By William W. Abbott

Salmon Protection and Watershed Network v. County of Marin (April 20, 2012, A133109) ___Cal.App.4th ___.

It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements puts the litigation on hold, and can help facilitate settlement by taking the pressure of litigation off the front burner. In a case involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention later brought by property owners potentially affected by the CEQA lawsuit. As the settlement discussions were undertaken (ultimately unsuccessful), the property owners were left in a indeterminate state as to what to do with their property. The property owners’ complaint in intervention, following the filing of the under lying CEQA action, alleged that the underlying CEQA lawsuit was barred due to the passage of the statute of limitations, and that any extension between the petitioner and the County was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the court of appeal upheld the dismissal of the complaint in intervention. 

The appellate court recognized that the fact pattern was one in which no private party was involved as there would be in the situation of a lawsuit challenging approval of a private project. Given that the interests of property owners potentially affected by the litigation were only “incidental”, their concurrence was not required as a condition to the validity of the tolling agreement.

William W. Abbott is a partner 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.