In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act. (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) ___ Cal.App.4th ___, 2013 WL 2378584.) Key points of the published portion of the opinion include:
In a lengthy published opinion filed May 21, 2013, the First District Court of Appeal reversed a judgment granting a writ of mandate and upheld as legally adequate under CEQA the Marin Municipal Water District’s EIR for development and construction of a desalination plant in Marin County. (North Coast Rivers Alliance, et al. v. Marin Municipal Water District Board of Directors (1st Dist., Div. 4, 2013) ___ Cal.App.4th ___, 2013 WL 2245170.) The Court rejected Petitioner North Coast Rivers Alliance’s (Alliance) challenges to the adequacy of the EIR’s analysis of the project’s aesthetic, land use, seismic, hydrology, water quality, biological resources, and cumulative GHG impacts, as well as its challenges to the EIR’s environmental setting description of baseline physical conditions and alleging that various of its mitigation measures were improperly deferred. In light of its reversal of the judgment, the Court dismissed the District’s related appeal of a post-judgment order awarding attorneys’ fees to Alliance as moot.
There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think Jerry Brown probably had it right when he predicted last month that CEQA reform would not be accomplished in 2013. While the debate has been vigorous, the political stars are simply not aligned to do what needs to be done to modernize and streamline the venerable 43-year old law.
Repetitive CEQA review and analysis is expensive, unnecessary, unproductive, and inimical to the goals of certainty and finality in the environmental review process. In 2011, to address these concerns in the infill development context, the legislature enacted SB 226 adding Public Resources Code §§ 21094.5 and 21094.5.5 to CEQA. These sections provided for streamlined CEQA review for qualifying “infill” projects and directed OPR to prepare, and to transmit to the Secretary of the Natural Resources Agency for adoption, implementing guidelines.
Under the authorizing legislation, a qualifying “infill project” is one that includes residential, retail/commercial, transit, school, and/or public office buildings and is “located within an urban area on a site that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.” (Pub. Resources Code, § 21094.5(e)(1)(B)). The legislation further provides that “[a] lead agency’s determination pursuant to this section shall be supported by substantial evidence.” (§ 21094.5(a)(1).)
In its terse, no-nonsense opinion in Alliance For the Protection of the Auburn Community v. County of Placer, et al. (2013) 215 Cal.App.4th 25, ordered published on April 2, 2013, the Third District Court of Appeal affirmed a judgment entered after sustaining a demurrer to a CEQA action without leave on statute of limitations grounds and denying plaintiffs’ Code of Civil Procedure § 473 motion seeking relief based on mistake or excusable neglect. Plaintiffs’ action challenged the EIR for a development project, but was filed 3 calendar days and 1 business day after the 30-day statute of limitations of Public Resources Code § 21167 had expired because its attorney service failed to arrive at the courthouse in time to file on the deadline date. Key takeaways include:
- CCP § 473, despite its liberal construction, does not generally apply to failure to comply with limitations periods in actions instituted by either complaint or writ petition, since statutes of limitation are mandatory, and are “adamant rather than flexible in nature.”
- “If the Legislature desires to allow some flexibility in a statute of limitations, it expressly provides for an extension of the limitations period or a showing of good cause [which] … is the equivalent to a showing under section 473.”
- Absent an express legislative provision in the statute of limitations providing for a good cause extension, “the court infers that the Legislature did not intend such an extension on the grounds of good cause or under section 473.”
- CEQA’s statute of limitations, Public Resources Code § 21167, “makes no provision for extending the limitations period on a showing of good cause.”
- While CEQA is broadly interpreted to protect the environment, this liberal policy applies to the substantive merits of CEQA challenges, not to its procedural requirements, such as its filing and other procedural deadlines, which are designed to serve the public interest by ensuring CEQA challenges are promptly filed and diligently prosecuted.
In holding that relief under Code of Civil Procedure § 473 is unavailable for a litigant’s failure to file its CEQA challenge within Public Resources Code § 21167’s applicable limitations period, the Third District’s decision is not surprising and does not break new ground. It does, however, provide straightforward and useful analysis of the application of § 473 in the CEQA context, as well as a cautionary tale for plaintiffs’ attorneys who wait until the last day to file a CEQA writ petition.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.
In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) _____ Cal.App.4th _____, 2013 WL 1491547, the First District Court of Appeal explored the scope and proper application of CEQA’s remedies provision – Public Resources Code § 21168.9 – in the context of an eminent domain action filed before completion of necessary environmental review for the condemning agency’s project. In a partially-published opinion, the Court affirmed a judgment vacating the East Bay Regional Park District’s (“District”) CEQA exemption finding, and ordering it to prepare an EIR for a project to acquire and construct a segment of the Bay Trail on eight acres of shoreline property, while allowing the District’s eminent domain action to proceed.
In a recently published opinion construing Government Code § 65457’s exemption from environmental review for a residential development consistent with a specific plan for which an EIR was previously certified, the First District Court of Appeal affirmed a judgment rejecting a challenge to the City of Dublin’s use of the exemption to approve AvalonBay Communities, Inc.’s (“AvalonBay”) 7.2-acre development within the larger Dublin Transit Village Center. Concerned Dublin Citizens, et al. v. City of Dublin, et al. (2013 1st Dist., Div. 3) _____ Cal.App.4th _____, 2013 WL 1235649, filed 3/7/13, ordered pub’d 3/28/13.
Ruling from the bench at a March 29, 2013 hearing, Alameda County Superior Court Judge Frank Roesch found a key provision of an ambitious CEQA reform law championed by Senator Darrell Steinberg to be unconstitutional. Specifically, Judge Roesch found “the provisions of AB 900 found in Public Resources Code [section] 21185 are so inconsistent with the constitutional mandates of where mandamus cases may be brought that it must be struck down as unconstitutional.” A detailed written statement of decision explaining the judge’s reasoning is expected sometime later this month.
Spring is here, and it seems the judicial, legislative and executive branches of government have all been busy trying to “clean up” CEQA and related areas of the law in one way or another. Recent items of interest include:
The Second District Court of Appeal upheld the County of Santa Barbara’s Final Revised Environmental Impact Report for a 30-year conditional use permit (CUP) for the Diamond Rock mine project. Save Cuyama Valley v. County of Santa Barbara (2013 2d Dist., Div. 6), ___ Cal.App.4th ___, 2013 WL 541581 (filed 1/10/13, modified 2/8/13). The CUP allowed excavation of 500,000 tons of sand and gravel each year by real party Troesch Materials, Inc. from the often dry bed of the Cuyama River. Save Cuyama Valley lost its writ of mandate challenge to the EIR, and the Court of Appeal affirmed.