmental review of certain trail alignments was required, but it also announced its conclusion in a notice of determination. (48 C.4th 46.)

(b) The plain language of Pub.Res.C. 21167 makes a notice of determination of “paramount importance” for determining which statute of limitations applies to a CEQA claim. If a valid NOD has been filed, any challenge to that decision under CEQA must be brought within 30 days, regardless of the nature of the alleged violation. (48 C.4th 47.) The statutory language does not authorize an extension of this 30-day period even if the action alleges that, despite the filing of an NOD, the project was approved without a prior environmental assessment. (48 C.4th 47, 48.) Moreover, the regulatory guidelines implementing CEQA and the legislative history suggest that the Legislature meant to impose a shorter statute of limitations for all types of CEQA claims following a notice of determination. (48 C.4th 48.) Finally, a “bright-line rule that the filing of an NOD triggers a 30-day statute of limitations promotes certainty, allowing local governments and developers to proceed with projects without the threat of potential future litigation.” (48 C.4th 50.)

(c) Because plaintiff brought this action more than 30 days after defendant disclosed its approval of the Trails Agreement, the action is time-barred under Pub.Res.C. 21167(e). (48 C.4th 52.) Plaintiff’s attempt to avoid this result by claiming that the notice of determination was defective is unpersuasive. The notice contained every item of information required by the relevant guideline. (48 C.4th 53.) Similarly, plaintiff’s argument that defendant had to make an environmental determination and prepare either a negative declaration or an EIR before filing a notice of determination also “fails on its own terms.” (48 C.4th 54.) The Trails Agreement was created expressly to satisfy a mitigation measure that was identified in the Permit EIR. Accordingly, defendant was required to evaluate the activities contemplated in the Trails Agreement to determine whether they could produce any environmental effects not examined in the Permit EIR or the supplemental EIR. It is not necessary to decide whether defendant’s determination was proper. Those arguments go to the merits of the plaintiff’s complaint. All that matters is whether defendant evaluated the Trails Agreement as a subsequent activity to a program EIR, and the record indicates that it did. (48 C.4th 55.)

Witkin References

On California Environment Quality Act generally, see 12 Summary (10th), Real Property, §831 et seq.

On Pub.Res.C. 21167, see 12 Summary (10th), Real Property, §856.

On preparation of EIR, see 12 Summary (10th), Real Property, §840 et seq.