Supreme Court of California Justia
Citation 48 Cal. 4th 32, 224 P.3d 920, 105 Cal. Rptr. 3d 181

Com. for Green Foothills v. Santa Clara Cty.

Filed 2/11/10

IN THE SUPREME COURT OF CALIFORNIA

COMMITTEE FOR GREEN FOOTHILLS, )

Plaintiff and Appellant,
S163680
v.
Ct.App. 6 H030986
SANTA CLARA COUNTY BOARD OF
SUPERVISORS et al.,
Santa Clara County
Super. Ct. No. CV065186
Defendants and Respondents; )
BOARD OF TRUSTEES OF THE
LELAND STANFORD JUNIOR
UNIVERSITY et al.,
Real Parties in Interest and
Respondents.

In general, challenges to governmental action under the California
Environmental Quality Act (CEQA)1 face unusually short statutes of limitation.
(§ 21167.) Most limitation statutes are triggered by the filing of a public notice,
which reports an agency‟s determination about the applicability of CEQA or the
potential environmental impact of a project. (§§ 21108, 21152.) As we explain in
greater detail, an action challenging this determination must generally be brought
within 30 days after the notice is filed. (§ 21167, subds. (b), (c) & (e).)

1
Public Resources Code section 21000 et seq. All statutory references are to
the Public Resources Code.
1



This case involves a particular kind of challenge following a notice of
determination (NOD). If an NOD has been filed, but an action alleges that no
environmental review was undertaken, which statute of limitations applies: (1) the
general 30-day limit on challenges following a notice, or (2) the longer 180-day
period provided for a case alleging that no environmental determination was made
(§ 21167, subd. (a))? We hold that the filing of an NOD triggers a 30-day statute
of limitations for all CEQA challenges to the decision announced in the notice.
This interpretation is consistent with the language of section 21167 and the general
approach of all notice-based statutes of limitation. The Legislature clearly
intended the 30-day statute to apply when an agency files an NOD, and this
limitations period may not be extended based on the nature of the CEQA violation
alleged.
Because the Court of Appeal reached a contrary conclusion, we reverse that
judgment.
BACKGROUND
In 2000, the Leland Stanford Junior University (Stanford) applied for a
community plan and general use permit (Permit) to add buildings on its campus.
An environmental impact report (EIR) prepared for the overall project (the Permit
EIR) identified potential environmental effects and proposed specific mitigation
measures. The Permit EIR found that the development would significantly impact
public access to recreational facilities. In addition to requiring improvements to
area parks, a mitigation measure in the Permit EIR directed that Stanford dedicate
certain trail easements shown on the Santa Clara County (County) Trails Master
Plan2 and coordinate with the County parks department regarding the trails‟

2
The Trails Master Plan was adopted in 1995 as part of the County‟s general
plan. It establishes County policies for the location, management, dedication and
use of trails. The Trails Master Plan also describes the general alignment of
various proposed trail routes, including the S1 subregional trail and the C1
connector trail.
2


locations, uses, construction and management. On December 12, 2000, the
County‟s Board of Supervisors (Board) certified the Permit EIR and approved the
Permit. The Permit was expressly conditioned on satisfaction of mitigation
measures discussed in the Permit EIR. Relevant here, condition I.2 required
Stanford to “dedicate easements for, develop, and maintain the portions of the two
trail alignments which cross Stanford lands shown in the 1995 Santa Clara
Countywide Trails Master Plan (Routes S1 and C1) . . . .” Specifically, within one
year after Permit approval, Stanford was required to identify trail easements and
reach agreements with the County on issues of trail construction, management and
maintenance.3
Stanford and County staff proposed an agreement in December 2001, but
the Board took no action and directed the parties to explore other alternatives for
alignment of the S1 trail. In June 2002, the Board directed County staff to proceed
with environmental analysis of five S1 routes and four C1 routes. A dispute soon
arose about the location of the C1 route, and the Board directed that work be
suspended on the C1 alignment. Analysis of the S1 alignment proceeded,
however, and a supplemental EIR (SEIR) analyzing three potential S1 routes was
published on September 20, 2004. A final SEIR for the S1 trail was completed
and presented to the Board on September 13, 2005.
Stanford and the County explored possible alignments for the C1 trail on
both sides of San Francisquito Creek. An alignment on the western side would
require the agreement and cooperation of San Mateo County, the City of Menlo
Park, and the Town of Portola Valley. A trail located on the eastern side would be
within Santa Clara County‟s jurisdiction. However, the eastern alignment was
thought to have potentially significant environmental impacts, and County staff
believed regulatory approval could be difficult to obtain. On September 13, 2005,

3
We presume, and appellant does not dispute, that the County filed
appropriate NOD‟s during these initial stages of the project‟s approval.
3


the Board instructed County staff to pursue an agreement with Stanford on the
location of the C1 alignment.
Subsequent negotiations produced the “Trails Agreement,”4 which was
presented to the Board in December 2005. The Trails Agreement recites that its
purpose is to satisfy condition I.2 of the Permit. Stanford agreed to dedicate
easements for the S1 trail and portions of the C1 trail, construct and maintain the
S1 trail, and fund improvements to the C1 trail by providing $8.4 million to San
Mateo County and $2.8 million to the Town of Portola Valley. The agreement
also requires that Stanford provide $1.05 million to the Town of Los Altos Hills
for improvements to the C2 connector trail.5 These funds were intended to pay for
C1 trail construction and for “costs to comply with CEQA or to implement
mitigation measures . . . .” A map attached to the Trails Agreement shows the C1
trail on the western side of San Francisquito Creek. Elsewhere, however, the
agreement explains that this route is “only one possible alignment.” The final
placement of the C1 trail would depend on further environmental analysis and
Stanford‟s agreement with San Mateo County and the Town of Portola Valley.
On December 13, 2005, the Board authorized the County to enter the Trails
Agreement. It also made numerous CEQA findings about existing and proposed
trails and certified a final SEIR for the S1 trail. The Board found that no CEQA
review was currently required for the C1 trail because approval of the Trails
Agreement did “not constitute County approval of construction, operation or
maintenance of specific trail improvements” of the C1 trail. Instead, the Trails
Agreement contemplated that, before any trail improvements were made, “detailed

4
Formally called the Agreement for Trail Easements, Construction,
Management and Maintenance and Grant of Easements.
5
If these neighboring jurisdictions do not agree to construct the trail
improvements by December 31, 2011, the money must be paid to the County and
used for the sole purpose of mitigating the adverse impact on recreation identified
in the Permit.
4


construction plans [would] be reviewed and considered by the jurisdictions of San
Mateo County, Town of Portola Valley and Town of Los Altos Hills . . . .” The
Board observed that when these jurisdictions ultimately consider detailed designs
and construction plans, “they will be required by CEQA to determine the type and
extent of environmental review that is necessary for their actions,” and the Trails
Agreement provides funds to pay for this environmental review. Accordingly, the
Board concluded the County was not required to conduct further CEQA review
before entering into the Trails Agreement. The Board thus implicitly determined
this aspect of the agreement did not constitute a new project subject to
independent CEQA review. Because the agreement obligated Stanford to build
trail segments on its own land and to provide funding “for trail construction and
environmental compliance” on segments outside the County, the Board found that
Stanford had satisfied Permit condition I.2.
On December 16, 2005, the County filed an NOD with the county clerk.
The notice described only the S1 trail alignment. It reported that an EIR had been
prepared for this trail project and findings had been made “pursuant to section
15091 of CEQA.”6 Four days later, on December 20, 2005, the County filed a
revised NOD. The revised notice included the C1 and C2 trail routes in its
description of the project and identified the Board‟s actions with respect to the
trail alignments as part of the project description. Specifically, the notice reported
that the County had approved an agreement for the C1 and C2 alignments, but had
not approved any specific trail improvements. It explained that plans for such
improvements would be reviewed and considered by San Mateo County and the
towns of Portola Valley and Los Altos Hills. The revised NOD again stated that
an EIR had been prepared and findings made under CEQA. The revised NOD was
posted for 30 days, from December 20, 2005, through January 19, 2006.

6
This reference is to section 15091 of the CEQA Guidelines. (Cal. Code
Regs., tit. 14, § 15000 et seq.; hereafter Guidelines.)
5



On June 9, 2006, 171 days after the revised NOD was filed and posted, the
Committee for Green Foothills (Committee) filed a petition for writ of mandamus
challenging the County‟s approval of the Trails Agreement. The Committee
complained that the County had violated CEQA by approving a C1 trail alignment
located in San Mateo County and Portola Valley without having conducted the
necessary environmental review. The County demurred on the ground that the
petition was barred by the statute of limitations. The court took judicial notice of
both NOD‟s and sustained the demurrer, reasoning that the timely filing of the
notices had triggered the 30-day statute of limitations in section 21167,
subdivisions (b), (c) and (e). Although the court initially allowed the Committee
leave to amend, it later sustained a demurrer to the amended petition without leave
to amend and entered judgment in favor of the County and Stanford.
The Court of Appeal reversed and directed the trial court to grant the
Committee another opportunity to amend the petition. The Court of Appeal
concluded there was “a reasonable possibility” the Committee could allege facts
sufficient to bring its case within the 180-day statute of limitations for actions
claiming that an agency approved a project without having determined its potential
environmental effects. (§ 21167, subd. (a).) We reverse.
DISCUSSION
I.
Standard of Review
On review from an order sustaining a demurrer, “we examine the complaint
de novo to determine whether it alleges facts sufficient to state a cause of action
under any legal theory, such facts being assumed true for this purpose.
[Citations.]” (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We
may also consider matters that have been judicially noticed. (Serrano v. Priest
(1971) 5 Cal.3d 584, 591; City of Morgan Hill v. Bay Area Air Quality
Management Dist. (2004) 118 Cal.App.4th 861, 869-870.) “ „A demurrer based
on a statute of limitations will not lie where the action may be, but is not
necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer,
6
the defect must clearly and affirmatively appear on the face of the complaint; it is
not enough that the complaint shows that the action may be barred. [Citation.]‟
[Citation.]” (Geneva Towers Ltd. Partnership v. City and County of San
Francisco (2003) 29 Cal.4th 769, 781.)
II.
Statute of Limitations
Whenever a local agency “approves or determines to carry out a project”
that is subject to CEQA, the agency must file an NOD within five working days in
the county clerk‟s office of each county where the project will be located.
(§ 21152, subd. (a).)7 The notice must reflect the agency‟s determination as to
whether the project will have a significant effect on the environment and must
state whether an EIR has been prepared. (§§ 21108, subd. (a), 21152, subd. (a).)
A similar procedure is required if the agency decides to embark on a project it
believes is exempt from CEQA (§§ 21080, subd. (b), 21172). If a local agency
finds a project is exempt from CEQA, it must file a notice of exemption with all
appropriate county clerks. (§ 21152, subd. (b).) Both types of notice must be
available for public inspection for 30 days. (§§ 21108, subd. (c), 21152, subd.
(c).)
The purpose of these filings is to alert the public about environmental
decisions. “Public notification serves the public‟s right „to be informed in such a
way that it can intelligently weigh the environmental consequences of any
contemplated action and have an appropriate voice in the formulation of any
decision.‟ (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 804.) This
public participation assists the agency in weighing mitigation measures and
alternatives to a proposed project. (§§ 21100, 21151.)” (Concerned Citizens of
Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 938.)

7
State agencies must file an NOD with the Governor‟s Office of Planning
and Research. (§ 21108, subd. (a).)
7



The NOD plays a crucial role in determining the period during which
CEQA challenges may be brought. Section 21167 establishes statutes of
limitation for all actions and proceedings alleging violations of CEQA.
(International Longshoremen’s & Warehousemen’s Union v. Board of Supervisors
(1981) 116 Cal.App.3d 265, 271 (ILWU).)8

8
Section 21167 states, in relevant part:
“An action or proceeding to attack, review, set aside, void, or annul the
following acts or decisions of a public agency on the grounds of noncompliance
with this division shall be commenced as follows:
“(a) An action or proceeding alleging that a public agency is carrying out or
has approved a project that may have a significant effect on the environment
without having determined whether the project may have a significant effect on
the environment shall be commenced within 180 days from the date of the public
agency‟s decision to carry out or approve the project, or, if a project is undertaken
without a formal decision by the public agency, within 180 days from the date of
commencement of the project.
“(b) An action or proceeding alleging that a public agency has improperly
determined whether a project may have a significant effect on the environment
shall be commenced within 30 days from the date of the filing of the notice
required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.
“(c) An action or proceeding alleging that an environmental impact report
does not comply with this division shall be commenced within 30 days from the
date of the filing of the notice required by subdivision (a) of Section 21108 or
subdivision (a) of Section 21152 by the lead agency.
“(d) An action or proceeding alleging that a public agency has improperly
determined that a project is not subject to this division pursuant to subdivision (b)
of Section 21080 or Section 21172 shall be commenced within 35 days from the
date of the filing by the public agency, or person specified in subdivision (b) or (c)
of Section 21065, of the notice authorized by subdivision (b) of Section 21108 or
subdivision (b) of Section 21152. If the notice has not been filed, the action or
proceeding shall be commenced within 180 days from the date of the public
agency‟s decision to carry out or approve the project, or, if a project is undertaken
without a formal decision by the public agency, within 180 days from the date of
commencement of the project.
“(e) An action or proceeding alleging that another act or omission of a
public agency does not comply with this division shall be commenced within 30

8



Which subdivision of section 21167 applies depends upon the nature of the
CEQA violation alleged. “In substance, subdivision (a) pertains to an action
charging the public agency with approving or undertaking a project having a
significant effect on the environment without any attempt to comply with CEQA,
subdivision (b) pertains to an action alleging that the public agency has improperly
determined that the project does not have a significant effect on the environment,
subdivision (c) pertains to an action alleging that the EIR fails to comply with the
requirements of CEQA, subdivision (d) pertains to an action charging that the
public agency has improperly determined that the project is exempt from CEQA,
and subdivision (e) is a catchall provision governing an action based on any other
failure of the public agency to comply with CEQA.” (ILWU, supra, 116
Cal.App.3d at p. 271.) A subdivision (a) challenge alleges that an agency
approved a project without determining its potential environmental impact.
Obviously, the time for filing a subdivision (a) claim is not triggered by an NOD,
because the allegation is that no determination was ever made. For all other
claims, however, subdivisions (b) through (e) link the start of the limitations
period to the filing of a notice of determination or exemption.9
This case does not challenge the initial approval of a project. The County
granted a permit and certified a program EIR for Stanford‟s development project
more than five years before the Committee filed suit. The Committee has instead
challenged the approval of an activity that was undertaken to ameliorate an
environmental impact of Stanford‟s project. The Trails Agreement, the target of
the Committee‟s attack, sets guidelines for the future construction and

days from the date of the filing of the notice required by subdivision (a) of
Section 21108 or subdivision (a) of Section 21152.”
9
Subdivisions (b), (c), and (e) of section 21167 all provide for a 30-day
limitations period. Subdivision (d) provides a 35-day period for projects found to
be exempt from CEQA, but it extends this period to 180 days if no notice of
exemption was filed.
9


maintenance of certain trails. Stanford was required to construct these trails by a
condition of its Permit, and the condition was imposed to implement a mitigation
measure identified in the Permit EIR. Under these circumstances, the Trails
Agreement cannot be considered an independent project. Rather, it is a
subsequent activity encompassed within the original project. After a program
EIR, like the Permit EIR, has been prepared, subsequent activities in the program
must be examined in light of the EIR to determine whether additional
environmental review is necessary. (Guidelines, § 15168, subd. (c).) If no new
environmental effects are expected, the agency can approve the activity as within
the scope of the prior EIR. (Guidelines, § 15168, subd. (c)(2).) In addition to the
Permit EIR, the Trails Agreement was also a subsequent activity encompassed
within the SEIR prepared for the Trails Master Plan. This program EIR
“evaluate[d], at a broad level, the environmental effects of implementing the
County‟s policies for the planning, acquisition, design, operations, and
maintenance of Countywide trails and trail facilities.”
Because the Committee‟s suit does not challenge either of these prior
EIR‟s, or the SEIR prepared for the S1 trail alignment, the limitations period in
section 21167, subdivision (c) does not apply. Nor are we concerned with
subdivision (d), because this case does not concern an activity claimed to be
exempt from CEQA. Here, the Committee artfully alleges that the Trails
Agreement constituted a “project” and that the County approved this project
without determining its environmental effects. The Committee contends these
allegations bring the case within the 180-day statute of limitations of
subdivision (a). The County and Stanford counter that the 30-day statute of either
subdivision (b) or (e) applies because the County filed an NOD announcing its
finding that approval of the Trails Agreement would not have a significant effect
on the environment.
Whether the Committee‟s action is barred as a matter of law thus rests on a
threshold legal question: Does the filing of an NOD invariably trigger one of the
10
30-day statutes of limitation in section 21167, regardless of the type of CEQA
violation alleged? To answer this question, we apply well-established principles
of statutory construction to determine the Legislature‟s intent in enacting section
21167, “ „so that we may adopt the construction that best effectuates the purpose
of the law.‟ [Citations.]” (City of Burbank v. State Water Resources Control Bd.
(2005) 35 Cal.4th 613, 625.) “ „We begin with the statutory language because it is
generally the most reliable indication of legislative intent. [Citation.] If the
statutory language is unambiguous, we presume the Legislature meant what it
said, and the plain meaning of the statute controls. (People v. Hudson (2006) 38
Cal.4th 1002, 1009.)‟ (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201,
211.) We consider extrinsic aids, such as legislative history, only if the statutory
language is reasonably subject to multiple interpretations. (People v. King
[(2006)] 38 Cal.4th [617,] 622.)” (Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 888.)
A.
Statutory Language
The language of section 21167 strongly suggests that the Legislature
intended the filing of an NOD to trigger a 30-day statute of limitations. With the
exception of subdivision (a), each of the limitation periods in section 21167 is
triggered by the filing of a notice of determination or exemption and continues for
only 30 or 35 days. (§ 21167, subds. (b)-(e).) In contrast, the limitations period in
subdivision (a) starts when a project is approved or begun, and it continues for 180
days. (§ 21167, subd. (a).) Because subdivision (a) applies to suits alleging that
an agency has approved or undertaken a project “without having determined
whether the project may have a significant effect on the environment” (§ 21167,
subd. (a), italics added), it would not have made sense to measure the limitations
period from the filing of an NOD. If an agency has made no determination about
the environmental impact of a project, it has no determination to announce. As we
have explained in the past, subdivision (a) reflects “the Legislature[‟s]
determin[ation] that the initiation of the project provides constructive notice of a
11
possible failure to comply with CEQA. Such a notice is a substitute for the public
notification measures set forth in section 21092.”10 (Concerned Citizens of Costa
Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d at p. 939; see also
Oceanside Marina Towers Assn. v. Oceanside Community Development Com.
(1986) 187 Cal.App.3d 735, 741-742.)
But what do we make of a situation in which an agency decides no
environmental review of a certain activity is required, approves the activity
without conducting review, but also announces its conclusion in an NOD? This is
essentially what happened here. The County approved the Trails Agreement after
deciding that no environmental review was presently required, and it disclosed
these findings to the public in an NOD. As noted, the Trails Agreement was not a
project but a subsequent activity encompassed within the Permit EIR and the
Trails Master Plan SEIR. Because in-depth environmental review was previously
undertaken in these program EIR‟s, further review is generally not required except
in limited circumstances. (§ 21166; Guidelines, §§ 15162, 15168.) This situation
is not particularly unusual. Agencies may determine that supplemental
environmental review is not required for a subsequent activity, and CEQA requires
them to publicly notice these determinations. (See §§ 21108, subd. (a), 21152,
subd. (a).)
Section 21167 does not specifically define the limitations period that
applies to this factual scenario. However, a related subdivision, not on point here,
sheds light on the importance the Legislature has given to the filing of a public
notice in determining the applicable limitations period. Section 21167,

10
Section 21092 requires an agency to give the public notice that it is
preparing an EIR or a negative declaration for a proposed project. (See Concerned
Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn.
, supra, 42 Cal.3d at
p. 935.) This notice is different from a notice of determination, which announces
the agency‟s ultimate conclusion about the project‟s expected environmental
consequences.
12


subdivision (d) addresses the analogous situation that arises when an agency
conducts no environmental review because it believes a project is statutorily
exempt from CEQA.11 If the agency files a notice of exemption alerting the
public to its conclusion (§§ 21108, subd. (b), 21152, subd. (b)), any action or
proceeding challenging this decision must be brought within 35 days after the
notice was filed. (§ 21167, subd. (d).) But if the agency simply proceeds with a
project it believes to be exempt and does not file the required notice,
subdivision (d) permits a legal challenge to be brought up to 180 days after the
agency‟s decision or commencement of the project. (§ 21167, subd. (d).)
This difference indicates that the determinative question, for purposes of
defining the statute of limitations, is not what type of violation the plaintiff has
alleged, but whether the action complained of was disclosed in a public notice.
When an agency gives the public notice of its decision that a project is exempt
from CEQA, just like a notice of any other determination under CEQA, the public
can be expected to act promptly in challenging this decision. However, when an
agency does not give the statutorily required notice, and the public is held to
constructive notice based on the start of the project, the Legislature has determined
that a longer limitations period should apply.
The principle illustrated in subdivision (d) is evident in all the other
limitation periods set forth in section 21167. If a state or local agency has filed an
NOD stating whether a project will have a significant environmental impact (see
§§ 21108, subd. (a), 21152, subd. (a)), the statute of limitations for all types of
CEQA claims related to the project is 30 days from the date the notice was filed.
The 30-day statute applies to claims challenging an agency‟s determination about
environmental impact (§ 21167, subd. (b)), claims challenging the adequacy of an

11
A project is exempt from CEQA if, for example, it is purely ministerial, or
if it involves emergency preparedness or emergency repairs. (See § 21080 [listing
exemptions]; see also § 21172.)
13


EIR (§ 21167, subd. (c)), and all other claims alleging CEQA violations (§ 21167,
subd. (e)). If a state or local agency has made no environmental impact
determination, the statute of limitations is 180 days, measured from the date of the
agency‟s approval or the start of the project. (§ 21167, subd. (a).) In such cases,
project approval or initiation is deemed constructive notice for potential CEQA
claims.
Accordingly, the plain language of section 21167 makes the filing of a
notice of determination of paramount importance for determining which statute of
limitations applies to a CEQA claim. If a valid NOD has been filed (§§ 21108,
subd. (a), 21152, subd. (a)), any challenge to that decision under CEQA must be
brought within 30 days, regardless of the nature of the alleged violation. The
statutory language does not authorize an extension of this 30-day period if the suit
alleges that, despite the filing of an NOD, the project was approved without a prior
environmental assessment.
B.
Other Evidence of Legislative Intent
To the extent the language of section 21167 is ambiguous, we may consult
extrinsic aids to determine the Legislature‟s intent. (Miklosy v. Regents of
University of California, supra, 44 Cal.4th at p. 888.) Here, both the regulatory
guidelines implementing CEQA12 and relevant legislative history suggest that the
Legislature meant to impose a shorter statute of limitations for all types of CEQA
claims following a notice of determination or exemption.
Section 15112, subdivision (c) of the Guidelines summarizes the limitation
periods for CEQA challenges as follows: “(1) Where the public agency filed a

12
Although this court “has not decided the issue of whether the Guidelines
are regulatory mandates or only aids to interpreting CEQA,” we have observed
that, “[a]t a minimum, . . . courts should afford great weight to the Guidelines
except when a provision is clearly unauthorized or erroneous under CEQA.”
(Laurel Heights Improvement Assn. v. Regents of University of California (1988)
47 Cal.3d 376, 391, fn. 2.)
14


notice of determination in compliance with Sections 15075 or 15094, 30 days after
the filing of the notice and the posting on a list of such notices. [¶] (2) Where the
public agency filed a notice of exemption in compliance with Section 15062,
35 days after the filing of the notice and the posting on a list of such notices.
[¶] . . . [¶] (5) Where none of the other statute of limitations periods in this section
apply, 180 days after either: [¶] (A) The public agency‟s decision to carry out or
approve the project, or [¶] (B) Commencement of the project if the project is
undertaken without a formal decision by the public agency.”13 Thus, the
Guidelines explain that the applicable statute of limitations depends in the first
instance on whether a public notice was filed. If a notice of determination or
exemption was properly filed, a 30-day or 35-day statute applies. This period is
extended to 180 days only in cases where no public notice was given. (See also
Remy et al., Guide to the Cal. Environmental Quality Act (CEQA) (10th ed. 1999)
p. 574 [“In cases where agencies are proceeding with no CEQA compliance
whatsoever and have failed to file a notice of exemption, aggrieved persons have
180 days to file a legal challenge . . .”], italics added.) Sections of the Guidelines
describing the requirements for an NOD also state that the filing of such a notice
invariably “start[s] a 30-day statute of limitations on court challenges to the
approval [of a project] under CEQA.” (Guidelines, §§ 15075, subd. (g), 15094,
subd. (g).)
Legislative history, although shedding little light on the question before us,
contains some support for the Guidelines‟ interpretation. Section 21167 was
added to the Public Resources Code in 1972, as part of a bill that also added the
notice of determination provisions of sections 21108 and 21152. (Stats. 1972,

13
Omitted subdivisions concern CEQA actions challenging the certification
of a state agency‟s regulatory program (§ 21080.5). These suits are also subject to
a 30-day statute of limitations. (Guidelines, § 15112, subd. (c)(3)-(4).)
15


ch. 1154, §§ 9, 12 & 16, pp. 2275-2278.)14 As first enacted, section 21167
defined only the three limitation periods set forth in subdivisions (a) through (c).
(Stats. 1972, ch. 1154, § 16, pp. 2277-2278.) Less than two years later, the
Legislature amended section 21167 to add subdivisions (d) and (e). (Stats. 1974,
ch. 56, § 3, pp. 125-126.) Assembly Bill No. 2338 (1973-1974 Reg. Sess.), which
made these changes, was passed as an urgency measure to clarify the limitation
periods for CEQA claims. (Stats. 1974, ch. 56, § 5, at p. 126.)
Two enrolled bill reports concerning Assembly Bill No. 2338 (1973-1974
Reg. Sess.) are of interest here.15 A Department of Water Resources report noted
that, in addition to creating a new 35-day statute of limitations for challenges to
exemption determinations, the bill also retained the 30-day statute of limitations
for claims that challenge an agency‟s determination of environmental impacts or
challenge the adequacy of an EIR. “Thus,” the report concluded, “essentially any
determinations made by public agencies under the Environmental Quality Act will
be subject to a 30 or 35 day challenge limitation, provided a notice of
determination has been filed. If no notice is filed or utilized, a 180-day period of
limitation applies.” (Dept. Water Resources, Enrolled Bill Rep. on Assem. Bill
No. 2338 (1973-1974 Reg. Sess.) Feb. 25, 1974.) A similar conclusion was drawn
in an enrolled bill report prepared by the Governor‟s Office of Planning and
Research, which has special expertise in interpreting the CEQA statutes. (See,
e.g., § 21083 [directing the Office of Planning and Research to develop the
Guidelines].) This report noted that, in addition to providing a 35-day statute of
limitations for exemption determinations, Assembly Bill No. 2338 “[r]equires that

14
At the request of both sides, we have taken judicial notice of the relevant
legislative history for section 21167.
15
“[W]e have routinely found enrolled bill reports, prepared by a responsible
agency contemporaneous with passage and before signing, instructive on matters
of legislative intent.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19.)
16


any action alleging that any act or omission of a public agency does not comply
with the provisions of CEQA must be commenced within 30 days after the
required filing of notice.” (Governor‟s Off. of Planning & Research, Enrolled Bill
Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) Mar. 1, 1974.)16
In enacting and amending section 21167, the Legislature clearly sought to
place strict limits on the time during which projects may be challenged under
CEQA. To this end, it mandated that CEQA suits be brought within 30 days after
an NOD is filed. (§ 21167, subds. (b), (c) & (e).) The Committee has directed us
to nothing in the legislative history that suggests the Legislature intended to extend
this period sixfold whenever, despite the notice, the plaintiff alleges no true
environmental determination was made.
The interpretation we reach is also consistent with a key policy served by
these statutes: “the prompt resolution of challenges to the decisions of public
agencies regarding land use. [Citation.]” (Citizens for a Megaplex-Free Alameda
v. City of Alameda (2007) 149 Cal.App.4th 91, 111 (Megaplex-Free Alameda).)
CEQA “contains a number of provisions evidencing the clear „legislative
determination that the public interest is not served unless challenges under CEQA
are filed promptly‟ (Oceanside Marina Towers Assn. v. Oceanside Community
Development Com.[, supra,] 187 Cal.App.3d [at p.] 741) . . . .” (Board of
Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 836.) In addition to the
short statutes of limitation in section 21167, other statutes impose expedited
schedules for briefing (§ 21167.4) and preparation of the administrative record
(§ 21167.6), and require that CEQA cases be given preferential hearing in the trial

16
This statement may have been an inartful summary of the new “catchall”
provision in section 21167, subdivision (e). However, it may also have reflected
an interpretation of section 21167 as prescribing a 35-day statute in the exemption
context and a 30-day statute for all other claims brought after a notice of
determination. As noted, this interpretation is reflected in the Guidelines.
(Guidelines, §§ 15112, subd. (c), 15075, subd. (g), 15094, subd. (g).)
17


and appellate courts (§ 21167.1). “Patently, there is legislative concern that
CEQA challenges, with their obvious potential for financial prejudice and
disruption, must not be permitted to drag on to the potential serious injury of the
real party in interest.” (Board of Supervisors v. Superior Court, at p. 837.)
A bright-line rule that the filing of an NOD triggers a 30-day statute of
limitations promotes certainty, allowing local governments and developers to
proceed with projects without the threat of potential future litigation. (Cf.
§ 21167.2 [after expiration of the 30-day period in § 21167, subd. (c), an EIR is
conclusively presumed to be valid]; Laurel Heights Improvement Assn. v. Regents
of University of California (1993) 6 Cal.4th 1112, 1130 [“This presumption acts to
preclude reopening of the CEQA process even if the initial EIR is discovered to
have been fundamentally inaccurate and misleading in the description of a
significant effect or the severity of its consequences.”].) If the 30-day limitation
periods triggered by the filing of an NOD could be defeated by a mere allegation
that the parties proceeded without having made a sufficient determination about
potential environmental impacts, the certainty normally afforded by the filing of
an NOD would be lost. Developers would have to wait a full 180 days before
embarking on a project to avoid potential interruption by litigation. Such delay
and uncertainty are precisely what the Legislature sought to avoid when it enacted
the unusually short limitation periods in section 21167. (See San Franciscans for
Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d
498, 504 [“Obviously, the rationale of the statutory scheme is to avoid delay and
achieve prompt resolution of CEQA claims”].)
III.
Application to the Present Case
A.
Thirty-Day Statute of Limitations Applies
Because the County filed an NOD concerning its approval of the Trails
Agreement, any CEQA challenge to this approval had to be brought within 30
days. The Committee‟s argument that a longer limitations period should apply
18
because the County allegedly approved the agreement without conducting any
environmental review turns the notice-based system of section 21167 on its head.
A similar argument was rejected decades ago in California Manufacturers
Assn. v. Industrial Welfare Com. (1980) 109 Cal.App.3d 95, 124-125. There, an
association argued that the 30-day statutes of limitation in section 21167,
subdivisions (b) and (e) apply only if the agency has undertaken an environmental
investigation and filed a valid notice of determination and negative declaration.
(California Manufacturers, at pp. 124-125.) The Court of Appeal disagreed,
noting this assertion “flies in the face of the clear language of the statutes which
provide that they apply in (b), where it is alleged that the agency has „improperly
determined‟ whether there will be a significant impact and in (e), where it is
alleged that agency action or omission „does not comply‟ with statutory
requirements.” (California Manufacturers, at p. 125.) We agree with this
analysis. For purposes of the CEQA statutes of limitation, the question is not the
substance of the agency‟s decision, but whether the public was notified of that
decision.
Thus, the Committee cannot avail itself of the 180-day statute of limitations
in section 21167, subdivision (a). Subdivision (a) addresses claims that an agency
has ignored CEQA and made no attempt to satisfy its requirements. When an
NOD has been filed, the agency has at a minimum acknowledged CEQA and
attempted compliance. In these situations, the Legislature has limited the time for
filing suit to 30 days.
Precisely which 30-day statute in section 21167 applies in this case is
somewhat harder to discern. Subdivision (b) addresses claims that an agency has
made an improper determination about the environmental impact of a project.
Because the Committee takes issue with the County‟s determination that approval
of the Trails Agreement would have no significant effect on the environment, this
claim can be understood as a challenge to an “improper determination” about
potential impacts of the agreement. But this case does not fit neatly within
19
subdivision (b). Subdivision (b) typically governs challenges to the initial
approval of a project, when a negative declaration or mitigated negative
declaration has been filed. The Trails Agreement was not a CEQA project being
considered for initial approval. It was a “[s]ubsequent activit[y]” to Stanford‟s
broader development project and the County‟s Trails Master Plan. (Guidelines,
§ 15168, subd. (c).) Each of these larger projects had been previously evaluated in
a program EIR.
If subdivision (b) does not apply here, however, the appropriate limitations
period is still 30 days under the catchall provision of subdivision (e). In addition
to the CEQA claims addressed elsewhere in the statute, section 21167,
subdivision (e) states that CEQA challenges to any other act or omission by a
public agency must be filed within 30 days after an NOD is filed. (§ 21167,
subd. (e).) Because the Committee brought this challenge more than 30 days after
the County disclosed its approval of the Trails Agreement in an NOD, the action is
clearly time-barred under section 21167, subdivision (e).
B.
Notice of Determination Was Not Defective
The Committee also argues the County‟s NOD did not trigger a 30-day
statute of limitations because the notice was invalid.
Several cases have made an exception to the strict limitation periods in
section 21167 when the notice of determination is materially defective. The
CEQA Guidelines describe the contents and filing procedures required for an
NOD filed in connection with a negative declaration (Guidelines, § 15075) or EIR
(id., § 15094). Among other things, the NOD must identify and briefly describe
the project; identify the lead agency and responsible agency (if applicable); state
the date of project approval and the agency‟s environmental impact determination;
report that a negative declaration, mitigated negative declaration or EIR has been
adopted, and give the address where it may be examined; and state whether
mitigation measures were required as a condition of approval. (Id., §§ 15075,
20
subd. (b), 15094, subd. (b).) The Guidelines contain a similar list for notices of
exemption. (Id., § 15062, subd. (a).)
In ILWU, supra, 116 Cal.App.3d 265, 273, the court refused to hold
plaintiffs to the 35-day statute of limitations in section 21167, subdivision (d)
because the notice of exemption filed for the project “was not in substantial
compliance with the notice requirements” in the Guidelines. There, “[t]he project
description was the only required item of information contained in the notice and
even that was of debatable adequacy.” (ILWU, at p. 273.) Most notably, the
notice did not state that the project had been found to be exempt or explain the
reasons for this finding. (Ibid.) Because of these substantial deficiencies, the
court concluded the notice was not adequate to trigger the short limitations period
in section 21167, subdivision (d). (ILWU, at pp. 273-274; see also County of
Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 962-963
[notice of exemption was not valid, and did not trigger 35-day limitations period,
because it was filed before the project was approved]; Sierra Club v. City of
Orange (2008) 163 Cal.App.4th 523, 532 [notice of determination that misstated
project approval date did not trigger 30-day limitations period in § 21167, subd.
(c)].) Defects in the posting of the notice have also been held to prevent the
running of the limitation periods in section 21167. In Citizens of Lake Murray
Area Assn. v. City Council (1982) 129 Cal.App.3d 436, 438, 440-441, the court
excused the plaintiffs from the 30-day statute of limitations because, although a
valid NOD had been filed, the county clerk had failed to post the notice in
accordance with section 21152, subdivision (c).
The Committee attempts to rely on these defective notice cases. It
complains the County‟s revised NOD of December 20, 2005, was either
inadequate or an improper attempt to “bootstrap” a determination about the C1
trail alignment onto the NOD of December 16, 2005, concerning certification of
the SEIR for the S1 alignment. These arguments are unpersuasive. The trial court
found that both the initial and the revised NOD‟s “were at a minimum in
21
substantial compliance with CEQA Guidelines § 15094,” and the Committee does
not dispute that the revised notice contained every item of information this
provision required. The notice appropriately identified the three applicable EIR‟s
for the project: the S1 SEIR, the Permit EIR, and the Trails Master Plan SEIR.
The Committee argues these references should have been explained so that the
public would understand how the EIR‟s related to the C1 trail; however, section
15094 of the Guidelines does not require such a discussion. We decline to impose
additional requirements for an NOD beyond those described in the Guidelines.
(Cf. Lee v. Lost Hills Water Dist. (1978) 78 Cal.App.3d 630, 634 [in CEQA
context, due process does not require better notice than that prescribed by statute].)
The Committee also argues the County‟s use of a revised notice was
misleading. Because the initial notice concerned only the S1 trail, the Committee
asserts the public would likely expect a “revised” notice also to be limited to the
S1 trail. The Committee suggests a separate NOD should have been issued for the
C1 trail alignment because this alignment was a separate project, and “it would
invite mischief” to permit the inclusion of additional projects in a revised NOD.
This argument is also unpersuasive. The County filed an NOD to advise the
public about the resolution it adopted on December 13, 2005. In this resolution,
the Board certified an SEIR for the S1 trail and gave the County authority to enter
the Trails Agreement. Among other things, the Trails Agreement addressed the
future development of the C1 and C2 trails. It was appropriate for the County to
notify the public about both aspects of the resolution. Although it might have
done so by filing separate NOD‟s for the S1 trail SEIR and the agreement
concerning the C1 and C2 trails, the Committee cites nothing in the CEQA statutes
or Guidelines that prevented the disclosure of both approvals in a single notice.
Nor is there reason to believe the County acted with some nefarious intent when it
issued a revised notice to include the C1 and C2 trails. The Committee suggests
the County was trying to hide this approval in the revised notice, but the Board‟s
resolution was passed after a public meeting in which the Committee‟s own
22
representative participated. Moreover, the revised notice itself clearly alerted the
public to the agreements pertaining to the C1 and C2 trails. The Legislature has
given great significance to the NOD as a trigger for CEQA‟s short statutes of
limitation. It is the responsibility of potential litigants to review these notices, and
any revisions, with care.

C.
No New CEQA Document Was Required
The Committee also contends the revised NOD was invalid because “the
legislative scheme does not permit an agency to file notices of determination
anytime it deems fit.” (Initial capitalization omitted.) Instead, according to the
Committee, an agency may file an NOD only when it has made an environmental
determination and prepared a corresponding negative declaration or EIR. This
argument is yet another artful way of asserting that a facially valid NOD does not
trigger one of the 30-day limitation periods in section 21167 if the underlying
approval process does not comply with CEQA. As we have explained, however, a
merits-based inquiry is irrelevant to a statute of limitations analysis. The
argument also fails on its own terms.
The notice of determination statutes do not mention the need for a
corresponding EIR or negative declaration, nor do they state that the required
NOD may be filed only when a CEQA document has been prepared. (§§ 21108,
21152.) Indeed, CEQA does not require an EIR to be prepared for every step
taken in the course of a project. Once a proper EIR has been prepared, no
subsequent or supplemental EIR is required unless (1) “[s]ubstantial changes” are
proposed in the project, requiring “major revisions” in the EIR; (2) substantial
changes arise in the circumstances of the project‟s undertaking, requiring major
revisions in the EIR; or (3) new information appears that was not known or
available at the time the EIR was certified. (§ 21166; see also Guidelines,
§ 15162; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317.)
“[S]ection 21166 comes into play precisely because in-depth review has already
occurred, the time for challenging the sufficiency of the original EIR has long
23


since expired (§ 21167, subd. (c)), and the question is whether circumstances have
changed enough to justify repeating a substantial portion of the process.”
(Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073, italics omitted.)
When the environmental effects of a large or complex project have been
reviewed in a program EIR, “[s]ubsequent activities in the program must be
examined in the light of the program EIR to determine whether an additional
environmental document must be prepared.” (Guidelines, § 15168, subd. (c).) If
the later activity could have environmental effects not previously examined in the
program EIR, the agency must prepare an initial study, leading to an EIR or
negative declaration for the new activity. (Id., § 15168, subd. (c)(1).) However,
“[i]f the agency finds that . . . no new effects could occur or no new mitigation
measures would be required, the agency can approve the activity as being within
the scope of the project covered by the program EIR, and no new environmental
document would be required.” (Id., § 15168, subd. (c)(2), italics added; see also
id., § 15168, subd. (c)(5) [noting that many subsequent activities may be found
within the scope of a comprehensive program EIR, such that “no further
environmental documents would be required”].)
As discussed, the Trails Agreement was a “[s]ubsequent activit[y]”
described by section 15168, subdivision (c) of the Guidelines. It was entered for
the express purpose of satisfying a mitigation measure that was identified in the
Permit EIR. Accordingly, the County was required to evaluate the activities
contemplated in the Trails Agreement to determine whether they could produce
any environmental effects not examined in the relevant program EIR‟s.
(Guidelines, § 15168, subd. (c).) It apparently did so. The Board of Supervisors
issued a resolution that referenced the Permit EIR and the Trails Master Plan SEIR
and found no additional CEQA review was required before execution of the Trails
Agreement. The resolution explained that the precise locations of the C1 and C2
alignments had not been decided, and the Trails Agreement contemplated further
CEQA review once more detailed plans for these trails were developed.
24

We need not decide whether the County‟s determination was proper. Such
arguments go to the merits of the Committee‟s complaint. For our purposes, it
matters only that the County evaluated the Trails Agreement as a subsequent
activity to a program EIR. The record indicates that it did. When the County
determined that no environmental review of the agreement was presently required,
it impliedly found the agreement to be within the scope of the Permit EIR and the
Trails Master Plan SEIR. (See Megaplex-Free Alameda, supra, 149 Cal.App.4th
at pp. 114-115 [no express findings are required when agency determines no
further EIR is required for a subsequent activity under section 21166].) Under
these circumstances, no new environmental document was required. (Guidelines,
§ 15168, subd. (c)(2).)
When, as in this case, an agency determines a subsequent activity is within
the scope of a program EIR and requires no further environmental review, must it
file an NOD concerning its approval of the activity? The CEQA statutes and
Guidelines do not directly address this question, although such a notice would
seem to be required under the general rule that an agency file an NOD
“[w]henever [it] approves or determines to carry out a project that is subject to”
CEQA. (§§ 21108, subd. (a), 21152, subd. (a).) Moreover, CEQA specifically
requires the filing of an NOD in the analogous context of subsequent projects to a
master EIR. Even when the agency concludes a subsequent project will have no
significant environmental effect not evaluated in the master EIR, and thus does not
produce findings or prepare a new CEQA document, it must file an NOD
announcing approval of the project. (§ 21157.1, subd. (c).)17 We need not decide

17
One CEQA treatise states that the filing of an NOD is mandatory for
subsequent activities to a master EIR but discretionary for subsequent activities to
a program EIR. (Remy et al., Guide to the Cal. Environmental Quality Act
(CEQA), supra, at pp. 520-521.) The authors suggest that agencies may wish to
file NOD‟s in the discretionary context to gain the benefit of a 30-day statute of
limitations. (Id., at p. 521, citing § 21167.)
25


whether CEQA requires an NOD for every subsequent activity approved as being
within the scope of an earlier EIR. It is sufficient to observe that NOD‟s are
frequently filed for approvals of subsequent activities under section 21166. (See,
e.g., Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153
Cal.App.4th 1385, 1393; Megaplex-Free Alameda, supra, 149 Cal.App.4th at
p. 99; American Canyon Community United for Responsible Growth v. City of
American Canyon (2006) 145 Cal.App.4th 1062, 1069; Santa Teresa Citizen
Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 699; Natural
Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th
268, 278.)
When an agency files an NOD for the approval of a subsequent activity,
and, in accordance with section 21166 and Guidelines, section 15168, no negative
declaration or EIR has been prepared for the activity, section 21167, subdivision
(e) appears to furnish the appropriate statute of limitations for challenges to the
agency‟s action. The issue in such cases is “ „ “limited to the legality of the
agency‟s decision about whether to require a subsequent or supplemental EIR, or
subsequent negative declaration . . . .” ‟ ” (Megaplex-Free Alameda, supra, 149
Cal.App.4th at p. 110.) A lawsuit challenging this decision might attack the
agency‟s evaluation of the activity‟s potential environmental effects, or it might
attack the agency‟s interpretation of the scope of the program EIR. Either way, it
is “[a]n action or proceeding alleging that [an] act or omission of a public agency
does not comply with” CEQA, and section 21167, subdivision (e) requires that it
be brought within 30 days after the filing of the NOD.
IV.
Conclusion
Because the Committee filed its petition more than 30 days after the County
reported its approval of the Trails Agreement in an NOD, the suit is time-barred.
(§ 21167, subd. (e).)
26
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter remanded
for entry of judgment in favor of the County and Stanford.
CORRIGAN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

27



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Committee for Green Foothills v. Santa Clara County Board of Supervisors
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 161 Cal.App.4th 1204
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S163680
Date Filed: February 11, 2010
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: Leslie C. Nichols

__________________________________________________________________________________

Attorneys for Appellant:

Wittwer & Parkin, William P. Parkin and Jonathan Wittwer for Plaintiff and Appellant.

Frank G. Wells Environmental Clinic, Sean B. Hecht and Katherine Trisolini for Sierra Club, Endangered
Habitats League, Planning and Conservation League, Center for Biological Diversity, Environmental
Defense Center and Communities for a Better Environment as Amici Curiae on behalf of Plaintiff and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Ann Miller Ravel, County Counsel, Miguel Márquez, Acting County Counsel, and Lizanne Reynolds,
Deputy County Counsel, for Defendants and Respondents.

Bingham McCutchen, Stephen L. Kostka, Barbara J. Schussman, Julie Jones and William Bates III for Real
Parties in Interest and Respondents.

Remy, Thomas, Moose and Manley and Sabrina V. Teller for League of California Cities, California State
Association of Counties and Association of Independent California Colleges and Universities as Amici
Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.

Miller Brown & Dannis, Mark W. Kelley and Clarissa Canady for Education Legal Alliance of the
California School Boards Association as Amici Curiae on behalf of Defendants and Respondents Real
Parties in Interest and Respondents.

Brownstein Hyatt Farber Schreck and Lisabeth D. Rothman for California Building Industry Association as
Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

William P. Parkin
Wittwer & Parkin
147 South River Street, Suite 221
Santa Cruz, CA 95060
(831) 429-4055

Lizanne Reynolds
Deputy County Counsel
70 West Hedding Street
9th Floor, East Wing
San Jose, CA 95110-1770
(408) 299-5900

Barbara J. Schussman
Bingham McCutchen
1333 N. California Boulevard, Suite 210
Walnut Creek, CA 94596-1270
(925) 937-8000


Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issue: What statute of limitations under Public Resources Code section 21167 applies after a public agency files a notice of determination stating that an entire project will not have a significant impact on the environment?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 02/11/201048 Cal. 4th 32, 224 P.3d 920, 105 Cal. Rptr. 3d 181S163680Review - Civil Appealopinion issued

Parties
1Committee For Green Foothills (Plaintiff and Appellant)
Represented by William P. Parkin
Wittwer & Parkin, LLP
147 S. River Street, Suite 221
Santa Cruz, CA

2Board of Supervisors of the County of Santa Clara (Defendant and Respondent)
Represented by Lizanne Reynolds
Office of the County Counsel
70 W. Hedding Street, 9th Floor East
San Jose, CA

3County of Santa Clara (Defendant and Respondent)
Represented by Lizanne Reynolds
Office of the County Counsel
70 W. Hedding Street, 9th Floor East
San Jose, CA

4Board of Trustees of the Leland Stanford Junior University (Real Party in Interest)
Represented by Barbara Jan Schussman
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

5Board of Trustees of the Leland Stanford Junior University (Real Party in Interest)
Represented by Stephen L. Kostka
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

6Leland Stanford Junior University (Real Party in Interest)
Represented by Stephen L. Kostka
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

7Leland Stanford Junior University (Real Party in Interest)
Represented by Barbara Jan Schussman
Bingham McCutchen, LLP
Three Embarcadero Center
San Francisco, CA

8California Building Industry Association (Amicus curiae)
Represented by Lisabeth Rothman
Brownstein Hyatt Farber Schreck, LLP
2029 Century Park East, Suite 2100
Los Angeles, CA

9Education Legal Alliance (Amicus curiae)
Represented by Clarissa Robinson Canady
Miller, Brown & Dannis
71 Stevenson Street, 19th Floor
San Francisco, CA

10League of California Cities (Amicus curiae)
Represented by Sabrina Vansteenki Teller
Remy Thomas & Moose
455 Capitol Mall, Suite 210
Sacramento, CA

11Sierra Club (Amicus curiae)
Represented by Sean B. Hecht
UCLA School of Law
405 Hilgard Avenue
2495 Law Building
Los Angeles, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Disposition
Feb 11 2010Opinion: Reversed

Dockets
May 19 2008Petition for review filed
  Board of Supervisors of the County of Santa Clara, et al., respondents Lizanne Reynolds, counsel Board of Trustees of the Leland Stanford Junior University, et al., Real Parties in Interest Stephen L. Kostka, counsel
May 20 2008Record requested
  via phone
May 21 2008Received Court of Appeal record
  one file folder/briefs/transcript
Jun 10 2008Answer to petition for review filed
  counsel for resp. Comm. for Green Foothills (8.25(b))
Jun 19 2008Reply to answer to petition filed
  counsel for Real Parties in Interest, Board of Trustees of the Leland Stanford Jr. Univ.
Jul 11 2008Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including August 15, 2008, or the date upon which review is either granted or denied.
Jul 23 2008Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 23 2008Letter sent to:
  Counsel regarding certification of interested entities or persons.
Aug 6 2008Certification of interested entities or persons filed
  counsel for RPI., The Leland Stanford Junior Univ., and The Brd. of Trustees of the Leland Stanford Junior University.
Aug 8 2008Certification of interested entities or persons filed
  counsel for aplt. Committee for Green Foothills
Aug 8 2008Request for extension of time filed
  Counsel for real party in interest and petnr. requests extension of time to 9-22-2008, to file the opening brief.
Aug 8 2008Request for extension of time filed
  counsel for petnrs. County of Santa Clara and the Brd. of Supvrs. of the County of Santa Clara requests extension of time to 9-22-2008, to file the opening brief.
Aug 15 2008Extension of time granted
  On application of real party in interest and petitioner and good cause appearing, it is ordered that the time to serve and file the opening brief is extended to and including September 22, 2008.
Aug 15 2008Extension of time granted
  On application of petitioners, County of Santa Clara et al. and good cause appearing, it is ordered that the time to serve and file the opening brief is extended to and including September 22, 2008.
Sep 23 2008Opening brief on the merits filed
  counsel for County of Santa Clara, et al. (8.25(b))
Sep 23 2008Request for judicial notice filed (granted case)
  counsel for County of Santa Clara et al.,
Oct 3 2008Request for extension of time filed
  Counsel for aplts. requests extension of time to November 24, 2008, to file the answer brief on the merits.
Oct 16 2008Extension of time granted
  On application of appellant and good cause appearing it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 24, 2008.
Nov 25 2008Answer brief on the merits filed
  counsel for aplt. Committee for Green Foothills (8.25(b))
Nov 25 2008Request for judicial notice filed (granted case)
  counsel for aplt. Comm. for Green Foothills
Dec 15 2008Reply brief filed (case fully briefed)
  counsel for County of Santa Clara, et al.
Jan 14 2009Received application to file Amicus Curiae Brief
  League of California Cities, et al., in support of resps. and rpi. (non-party)
Jan 14 2009Received application to file Amicus Curiae Brief
  Education of Legal Alliance of The California School Boards Assoc. in support of defts./petnrs. (non-party)
Jan 14 2009Received application to file Amicus Curiae Brief
  California Building Industry Association in support of respondents
Jan 15 2009Received application to file Amicus Curiae Brief
  Sierra Club, et al. in support of appellant.
Jan 23 2009Amicus curiae brief filed
  Education of Legal Alliance of The California School Boards Association in support of defendants and petitioners.
Jan 23 2009Amicus curiae brief filed
  League of California Cities, et al., in support of respondents and real parties in interest.
Jan 23 2009Amicus curiae brief filed
  California Building Industry Association in support of defendants and petitioners.
Jan 23 2009Amicus curiae brief filed
  Sierra Club, et al. in support of appellant.
Jan 23 2009Permission to file amicus curiae brief granted
  The application of Education Legal Alliance of The California School Boards Association for permission to file an amicus curiae brief in support of defendants and petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 23 2009Permission to file amicus curiae brief granted
  The application of League of California Cities, et al., for permission to file an amicus curiae brief in support of respondents and real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 23 2009Permission to file amicus curiae brief granted
  The application of California Building Industry Association for permission to file an amicus curiae brief in support of defendants and petitioners is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 23 2009Permission to file amicus curiae brief granted
  The application of Sierra Club, et al., for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 27 2009Received:
  counsel for amicus curiae Calif. Building Industry Errata to Appl. re: Table of Contents and Table of Authors.
Feb 11 2009Response to amicus curiae brief filed
  counsel for resp. Co. of Santa Clara and the Board of Supvrs. of Santa Clara County to a/c brief of Sierra Club, et al.
Feb 17 2009Response to amicus curiae brief filed
  counsel for aplts. Comm. for Green Foothills (combined response) (8.25(b))
Mar 2 2009Change of contact information filed for:
  Calif. Bldg. Industry Assoc. (non-party)
Mar 2 2009Change of contact information filed for:
  counsel for real party in interest and petnrs., Leland Stanford Jr. University, et al. (change of address)
Oct 29 2009Case ordered on calendar
  to be argued Tuesday, December 8, 2009, at 9:00 a.m., in Los Angeles
Nov 9 2009Filed:
  Letter from Barbara J. Schussman, counsel for real parties in interest Board of Trustees of leland Stanford Junior University et al., requesting to share 10 minutes of argument time with respondents Board of Superrvisors of the County of Santa Clara et al.
Nov 13 2009Order filed
  The request of counsel in the above-referenced cause to allow separate counsel to argue on behalf of respondents and real parties in interest at oral argument is hereby granted. The request to allocate to real parties in interest the Board of Trustees of the Leland Stanford Junior University et al., 20 minutes, and to respondents the Board of Supervisors of the County of Santa Clara et al., 10 minutes of the 30-minute allotted time for oral argument is granted.
Dec 8 2009Cause argued and submitted
 
Dec 17 2009Request for judicial notice granted
  The requests for judicial notice filed on September 23, 2008, and November 25, 2008, are granted.
Feb 10 2010Notice of forthcoming opinion posted
  To be filed Thursday, February 11, 2010 @10 a.m.
Feb 11 2010Opinion filed: Judgment reversed
  Opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Moreno, JJ. The judgment of the Court of Appeal is reversed and the matter remanded for entry of judgment in favor of the County and Standford.

Briefs
Sep 23 2008Opening brief on the merits filed
 
Nov 25 2008Answer brief on the merits filed
 
Dec 15 2008Reply brief filed (case fully briefed)
 
Jan 23 2009Amicus curiae brief filed
 
Jan 23 2009Amicus curiae brief filed
 
Jan 23 2009Amicus curiae brief filed
 
Jan 23 2009Amicus curiae brief filed
 
Feb 11 2009Response to amicus curiae brief filed
 
Feb 17 2009Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2010
Annotated by rmdaines

Annotated by Rachel Daines

Facts:
In 2000, the Leland Stanford Junior University (Stanford) applied for a permit to construct more buildings on its campus. The environmental impact report (EIR) for the project identified some expected environmental effects, including impact on public access to recreational facilities, and proposed mitigation measures. The mitigation measures in the Permit EIR required that Stanford identify trail easements and reach agreements with Santa Clara County (County) on trail construction and maintenance issues for the S1 and C1 routes.
In 2002, the County’s Board of Supervisors (Board) directed County staff to do an environmental analysis of five possible S1 routes and four C1 routes. There was a dispute about the C1 routes, but analysis of the S1 route proceeded and a supplemental EIR (to the Permit EIR) was published and presented to the Board.
Meanwhile, Stanford and the County continued to analyze possible alignments of the C1 route. One route required cooperation of San Mateo County and the City of Menlo Park, while the other required less cooperation but was thought to have more significant environmental impacts. The two parties eventually produced the “Trails Agreement,” which provided for easements for the S1 trail and portions of the C1 trail along with promises by Stanford to pay government entities for trail improvements and maintenance. However, the precise alignment of the C1 trail was expressly not agreed upon in the Trails Agreement.
The Board approved the Trails Agreement on December 13, 2005. At that time, it also made numerous CEQA findings, certified a final SEIR for the S1 trail, and determined that no CEQA review was currently required for the C1 trail because there was not a final agreement on the placement of the trial. The Board contemplated that once a final plan for the C1 trail was made and before the project started, San Mateo County, the Town of Portola Valley and the Town of Los Altos Hills would be required by CEQA to make a determination.
On December 16, 2005 the County filed a Notice of Determination (NOD) with the county clerk that only described the S1 trail alignment. On December 20, 2005, the County filed a revised NOD that included the C1 trail route in its description and reported that the County had approved an agreement, but not any specific trail improvements for that route. The revised NOD also stated that an EIR had been prepared and findings made under CEQA. The NOD was posted for 30 days, until January 19, 2006.
On June 9, 2006, the Committee for Green Foothills (Committee) filed a petition for writ of mandamus challenging the County approval of the Trails Agreement, specifically that the County had violated CEQA by approving the C1 trail without completing the necessary environmental review. The County filled a demurrer, claiming that the filing of the NOD had triggered the 30-day statute of limitations in Public Resources Code § 21167 (b), (c), and (e).

Procedural Posture:
The trial court sustained the County’s demurrer and entered judgment in favor of the County and Stanford. The Court of Appeal reversed, concluding there was a “reasonable probability” that the Committee could allege facts enough to bring its case within the 180-day statute of limitations under Public Resources Code § 21167 (a).
Issue:
Does the filing of an NOD trigger one of the 30-day statutes of limitation in section 21167, regardless of the subsequent CEQA violation alleged?
Holding:
If a valid NOD has been filed, any challenge under CEQA to that decision must be brought within 30 days, regardless of the actual nature of the violation alleged.
Analysis:
The court reasoned that the 30-day statute of limitations from section 21167 (e) applied instead of the 180-day statute of limitations from section 21167 (a). This was based on both statutory construction and an examination of legislative intent and history.
First, the court reasoned that applying subdivision (a) would not make any sense, because the triggering event in that statute of limitations is the start of a project. Also, the language of section (a) specifically forsees a situation in which an NOD is not filed. Here, the triggering event was a filing of an NOD, not a start of a project.
Second, the Court pointed out that the likely reason for the difference has to do with notice. When a NOD is filed, the public is thought to have notice of it. If no NOD is filed, then the public is only assumed to have constructive notice when work on the project has begun.
Third, the legislative history of section 21167 indicates that sections (d) and (e) were added in 1974 and two bill reports (Department of Water Resources and Governor’s Office of Planning and Research) indicate that “essentially any determinations made by public agencies under the Environmental Quality Act will be subject to a 30 or 35 day challenge limitation, provided a notice of determination has been filed. If no notice is filed…a 180-day period of limitation applies.”
Fourth, this interpretation of section 21167 promotes the “key policy served by these statutes,” which is to promptly resolve challenges to decisions of public agencies about land use. A different rule would lead to uncertainty and speculation by builders, who would have to worry about a 6 month instead of a 1 month period for the public to challenge their ongoing project.
The Court also rejected the plaintiffs’ claims that the NOD was invalid because (1) it was materially defective and (2) the County did not have the authority to produce it. The NOD was not defective because it contained every piece of information required under §§ 15075 and 15094 and so was facially valid, escaping any merits-based inquiries.

Tags: statutory interpretation, environmental impact analysis, legislative history, legislative intent