By Kate Hart
In a decision filed on February 11, 2009, Committee for Green Foothills v. Santa Clara County Board of Supervisors, et al. (2010) __ Cal.2d ___, the California Supreme Court reversed the Sixth Appellate District Court of Appeal holding that the filing of a notice of determination (NOD) triggers a 30-day statute of limitations for all California Environmental Quality Act (CEQA) challenges to the decision announced in the notice regardless of the nature of the CEQA violation.
On December 12, 2000, the Santa Clara County (County) Board of Supervisors (Board) certified an environmental impact report (EIR) and approved a community plan and general use permit (Permit) for Stanford University (Stanford) to add buildings to its campus.
The EIR found that the project would significantly impact public access to recreational facilities. As mitigation, Condition I.2 of the Permit required Stanford to identify and dedicate easements for, develop, and maintain the portions of two trail alignments which cross Stanford lands shown in the 1995 Santa Clara Countywide Trails Master Plan (Routes S1 and C1). Route S1 was not challenged in this action. In 2005, the Board instructed County staff to pursue an agreement with Stanford on the C1 trail alignment. In December 2005, the Trails Agreement (Agreement) was presented to the Board for consideration as mitigation for the Permit.
The Agreement realigned the trail routes so that portions of Route C1 would be located within San Mateo County and the Town of Portola Valley, so long as the named jurisdictions cooperated. The resolution adopted by the County declared that the Agreement satisfied Condition I.2. Admittedly, alternatives for the C1 Route were not studied for their potential environmental impacts due to the uncertainty of where the routes would be located, but the Board approved the Agreement pertaining to the C1 alignment as satisfying Permit Condition I.2 stating that:
…the County’s approval of the Agreement for Trail Easements does not constitute County approval of construction, operation or maintenance of specific trail improvements along those routes. The Agreement for Trail Easements contemplates that, prior to any trail improvements, detailed construction plans will be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley and Town of Los Altos Hills, and that those jurisdictions will have discretion to consider whether and how to improve trail improvements.
The Board obligated Stanford to provide requisite funds and easements to the jurisdictions to ensure the trail was completed. Alternatively, if the named jurisdictions did not enter into agreements to permit the construction of the trail, Stanford was to pay the County, which would in turn, use the funds – in an unspecified way – to mitigate the adverse effects on recreational opportunities for existing or new campus residents and users that would be caused by the larger project under the Permit. With that, the Board determined no further CEQA review of Route C1 was required prior to the execution of the Agreement.
Two NODs were posted for the approval of the Agreement. The first NOD did not include a reference to the C1 trail alignment. The second NOD was posted on December 20, 2005 and changed the project description to include the Board’s actions with respect to the C1 and C2 trail alignments. The later NOD referenced the EIR for the S1 Trail Alignment, the 2000 Permit EIR and the Countywide Trails Master Plan EIR/SEIR as supporting CEQA documents.
Petitioner’s lawsuit was filed after the 30-day period following the second NOD, but within 180 days of the Board’s adoption of the Agreement. Petitioner asserted the County had violated CEQA by approving a C1 trail alignment without conducting a CEQA review.
Decision of Court of Appeals
The Court of Appeals, Sixth District, held that the longer 180-day statute of limitations contained in CEQA Guidelines Section 21167(a) applied. Commentary regarding this opinion was posted on our blog on May 7, 2008. (See Notice of Determination’s 30 Day Statute of Limitations May Not Apply to All CEQA Claims.) The appeals court was largely focused on procedural issues – mainly that Petitioner was entitled to amend its petition to allege facts sufficient to bring its case within the 180-day statute of limitations.
Supreme Court’s Decision
The Supreme Court held the 30-day statute of limitations under Section 21167(e) – rather than 180 day statute of limitations under subdivision (a) – applied to the case at hand. The Court based its decision not only on the language of Section 21167, but on the legislative history of Section 21167. In looking at the statutory language, the Court reasoned that applying subsection (a) of Section 21167 as proposed by Petitioner would have made no sense because “the limitations period in subdivision (a) starts when a project is approved or begun, and it continues for 180 days.” Further, subdivision (a) specifically contemplates that no NOD is filed by an agency. Here, the County filed an NOD.
An analysis of the CEQA Guidelines conducted by the Court revealed that “the applicable statute of limitations depends in the first instance on whether a public notice was filed,” and that the 180-day statute of limitations applies only where no public notice has been given (e.g., no notice of exemption or determination have been filed). The Guidelines further indicate that the filing of a notice of exemption starts a 30-day statute of limitations. (14 Cal Code Regs § 15075(g) and 15049(g).)
The legislative history of § 21167 indicates that subsections (d) and (e) were added to the statute in 1974. In a report prepared by the Department of Water Resources regarding Assembly Bill No. 2338 for the 1973-1974 Regular Session in which the amendments were proposed included the following language: “…essentially any determinations made by public agencies under the Environmental Quality Act will be subject to a 30 or 35 day challenge limitation, provided a notice of determination has been filed. If no notice is filed or utilized, a 180-day period of limitation applies.”
Finally, the Supreme Court looked to the policy considerations posed by CEQA – the prompt resolution of challenges to decisions of public agencies regarding land use, and the fact that bright line rules provide certainty to public agencies and developers.
Food for Thought
As many of you die-hard CEQA lovers know, the Supreme Court is expected to hear oral argument in the Stockton Citizens for Sensible Planning v. City of Stockton (2007) 157 Cal.App.4th 332, cert. granted on February 13, 2008. The Court’s opinion in this Green Foothills case provides a glimpse of the decision the Court may issue in the Stockton case. Specifically, on review the Supreme Court will consider whether the California Court of Appeal, Third Appellate District, properly directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart on the grounds that a letter from the City’s Community Development Director was not an approval by a public agency, and since there was no approval by a public agency, the notice of exemption (NOE) was not valid and the short 35-day statute of limitations could not apply. I’m willing to bet that the Court uses the rationale in the Green Foothills case to argue that the merits of the Stockton case are irrelevant and the fact that the city filed an NOE was sufficient to trigger the 30-day statute of limitations. Any takers?
Kate Hart is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and 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.