Statute of Limitations

Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:

Regulatory Developments

The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.

OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.

Continue Reading CEQA Roundup – February 2019

A few recent developments and upcoming events in the CEQA world bear quick mention:

  • The BART Housing Bill:

Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency.  The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines.  Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review.  The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act.  The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040.  My partner Bryan Wenter’s excellent post on this new law can be found here.

Continue Reading 2018 CEQA Fall Update: Recent Legislative, Judicial, And Other Developments

In an opinion filed November 29, and belatedly ordered published on December 22, 2016, the First District Court of Appeal affirmed the trial court’s denial of a writ petition challenging on CEQA grounds the San Francisco Municipal Transportation Agency’s (Muni) approval of a light rail construction contract.  The Committee For Re-evaluation of the T-Line Loop, et al v. San Francisco Municipal Transportation Agency, et al (Mitchell Engineering, Real Party in Interest) (1st Dist., Div. 2, 2016) 6 Cal.App.5th 1237.  The contract was to install the final 900 feet of light rail line needed to complete a partially constructed “Loop” around a City block in the Dogpatch neighborhood, so that trains on the T-Third light rail line will be able to turn around and lay over to meet service needs for special events and peak travel periods.  In approving the contract, Muni relied on the 1998 EIS/EIR (FEIR) certified for the two-phase Third Street Light Rail Project to connect southeastern San Francisco by light rail to the rest of the City; it also relied on SF Planning Department statements in 2012 and 2014 that the FEIR analyzed the Loop and that no further CEQA analysis was needed because there had been no substantial changes in the project or the area.

Continue Reading Completing the Loop Without Reinventing the Wheel: First District Holds 1998 EIR Adequate Without Further CEQA Review to Analyze Impacts of SF Muni’s Delayed Completion of Dogpatch Area Light Rail Line Loop

In a short but significant published opinion filed July 19, 2016, the First District Court of Appeal affirmed the San Francisco County Superior Court’s judgment of dismissal following the sustaining of demurrers (without leave to amend) to a CEQA action as time-barred.  Communities for a Better Environment, et al. v. Bay Area Air Quality Management District (Kinder Morgan Material Services, LLC, et al., Real Parties In Interest) (1st Dist., Div. 1, 2016) 1 Cal.App.5th 715, Case No. A14364.  The Court of Appeal held there was no reasonable possibility that plaintiffs (CBE) could amend the mandamus petition to allege their CEQA action was timely filed by virtue of the discovery rule because that rule does not apply where one of the triggering events of CEQA’s statute of limitations has occurred.

Continue Reading Discovery Rule Does Not Postpone Accrual of CEQA Cause of Action; Events Specified In CEQA Statute of Limitations Provide Constructive Notice of Project Approval or Commencement

In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years earlier to add a previously unnamed corporate entity so that it would be liable on award of over $1 million in attorneys’ fees entered under CCP § 1021.5. Highland Springs Conference And Training Center v. City of Banning (SCC Acquisitions, Inc., et al., Real Parties in Interest) (4th Dist., Div. 2, 2016) 244 Cal.App.4th 267.

Continue Reading Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By Plaintiffs’ Unreasonable Four-Year Delay Or Laches Absent New Party’s Showing Of Prejudice, Holds Fourth District

A new year often brings fresh perspective.  With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come.  The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.

Continue Reading Supreme Engagement: CEQA’s Continuing Saga In California’s High Court

On December 15, 2014, the Second District Court of Appeal (Division 6) issued a pithy published opinion affirming the Ventura County Superior Court’s judgment.  The judgment granted a peremptory writ of mandate requiring Ventura County to prepare a supplemental EIR for a completed medical clinic building on the Ventura County Medical Center Campus (campus).  Ventura Foothill Neighbors v. County of Ventura (2d Dist., Div. 6, 2014) 232 Cal.App.4th 429.

Continue Reading Second District Holds Short CEQA Statute Of Limitations Not Triggered By NOD That Fails To Provide Public Notice Of Material Changes In Project As Actually Constructed From That Described In EIR

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.

Continue Reading First District Holds CEQA Statute Of Limitations Bars Citizens Group’s Challenge To College Of San Mateo Tree Cutting

The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives.   Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion.  A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents.  But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.

Continue Reading First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project

A recent Sixth District Court of Appeal decision serves as a pointed reminder to practitioners that CEQA exemptions and limitations periods are not always neatly grouped within those statutory provisions of the Public Resources Code known as the “California Environmental Quality Act” (“CEQA”; Pub. Resources Code, § 21000 et seq.).  Statutes other than CEQA, including provisions codified in the Education Code, Government Code, Health & Safety Code, Water Code, and non-CEQA portions of the Public Resources Code also provide statutory exemptions to CEQA’s requirements.  In May v. City of Milpitas (6th Dist., 7/16/13) 217 Cal.App.4th 1307, the Court applied one such “outlier” statute — Government Code § 65457 — to affirm a judgment dismissing a carpenters’ local union’s CEQA challenge to a residential development project as time-barred.

Continue Reading Sixth District Holds CEQA Action Barred By 30-Day Statute of Limitations of Government Code Section 65457 Despite City’s Filing of Notice of Exemption