On March 3, 2017, the Director of Planning, serving as the “advisory agency” pursuant to the Subdivision Map Act, approved a negative declaration and vesting tentative map for a mixed use project consisting of a 220 room hotel, 41 story residential tower and a 70,000 square foot learning, cultural and performing arts center. The Director’s decision included notice of a 10-day appeal period. On March 15th, the City filed a Notice of Determination (“NOD”). Seven months later, the Planning Commission approved conditional use permits and other related project approvals, determining that the project had been analyzed in the previously approved negative declaration for the vesting tentative map. Tenants in an existing building on the project site filed appeals. On appeal, the City Council denied the appeals and approved general plan amendments associated with the project. Project opponents then filed a petition for writ of mandate, challenging the City’s approval of the negative declaration. The City and developer filed a demurrer asserting that the statute of limitations had expired following the filing of the Notice of Determination in March. The trial court sustained the demurrer without leave to amend, concluding the litigation. The project opponents appealed.
The Court of Appeal affirmed the dismissal. The appellate court recognized that either one of only two procedural errors would not have triggered the running of the statute of limitations and allow the case to proceed: (1) the filing of an NOD which contains erroneous information (e.g. approval date)(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 532); or (2) an NOD filed before the decisionmaking body approves the project (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963). In this case, the appellate court determined that the March NOD “included an accurate identification and description of the Project” and detailed findings and information regarding the project. There was no debate that the NOD was filed after the approval of the tract map. Although the opponents asserted procedural errors (e.g. was the Director authorized to approve the CEQA document) with the actions of the Director, those claims were part of the CEQA approval covered by the original NOD.
Comment: An approach of segmented project approvals is attractive in that it creates the opportunity to manage CEQA exposure early on. If interested in this option, local agencies should review applicable ordinances to confirm that the agency has codified the required delegations for both the entitlements and CEQA approvals. Segmentation may not be appropriate for every project, however. Some local governments prefer to bundle and concurrently process all of the entitlements through the planning commission and legislative body as a single package. Finally, segmented approvals only impact CEQA exposure: it does not foreclose related non-CEQA claims. The later approvals (use permits, rezoning, general plan amendments) can still be challenged on other grounds including compliance with the state planning and zoning law and local ordinances.
William Abbott is Of Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.