As the world continues to dig out from the aftermath of the Covid 19 pandemic, the aftereffects of the earliest phase of lockdowns continue to be felt, including in the world of CEQA litigation. While this blog does not ordinarily focus on unpublished appellate decisions, the recent case of Committee for Sound Water and Land Development v. City of Seaside, H049031 (6th Dist., May 9, 2022) is worth a look given its analysis of CEQA’s statute of limitations and its extension by emergency actions of the Judicial Council, as well as its handling of the tricky scenario of what happens when an approving agency is dissolved by operation of law.
The case involves the redevelopment of a part of the former Fort Ord in the City of Seaside in Monterey County. The project, known as “Campus Town,” was embodied in a specific plan. The plan covered some 122 acres of the former military base and envisioned a “Mixed Use Urban Village” with a variety of uses, including 1,485 housing units, 250 hotel rooms, 75 hostel beds, 150,000 square feet of retail, dining, and entertainment, 50,000 square feet of offices, and park and recreation areas.
The City prepared an EIR for the specific plan. On March 5, 2020, the city council voted to approve the plan and certify the EIR. The city filed a notice of determination the next day. On April 6, 2020, the petitioner group filed a writ petition challenging the approvals on CEQA grounds and alleging that the project was inconsistent with the Fort Ord Reuse Plan. (It later dismissed that action on August 4, 2020, after apparently failing to timely request a hearing within the 90-day period set forth in Public Resources Code § 21167.4(a).)
Meanwhile, the Covid 19 pandemic began to wreak its havoc in California. On March 4, 2020, Governor Newsom declared a state of emergency relating to the pandemic. On April 6, 2020, the Judicial Council issued Emergency rule 9, which tolled all civil statutes of limitation until 90 days after the state of emergency was lifted.
That rule was not universally well-received, however. Given the extremely short nature of CEQA’s statutes of limitation under Public Resources Code § 21167, which are as short as 30 days ranging to a maximum of 180 days, a number of comments were sent to the Judicial Council taking exception to the across-the-board tolling for the indefinite duration of the pandemic plus 90 days. In response, on May 22, 2020, the Judicial Council revised Emergency rule 9 to toll statutes of limitation under 180 days from April 6, 2020 to a fixed end date of August 3, 2020.
The petitioner filed its second petition on September 1, 2020, alleging 11 causes of action under CEQA and one for violation of due process rights based on the alleged failure of the Ford Ord Reuse Authority (FORA) to provide notice of its consistency determination for the project with the Fort Ord Reuse Plan.
The real party in interest demurred to the second petition on the grounds of the 30 day statute of limitations in section 21167(c). Given the amended Emergency rule 9, the tolled statute of limitations expired on August 4, 2020. Real party also argued that the claim against FORA was moot because FORA had been dissolved pursuant to Government Code § 67700(a).
The City also demurred to the second petition on the ground that it was a sham pleading intended to get around petitioner’s fatal failure in the first action to request a hearing within 90 days.
The trial court sustained both demurrers, and the petitioner appealed.
The Court of Appeal’s Decision
The crux of the appeal was whether the Judicial Council’s truncation of the tolling of the statutes of limitation under Emergency rule 9 was proper. Petitioner argued that the shortened tolling period was unreasonable and unnecessary, that it constituted an ex post facto law, and that it was “improperly influenced by lobbyists.”
The Court of Appeal affirmed on the statute of limitations issue. The Court considered the issue as a question of law, applying a de novo standard of review. The question was whether it was appropriate to retroactively apply the shortened tolling period under Emergency rule 9, which in turn depended on whether that shortening gave petitioner a “reasonable time” to avail itself of the CEQA remedy before the running of the statute.
The amended Emergency rule 9 granted an extra two months for the filing of a CEQA petition, from April 6, 2020 to August 3, 2020. That effectively tripled the statutory period for filing suit against the project, from 30 days to almost 90 days. This led the court to conclude that the reduced period was reasonable. In the words of the Court: “Since, as the trial court noted, a two-month extension of the limitations period is twice the 30-day limitations period that would have applied in this case absent tolling, we determine as a matter of law that the Committee’s remedy was not cut off. Nor was the Committee deprived of a reasonable time to file the writ petition.” (Slip opn., pp. 16-17.)
The Court also affirmed the judgment on the cause of action against FORA given that the agency had been dissolved. The Court noted that the law to be applied in a mandamus action is that in existence at the time of the appellate court’s ruling. Because the requirement that FORA review projects for consistency with the Ford Ord Reuse Plan had lapsed by the time of the court’s review, it was no longer a legal requirement and thus could not be enforced.
Conclusion and Implications
While the case is not precedential, it does emphasize the importance of CEQA’s short statutes of limitations as a matter of policy and provides insight into the factors involved in assessing the validity of emergency rules tolling them. It also suggests how a court would handle the situation in which a respondent agency is dissolved during the pendency of litigation, and could provide a helpful roadmap for practitioners encountering such an admittedly rare scenario.
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 fifty 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.