By Cori Badgley
Generally, a lawsuit challenging an agency’s decision or environmental review must be brought within 30, 60 or 90 days, depending on the applicable statute of limitations. Often, an agency’s decision involves powers granted under different statutes, which can lead to conflicting statutes of limitations. In Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873, the Court of Appeal for the Fourth Appellate District addressed such a conflict in a challenge to the granting of a coastal development permit. The conflict arose between the statute of limitations under the California Coastal Act (Pub. Resources Code § 30801) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code § 21080.5). The court held that as long as the challenges related to CEQA, CEQA’s statute of limitations applied.
Under CEQA, the granting of a coastal development permit falls under the certified regulatory program exemption found in Section 21080.5. This exemption provides that if a state agency’s regulatory program is certified by the Secretary of the Natural Resources Agency pursuant to Section 21080.5, then the state agency is exempt from certifying an environmental impact report. Instead, the state agency can rely on the written documentation produced under the certified regulatory program and file a Notice of Approval with the Secretary of the Natural Resources Agency. Challenges under Section 21080.5 must be brought within 30 days of the filing date of the Notice of Approval.
The California Coastal Commission’s (“Commission”) program is a certified regulatory program under CEQA. The regulatory program includes the granting of coastal development permits. Under the California Coastal Act, a petitioner must bring a lawsuit challenging the approval of a coastal development permit within 60 days after the decision has become final.
In this case, the Commission approved the coastal development permit in November but did not file the Notice of Approval until late December. Therefore, the 60 day Coastal Act statute of limitations started to run in November but the 30 day CEQA statute of limitations under CEQA was not triggered until late December. Plaintiffs filed the lawsuit within the 30 day statute under CEQA, but failed to make it within the 60 days under the Coastal Act. Defendant and real parties in interest demurred to the complaint, claiming that the suit was time barred by the 60 day statute of limitations. The trial court agreed.
The appellate court reversed the trial court’s ruling, holding that the more specific statute of limitations applied to challenges brought under Section 21080.5 of CEQA. If any of the challenges related solely to the Coastal Act, those actions were time barred.
The court pointed out that if the Commission had approved the permit and immediately filed the Notice of Approval, the CEQA statute of limitations would have run concurrently with, and ended before, the Coastal Act’s statute of limitations. However, the Commission had gotten itself into this mess by failing to timely file the Notice of Approval. As with any land use approval, applicants are well advised to confirm the agency’s timely perfection of the steps required to run the statutes of limitation.
Cori M. Badgley is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.