In a published opinion, the First District Court of Appeal reversed the trial court’s judgment granting a writ and held that a CEQA action filed by a citizens group against a community college district and its board of trustees was time-barred under either the 30- or 180-day statute of limitations contained in Public Resources Code § 21167.  Citizens for a Green San Mateo v. San Mateo County Community College District, et al. (1st Dist. 6/17/2014) 226 Cal.App.4th 1572.

The plaintiff group (“Citizens”) challenged the District’s removal of over 200 mature trees on its College of San Mateo (“CSM”) campus in December 2010 and January 2011 as allegedly having occurred without any CEQA review.  Citizens argued the tree cutting was outside the scope of an Initial Study/Mitigated Negative Declaration (“IS/MND”) the District had adopted years earlier when it approved the CSM Facilities Improvement Project (“Project”) in January 2007.  The District contended the tree cutting was a subsequent activity or individual project within the scope of that larger Project and that Citizens’ action was long time barred.  The Court of Appeal agreed with the District’s position and held that Citizens’ action, filed on July 1, 2011, was untimely whether analyzed under the 30-day statutes of limitation set forth in Public Resources Code §§ 21167(b) or (e) or under the longer 180-day statute of limitations contained in § 21167(a).

The District had filed its Notice of Determination (“NOD”) for its approval of the Project pursuant to the MND on February 15, 2007.  The IS/MND disclosed, among other things, that the Project was made up of numerous “individual projects” that would occur over a five-year time period, and also that it would result in removal and pruning of an unknown number of trees, including heritage trees as defined under the City of San Mateo’s Heritage Tree Ordinance.  Biological resources impacts of the Project were ultimately found less than significant due to a mitigation measure requiring tree removal and building demolition to occur outside the migratory bird nesting season, and project components requiring both the avoidance of removal or heavy pruning of heritage trees where feasible, and the planting of more new trees than would be removed.  Citizens failed to comment on the IS/MND during the 21-day public comment period or at the subsequent public hearing at which the MND and Project were approved, nor did Citizens file any action within 30 days of the District’s February 15, 2007 filing of the NOD with the County Clerk.

Actions implementing the Project in subsequent years included building demolitions, parking lot renovations and expansions, lighting and circulation improvements, and landscaping changes including tree removal in the northern part of the CSM campus, collectively known as the “North Gateway Project.”  Landscape design and tree removal aspects underwent refinement and changes in specifics throughout a series of non-public and public meetings in 2008 and 2009.  When construction funding became available, the District bid the work in late 2010, publishing newspaper notices so informing interested members of the public, describing the work as including “tree removal and pruning,” and providing a link to the District’s website and identifying other locations where the bid documents were available for public review.  The bid documents included a May 2010 Project Manual and Addenda to the same containing detailed information on which the trees were to be removed and pruned.

The District’s Board approved the award of the North Gateway Phase I contract at a duly noticed November 17, 2010 public meeting at which no member of the public commented on the contract.  The tree removal and pruning subcontractor mobilized on December 27, 2010, and began work the next day, proceeding through January 14, 2011.  On January 5, 2011, a Citizens member first contacted the District expressing concerning about the North Gateway area tree removal and pruning.  On July 1, 2011, Citizens filed its CEQA action challenging the work; after the trial court overruled the District’s demurrer on statute of limitations grounds, it entered judgment in Citizens’ favor granting the requested writ petition.

The Court of Appeal reversed the judgment on statute of limitations grounds – holding Citizens’ action was time-barred by CEQA’s limitations periods – without any need to reach District’s related claims of failure to exhaust, mootness, or issues relating to supplemental review.  Emphasizing the policies underlying statutes of limitations in general, and in particular the concerns of finality and predictability which animate CEQA’s unusually short limitations periods, the court emphasized that CEQA’s shortest periods are triggered by public notice and their running does not depend on the substantive merit or lack of merit of the claim asserted; nor are they “public review periods or waiting periods for the person whose project has been approved.  The project sponsor may proceed to carry out the project as soon as the necessary permits have been granted.  The statute of limitations cuts off the right of another person to file a court action challenging approval of the project after the specified time period has expired.”  (Quoting Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 499.)

In the case before it, the court noted Citizens did not challenge the Project’s initial approval, which occurred more than four years before it filed suit, but instead challenged tree removal that was undertaken as part of the Project’s IS/MND.  Because the District filed an NOD, it contended the 30-day limitations period of either Public Resources Code § 21167(b) or (e) applied to bar the action.  Citizens claimed the tree removal was “materially different” than that contemplated by the 2007 NOD and IS/MND and thus its member’s actual observance of tree removal in January 2011 triggered a 180-day limitations period under Public Resources Code § 21167(a).

The court disagreed with Citizens’ “narrow interpretation” of the tree removal contemplated by the 2007 IS/MND and its contention that the tree removal undertaken was “materially different” than that contemplated by the Project.  The record demonstrated “the tree removal was not an independent project” but, rather, “constitutes a subsequent activity encompassed within the original CSM Project.”  (Citing Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 44.)  In contrast to a situation in which a project challenger lacked notice until it “knew or had reason to know that the project as it was being constructed was materially different than the one approved[,]” in this case the IS provided notice the project would require removal of an “unknown number” of trees located potentially anywhere on campus.  Allowing Citizens a longer period to bring its CEQA claims under these circumstances would “turn[] the notice-based system of section 21167 on its head” as the relevant “question is not the substance of the agency’s decision, but whether the public was notified of that decision.”  (Quoting Committee for Green Foothills, supra, 48 Cal.4th at 51.)  Thus, Citizens’ action was “clearly time-barred” under the 30-day limitations period of §§ 21167(b) and (e), which were triggered by the NOD’s filing.

Even assuming for the sake of argument that the 180-day period of § 21167(a) — which is applicable to situations where an agency approves or proceeds with a project without any attempt to comply with CEQA — applied, the court held the action was still time-barred.  The District’s earliest commitment to the North Gateway Phase I project occurred at the November 17, 2010 public meeting when it approved the contract for that work and gave notice of its precise nature and scope through publicly available bid documents, including the Project Manual and its Addenda listing all trees to be removed.  That meeting was duly noticed and its agenda packet made available for the public under the Brown Act.  The formal November 17, 2010 decision to carry out or approve the specific North Gateway Phase I project was thus sufficient to begin the running of the 180-day statute.  Moreover, even under a “most generous interpretation” which would not have the statute begin running until the physical commencement of actual tree removal on December 28, 2010, Citizens’ July 1, 2011 petition was still filed outside maximum the 180-day period and thus time-barred.

The bottom line is that any way the onion was sliced, plaintiff’s CEQA action in this matter was filed too late.  While the court’s opinion essentially applies settled CEQA law – albeit  in the sometimes hazy factual context of a “subsequent activity” within the scope of a larger project – it also provides helpful clarification on one particular point in its alternative holding.  Unlike CEQA’s shortest, 30-day limitations periods, which are triggered by the agency’s filing of an NOD that provides public notice of the decision, “Section 21167, subdivision (a) does not establish any special notice requirements for the 180-day statute of limitations to run; all that is required is that the public agency make a formal decision to ‘carry out or approve the project’.”  The case’s lesson for would-be CEQA plaintiffs is clear:  stay vigilant, informed, and attend and participate in the public meetings of agencies planning or approving projects in areas which concern you; taking notice of long-planned development projects only at the last minute and after the bulldozers, chainsaws, and grinders have cranked up will often be too late.  It might be added that CEQA plaintiffs should also be alert for other potentially applicable statutes of limitation; while this particular case did not involve a local agency’s subdivision-related decision or planning and zoning decision (such as the enactment or amendment of a general or specific plan or zoning ordinance, or the approval of a land use permit), other non-CEQA statutes of limitations with unique requirements (e.g., Gov. Code, §§ 66499.37, 65009(c)(1)) would also come into play under such circumstances.

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