In a published opinion filed June 30, 2021, the First District Court of Appeal applied well-established CEQA statute of limitations rules, and a “persuasive dictum” from one of its prior decisions addressing the requirements for valid tolling agreements, to affirm a judgment dismissing a CEQA claim as time-barred.  The Court also upheld the dismissal for failure to state any viable cause of action as to all of plaintiffs’ other claims challenging respondent East Bay Regional Park District’s (“EBRPD” or the “Park District”) approval of a Memorandum of Understanding (“MOU”) with Pacific Gas and Electric Company (“PG&E”); the MOU set forth contractual terms of PG&E’s tree removal for safety purposes within its natural gas pipeline easements on EBRPD lands.  Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist., Div. 3, 2021) 66 Cal.App.5th 21.  (In keeping with this blog’s practice, this post’s analysis will focus on the CEQA issues; it will not cover in detail the case’s significant non-CEQA holdings, which disposed of plaintiffs’ claims against EBRPD for alleged (1) violation of the City of Lafayette’s local Tree Protection Ordinance (on state law preemption grounds); (2) violation of EBRPD’s own Ordinance No. 38; and (3) due process, all as a matter of law.  For purposes of full disclosure, I represented real party PG&E in this litigation.)

Factual/Procedural Background

After a public hearing on March 21, 2017, EBRPD’s Board of Directors voted to approve entry into the MOU and accept PG&E funding for environmental restoration and maintenance at EBRPD-owned lands in Briones Regional Park and the Lafayette Moraga Regional Trail; the related staff report explained the funding was related to PG&E’s removal of 245 trees within its natural gas pipeline easements on the Park District’s property for safety reasons, pursuant to PG&E’s Community Pipeline Safety Initiative (CPSI), and on terms agreed to in the MOU.

On June 27, 2017, the Park District filed a Notice of Exemption (NOE) announcing its determination that the MOU approval was not an activity subject to CEQA and was exempt, citing to Public Resources Code § 21080.23 (Work on Existing Pipelines) and CEQA Guidelines §§ 15301(b) (Existing Facilities), 15302 (Replacement or Reconstruction), and 15304 (Minor Alterations to Land).

On July 31, 2017, plaintiffs and appellants Save Lafayette Trees, et al (“Appellants” or “SLT”) and EBRPD entered into an agreement to toll applicable statutes of limitations for 60 days (the “tolling agreement”), but PG&E did not consent to the tolling agreement.

On September 29, 2017, within the 60-day tolling agreement period, but outside of both CEQA’s maximum 180-day statute of limitations period (as measured from the formal MOU approval decision date) and CEQA’s 35-day statute of limitations period (as measured from the NOE filing date), SLT filed its action alleging EBRPD failed to comply with (1) CEQA, (2) the City of Lafayette’s Tree Protection Ordinance (as to those trees within the City’s territorial limits) and EBRPD’s own Ordinance No. 38 (prohibiting all persons entering the Park from cutting down trees, inter alia), and (3) state constitutional due process rights by failing to provide public notice reasonably calculated to apprise appellants (and other allegedly directly affected persons) of the removal of hundreds of trees near their properties, which would allegedly deprive them of substantial property rights.

The trial court sustained without leave PG&E’s demurrer to the operative pleading’s CEQA cause of action, as time-barred under both the 35-day and 180-day limitations periods; it sustained, as a matter of substantive law, EBRPD’s demurrer to the remaining causes of action (also without leave) resulting in the judgment of dismissal that was appealed by SLT and ultimately affirmed by the Court of Appeal.

The Court of Appeal’s CEQA Analysis

Reviewing the order sustaining the demurrer de novo, and assuming the truth of all well-pleaded and properly judicially noticed facts (though not mere contentions, deductions, and conclusions of law), the Court of Appeal held the trial court properly dismissed the CEQA claim as barred by CEQA’s maximum 180-day limitations period, such that it did not need to reach the issue whether the claim was also barred by the 35-day statute of limitations.

Two-Party Tolling Agreement Was Invalid

Key to the Court’s CEQA statute of limitations holding was its conclusion that the tolling agreement was invalid, failed to bind PG&E, and thus failed to toll the statute:  “While EBRPD agreed to toll the statute of limitations, the trial court properly found the CEQA cause of action was subject to dismissal because PG&E, a necessary and indispensable party to that cause of action, had not consented to the tolling agreement.”  (Citing Salmon Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195, 204, fn. 6 (SPAWN), Code Civ. Proc., § 389(b), and other authorities.)  The trial court did not abuse its discretion, under CCP § 389(a), (b), in finding PG&E to be both a necessary and indispensable party without whom the CEQA claim could not “ ‘in equity and good conscience’ proceed.”  Named party PG&E was entitled to assert or waive the statute of limitations defense, and under SPAWN’s “persuasive dictum” it was a necessary party to the tolling agreement.

In SPAWN (my April 27, 2012 post on which can be found here), plaintiff SPAWN challenged the County’s EIR for a general plan update for the San Geronimo Valley watershed.  Prior to the filing of the litigation, SPAWN and the County entered into a series of tolling agreements, tolling and extending the applicable 30-day CEQA statute of limitations to facilitate settlement negotiations, which were ultimately  unsuccessful.  Property owners within the affected watershed intervened and alleged SPAWN’s petition was untimely because CEQA did not authorize or permit tolling agreements; the trial court rejected that argument, and upheld the tolling agreements at issue as effective and not prohibited by CEQA, and the SPAWN Court of Appeal affirmed that conclusion.

In articulating the rationale supporting its holding, the SPAWN Court of Appeal further explained that in situations where there is a specific private party project approval at issue, the project proponent/real party must be named in any CEQA action as such under Public Resources Code § 21167.6.5(a), and an agreement to toll the limitations period, to be effective, must also have the real party’s concurrence.  In that context, per the SPAWN court, “The project proponent, the public agency, and the party asserting noncompliance with CEQA are the three parties that must agree to toll the limitations period.”  The Court further reasoned that the real party could withhold consent if it believed that statutorily expedited CEQA litigation would be the speediest solution to resolving the challenge, while if it believed negotiations were likelier to yield a prompt resolution that would let the project proceed, it could agree to toll, in which case “the principal reason for urging haste with litigation disappears.”  (SPAWN, at p. 204.)

The Court of Appeal in the instant case observed that its earlier SPAWN decision “went on to hold . . . that in that case the intervenors were not necessary parties to an effective tolling agreement because they were not real parties in interest [in the CEQA litigation.]”  That is because unlike the “prototypical CEQA controversy” involving a site-specific project approval, the amendment to the countywide general plan in SPAWN involved no individual project proponent that would be a necessary and indispensable real party in interest in the CEQA litigation.  The Court of Appeal stated that its 2012 “SPAWN dictum espouses well-settled law regarding “agreements to extend or waive statute of limitations[,]”” i.e., that such agreements do not affect other parties not in privity.  Here, PG&E was clearly a real party in interest, and a necessary signatory to any effective tolling agreement, and Appellants’ statutory arguments that it had no interest in the CEQA action being timely filed – only in its being timely served – were meritless.  The relevant issue was timely commencement (i.e., filing) of the action, not service, and that issue was governed by CEQA’s statute of limitations (Pub. Resources Code, §§ 21167(a), (d)), not its timing of service provisions (§§ 21167.6, 21167.6.5).  PG&E’s consent to a tolling agreement was necessary because the “primary purpose” of section 21167’s statute of limitations “is to protect project proponents from extended delay, uncertainty and potential disruption of a project caused by a belated challenge to the validity of the project’s authorization.”  (Quoting SPAWN, at p. 205.)  Appellants’ contrary position that PG&E was not a necessary party to the tolling agreement would defeat the limitation period’s primary purpose.

CEQA’s 180-Day Statute of Limitations Was Triggered By EBRPD’s Formal MOU Approval Decision And Expired Before Appellants Filed Suit

Having dispensed with Appellants’ argument that the two-party tolling agreement lacking PG&E’s consent was valid and effective to toll the statute of limitations, the Court of Appeal proceeded to reject Appellants’ remaining arguments that the statute was never triggered and thus did not operate to bar their CEQA claim.  Their contention that the agenda notice description for the EBRPD Board’s March 21, 2017 meeting provided inadequate notice to trigger the 180-day statute, because it did not explicitly state any trees would be removed, was meritless.  CEQA’s 180-day maximum statute of limitations is triggered by the public agency’s formal approval decision, which is deemed constructive notice to the public and “[s]ection 21167 does not establish any special notice requirements for the commencement of the 180-day limitations period from project approval.”  All that is required is a formal project approval decision, and the public record showing that such occurred is sufficient notice to start the 180-day statute running where the scope of the project was disclosed in public documents made available for public review before the approval.  (Citing Cumming v. City of San Bernardino Redevelopment Agency (2002) 101 Cal.App.4th 1229, 1235.)

Here, judicially noticeable public records showed EBRPD formally approved the MOU and directed its execution by the March 21, 2017 decision, and that the MOU subsequently executed by EBRPD and PG&E was consistent with both the approval resolution and the project as outlined in the staff report submitted to EBRPD’s Board.  Accordingly, the public had constructive notice of the formal approval decision, which triggered the 180-day limitations period under the statute.

The Court also rejected Appellants’ attempts to rely on inapposite cases where the formal approval date statutory trigger never transpired because the project actually commenced “on the ground” differed substantially from the project actually approved and analyzed under CEQA.  (See, Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 329; Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429; see also Communities for A Better Environment v. Bay Area Air Quality Management Dist. (2016) 1 Cal.App.5th 715, 725 [explaining and distinguishing those cases.].)  Here, the statutory triggering date of approval of the MOU authorizing funding, tree replacement (after removal of 245 trees), and maintenance clearly occurred on March 21, 2017.  Accordingly, the 180-day statute, which was not tolled, ran and expired 11 days before SLT filed its lawsuit.  (As indicated above, the Court stated it did not need to reach alternative arguments for affirmance based on CEQA’s 35-day statute of limitations, or the 90-day statute of limitations of Government Code § 65009.)

Conclusion and Implications

The Court of Appeal followed well-established law governing the operation of CEQA’s statutes of limitations, including the rule that no special notice is required to start the running of maximum 180-day statute; rather, it is triggered by the lead agency’s formal approval decision, constructive notice of which is provided by the public record which shows that such decision occurred.  The Court’s holding that the tolling agreement was invalid absent the real party’s consent followed the clear rule and rationale it had previously enunciated in the 2012 SPAWN decision’s “persuasive dictum.”  While the opinion did not break new legal ground, except to the extent it followed its prior “persuasive dictum” with its now-binding holding, it nonetheless provides valuable guidance for litigants through its very detailed exposition, analysis and discussion of the relevant authorities on tolling agreements and CEQA’s statute of limitations.



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