Supreme Court of California Justia
Citation 48 Cal. 4th 481, 227 P.3d 416, 106 Cal. Rptr. 3d 858

Stockton Citizens for Sensible Planning v. City of Stockton

Filed 4/1/10




IN THE SUPREME COURT OF CALIFORNIA




STOCKTON CITIZENS FOR SENSIBLE

PLANNING, et al.,

Plaintiffs and Respondents,

) S159690

v.

) Ct.App. 3 C050885

CITY OF STOCKTON, et al.,

) San Joaquin County

Defendants and Respondents;

) Super. Ct. No. CV024375

A. G. SPANOS CONSTRUCTION, INC., et al.,

Real Parties in Interest and Appellants



The California Environmental Quality Act (CEQA or Act; Pub. Resources

Code, § 21000 et seq.)1 seeks to ensure that public agencies will consider the

environmental consequences of discretionary projects they propose to carry out or

approve. On the other hand, the Act is sensitive to the particular need for finality

and certainty in land use planning decisions. Accordingly, the Act provides

“unusually short” limitations periods (Cal. Code Regs., tit. 14, § 15000 et seq.

(CEQA Guidelines), § 15112, subd. (a)) after which persons may no longer mount

legal challenges, however meritorious, to actions taken under the Act‟s auspices.

The shortest of all CEQA statutes of limitations apply to cases in which

agencies have given valid public notice, under CEQA, of their CEQA-relevant

actions or decisions. The filing and posting of such a notice alerts the public that


1

All further unlabeled statutory references are to the Public Resources Code.

1


any lawsuit to attack the noticed action or decision on grounds it did not comply

with CEQA must be mounted immediately.

Certain projects are statutorily exempt from CEQA, and these include

“[m]inisterial projects” — those whose approval involves little or no exercise of

discretion or judgment by the public agency. (§ 21080, subd. (b)(1)

(section 21080(b)(1)); CEQA Guidelines, § 15369.) If a local agency determines

that a project it has approved or decided to carry out is exempt for this reason, it

may file a “notice of [this] determination” — otherwise known as a notice of

exemption, or NOE. (§ 21152, subd. (b) (section 21152(b)); CEQA Guidelines,

§§ 15062, 15374.) An action or proceeding alleging “that a public agency has

improperly determined that a project is not subject to [CEQA]” must be

commenced “within 35 days from the date of the filing” of the NOE. (§ 21167,

subd. (d) (section 21167(d)); CEQA Guidelines, § 11512, subd. (c)(2).)

Here, under the ostensible authority of a previously adopted master

development plan (MDP) for a large urban tract, the City of Stockton (City),

through the Director of its Community Development Department (Director),

purported to approve, as consistent with the MDP, the construction of a Wal-Mart

Supercenter2 on certain parcels within the tract. City then filed an NOE

announcing its determination that the approval came within CEQA‟s exemption

for ministerial actions.

Nearly six months later, plaintiffs filed this suit challenging the Wal-Mart

approval under CEQA. To avoid the 35-day bar of section 21167(d), plaintiffs


2

The Wall-Mart corporate name, and the form of the word “Wal-Mart” as it

appears on company signage, have been altered several times in recent years. (See
<http://walmartstores.com/AboutUs/8412.aspx; http://walmartstores.com/
AboutUs/7603.aspx> [as of Apr. 1, 2010].) We use the forms employed by the
company‟s attorneys in their briefs in this court.

2

urge that, because the Director‟s “approval” was invalid and ineffective for

various procedural and substantive reasons, the NOE was void and could not

trigger the 35-day statute of limitations. Plaintiffs also contend the NOE itself was

defective in form and content, and thus could not cause the 35-day limitations

period to begin running.

The trial court and the Court of Appeal accepted such arguments, but we

find them unpersuasive. We agree with appellants that flaws in the decision-

making process underlying a facially valid and properly filed NOE do not prevent

the NOE from triggering the 35-day period to file a lawsuit challenging the

agency‟s determination that it has approved a CEQA-exempt project. By

describing the project in question, setting forth the agency‟s action or decision,

and detailing the reasons for the exemption finding, this notice tells the public that

the brief period within which a CEQA challenge to the propriety of the noticed

action or decision may be commenced has begun to run.

Plaintiffs‟ claim that an NOE can trigger the 35-day limitations period only

if it announces a valid project approval runs counter to the principle that

limitations periods apply regardless of the merits of the claims asserted, and do not

depend on whether a timely action would have been successful. It also

contravenes the purpose of notice-based statutes of limitations, as well as the

Legislature‟s intent — clearly expressed in section 21167(d) — that suits claiming

an agency has “improperly determined” a project to be exempt from CEQA must

be brought within 35 days after an NOE that complies with CEQA requirements is

filed.

Hence, plaintiffs‟ claims that the Director‟s approval action was

procedurally flawed, and substantively mistaken, cannot delay commencement of

the 35-day statute of limitations triggered by City‟s filing of the NOE. Plaintiffs

were free to claim, in a lawsuit, that the underlying approval process failed to

3

comply with CEQA, but only if they commenced such litigation within 35 days

after the NOE was filed.

We also reject plaintiffs‟ assertion that the NOE itself was defective in form

and content, and thus failed to trigger the 35-day limitations period. The NOE, we

conclude, demonstrates minimal compliance with CEQA. Plaintiffs‟ CEQA

claims, contained in a lawsuit filed more than 35 days after the NOE was filed, are

therefore barred. Accordingly, we will reverse the judgment of the Court of

Appeal.

FACTS

A.G. Spanos Park is a 1239-acre tract in northwest Stockton, bisected by

Interstate 5 into 586-acre Spanos Park East and 653-acre Spanos Park West. In

1989, after completion of staged and supplemental environmental impact reports

(EIR‟s), as required by CEQA, City had approved a plan for development of the

entire tract that envisioned a mix of residential, commercial, recreational, and

open-space uses. Spanos Park West would be divided into two broad components:

a commercial component and a medium- to high-density residential component.

The overall plan called for a total of 7,460 residential units, 2,983 of which were

to be built in Spanos Park West. Thereafter, Spanos Park East was almost

completely built out, and Spanos Park West was graded for residential

development.

In 2001, due to changed market conditions, A.G. Spanos Construction

Company (Spanos) proposed revisions in the plan for Spanos Park West. Under

the revised proposal, 138 acres, designated The Villages at Spanos Park West

(Villages), and originally slated for high-density residential development, would

be rezoned single-family residential and developed with low- to medium-density

housing. Another portion, designated as the A.G. Spanos Business Park (Business

Park), would be placed in a mixed-use, or MX, zone (Stockton Planning & Zoning

4

Code, § 16-075 et seq.),3 intended to encourage the multiple-use development of

large tracts, including high-density residential, business, professional, and retail, as

set forth for each site in an MDP.

An MDP was prepared for the Business Park. The MDP declared it was

intended to serve as “the primary land use and regulatory document that

establishes the standards and strategies used to guide the course of development

for a flexible plan mixed use project.” (MDP, § 1.1.) Included within the MDP

was a land use summary for the entire Business Park tract, which “indicate[d] the

recommended primary land use and the range of land uses considered for each

conceptual parcel in the Plan Area.” (Id., § 3.3.1, italics added.) Four parcels

within this zone, parcels 17, 17a, 18, and 19, comprising some 48 acres, were

identified “primar[il]y” for multifamily residential development. (Id., table 3-1,

Land Use Summary.)

A recurrent theme of the MDP was ensuring the ability to respond to

changing economic circumstances during the development process, within the

limits of general land use guidelines. The MDP‟s stated purpose was “to create

the framework of maximum flexibility for the development of the Business Park

while remaining consistent with the policies, general land uses and programs of

the City‟s General Plan.” (MDP, § 1.3.) Thus, the land use summary described

above was said to “represent[ ] a possible pattern of uses that respond to market

conditions and the developer‟s expectations at a specific point in time. Because of

the inherent flexibility of the M-X zoning designation, the Conceptual Plan also


3

Throughout this opinion, we cite to Stockton city ordinances in the form

supplied to us in the record on appeal. There are indications that sections of the
Stockton Planning and Zoning Code herein cited may have been superseded. (See
<http://qcode.us/codes/stockton/view.php?topic> [as of Apr. 1, 2010].)

5

represents a range of land use options that comply with the criteria established by

the M-X Zone.” (Id., § 3.3.1, italics added.) Up to 225,000 square feet of

“[r]etail” space was listed among optional uses for adjacent parcels 17a, 18, and

19. (Id., table 3-1, supra.)

Concurrently with the MDP, and in return for residential density

concessions in the Villages area, Spanos was to execute a Density Transfer

Agreement (Density Agreement). This agreement obligated Spanos to construct a

minimum of 935 multifamily residential units within the Business Park. (DTA,

§ 4.2.) Significant amendments to the MDP, and to the DTA (id., § 12.1), would

require a noticed public hearing and legislative action by City‟s governing body.

(Gov. Code, §§ 65867, 65867.5, 65768; Stockton Planning & Zoning Code, § 16-

208.B.)

Once the MDP was adopted, an application for a project or use “that [was]

not consistent with and [did] not share the same or similar characteristics of an

allowed use identified within the [MDP]” could be approved only if the Business

Park‟s Design Review Board recommended that the City issue a conditional use

permit, and thereafter City‟s planning commission issued such a permit. If the

planning commission‟s decision to issue the permit was then appealed to the city

council, the council could uphold the decision only if it found, upon substantial

evidence, that the proposed project or use would not create internal inconsistencies

within the MDP and was consistent with the Business Park‟s goals and objectives.

(MDP, § 8.3.)

However, under the MDP (id., § 8.2) and provisions of City‟s zoning

ordinance (see Stockton Planning & Zoning Code, § 16-208.F), the Design

Review Board and the Director were required to approve, on City‟s behalf,

specific projects within the Business Park if they determined these projects were

consistent with the MDP’s criteria, goals, and purposes. A project approval by

6

the Director could be appealed to the planning commission within 10 days.

(MDP, § 8.4.)

A second supplemental EIR (the Spanos Park West SEIR) was prepared to

evaluate the environmental implications of the revised Spanos Park West proposal.

On January 29, 2002, after a duly noticed public hearing, the city council certified

the Spanos Park West SEIR, made the necessary zoning changes, adopted the

requisite amendment of City‟s general plan, and approved the MDP and the

Density Agreement.

In the fall of 2003, Doucet & Associates (Doucet), acting on behalf of

appellant Wal-Mart Stores, Inc. (Wal-Mart), submitted to the Design Review

Board a detailed proposal and plans for a 207,000-square-foot retail store to be

sited on parcels 17 and 17a of the Business Park, comprising some 22.38 acres.

By a letter of October 29, 2003, the Design Review Board advised the Director

that, in the board‟s opinion, “[t]he above project submittal is consistent and the

design of the proposed retail development is in accordance with the standards and

guidelines associated with the [MDP].”

On December 15, 2003, the Director wrote to Doucet, stating that “[i]nitial

staff review of the above-noted plans has been completed and it has been

determined that [they] are in substantial conformance with the Spanos Park West

Master Development Plan,” subject to five minor listed “corrections.” The face of

the December 15, 2003, letter indicates that copies were sent to Spanos, and to

various City officials, including a deputy planning director, a plan check engineer,

an assistant fire marshal, a senior environmental control officer, program

managers in the City Public Works and Economic Development Departments, and

a parks facility planner.

In a letter to the Director dated the next day, December 16, 2003, Spanos

reported that it had constructed 308 of the 935 MX-zone multifamily residential

7

units required by the Density Agreement, but that “due to high market demand for

[c]ommercial [p]roperties, Spanos presently lack[ed] the space” within the zone to

accommodate the additional 627 units. The letter therefore asked that construction

of those units be postponed pending revision of City‟s general plan, and it offered

Spanos‟s “assur[ance]” that the company would build the additional units, within

10 years, at other City locations. The Director countersigned the letter as

“[a]pproved this 17th day of December, 2003.”

On February 5, 2004, Judy Davidoff, an attorney at Steefel, Levitt & Weiss,

wrote the Director on behalf of Wal-Mart. The Davidoff letter indicated “our

understanding” that the Director‟s December 15, 2003, letter to Doucet constituted

his approval of the plans for the construction of a retail store within the Business

Park. Noting that section 8.4 of the MDP permitted an appeal to the planning

commission within 10 days of the Director‟s decision approving such a project,

the letter sought to “confirm that your December 15, 2003, letter was the

„decision‟ required by [s]ection 8.2 for the above project,” and that the time for

appeal of the decision had therefore passed. As confirmation, the letter asked the

Director to initial and return an enclosed copy. In this mandate proceeding, the

Director has declared that he initialed and returned the copy as requested, thus

confirming he had approved the project as consistent with the MDP.4


4

The administrative record does not include a copy of the Davidoff letter, as

initialed and returned by the Director. While there are limits on the admissibility,
in CEQA mandamus actions, of evidence, such as the Director‟s declaration, not
contained in the administrative record (see generally Western States Petroleum
Assn. v. Superior Court
(1995) 9 Cal.4th 559), such evidence does appear to be
admissible “in traditional mandamus actions challenging ministerial or informal
administrative actions if the facts are in dispute.” (Id., at p. 576, fn. omitted.)


8

On February 17, 2004, City, through the Director, filed with the county

clerk an NOE for the project. 5 The “Project Title,” as set forth in the NOE, was a

“Site Plan, Grading Plan, Landscape Plan, Building Evaluations and Design

Approval under the Spanos Park West Master Development Plan.” The NOE

identified Doucet as the project “applicant,” named Spanos as the “property

owner,” and described the location of the project — the A.G. Spanos Business

Park — as “a fully entitled master planned development governed by” an MDP

adopted in January 2002. According to the NOE, “the primary goal of the [MDP]

is to create a mix of [high quality] compatible commercial businesses and office

space.” The specific subject of the NOE was described as a “retail use” to be

constructed in two phases — the first of 138,722 square feet, and the second of

68,888 square feet — on parcels totaling some 22.38 acres. The NOE indicated

that the project was located in an MX zoning district and that the “property‟s

primary land use designation is commercial.” Wal-Mart was not named in the

NOE, and the project was not identified as a Wal-Mart Supercenter. The NOE

declared that “[t]he [p]roject is consistent with the Development Standards set

forth in the [MDP] and the proposed retail use and site layout meets the intent and

standards of the [MDP] as well as the City of Stockton‟s General Plan and zoning

regulations.”


5

The record contains no indication that the planning commission, the city

council, or the public received any notice of the submittal of the Wal-Mart plans to
the Design Review Board, the review board‟s letter to the Director dated October
29, 2003, the Director‟s letter to Doucet dated December 15, 2003, Spanos‟s
request, dated December 16, 2003, to postpone and relocate Spanos‟s housing
obligation, the Director‟s approval of this request dated December 17, 2003, the
Davidoff letter of February 5, 2004, or the Director‟s confirmatory action in
response to the Davidoff letter. Appellants apparently concede that no such notice
occurred.

9

In larger, boldfaced lettering, the NOE included the following additional

notification: “This is to advise that the City of Stockton Community Development

Director, as directed and authorized under the Spanos Park West Master

Development Plan (MDP1-00) has determined that the Site Plan, Grading Plan,

Landscape Plan, Building Elevations and Design applicable to the Project conform

to the standards set forth in the Spanos Park West Master Development Plan,

which determination is a ministerial action not subject to CEQA review under

Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section

15369.”

On February 24, 2004, Doucet applied for a use permit for off-sale of

alcoholic beverages at the site of the proposed project. An attachment to the

permit application again described the project as a 207,000-square-foot retail store,

to be built in the Business Park in two stages. The attachment recited that staff

had reviewed the proposed construction plans, and had determined they were

consistent with City‟s zoning ordinance and the MDP.

The 35-day period following the filing of the NOE expired on March 23,

2004.6 On March 15, 2004, well within that period, William D. Kopper,

plaintiffs‟ attorney, wrote to City requesting that he be put on the notice list “for

the proposed Wal-Mart Supercenter at the southwest corner of 8-Mile Drive and

Interstate 5.” Kopper‟s letter asked for “notice of Wal-Mart‟s application to build

a Supercenter at this site, a copy of all staff reports, and the notice of any

hearings.”

On July 22, 2004, plaintiffs Stockton Citizens for Sensible Planning,

Rosemary Atkinson, Paul Diaz, and Susan Rutherford Rich filed in San Joaquin


6

Because 2004 was a leap year, February had 29 days, rather than 28.

10

County Superior Court a verified petition for writ of mandate. City and its council

were named as defendants. Spanos, Doucet, and various “Does” were named as

real parties in interest. By stipulated order, Wal-Mart was later added as a named

real party in interest.

In its principal cause of action, the petition alleged that defendants and real

parties had violated CEQA by proceeding with the Wal-Mart project without

obtaining a new EIR to assess its environmental effects. According to the petition,

though City‟s staff had determined the project to be consistent with the previously

approved MDP for Spanos Park West, as addressed in the 2002 Spanos Park West

SEIR, the new plan would allow a 207,000-square-foot retail store to be

constructed on parcels designated by the MDP as primarily for high-density

residential development. Thus, the petition asserted, the Wal-Mart project

represented, in fact, a substantial deviation from the design, goals, and purposes of

the MDP, and created new environmental issues not adequately addressed by the

existing environmental study.7

City, Spanos, Doucet, and Wal-Mart demurred to the CEQA claims, and

moved to strike them, on grounds they were untimely, because the suit had not

been commenced within 35 days after the filing of the NOE. The trial court

overruled the demurrers and denied the motions to strike. The court reasoned that

the CEQA limitations issue depended on whether the Director‟s December 15,


7

The petition did not mention the NOE. According to the petition, “[t]he

site plan for the Wal-Mart Supercenter, the Wal-Mart Supercenter itself, and all
other permits [for the project] were administratively approved by City of Stockton
staff,” but the first public review of the project occurred at the planning
commission meeting of April 8, 2004, when staff asked the commission to
approve the application for a use permit allowing the off-sale of alcohol. Further,
the petition declared, the issuance of this permit “was the only discretionary action
of the City that was publicly noticed.”

11

2003, letter to Doucet constituted City‟s “approval” of the project, an issue that

could not be decided on the face of the pleadings.

Ultimately, the trial court rejected the limitations defense on the merits and

issued a peremptory writ of mandate, ordering City to set aside all approvals and

permits for the Wal-Mart project, and to prepare a new EIR addressing the

project‟s environmental implications. On the limitations issue, the court reasoned

as follows: City‟s filing of the NOE could start the running of the shortened 35-

day CEQA statute of limitations only if the NOE gave notice that City had

“approve[d]” a project it deemed to be exempt from CEQA. (§ 21152(b).) The

Director‟s December 15, 2003, letter to Doucet, upon which the NOE was based,

was not such an “approv[al]” for several reasons: First, the letter was entitled

“Status Report.” Second, it was only a letter, “not a formal order of approval.”

Third, it included five conditions that required further action by the applicant.

Fourth, it found that the submitted proposal was only in “substantial” compliance

with the MDP. Accordingly, the court concluded, plaintiffs had “a six-month

period” to file suit, and their action was thus timely.8


8

The court‟s “six-month” reference was apparently to that portion of section

21167(d) providing that if no NOE has been filed in connection with a public
agency‟s approval of a project, and the agency has taken no other CEQA-based
action before allowing the project to proceed, an action alleging noncompliance
with CEQA 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.” (See also CEQA Guidelines, § 15112,
subd. (c)(5)(A), (B).) The court did not indicate when it thought the 180-day
period had commenced, but it obviously concluded this had occurred within 180
days before the suit‟s filing date of July 22, 2004.

12

Spanos and Wal-Mart appealed, again asserting the CEQA claims were

untimely under the 35-day limitations period of section 21167(d). In a split

decision, the Court of Appeal for the Third Appellate District affirmed.

The majority held that the NOE filed February 17, 2004, could trigger the

35-day statute of limitations only if it evidenced “approval” of a project that had

been given by a “public agency.” (§§ 21152(b), 21167(d); CEQA Guidelines,

§§ 15062, subd. (a), 15112, subd. (c)(2).) Appellants claimed the Director‟s letter

to Doucet of December 15, 2003, was City‟s “approval” of the Wal-Mart

Supercenter project. However, the majority held, the letter was not a valid

“approval” by a “public agency.”

On the issue whether the Director‟s letter was an “approval,” the majority

reasoned as follows: Under the CEQA Guidelines, the timing of an agency‟s

“approval” of a project is a matter determined by the agency‟s own rules,

regulations, and ordinances. (CEQA Guidelines, § 15352, subd. (a).) The MDP

for Spanos Park West allowed “[a]ny interested person” to appeal a decision of the

Director to City‟s planning commission within 10 days. But there is no evidence

the Director‟s letter was posted, published, or otherwise made known to the public

within the appeal period so this right could be exercised. Moreover, as the trial

court found, the letter was labeled a “Status Report,” thus failing to inform the

public that it was intended as a final project approval. Additionally, the letter did

not disclose that the store at issue would be a Wal-Mart or would displace high-

density housing required by the Density Agreement, nor did the letter include

“other information that would have put the public on notice of the nature and

consequences of the project.” Hence, the letter did not conform to local rules

governing the Director‟s approval of projects under the MDP, and could therefore

not constitute such an approval.

13

As to whether approval had been given by a “public agency,” the majority

reasoned as follows: Neither CEQA, City‟s ordinances, nor the MDP permitted

City to “delegate” a decision with significant environmental effects to the

Director. Under CEQA, an agency may assign decisionmaking authority to

anyone within the agency “permitted by law” to make such a decision, but this

does not extend to approval of a project with environmental consequences.

(Citing CEQA Guidelines, § 15356.) Similarly, the MDP allowed the Director to

approve a project that substantially conformed to the MDP, and thus had already

been subject to an environmental study, but not one that had environmental

consequences not previously considered. In other words, the MDP “does not grant

authority to the Director to determine his own jurisdiction and hence does not

authorize the Director to mistakenly find that the project is within the MDP.”

(Italics added, fn. omitted.) Accordingly, any purported “approval” by the

Director was not the approval of a “public agency,” i.e., City.

In dissent, Justice Nicholson asserted that the majority had wrongly

considered supposed procedural defects in the Director‟s approval letter, as well

as the merits of his approval decision, to conclude that the 35-day CEQA

limitations period had not begun running, and thus had not expired. For purposes

of CEQA, the dissent noted, a project “approval” is “the decision by a public

agency which commits the agency to a definite course of action in regard to a

project.” (CEQA Guidelines, § 15352, subd. (a).) Whatever the form and content

of the Director‟s letter, the dissent observed, the letter had the actual and intended

effect of a ministerial project approval; it bound City to allow the project to

proceed. Only further ministerial actions, such as the issuance of a building

permit, were necessary before construction could begin. CEQA, the dissent

insisted, does not require public notice of a ministerial approval, nor does it

require the approval to contain any particular information. Certainly, the failure to

14

give public notice of the Director‟s approval within the 10-day period provided by

the MDP for appeal to the planning commission excused any failure to exhaust

that administrative remedy. However, the dissent concluded, this omission did not

prevent the 35-day period for filing a lawsuit from commencing once the NOE,

which did give public notice of the Director‟s ministerial decision, was filed with

the county clerk.

Moreover, the dissent reasoned, the majority had erred by basing its statute

of limitations analysis on the premise that the Director lacked authority to

approve, as consistent with the MDP, a project which in fact did not conform to

the MDP and therefore required further environmental study. Both CEQA and the

MDP itself, the dissent pointed out, permitted City to delegate to staff — in this

case, the Director — the authority to make ministerial decisions. As the dissent

noted, the merits of the Director‟s determination that approval of the Wal-Mart

project was a mere ministerial action without CEQA implications was open to

challenge in a timely CEQA action. However, the dissent concluded, the statute of

limitations on a lawsuit alleging that “a public agency has improperly determined”

a project is exempt from CEQA begins to run when the agency files a notice of

this determination — an NOE — with the county clerk, and the limitations period

expires 35 days later. (§ 21167(d), italics added; see CEQA Guidelines,

§ 15112(c)(2).) Because plaintiffs had not brought their CEQA claims within that

time, the dissent asserted, those claims were barred.

On review, we disagree with the result reached by the Court of Appeal

majority.


15

DISCUSSION9

As below, plaintiffs urge on multiple grounds that the NOE filed by City on

February 17, 2004, did not trigger the 35-day CEQA limitations period set forth in

section 21167(d). Here, as in the Court of Appeal, plaintiffs insist that because of

various procedural and substantive flaws in the purported process of approving the

Wal-Mart project, such an “approval” — a prerequisite to a valid NOE — never

actually occurred prior to the filing of the NOE.

To address these contentions, we first examine the relevant provisions of

CEQA. Then we consider how principles governing statutes of limitations, and

the CEQA limitations period in particular, properly apply to the facts presented

here. Having done so, we disagree with plaintiffs‟ arguments. We harbor no

doubt, on these facts, that the 35-day limitations period had indeed begun to run,

and had expired before plaintiffs filed their lawsuit. Hence, we conclude,

plaintiffs‟ CEQA claims are untimely.

CEQA generally provides that, before a public agency carries out or

approves any discretionary project — i.e., any activity that requires the exercise of

agency judgment or deliberation and foreseeably may cause physical damage to

the environment — the agency must first assess the project‟s potential

environmental effects. (§§ 21065, 21080, subd. (a), 21100, 21151; CEQA

Guidelines, § 15357.) If, after initial study, the agency determines that the project

will have no significant environmental effect, the agency may file a “negative

declaration” reciting this determination, and further compliance with CEQA is

then excused. (§ 21064, 21080, subd. (c); CEQA Guidelines, §§ 15063, 15070 et


9

Amicus curiae briefs have been filed on plaintiffs‟ behalf by the Planning

and Conservation League, and on appellants‟ behalf by (1) the League of
California Cities and California State Association of Counties and (2) the
California Building Industry Association.

16

seq.; see, e.g., McAllister v. County of Monterey (2007) 147 Cal.App.4th 253,

270.) Otherwise, the agency must prepare or obtain, and consider, an EIR that

assesses the potential environmental impacts of the project as proposed, sets forth

any feasible, less harmful alternatives to the project, and identifies any feasible

mitigation measures. (§§ 21000 et seq., 21151 et seq.) The agency may not

thereafter approve the project as proposed if there are feasible alternatives or

mitigation measures that would avoid or substantially lessen the adverse

environmental effects. (§ 21002.)

However, CEQA expressly exempts certain projects from its reach. Among

these are “[m]inisterial projects” (§ 21080(b)(1)) — those whose approval or

implementation “involv[es] little or no personal judgment by the public official as

to the wisdom or manner of carrying out the project.” (CEQA Guidelines,

§ 15369.) For example, “[a] building permit is ministerial if the ordinance

requiring the permit limits the public official to determining whether the zoning

allows the structure to be built in the requested location, the structure would meet

the strength requirements in the Uniform Building Code, and the applicant has

paid his fee.” (Ibid.)

If a local agency determines that a project is exempt under section 21080,

subdivision (b), “and the . . . agency approves or determines to carry out the

project,” the agency “may file [an NOE] with the county clerk of each county in

which the project will be located.” (§ 21152(b).) The NOE, which is not to be

filed until after the project has been approved, should include a brief description of

the project; its location; a finding that the project is exempt from CEQA, citing the

appropriate statute or Guidelines section; and a brief statement of reasons to

support the finding of exemption. Copies of the NOE, once filed, must be

available for public inspection. The notice must be posted within 24 hours of

receipt by the county clerk‟s office and must remain posted for 30 days, after

17

which the county clerk must return it to the agency. (§ 21152, subd. (c); CEQA

Guidelines, § 15062.) “An action or proceeding alleging that a public agency has

improperly determined that a project is not subject to this division [i.e., is exempt

from CEQA] pursuant to [section 21080, subdivision (b)] . . . shall be commenced

within 35 days from the date of the filing . . . of the [NOE] authorized by . . .

[section 21152(b)].” (§ 21167(d), italics added; see also CEQA Guidelines,

§ 15112, subd. (c)(2).)

Among the purposes of statutes of limitations are to prevent stale claims,

give stability to transactions, protect settled expectations, promote diligence,

encourage the prompt enforcement of substantive law, and reduce the volume of

litigation. (E.g., Marin Healthcare Dist. v. Sutter Health (2002) 103 Cal.App.4th

861, 872; see Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th

883, 894; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395; Wyatt v. Union

Mortgage Co. (1979) 24 Cal.3d 773, 787.) A statute of limitations “ „necessarily

fix[es]‟ a „definite period[] of time‟ [citation], and hence operates conclusively

across-the-board. It does so with respect to all causes of action, both those that do

not have merit and also those that do. That it may bar meritorious causes of action

as well as unmeritorious ones is the „price of the orderly and timely processing of

litigation‟ [citation] — a price that may be high, but one that must nevertheless be

paid.” (Norgart, supra, at p. 410, fn. omitted; see generally Chase Securities

Corp. v. Donaldson (1945) 325 U.S. 304, 314 [operation of statute of limitations

“does not discriminate between the just and the unjust claim”].)

To ensure finality and predictability in public land use planning decisions,

statutes of limitations governing challenges to such decisions are typically short.

(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 27; see also, e.g., Travis v. County

of Santa Cruz (2004) 33 Cal.4th 757, 774-775.) The limitations periods set forth

in CEQA adhere to this pattern; indeed, as the CEQA Guidelines themselves

18

assert, “CEQA provides unusually short statutes of limitations on filing court

challenges to the approval of projects under the act.” (CEQA Guidelines, § 15112,

subd. (a), italics added.) As the CEQA Guidelines further explain, “[t]he statute of

limitations periods are not public review periods or waiting periods for the person

whose project has been approved. The project sponsor may proceed to carry out

the project as soon as the necessary permits have been granted. The statute of

limitations cuts off the right of another person to file a court action challenging

approval of the project after the specified time period has expired.” (CEQA

Guidelines, § 15112, subd. (b).)

CEQA‟s purpose to ensure extremely prompt resolution of lawsuits

claiming noncompliance with the Act is evidenced throughout the statute‟s

procedural scheme. Such suits have calendar preference; more populous counties

must designate one or more judges to develop CEQA expertise so as to permit

prompt disposition of CEQA claims; and expedited briefing and hearing schedules

are required. (§§ 21167.1, 21167.4.)

Courts have often noted the Legislature‟s clear determination that “ „the

public interest is not served unless CEQA challenges are promptly filed and

diligently prosecuted.‟ ” (Citizens for a Megaplex-Free Alameda v. City of

Alameda (2007) 149 Cal.App.4th 91, 111; Nacimiento Regional Water

Management Advisory Com. v. Monterey County Water Resources Agency (2004)

122 Cal.App.4th 961, 965; accord, Board of Supervisors v. Superior Court (1994)

23 Cal.App.4th 830, 836; Oceanside Marina Towers Assn. v. Oceanside

Community Development Com. (1986) 187 Cal.App.3d 735, 741 (Oceanside

Marina Towers).) “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, supra, at p. 837.) “The Legislature has obviously

19

structured the legal process for a CEQA challenge to be speedy, so as to prevent it

from degenerating into a guerilla war of attrition by which project opponents wear

out project proponents.” (County of Orange v. Superior Court (2003)

113 Cal.App.4th 1, 12, original italics omitted.)

CEQA reserves its very shortest limitations periods for cases where the

agency has given public notice, in a form required or permitted by the statute, of

an agency act or decision that is relevant to CEQA‟s statutory scheme. Thus,

where the agency approves a project without determining whether it will have a

significant effect on the environment (and therefore presumably filing no CEQA

notice), the limitations period is 180 days from project approval or, if there was no

formal approval, 180 days from the commencement of construction. (§ 21167,

subd. (a).) On the other hand, an action asserting that the agency has improperly

determined whether a project subject to CEQA will have a significant

environmental effect must be commenced within 30 days after the agency files the

required notice of project approval (which notice must indicate the agency‟s

determination about the project‟s effect on the environment). (§§ 21108, subd. (a),

21152, subd. (a), 21167, subd. (b).) A suit claiming that an EIR prepared for the

project, or any other act or omission by the agency, does not comply with CEQA

must be filed within 30 days after the above described notice of project approval is

filed. (§ 21167, subds. (c), (e).)

Finally, when an agency determines that a project it has approved or

decided to carry out is statutorily exempt from CEQA, the agency may file an

NOE indicating that determination, as authorized by section 21152(b). If the

agency does not file an NOE, a lawsuit claiming that the exemption determination

was “improper[ ]” may be filed within 180 days of project approval, or if there

was no formal approval, within 180 days from the commencement of construction.

(§ 21167(d).) But if, as indicated above, the agency does file an NOE as

20

authorized by section 21152(b), any lawsuit claiming that the agency has

“improperly determined” the project is statutorily exempt “shall be commenced

within 35 days from the date of the [NOE].” (§ 21167(d).)

Here we must decide whether, as appellants contend, a facially valid and

properly filed NOE, stating that a public agency has approved a project under a

CEQA exemption, automatically triggers the 35-day statute of limitations for

CEQA challenges to the approval process, or whether, as plaintiffs and the Court

of Appeal majority have suggested, flaws in the approval process itself negate the

resulting NOE, which therefore cannot cause the 35-day limitations period to

begin. For a number of reasons, we agree with appellants.

First, as appellants argue, the analysis advanced by plaintiffs and the Court

of Appeal majority confuses the timeliness of a lawsuit with its merits. Such an

approach is contrary to the principle, set forth above, that a statute of limitations

applies regardless of the merits of the underlying lawsuit.10


10

Plaintiffs dispute appellants‟ assertion that they are litigating the merits of

their CEQA challenge as a defense against the statute of limitations. Plaintiffs do
not, they assert, claim that section 21167(d)‟s 35-day limitations period is
inapplicable because the Director‟s decision afforded the wrong level of
environmental review under CEQA — the issue they raise on the merits — but
because of other flaws in the Director‟s purported project “approval” that have
nothing to do with the Act. Nonetheless, plaintiffs essentially rely on the circular
premise that a limitations period to challenge the validity of an agency decision is
inapplicable if the agency decision is invalid. In any event, even were we to
accept plaintiffs‟ disclaimer, we would still conclude, for the reasons herein set
forth, that plaintiffs‟ effort to avoid the 35-day limitations period fails. As we
explain at length herein, persons seeking to challenge an agency decision on
CEQA grounds may not, for purposes of the statute of limitations, go behind the
agency‟s declaration in an NOE that it has approved a project. Instead, they must
bring their action within 35 days after the NOE is filed and posted. Nor does this
mean that the agency may therefore file an NOE in advance of an actual project
approval, then proceed unmolested to approve the project at its leisure, free of
environmental challenges. In a suit brought within 35 days after the filing of the

(Footnote continued on next page.)

21

Second, CEQA‟s particular limitations scheme refutes the theory advanced

by plaintiffs and accepted by the Court of Appeal majority. CEQA establishes and

emphasizes public notification of an agency‟s action or decision as the event

triggering the shortest applicable limitations periods for lawsuits alleging

noncompliance with the statute.

The reasons for this approach are clear. Public notification serves the

public‟s right, under CEQA, to be informed of, and to have a voice in, the process

of evaluating the environmental issues surrounding a contemplated action or

decision. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural

Assn. (1986) 42 Cal.3d 929, 938 (Concerned Citizens of Costa Mesa).) By the

same token, such notification, provided in the form and manner specified by the

statute, sufficiently advises interested persons of the action or decision so as to

trigger the limitations period for lawsuits asserting that the agency has proceeded

in violation of CEQA. (Oceanside Marina Towers, supra, 187 Cal.App.3d 735,

741-742.) Where constructive notice is provided by this overt means, the statute

contemplates that lawsuits making such claims thereafter will be filed

expeditiously.

The express statutory language of section 21167(d) — the most reliable

indicator of the Legislature‟s intent (e.g., Miklosy v. Regents of University of

California (2008) 44 Cal.4th 876, 888) — strongly confirms that litigation

challenging the validity of an agency‟s determination to allow a project to proceed

under a CEQA exemption must be timely, and that the shortest applicable period



(Footnote continued from previous page.)

NOE, litigants are free to argue on the merits that the NOE did not comply with
CEQA, in that it did not follow a valid project approval.

22

of timeliness is measured from the date on which an NOE setting forth that

determination is filed. Section 21167(d) provides, in pertinent part, that “[a]n

action or proceeding alleging that a public agency has improperly determined that

a project is not subject to this division . . . shall be commenced within 35 days

from the date of the filing by the public agency . . . of the notice authorized by . . .

subdivision (b) of [s]ection 21152.” (Italics added.) Thus, under the explicit

statutory terms, claims of impropriety in the agency‟s exemption determination

may only be addressed in lawsuits commenced within 35 days after the agency

properly files a notification of that determination, i.e., an NOE.

By contrast, section 21167(d) establishes a much longer limitations period

for cases in which constructive notice of the agency‟s exemption determination is

not provided by means of a filed NOE. Then, as we have seen, the relevant statute

of limitations is 180 days from approval of the project, or, if there was no formal

approval, 180 days from the commencement of construction.

As indicated above, this pattern appears throughout the CEQA limitations

scheme. Where the agency files a notification, under CEQA, of an action it has

taken, the public is thereby deemed alerted to the action. The limitations period

for mounting a CEQA challenge to the validity of that action begins immediately

and expires soon thereafter. Where no such notification is filed, the limitations

period is longer, and its commencement may be delayed until the public has

received constructive notice of the action by other means. This disparity

illustrates the importance the statute attaches to the filing of a public notice as a

dispositive event requiring that any lawsuit challenging the agency‟s action

thereafter be filed with particular speed.

The history of section 21167(d) also indicates the Legislature‟s purpose to

place strict time limits on suits challenging a public agency‟s CEQA exemption

determination once the agency gives public notice of such a determination by

23

filing an NOE. As we recently explained, “[s]ection 21167 was added to the

Public Resources Code in 1972, as part of the bill that also added the notice of

determination provisions of sections 21108 and 21152. (Stats. 1972, ch. 1154,

§§ 9, 12, & 16, pp. 2275-2278.) As first enacted, section 21167 defined only the

three limitations 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.) (Assembly Bill

No. 2238)], which made these changes, was passed as an urgency measure to

clarify the limitations periods for CEQA claims. (Stats. 1974, ch. 56, § 5, at

p. 126.)

“Two enrolled bill reports concerning Assembly Bill No. 2238 (1973-1974

Reg. Sess.) are of interest here. 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, providing a notice of

determination has been filed. If no notice is filed or utilized, a 180-day period of

limitation applies.‟ (Dept. of Water Resources, Enrolled Bill Rep. on Assem. Bill

No. 2238 (1973-1974 Reg. Sess.) Feb. 25, 1974.) A similar conclusion was drawn

in an enrolled bill report prepared by the 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 [CEQA]

Guidelines].) This report noted that, in addition to providing a 35-day statute of

limitations for exemption determinations, Assembly Bill No. 2238 „[r]equires that

24

any action alleging that any act or omission of a public agency does not comply

with 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.)” (Committee for Green

Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 50,

italics added, fns. omitted.)

Plaintiffs, however, point out that, under section 21152(b), the filing of an

NOE — the triggering event for the 35-day limitations period — may occur only

“[w]henever a local agency determines that a project is not subject to this division

pursuant to subdivision (b) of [s]ection 21080 [the “ministerial approval”

exemption] . . . , and the local agency approves or determines to carry out the

project . . . .” (Italics added; see also CEQA Guidelines, §§ 15062(a) [NOE shall

be filed, if at all, “after approval of the project”], 15374 [NOE may be filed after

public agency has decided to carry out or approve a project and has determined

that the project is ministerial, and thus exempt from CEQA].) Accordingly,

plaintiffs assert, unless the agency has validly “approved” a project, its filing of an

NOE has no force or effect and cannot cause the 35-day limitations period to

begin. The Court of Appeal majority accepted this theory.

But this approach would circumvent the clear legislative policy that the

shortened limitations periods for CEQA challenges should apply whenever an

agency has given public notice of its CEQA-related actions or determinations.

Even when an agency had intended to finally approve the project under a CEQA

exemption, and had given public notice of that action as contemplated by CEQA, a

meritorious CEQA challenge to the approval would never be subject to the

intentionally short notice-based limitations period provided by the statute. That is

not what the Legislature intended. On the contrary, and consistent with the

principle that statutes of limitations apply equally to well- and ill-founded suits,

25

the Legislature meant to specify that all CEQA challenges to an agency‟s

exemption determination, even those with merit, must be brought within 35 days

after the agency files a compliant NOE.

The approach advanced by plaintiffs and accepted by the Court of Appeal

majority was persuasively rejected under analogous circumstances in California

Manufacturers Assn. v. Industrial Welfare Com. (1980) 109 Cal.App.3d 95

(California Manufacturers). There, the Industrial Welfare Commission

(Commission) promulgated orders regulating wages, hours, and working

conditions in several industries. The Commission filed a CEQA notice of

determination, and a negative declaration, in connection with its issuance of the

orders. A trade association sought to invalidate the orders, urging, among other

things, that the Commission had violated CEQA by failing to conduct an initial

environmental investigation before filing the negative declaration. The trial court

found that the association‟s CEQA claims were barred by the 30-day statutes of

limitations set forth in subdivisions (b) and (e) of section 21167.

The Court of Appeal affirmed. The court dismissed the association‟s

contention that, because the Commission had not undertaken the investigation

required by law, the notice of determination and the negative declaration were

invalid and void, and thus could not trigger the notice-based limitations periods set

forth in section 21167.

As the Court of Appeal observed, “the association‟s argument amounts to a

contention that only if the agency has filed valid notices of determination and

negative declarations will the 30-day statute apply. This flies in the face of the

clear language of the statutes which provide that they apply in [subdivision] (b),

where it is alleged that the agency has „improperly determined‟ whether there will

be a significant impact and in [subdivision] (e), where it is alleged that [an] agency

action or omission „does not comply‟ with statutory requirements.” (California

26

Manufacturers, supra, 109 Cal.App.3d 95, 125.) “It seems rather obvious,” said

the Court of Appeal, “that subdivision (a), the 180-day statute, applies where the

agency proceeds without any attempt at compliance, while (b) and (e) apply where

compliance is alleged to be defective. This interpretation also makes sense, in

that, if an agency proceeds without any effort to comply, interested parties are less

likely to receive early notice of the action than where there has been even an

insufficient effort to comply.” (Ibid.)

Similar principles apply here. Whatever the actual defects or flaws in its

process of approving the Wal-Mart project under a CEQA exemption, City

attempted, by filing an NOE for the project, to comply with CEQA. Section

21167(d) makes clear that suits claiming a project was “improperly” approved as

exempt from CEQA must be brought within the 35-day period after an NOE is

filed and posted. This short limitations period, based on the fact the agency

formally notified the public of its CEQA action, may not be avoided on grounds

that the flaws in the approval process invalidated and nullified the NOE.

Accordingly, we are persuaded that when a properly filed NOE complies in

form and content with CEQA requirements and declares the agency has taken an

action that would constitute final approval of a project under a CEQA exemption,

the 35-day period for challenging the validity of this asserted approval under

CEQA begins to run. Such a conclusion honors both the language and the intent

of section 21167(d), which specifies a 35-day limitations period for lawsuits

claiming that a public agency “has improperly determined” a project is exempt

from CEQA. (Italics added.)11


11

We note that even where a notice-based CEQA statute of limitations is not

at issue, an agency error in determining that a project is exempt from CEQA “does
not generally preclude or delay the running of the 180-day limitations period.”

(Footnote continued on next page.)

27

Under CEQA, “approval” of a project is “the decision by a public agency

which commits the agency to a definite course of action in regard to a project

intended to be carried out by any person.” (CEQA Guidelines, § 15352, subd. (a);

see Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 128-129.) “With

private projects, approval occurs upon the earliest commitment to issue or the

issuance by the public agency of a discretionary contract, grant, subsidy, loan, or

other form of financial assistance, lease, permit, license, certificate, or other

entitlement for use of the project.” (CEQA Guidelines, § 15352, subd. (b).) No

particular form of approval is required.

Here, no party seriously disputes that City intended the Director‟s letter of

December 15, 2003, to constitute its final approval of the Wal-Mart project. City

evidenced this intent by filing an NOE for the project. As the Court of Appeal

dissent indicated, there is no indication that any further approvals, other than

ministerial building permits, were necessary to build the store. On the assumption

construction of the Wal-Mart Supercenter had been finally approved, City‟s

planning commission next entertained an application for an off-sale liquor permit

for the store.

Plaintiffs, like the Court of Appeal majority, point out that under the CEQA

Guidelines, “[t]he exact date of approval of any project is a matter determined by

each public agency according to its rules, regulations, and ordinances.” (CEQA

Guidelines, § 15352, subd. (a).) The Director‟s purported approval, the argument

runs, did not adhere to City‟s rules, because no public notice was provided in time



(Footnote continued from previous page.)

(City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1720,
fn. 4.)

28

to allow an administrative appeal of the Director‟s decision, and because the

Director had no power under the MDP or City‟s zoning ordinance to approve, on

City‟s behalf, a project that did not conform to the MDP and required new

environmental study. Thus, plaintiffs and the Court of Appeal majority appear to

assert, the “exact date” of approval did not occur by virtue of the Director‟s action,

and the ensuing NOE was therefore void.

But again, the Director acted under the ostensible authority of the zoning

ordinance and the MDP. He invoked those provisions of the MDP and the

ordinance that did allow him to issue “ministerial” project approvals — approvals

that substantially conformed to the MDP, required no new exercise of discretion or

judgment, and did not call for new environmental study. Neither the MDP nor the

ordinance expressly required City to give public notice of such an approval before

filing the NOE. As the Court of Appeal dissent indicated, assuming such a prior-

notice requirement was implicit in the MDP‟s provision for a 10-day right of

appeal to the planning commission, the omission of such notice would, at most,

excuse exhaustion of this administrative remedy before filing a lawsuit. (See

§ 21177, subd. (e).) Failure to give such notice could not, in and of itself, prevent

commencement of the 35-day limitations period for bringing such a suit once the

NOE was filed.

Nor, as we have indicated, could the Director‟s misuse, if any, of his

“ministerial approval” authority prevent the commencement of the 35-day

limitations period. In a suit filed within that period, plaintiffs would have been

free to argue that the Director‟s “approval” under a CEQA exemption was

“improper[ ],” and that the project was, in fact, not exempt from CEQA. But they

29

failed to bring their suit within this time. Accordingly, their CEQA attack on the

approval is barred.12

For the proposition that a valid NOE requires a valid project approval, the

Court of Appeal majority relied heavily on County of Amador v. El Dorado

County Water Agency (1999) 76 Cal.App.4th 931 (County of Amador), but this

decision is inapposite. In County of Amador, an irrigation district, seeking

increased sources of water for its service area, became interested in obtaining from

Pacific Gas and Electric Company (PG&E) the so-called project 184, whereby

PG&E utilized three high Sierra Nevada lakes to store water and to release it as

needed to generate hydroelectric power. In December 1994, the district adopted

resolution No. 94-107. This resolution authorized the district‟s manager and

general counsel to “prepare a conditional offer to PG&E” for the purchase of

project 184, to sign an agreement with the county for the exchange of certain

confidential information, and to consult with adjacent counties before submitting

an offer to PG&E.


12

Plaintiffs observe that Spanos had agreed, in the Density Agreement, to

build numerous high-density residential units in the Business Park, and they assert
that parcels 17 and 17A, upon which the Wal-Mart Supercenter would be situated,
were the only parcels still available for such residential construction. Hence,
plaintiffs argue, a valid approval of the Wal-Mart project required, in turn, a valid
amendment of the Density Agreement. (See id., § 4.2.) Plaintiffs object that the
Director‟s informal sign-off on Spanos‟s December 16, 2003, request to defer this
housing obligation to a later time and a different, unspecified location did not meet
the procedural requirements for such an amendment. (See Density Agreement,
§ 12.1; see also Gov. Code, §§ 65867.5, 65868.) However, this is but another
effort to claim that a procedurally flawed approval cannot trigger the CEQA
statute of limitations. On the contrary, though the issues plaintiffs raise could be
pursued in a timely lawsuit, they do not avoid the 35-day limitations period
triggered by the NOE.


30

Thereafter, in April 1995, the district filed an NOE for resolution No. 94-

107, and in September 1995, it took steps to purchase project 184. More than 35

days after the NOE was filed, already pending mandate petitions were amended to

challenge the NOE.13 Ultimately, the trial court ordered, among other things, that

the district set aside its NOE for the purchase of Project 184.

On appeal, the district urged, inter alia, that the petitioners‟ attack on the

NOE was untimely, but the Court of Appeal disagreed. The appellate court

proceeded from the premise that an NOE should not be filed until after a project is

approved, and that an “approval” is what “commits the county to a definite course

of action in regard to a project” (CEQA Guidelines, § 15352, subd. (a)).

“Contrary to [the district‟s] contention,” the Court of Appeal reasoned, resolution

No. 94-107 “[did] not constitute project approval, as nothing in this resolution

commits the district to purchasing Project 184. It is simply a resolution

authorizing negotiations with that possibility in mind. It commits the district to

exchanging confidential information, consulting with neighboring counties, and

preparing an initial, conditional offer.” (County of Amador, supra, 76 Cal.App.4th

931, 964.)

Whatever the merits of this reasoning, it is inapplicable to the instant case.

County of Amador did not concern a purported final approval that was allegedly

defective or inadequate, but an agency action that, on its face and by its own

terms, authorized only preliminary steps toward a possible future project approval.

Here, by contrast, aside from five minor “punch list” issues, the Director‟s letter to


13

The previously filed mandate petitions challenged the adequacy of an

earlier draft EIR prepared to assess a joint water rights application by the State
Water Resources Control Board and the district for the stored water volume in
these Sierra Nevada lakes.


31

Doucet of December 15, 2003, undeniably constituted City‟s attempt to issue a

final and unconditional grant of permission to construct the Wal-Mart project.

Right or wrong, the letter‟s purpose was to commit City to a definite course of

action in regard to Wal-Mart‟s application to build the store. The filing of an NOE

with regard to this approval thus caused the 35-day limitations period to begin.

All suits attacking the approval process as “improper[ ]” under CEQA must have

commenced within that time.14

Endangered Habitats League, Inc. v. State Water Resources Control Bd.

(1997) 63 Cal.App.4th 227 (Endangered Habitats League), cited by plaintiffs, is

not inconsistent with our conclusion. There, the County of Riverside (Riverside)

adopted, in 1986, a master plan for resolving the flood drainage needs of a large

county area. The overall plan included the proposed construction of drainage

channels labeled lines F and F-1, located within the City of Murrieta (Murrieta).

The plan contemplated that lines F and F-1 would have concrete-lined bottoms. It


14

Similarly distinguishable is Miller v. City of Hermosa Beach (1993)

13 Cal.App.4th 1118. There, in March 1991, an individual sought mandate to set
aside the city‟s approval of a beachfront hotel project for failure to comply with
CEQA. The city urged it had approved the project, thus triggering the 180-day
limitations period of section 21167, subdivision (a), by means of an “Approval in
Concept” issued in November 1989. The Court of Appeal agreed with the plaintiff
that approval had occurred only upon issuance of a building permit for the project
in November 1990. As the Court of Appeal noted, the Approval in Concept had
included numerous substantive “Conditions of Approval” that anticipated serious
traffic, sewage, groundwater, soil settlement, beach contamination, and aesthetic
issues the project would be expected to engender. The developer had hotly
debated several of these conditions, and some were subsequently modified. Here,
by contrast, the conditions imposed in the Director‟s December 15, 2003, letter to
Doucet indicated only minor concerns raised by the Design Review Board.
Moreover, it is notable that in Miller, although the city had issued an NOE in
connection with the November 1989 Approval in Concept, the city made no claim
that this NOE had triggered the 35-day limitations period of section 21167(d).

32

made clear, however, that the sizing, alignment, and location of the described

facilities were general and preliminary, and that such issues would be more

precisely addressed “at the time of design.” A negative declaration for the 1986

master plan was adopted on May 6, 1986.

Over the next eight years, during which the project was significantly

revised and scaled back, state and federal agencies whose approval to construct

lines F and F-1 was required strenuously objected to the use of concrete, rather

than “soft,” or natural, channel bottoms because of the adverse impact on riparian

habitat. On November 1, 1994, after studying the soft-bottom option, Murrieta

voted to adopt concrete bottoms for lines F and F-1. On January 19, 1995, the

California Department of Fish and Game, the final state agency to sign off on the

project, approved the concrete-bottom option in return for mitigation measures.

The Army Corps of Engineers gave a similar approval on February 17, 1995.

Meanwhile, on February 11, 1995, the plaintiffs sued Riverside to

challenge, on CEQA grounds, the approval of concrete bottoms for lines F and

F-1. The trial court granted relief, concluding that the 1986 master plan and

associated negative declaration were insufficient “project-specific” documents to

authorize the construction of lines F and F-l.

On appeal, as in the trial court, Riverside argued that the suit was untimely

because it was not commenced within 30 days after the filing of the 1986 negative

declaration. The Court of Appeal disagreed, and reasoned as follows: The

plaintiffs‟ objection was not to the broad concepts of the 1986 master plan, but to

the more recent site-specific implementation of that plan with respect to lines F

and F-1. At issue was the plaintiffs‟ claim that the final decision to employ

concrete channel bottoms for lines F and F-1 required “second tier” environmental

review, but it was not clear until February 1995 that Riverside would proceed with

concrete bottoms. Moreover, since no formal implementing decision on

33

construction of lines F and F-1 had ever been made by Riverside, the statute of

limitations began to run only upon the commencement of construction of these

channels, and expired 180 days later.

In any event, the Court of Appeal concluded, since CEQA does not

contemplate “prophylactic” lawsuits, the plaintiffs were not required to file their

challenge before the controversy had actually solidified. In the Court of Appeal‟s

view, even if the plaintiffs knew, more than 180 days before suing, that Riverside

wanted concrete bottoms for lines F and F-1, it was not clear Riverside could

proceed with such plans until it obtained final agency approvals in February 1995.

Only then, the Court of Appeal reasoned, did the plaintiffs have an “accurate,

stable, and finite project description” to challenge. (Endangered Habitats League,

supra, 63 Cal.App.4th 227, 242.)

Our case, of course, differs from Endangered Habitats League in a crucial

respect. Here, after issuing an approval for which “second tier” environmental

review was arguably necessary, City gave public notice of that decision by means

CEQA intends as the trigger of a short limitations period within which the

approval might be challenged as “improper[ ].” Under CEQA‟s terms, this 35-day

limitations period therefore began to run. Nor did City‟s filing of an NOE force

plaintiffs to mount a premature, prophylactic lawsuit in order to avoid the bar of

the statute of limitations. As indicated above, the Director‟s letter of December

15, 2003, represented City‟s final decision, correct or mistaken, that the Wal-Mart

construction project could go forward. Unless a timely legal challenge to this

decision was successful on the merits, nothing further was required to allow the

construction process to commence. A true controversy regarding City‟s

compliance with CEQA was thus presented, and expeditious filing of any

challenge on that ground was necessary.

34

Nor does our decision in Concerned Citizens of Costa Mesa, supra,

42 Cal.3d 929 suggest that the merits of a CEQA challenge are a legitimate basis

for determining when the CEQA limitations period has begun and ended. In that

case, after a 1977 public hearing, a county fairgrounds operator prepared an EIR

for a project to upgrade the fairgrounds. The plan included the installation of an

outdoor amphitheater. Construction of the theater was completed in February

1983, and the first concert was held there on July 27, 1983. On January 20, 1984,

a nearby residents association, and certain individual neighborhood residents, filed

a mandate action alleging that the theater as built differed materially from the one

described in the EIR. According to the petition, the site had been expanded from

six to ten acres, seating capacity had been substantially increased, and the stage

had been reconfigured to face toward, rather than away from, the residential

neighborhood, thus greatly increasing the neighborhood noise levels for theater

events. The plaintiffs claimed the changes were made without public notice or

hearing. They alleged, in essence, that the operator had violated section 21166,

subdivision (a), by failing to prepare a supplemental EIR addressing the

substantial changes to the project.

The fairgrounds operator demurred on grounds the suit was barred by the

180-day limitations period of section 21167, subdivision (a), because it was

commenced more than 180 days after work on building the theater began — the

latest “constructive notice” date set forth in that section. The plaintiffs responded

that they had no actual or constructive notice of the unannounced changes in the

theater design until the first concert made them apparent. The trial court sustained

the demurrer and dismissed the action. The Court of Appeal affirmed, but this

court reversed.

Acknowledging the literal provisions of the limitations statute, we

nonetheless held that, under the facts before us, CEQA‟s goal of public

35

participation could be satisfied only if the beginning of the 180-day limitations

period was postponed until the public had a chance to learn of substantial project

changes neither announced by the agency nor necessarily apparent by virtue of the

commencement of construction. Under such circumstances, we held, the 180-day

period must be deemed to start when the public had actual or constructive notice

that the theater actually built was substantially different from the one evaluated in

the project EIR. Thus, we concluded, the plaintiffs in the case at issue should have

had an opportunity to prove they did not know, and could not have learned, of the

theater‟s alterations until within 180 days before they filed their suit.

Fortuitously, in Concerned Citizens of Costa Mesa, the claims of

substantial changes to a previously approved project bore on both the merits of the

action and the period within which suit could be brought. On the merits, these

claims were part of a cause of action alleging that the agency had violated CEQA

by authorizing environmentally significant changes in a project without preparing

a new EIR. For limitations purposes, the assertions bore on the separate and

distinct issue of when the plaintiffs had actual or constructive notice sufficient to

charge them with diligence in bringing their suit. Nothing in that case suggested,

as a general principle, that flaws in a project approval process should delay the

limitations period normally applicable when, as in the instant case, the agency

gave notice of the very approval the plaintiffs seek to challenge. We find no basis

for such a holding here.

Plaintiffs and their amicus curiae make the novel argument that, insofar as

the Director‟s authorization of the Wal-Mart project was a “ministerial” action

exempt from CEQA, as the NOE filed on February 17, 2004, asserts, it could only

be such because it did not change the prior approved project represented by the

MDP. Thus, plaintiffs, insist, there was no project change or new project

“approval,” and the NOE thus could not trigger a new statute of limitations.

36

At the outset, it is difficult to see how such a theory aids plaintiffs. The

limitations period for challenging the Spanos Park West EIR, under which the

MDP was approved, had long since expired when they brought their lawsuit.

Thus, if no new limitations period was triggered, as plaintiffs suggest, they fail to

explain how their suit is timely.

In any event, the contention lacks merit. Under CEQA, a project is any

activity undertaken, assisted, or authorized by a public agency that may have a

significant effect on the environment. (§ 21065; CEQA Guidelines, § 15378,

subd. (a).) Such an activity may include any one of a series of individual

environment-changing steps contemplated by a staged, master, or program EIR,

such as the Spanos Park West EIR. (See CEQA Guidelines, §§ 15167-15179.) As

noted above, an approval is any action that commits the agency to a definite

course of action on a project. That an environmentally significant activity may

conform to a previously certified general development plan, or staged, master, or

program EIR, does not mean the activity need not be individually approved. It

simply means that the approval may not require new environmental study. (See

§ 21166.)

The proposed construction of a Wal-Mart Supercenter on undeveloped

urban land clearly was an activity with potential environmental effects. Moreover,

under both the MDP (see id., § 8.2) and City ordinance (see Stockton Planning &

Zoning Code, § 16-208.F), each specific proposal for development within Spanos

Park West was subject to a site plan review and approval for consistency with the

standards and requirements of the MDP. The Wal-Mart proposal was subject to

these rules, and thus was itself a project.

However, some activities are exempt from CEQA, even though they have

environmental significance, require agency approvals, and are thus projects.

Under section 21080(b)(1) these include “[m]inisterial projects proposed to be

37

carried out or approved by public agencies.” A “ministerial” decision is one that

involves little or no judgment or discretion by the approving official about the

wisdom or manner of carrying out the project (CEQA Guidelines, §§ 15357,

15369), but this does not mean such a decision is not a project approval. When a

local agency has undertaken to approve a project under the ministerial exemption,

section 21152(b) allows the agency to file an NOE announcing this determination.

Under section 21167(d), the NOE filing triggers a 35-day limitations period to

challenge the exemption determination.

In authorizing the Wal-Mart project, City took the position that the project

conformed to the previously approved MDP, that the Director was therefore

permitted and required to approve it (MDP, § 8.2; Stockton Planning & Zoning

Code, § 16-208.F), and that the approval was thus a ministerial action exempt

from CEQA. City, through the Director, filed an NOE to that effect. Accordingly,

as section 21167(d) provides, the NOE triggered a 35-day limitations period for

the challenge at issue here — i.e., that the Wal-Mart project approval (1) was not

within the scope of the previously approved MDP and Spanos Park West EIR,

(2) therefore was not exempt from CEQA as a mere ministerial decision, and

(3) thus required a new, project-specific environmental assessment.

Finally, plaintiffs insist the NOE itself was defective in form and substance,

and thus void. (See, e.g., Sierra Club v. City of Orange (2008) 163 Cal.App.4th

523, 532; International Longshoremen’s & Warehousemen’s Union v. Board of

Supervisors (1981) 116 Cal.App.3d 265, 272-273.) They claim that, contrary to

CEQA‟s requirements, the NOE failed to describe the project, omitted material

information, and included materially false information. We find the contention

unpersuasive.

An NOE must contain (1) a brief description of the project, (2) its location

(by street address or cross street in urbanized areas, or by attaching a site map),

38

(3) a finding that the project is exempt from CEQA, including a citation to the

statute or CEQA Guideline on which the agency is relying, and (4) a brief

statement of reasons to support the finding of exemption. (CEQA Guidelines,

§ 15062, subd. (d).) The NOE filed by City on February 17, 2004, gave the

location of the project as the “Northwest corner of Trinity Parkway and Cosumnes

Drive, City of Stockton, San Joaquin County,” further identifying it as “Assessor‟s

Parcel Number: APN: 071-600-030.” It stated that the project was located on

approximately 22.38 acres within the Spanos Park development, “a fully entitled

master planned development governed by a Master Development Plan . . . adopted

. . . on January 2, 2002,” and described the project as “a retail use consistent with

the Development Plan,” to be built in two sequential phases, of approximately

138,272 and 68,888 square feet respectively. Announcing City‟s finding of a

CEQA exemption, the NOE declared that the Director, “as directed and authorized

under the Spanos Park West Master Development Plan (MDP1-00), has

determined that the Site Plan, Grading Plan, Landscape Plan, Building Elevations,

and Design applicable to the Project conform to the standards set forth in the

Spanos Park West Master Development Plan, which determination is a ministerial

action not subject to CEQA review under Public Resources Code Section

21080(b)(1) and CEQA Guidelines Section 15369.”

Plaintiffs urge that the NOE‟s project description was misleading, because

it stated the project was “located in a Mixed-Use („MX‟) Zoning District and the

property‟s primary land designation is commercial according to the Development

Plan‟s Conceptual Site Plan.” This description, plaintiffs urge, misstated the

actual primary use contemplated by the MDP for the specific site of the proposed

Wal-Mart store, which was high-density residential. Thus, in plaintiffs‟ view,

“[a]nyone reading the Project description would have no clue the Project was a

big-box retail store, which would replace 637 units of high-density housing.”

39

Further, plaintiffs urge, the NOE failed to describe the “whole” project (see CEQA

Guidelines, § 15378, subd. (a)) because it neglected to mention that the siting of

the proposed store on Parcels 17 and 17A would require amendment of the

Density Agreement.

However, the project description portrayed the project as a “retail use”

which, when completely built out, would exceed 207,000 square feet. The NOE

thus clearly identified the project as a very large retail store, and was not required

to do more in this regard. Nothing in CEQA or its Guidelines indicates, for

example, that the NOE was defective because it failed to name the store as a Wal-

Mart. (See Maintain Our Desert Environment v. Town of Apple Valley (2004)

124 Cal.App.4th 430, 441-442 [“brief description” of project in required notice of

preparation of EIR (§ 21092, subd. (b)(1)) was not defective for failure to identify

Wal-Mart as end user of proposed distribution center].)

Moreover, an NOE need only provide a “brief” description of the approved

project, state its location, and set forth reasons for the agency‟s finding of

exemption. (CEQA Guidelines, § 15062, subd. (a).) Once the agency files a

notice satisfying these basic requirements, thus alerting the public to the agency‟s

decision and its basis, it is the public‟s obligation thereafter to determine whether a

challenge to the project approval is appropriate. The Guidelines do not demand

that the NOE itself disclose and explain all the arguable environmental

implications, or all the grounds upon which such a challenge to the exemption

determination might be based. Thus here, we are persuaded, it was not necessary

for the NOE to state that the Wal-Mart project might displace future residential

development or require amendment of the Density Agreement. These were

40

matters that interested members of the public, once notified of the decision, were

obliged to investigate for themselves.15

Nor, contrary to plaintiffs‟ contention, did the NOE state a material

falsehood by declaring that “the property’s primary land use designation is

commercial.” (Italics added.) Plaintiffs point out that the “primary” land use


15

Plaintiffs rely heavily on McQueen v. Board of Directors (1988)

202 Cal.App.3d 1136, but, to the extent that case is persuasive on its facts, we find
it inapposite here. In McQueen, an open space district approved the purchase of
surplus federal property that had previously been used as a military
communications station. The Air Force had notified the district that the property
contained toxic wastes, including transformers filled with polychlorinated
biphenyls (PCB). After approving the acquisition, the district filed an NOE,
relying on several “categorical exemptions” — classes of projects the state
Secretary for Resources has found not to have a significant effect on the
environment
. (§ 21084, subd. (a); CEQA Guidelines, § 15300.) The categories
cited were transfers of interests in land in order to preserve open space (CEQA
Guidelines, § 15325), acquisition of parklands in natural condition or containing
historical or archeological sites (id., § 15316), and sales of surplus government
property (id., § 15312). The Court of Appeal held, among other things, that
persons seeking to litigate the exemption determination were excused from
exhausting their administrative remedies because neither the public hearings on
the acquisition nor the NOE had given fair notice of the toxic waste issue. (See
§ 21177, subd. (e).) Indeed, by relying on categorical exemptions that implied the
complete absence of adverse environmental effects, and by omitting mention of
the serious problem that actually existed, the NOE left the impression that this was
an environmentally beneficial purchase of open space with no basis whatever for
an environmental challenge. Such is not the case here. The NOE for the Wal-
Mart project did not rely on a categorical exemption for projects of a class already
determined to lack environmental significance. Moreover, it disclosed an activity
— the construction of a large retail store on undeveloped urban land — with
obvious and inherent environmental impacts, and it referenced the MDP to which
the project allegedly conformed, and under which City claimed it had taken an
exempt ministerial action. The NOE was not thereafter obliged to explain the
complete legal and environmental context of the project. Such an interpretation of
the phrase “description of the project,” as used to set forth the requirements of an
NOE, would overlook the qualifying adjective “brief.” (CEQA Guidelines,
§ 15062, subd. (a).)

41

identified by the MDP for parcels 17 and 17A, part of the proposed store site, is

multi-family residential. But, read in context, the quoted sentence appears to refer

to the Spanos Park West development as a whole, not to the specific 22.38 acres

within the development on which the Wal-Mart store would be built.

Interpreted in this way, the sentence is not materially misleading. Of the 26

parcels of Spanos Park West, comprising some 158.11 acres, contemplated for

development in the MDP, 114.55 were described as primarily intended for

business and retail uses, while only 43.56 were designated as primarily slated for

high-density residential. (See MDP, table 3-1, Land Use Summary.) Moreover,

the MDP stresses that, “because of the inherent flexibility of the M-X zoning

designation,” the Conceptual Site Plan sets forth “a possible pattern of uses that

respond to market conditions and the developer‟s expectations at a specific point

of time,” but “also represents a range of land use options that comply with the

criteria established by the M-X Zone.” (MDP, § 3.31, italics added.) Optional

uses for parcels 17A and adjacent parcels 18 and 19 included 225,000 square feet

of retail space. (MDP, table 3-1, Land Use Summary.) Under these

circumstances, no material falsehood appears.

We do not suggest the NOE in this case could not have been clearer and

more informative. Nor do we condone purposeful obfuscation in an NOE. We

conclude only that the NOE in this case minimally complied with CEQA, and thus

was effective to trigger the 35-day limitations period of section 21167(d).16


16

Appellants argued below that the suit was also barred by the limitations

period set forth in Government Code section 65009, subdivision (c) (establishing a
90-day statute of limitations for challenging certain land use decisions by local
agencies). Neither the trial court nor the Court of Appeal ruled on this issue, and
we express no opinion upon it.

42



Accordingly, the judgment of the Court of Appeal is reversed.

BAXTER, J.

WE CONCUR:


GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

43



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

Name of Opinion Stockton Citizens for Sensible Planning v. City of Stockton
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 157 Cal.App.4th 352
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S159690
Date Filed: April 1, 2010
__________________________________________________________________________________

Court:
Superior
County: San Joaquin
Judge: K. Peter Saiers* and Carter P. Holly
__________________________________________________________________________________

Attorneys for Appellant:

Steefel, Levitt &Weiss, Judy V. Davidoff, Michael D. Early, Beth C. Tenney; Sheppard, Mullin, Richter &
Hampton, Robert J. Stumpf, Jr., Arthur J. Friedman and Karin Dougan Vogel for Real Party in Interest and
Appellant Wal-Mart Stores, Inc.

Brisco, Ivester & Bazel, John Briscoe, Lawrence S. Bazel, Christian L. Marsh and Shona L. Armstrong for
Real Party in Interest and Appellant A.G. Spanos Construction, Inc.

Cox, Castle & Nicholson, Michael H. Zischke and Scott B. Birkey for California Building Industry
Association as Amicus Curiae on behalf of Real Parties in Interest and Appellants.


__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of William D. Kopper, William D. Kopper; Kenyon Yeates, Charity Kenyon, J. William
Yeates, Keith G. Wagner and Jason R. Flanders for Plaintiffs and Respondents.

Brandt-Hawley Law Group and Susan Brandt-Hawley for Planning and Conservation League as Amicus
Curiae on behalf of Plaintiffs and Respondents.

Freeman, D'Aiuto, Pierce, Gurev, Keeling & Wolf, Maxwell M. Freeman, Thomas H. Keeling and Michael
L. Gurev for Defendants and Respondents.

Remy, Thomas, Moose and Manley and Whitman F. Manley for League of California Cities and California
State Association of Counties as Amici Curiae on behalf of Defendants and Respondents and Real Parties
in Interest and Appellants.

*Retired judge of the San Joaquin Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.







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

Robert J. Stumpf, Jr.
Sheppard, Mullin, Richter & Hampton
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111
(415) 434-9100

Lawrence S. Bazel
Brisco, Ivester & Bazel
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
(415) 402-2700

William D. Kopper
Law Offices of William D. Kopper
417 E Street
Davis, CA 95616
(530) 758-0757

Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA 95442
(707) 938-3908

Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: Was plaintiffs' challenge to the approval of a Wal-Mart Supercenter project filed within the applicable statute of limitations on the theory that the approval was invalid and thus did not trigger the running of the limitations period?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Thu, 04/01/201048 Cal. 4th 481, 227 P.3d 416, 106 Cal. Rptr. 3d 858S159690Review - Civil Appealsubmitted/opinion due

Parties
1Stockton Citizens for Sensible Planning (Plaintiff and Respondent)
Represented by J. William Yeates
Kenyon Yeates, LLP
2001 N. Street, Suite 100
Sacramento, CA

2Stockton Citizens for Sensible Planning (Plaintiff and Respondent)
Represented by William D. Kopper
Attorney at Law
417 "E" Street
Davis, CA

3Atkinson, Rosemary (Plaintiff and Respondent)
Represented by William D. Kopper
Attorney at Law
417 "E" Street
Davis, CA

4Diaz, Paul (Plaintiff and Respondent)
Represented by William D. Kopper
Attorney at Law
417 "E" Street
Davis, CA

5Rich, Susan Rutherford (Plaintiff and Respondent)
Represented by William D. Kopper
Attorney at Law
417 "E" Street
Davis, CA

6City of Stockton (Defendant and Respondent)
Represented by Richard Ellsworth Nosky
Office of the City Attorney
425 N. El Dorado Street
Stockton, CA

7A.G. Spanos Construction, Inc. (Real Party in Interest and Appellant)
Represented by Lawrence Solomon Bazel
Briscoe, Ivester & Bazel, LLP
155 Sansome Street, 7th Floor
San Francisco, CA

8A.G. Spanos Construction, Inc. (Real Party in Interest and Appellant)
Represented by John Briscoe
Briscoe, Ivester & Bazel, LLP
155 Sansome Street, 7th Floor
San Francisco, CA

9Wal-Mart Stores, Inc. (Real Party in Interest and Appellant)
Represented by Arthur Jay Friedman
Sheppard Mullin Ruchter & Hampton, LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA

10Wal-Mart Stores, Inc. (Real Party in Interest and Appellant)
Represented by Karin Dougan Vogel
Sheppard Mullin Ruchter & Hampton, LLP
501 W. Broadway, 19th Floor
San Diego, CA

11Wal-Mart Stores, Inc. (Real Party in Interest and Appellant)
Represented by Robert John Stumpf
Sheppard Mullin Ruchter & Hampton, LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA

12California Building Industry Association (Amicus curiae)
Represented by Michael Zischke
Cox, Castle & Nicholson, LLP
555 California Street, 10th Floor
San Francisco, CA

13League of California Cities (Amicus curiae)
Represented by Whitman F. Manley
Remy Thomas Moose & Manley, LLP
455 Capitol Mall, Suite 210
Sacramento, CA

14Planning & Conservation League (Amicus curiae)
Represented by Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA

15Diepenbrock Harrison (Pub/Depublication Requestor)
Represented by Andrea Alessandra Matarazzo
Diepenbrock Harrison, LLP
400 Capitol Mall, Suite 1800
Sacramento, CA

16Remy Thomas Moose & Manley (Pub/Depublication Requestor)
Ste. 210
CA 95814

Represented by Whitman F. Manley
Remy Thomas Moose & Manley, LLP
455 Capitol Mall, Suite 210
Sacramento, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Dockets
Jan 7 2008Petition for review filed
  Wal-mart Stores, Inc., RPI and appellant Robert Stumpf, Jr., Karin Vogel, counsel
Jan 9 2008Record requested
 
Jan 24 2008Request for depublication (petition for review pending)
  Remy, Thomas, Moose and Maneley (practitioners) , et al. (nonparty) Whitman F. Manley, counsel
Jan 24 2008Answer to petition for review filed
  Stockton Citizens for Sensible Planning, et al., respondents William Kopper, counsel
Jan 25 2008Received Court of Appeal record
  three doghouses ( volume 2, 3, 4)
Jan 25 2008Request for depublication (petition for review pending)
  Building Industry Association (non-party)
Jan 28 2008Request for depublication (petition for review pending)
  Diepenbrock Harrison (non-party)
Jan 28 2008Request for depublication (petition for review pending)
  Wal-Mart Stores, Inc. Arthur J. Friedman, counsel
Jan 31 2008Opposition filed
  Kenyon & Yeates, LLP, on behalf of Planning and Conservation League (non-party)
Feb 1 2008Opposition filed
  counsel for Calif. Healthy Communities Network, (non-party)
Feb 4 2008Reply to answer to petition filed
  Wal-Mart Stores, Inc., real party in interest and appellant by Robert J. Stumpf, Jr., Counsel
Feb 4 2008Opposition filed
  Environmental Council of Sacramento (Ecos) and Friends of the Swainson's Hawk (FOSH) to request for depublication. by James P. Pachl, counsel
Feb 4 2008Opposition filed
  By the Law Office of Donald B. Mooney (Non-party) to requests for depublication. by Donald B. Mooney, counsel
Feb 5 2008Opposition filed
  Sierra Club (non-party) to depub. request. (non-party) counsel Michael W. Graff.
Feb 13 2008Petition for review granted (civil case)
  George, C.J., was recused and did not participate. Votes: Werdegar, A.C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Feb 21 2008Request for extension of time filed
  counsel for Real Party in Interest requests extension of time to April 13, 2008, to file the opening brief on the merits.
Feb 21 2008Certification of interested entities or persons filed
  counsel for resp. (Stockton Citizens for Sensible Planning)
Feb 27 2008Certification of interested entities or persons filed
  counsel for RPI, (A. G. Spanos, Constr.)
Feb 27 2008Request for extension of time filed
  counsel for RPI (A.G.Spanos Constr.) requests extension of time to April 13, 2008, to file the opening brief on the merits.
Mar 3 2008Extension of time granted
  On application of real parties in interest and good cause appearing, it is ordered that the time to serve and filed the opening brief on the merits is extended to and including April 13, 2008.
Mar 5 2008Extension of time granted
  On application of real party in interst A. G. Spanos Construction, Inc. and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including April 13, 2008.
Mar 27 2008Association of attorneys filed for:
  respondent Stockton Citizens for Sensible Planning, associates Kenyon Yates, LLP as co-counsel.
Apr 14 2008Certification of interested entities or persons filed
  counsel for rpi/aplt. (Wal-Mart Stores.)
Apr 14 2008Opening brief on the merits filed
  counsel for rpi/aplt. Wal-Mart Stores, Inc
Apr 15 2008Opening brief on the merits filed
  counsel for rpi /aplts. A. G. Spanos Constr. (8.25.(b))
May 9 2008Request for extension of time filed
  by Respondents Stockton Citizens for Sensible Planning et al., requesting a 30-day extension to file respondents' answer brief on the merits. by William D. Koper, counsel
May 14 2008Extension of time granted
  On application of respondents, Stockton Citizens for Sensible Planning, Rosemary Atkinson, Paul Diaz and Susan Rutherford Rich, and good cause appearing, it is ordered that the time to serve and file respondents' answer brief on the merits is hereby extended to and including June 13, 2008.
Jun 5 2008Request for extension of time filed
  Counsel for respondents requests a 10-day extension of time to 6-23-2008, to file the answer brief on the merits.
Jun 11 2008Extension of time granted
  On application of respondents and good cause appearing, it ordered that the time to serve and file the answer brief on the merits is extended to and including June 23, 2008.
Jun 24 2008Answer brief on the merits filed
  counsel for respondents (8.25(b))
Jul 9 2008Request for extension of time filed
  counsel for Real Party in Interest requests extension of time to July 21, 2008, to file the reply brief on the merits.
Jul 14 2008Extension of time granted
  On application of real party in interest and good cause appearing it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 21, 2008.
Jul 15 2008Reply brief filed (case fully briefed)
  counsel for RPI, A. G. Spanos Constr., Inc.
Jul 21 2008Reply brief filed (case fully briefed)
  Wal-Mart Stores, Inc., real party in interest and appellant, by Robert J. Stumpf, Counsel
Aug 20 2008Received application to file Amicus Curiae Brief
  League of California Cities and California State Associaiton of Counties in support of defendant and respondent (non-party)
Aug 20 2008Received application to file Amicus Curiae Brief
  California Bldg. Industry Assoc., in support of real party in interest (non-party)
Aug 20 2008Request for judicial notice filed (granted case)
  Calif. Building Industry Association (non-party)
Aug 21 2008Received application to file Amicus Curiae Brief
  Planning and Conservation League in support of respondents (non-party) (8.25(b))
Aug 28 2008Amicus curiae brief filed
  California Building Industry Association
Aug 28 2008Permission to file amicus curiae brief granted
  The application of California Building Industry Association for permisison to file an amicus curiae brief with request for judicial notice is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 28 2008Amicus curiae brief filed
  Planning and Conservation League
Aug 28 2008Permission to file amicus curiae brief granted
  The application of Planning and Conservation League for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 28 2008Amicus curiae brief filed
  League of California Cities and California and California State Association of Counties.
Aug 28 2008Permission to file amicus curiae brief granted
  The application of League of California Cities and California State Association of Counties for permission to file an amicus curiae brief in support of defendants and respondents is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Sep 5 2008Request for extension of time filed
  Stockton Citizens for Sensible Planning, et al., plaintiff and respondent, requests a 20 day extension of time until October 7, 2008, to file responses to the amicus curiae briefs, by William D. Kopper, Counsel
Sep 9 2008Request for extension of time filed
  counsel for aplt. A. G. Spanos Constr., Inc. requests extension of time to Oct. 7, 2008, to file response to amicus curiae briefs.
Sep 9 2008Request for extension of time filed
  counsel for RPI, Wal-Mart Stores, Inc. requests extension of time to Oct. 7, 2008, to file response to amicus curiae briefs.
Sep 10 2008Extension of time granted
  On application of Stockton Citizens for Sensible Planning, et al., and good cause appearing, it is ordered that the time to serve and file the response to the amicus curiae briefs is extended to and including October 7, 2008.
Sep 16 2008Extension of time granted
  On application of real party in interest Wal-Mart Stores, Inc. and good cause appearing, it is ordered that the time to serve and file the response to amicus curiae briefs is extended to and including October 7, 2008.
Sep 16 2008Extension of time granted
  On application of appellant A.G. Spanos Construction, Inc. and good cause appearing, it is ordered that the time to serve and file the response to amicus curiae briefs is extended to and including October 7, 2008.
Oct 7 2008Response to amicus curiae brief filed
  counsel for RPI, Wal-Mart Stores, Inc.
Oct 8 2008Response to amicus curiae brief filed
  counsel for aplt. A. G. Spanos Construction, Inc., to a/c brief of Planning and Conservation League (8.25(b)).
Oct 8 2008Response to amicus curiae brief filed
  counsel for resps. Stockton Citizens for Sensible Planning, to a/c brief of Planning and Conservation League. (8.25(b))
Oct 8 2008Response to amicus curiae brief filed
  counsel for resps. Stockton Citizens for Sensible Planning to a/c briefs of League of Calif. Cities, The Calif. Association of Counties, and Calif. Building Industry Association. (8.25(b))
Oct 10 2008Change of contact information filed for:
  counsel for resps. Stockton Citizens for Responsible Planning, et al.
Aug 31 2009Received Court of Appeal record
  1 box (5 vols. of Admin. Recs.)
Nov 10 2009Order filed
  Chief Justice George recused himself from participating in the order granting review in this case, filed on February 13, 2008. Having examined the materials subsequently filed in this court, and having concluded that there is no basis for requiring his further recusal in this matter, Chief Justice George will participate in all further proceedings in this matter before this court.
Jan 6 2010Case ordered on calendar
  to be argued Wednesday, January 27, 2010, at 9:00 a.m., in San Francisco
Jan 15 2010Supplemental brief filed
Plaintiff and Respondent: Stockton Citizens for Sensible PlanningAttorney: William D. Kopper Plaintiff and Respondent: Atkinson, RosemaryAttorney: William D. Kopper Plaintiff and Respondent: Diaz, PaulAttorney: William D. Kopper Plaintiff and Respondent: Rich, Susan RutherfordAttorney: William D. Kopper   addressing new authority by Stockton Citizens for Sensible Planning, et al., respodents, by William D. Kopper, counsel.
Jan 15 2010Filed:
  Letter from William D. Kopper, counsel for respondents Stockton Citizens for Sensible Planning et al., requesting to share 10 minutes of oral argument time with amicus curiae Planning & Conservation League.
Jan 15 2010Filed:
  Letter from William D. Kopper, counsel for respondents Stockton citizens for Sensible Planning et al., revising argument time request of this date (see docket #640). Now requesting to share 15 minutes with amicus curiae Planning & Conservation League.
Jan 19 2010Filed:
  counsel for rpi and aplt. Wal-Mart Projects, Inc. Notice of Additional Authority.
Jan 19 2010Filed:
  Letter from Robert J. Stumpf, Jr. and Lawrence S. Bazel, counsel for appellants A.G. Spanos Construction, Inc., et al., requesting to divide argument time between appellant A.G. Spanos Construction, Inc. and appellant Wal-Mart Stores, Inc.
Jan 21 2010Order filed
  The request of counsel for respondents Stockton Citizens for Sensible Planning et al. in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae Planning and Conservation League 15 minutes of respondents' 30-minute allotted time for oral argument is granted.
Jan 21 2010Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to Wal-Mart Stores, Inc. 20 minutes and A.G. Spanos Construction, Inc. 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Jan 25 2010Request for judicial notice denied
  Amicus curiae California Building Industry Association's request for judicial notice, filed August 20, 2008, is denied.
Jan 27 2010Cause argued and submitted
 
Mar 30 2010Notice of forthcoming opinion posted
  To be filed on Thursday, April 1, 2010.

Briefs
Apr 14 2008Opening brief on the merits filed
 
Apr 15 2008Opening brief on the merits filed
 
Jun 24 2008Answer brief on the merits filed
 
Jul 15 2008Reply brief filed (case fully briefed)
 
Jul 21 2008Reply brief filed (case fully briefed)
 
Aug 28 2008Amicus curiae brief filed
 
Aug 28 2008Amicus curiae brief filed
 
Aug 28 2008Amicus curiae brief filed
 
Oct 7 2008Response to amicus curiae brief filed
 
Oct 8 2008Response to amicus curiae brief filed
 
Oct 8 2008Response to amicus curiae brief filed
 
Oct 8 2008Response to amicus curiae brief filed
 
Brief Downloads
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Stockton Citizens - Petition for Review.pdf (3918228 bytes) - Petition for Review
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Stockton Citizens - Answer to Petition for Review.pdf (1310877 bytes) - Answer to Petition for Review
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Stockton Citizens - Reply to Answer to Petition for Review.pdf (709601 bytes) - Reply to Answer to Petition for Review
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Stockton Citizens - Opening Brief on the Merits (Wal-Mart).pdf (3449122 bytes) - Opening Brief on the Merits - Wal-Mart
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Stockton Citizens - Opening Brief on the Merits (A.G. Spanos).pdf (3024407 bytes) - Opening Brief on the Merits - A.G. Spanos
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Stockton Citizens - Answer Brief on the Merits.pdf (5801925 bytes) - Answer Brief on the Merits
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Stockton Citizens - Reply Brief on the Merits (Wal-Mart).pdf (1906691 bytes) - Reply Brief on the Merits - Wal-Mart
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Stockton Citizens - Reply Brief on the Merits (A.G. Spanos).pdf (1886352 bytes) - Reply Brief on the Merits - A.G. Spanos
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 27, 2010
Annotated by adelinaa

By: Adelina Acuna

Justice Baxter, writing for the majority, reversed two decisions by the the San Joaquin County Superior Court and the Court of Appeal for the Third Appellate District denying appellants Wal-Mart Stores and A.G. Spanos Construction’s motions to strike plaintiffs’ untimely California Environmental Quality Act (“CEQA”) claims. The Court agreed with appellants that a facially-valid and properly-filed Notice of Exemption (“NOE”) triggered a 35-day statute of limitations, regardless of whether it was defective, inadequate, or premised on an invalid underlying approval.

The Court’s decision emphasizes the principle that the merits of a claim have no bearing on its timeliness. Plaintiffs alleged several substantive and procedural defects in the process by which a 22-acre Wal-Mart Supercenter was approved for construction, and argued that those defects invalidated any subsequent public notice that would have triggered a statute of limitations for filing their claim. The Court, however, noted that the limitations period in question applied specifically to claims challenging the validity of agency determinations, and rejected the argument that an invalid determination could then fail to trigger a limitation. Looking to the text and legislative intent behind CEQA, the Court concluded that notice is the only factor that should bear on whether a limitations period has been triggered.

FACTS

Plaintiffs’ suit challenged the City of Stockton’s approval of the construction of a 22-acre Wal-Mart Supercenter in an area zoned for mixed-use and high-density residential development. Plaintiffs claimed that the proposed construction was a substantial deviation from the existing zoning and Master Development Plan (“MDP”), and as such, defendants Spanos, the City, Wal-Mart, and Wal-Mart’s civil engineering firm Doucet & Associates had violated CEQA by failing to obtain a new environmental impact report (“EIR”). The City had filed an Notice of Exemption in February 2004, indicating that the construction plan was consistent with the MDP and therefore exempt from the EIR requirement. CEQA § 21167 imposes a 35-day statute of limitations in which to challenge exemption determinations, which expired on March 23, 2004, so defendants demurred on the grounds that plaintiffs’ July 24, 2004 suit was untimely. Plaintiffs argued (and the trial and appellate courts agreed) that the City’s NOE did not actually trigger the 35-day statute of limitations, because the underlying project approval was invalid.

Under the governing MDP, approval of a construction project inconsistent with a parcel’s designated use required several steps. First, the City’s Design Review Board had to recommend that the planning commission issue a conditional use permit; second, the planning commission had to issue said permit; and third, if appealed, the City council had to find that the project “would not create internal inconsistencies within the MDP,” or run counter to the goals and objectives of the larger development. In this case, however, plaintiffs allege that the Design Review Board determined incorrectly that the project was consistent with the governing land-use plan. The improperly-labeled project then moved forward through a completely different process, generating automatic approval and an automatic exemption from CEQA. The Design Review Board’s decision was never properly noticed, so no challenge was brought within the 10-day statute of limitations for appealing to the city council.

Once the project reached the Community Development Department, the City filed an NOE declaring it exempt from CEQA requirements. Under CEQA, the NOE triggered a 35-day statute of limitations in which to bring claims alleging that the exemption determination was improper. The NOE divided the 22-acre project into smaller segments, stated explicitly that the proposed project substantially complied with the governing development plan, and nowhere indicated that the project would actually be a Wal-Mart or big-box store of any kind. Plaintiffs alleged that several substantive and procedural defects in the NOE, including fraud and misrepresentation, combined with the underlying invalid approval, rendered the entire NOE invalid and therefore did not trigger the statute. The trial court and appellate court agreed, while this Court reversed.

ANALYSIS

Plaintiffs relied on two arguments to challenge the imposition of the 35-day limitations period. First, they pointed to CEQA § 21152, which states that an NOE can only be filed once a project receives § 21080 ministerial approval, and asserted that because the ministerial approval was invalid, the NOE itself had no force or effect. The Court rejected this argument in light of CEQA’s legislative emphasis on public notice of CEQA-related actions or determinations. Citing to a similar decision made in California Manufacturers Assn. v. Industrial Welfare Commission., the Court observed that the CEQA limitations scheme effectively distinguishes between situations in which an agency fails to even attempt compliance, thus providing no notice of its action or decision, and those in which an agency’s compliance is alleged to be merely defective. Here, the City of Stockton’s attempt at compliance, however imperfect, put plaintiffs on notice that the construction plan had ostensibly been approved, and thus triggered the limitation period in which the validity of the approval could be challenged. The Court also distinguished this case from County of Amador v. El Dorado County Water Agency, in which an NOE was held not have triggered a statute of limitations because, unlike here, the contested agency action never was or purported to be a final project approval.

Second, plaintiffs argued that the NOE itself was defective and thus invalid. The NOE described the proposed construction plan as “consistent with the Development Plan,” and described the tract as a mixed-use zoning area designated for commercial development. Plaintiffs argued that this characterization--and the omission of the Wal-Mart name--was misleading and fell far short of the CEQA requirements for an NOE. The Court, however, disagreed that the content was actually misleading or material, and found that the notice was, at least, minimally compliant.

May 27, 2010
Annotated by adelinaa

-Katherine J. Hart & Leslie Z. Walker, No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations, Abbott & Kinderman Land Use Law Blog (April 12, 2010)
-Remy, Thomas, Moose & Manley, LLP, Supreme Court Strictly Enforces CEQA’s Statutes Of Limitations In Two Recent Decisions, rtmmlaw.com Blog (April 12, 2010)
-Paul Shigley, Fast Growing Stockton Faces Many Issues, Many Lawsuits, California Planning & Development Report (January 31, 2008)
-Janelle M. Bogue, Invalid Approval Based on Lack of Legal Authority Leads to Invalid Notice of Exemption and Long Statute of Limitations for Challenged Wal-Mart, Abbott & Kinderman Land Use Law Blog (December 17, 2007)