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, 04/01/2010 | 48 Cal. 4th 481, 227 P.3d 416, 106 Cal. Rptr. 3d 858 | S159690 | Review - Civil Appeal | submitted/opinion due |
Parties
| 1 | Stockton Citizens for Sensible Planning (Plaintiff and Respondent) Represented by J. William Yeates Kenyon Yeates, LLP 2001 N. Street, Suite 100 Sacramento, CA |
| 2 | Stockton Citizens for Sensible Planning (Plaintiff and Respondent) Represented by William D. Kopper Attorney at Law 417 "E" Street Davis, CA |
| 3 | Atkinson, Rosemary (Plaintiff and Respondent) Represented by William D. Kopper Attorney at Law 417 "E" Street Davis, CA |
| 4 | Diaz, Paul (Plaintiff and Respondent) Represented by William D. Kopper Attorney at Law 417 "E" Street Davis, CA |
| 5 | Rich, Susan Rutherford (Plaintiff and Respondent) Represented by William D. Kopper Attorney at Law 417 "E" Street Davis, CA |
| 6 | City of Stockton (Defendant and Respondent) Represented by Richard Ellsworth Nosky Office of the City Attorney 425 N. El Dorado Street Stockton, CA |
| 7 | A.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 |
| 8 | A.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 |
| 9 | Wal-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 |
| 10 | Wal-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 |
| 11 | Wal-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 |
| 12 | California Building Industry Association (Amicus curiae) Represented by Michael Zischke Cox, Castle & Nicholson, LLP 555 California Street, 10th Floor San Francisco, CA |
| 13 | League of California Cities (Amicus curiae) Represented by Whitman F. Manley Remy Thomas Moose & Manley, LLP 455 Capitol Mall, Suite 210 Sacramento, CA |
| 14 | Planning & Conservation League (Amicus curiae) Represented by Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, CA |
| 15 | Diepenbrock Harrison (Pub/Depublication Requestor) Represented by Andrea Alessandra Matarazzo Diepenbrock Harrison, LLP 400 Capitol Mall, Suite 1800 Sacramento, CA |
| 16 | Remy 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 | |
| Opinion | Justice Marvin R. Baxter |
| Dockets | |
| Jan 7 2008 | Petition for review filed Wal-mart Stores, Inc., RPI and appellant Robert Stumpf, Jr., Karin Vogel, counsel |
| Jan 9 2008 | Record requested |
| Jan 24 2008 | Request for depublication (petition for review pending) Remy, Thomas, Moose and Maneley (practitioners) , et al. (nonparty) Whitman F. Manley, counsel |
| Jan 24 2008 | Answer to petition for review filed Stockton Citizens for Sensible Planning, et al., respondents William Kopper, counsel |
| Jan 25 2008 | Received Court of Appeal record three doghouses ( volume 2, 3, 4) |
| Jan 25 2008 | Request for depublication (petition for review pending) Building Industry Association (non-party) |
| Jan 28 2008 | Request for depublication (petition for review pending) Diepenbrock Harrison (non-party) |
| Jan 28 2008 | Request for depublication (petition for review pending) Wal-Mart Stores, Inc. Arthur J. Friedman, counsel |
| Jan 31 2008 | Opposition filed Kenyon & Yeates, LLP, on behalf of Planning and Conservation League (non-party) |
| Feb 1 2008 | Opposition filed counsel for Calif. Healthy Communities Network, (non-party) |
| Feb 4 2008 | Reply to answer to petition filed Wal-Mart Stores, Inc., real party in interest and appellant by Robert J. Stumpf, Jr., Counsel |
| Feb 4 2008 | Opposition 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 2008 | Opposition filed By the Law Office of Donald B. Mooney (Non-party) to requests for depublication. by Donald B. Mooney, counsel |
| Feb 5 2008 | Opposition filed Sierra Club (non-party) to depub. request. (non-party) counsel Michael W. Graff. |
| Feb 13 2008 | Petition 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 2008 | Request 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 2008 | Certification of interested entities or persons filed counsel for resp. (Stockton Citizens for Sensible Planning) |
| Feb 27 2008 | Certification of interested entities or persons filed counsel for RPI, (A. G. Spanos, Constr.) |
| Feb 27 2008 | Request 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 2008 | Extension 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 2008 | Extension 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 2008 | Association of attorneys filed for: respondent Stockton Citizens for Sensible Planning, associates Kenyon Yates, LLP as co-counsel. |
| Apr 14 2008 | Certification of interested entities or persons filed counsel for rpi/aplt. (Wal-Mart Stores.) |
| Apr 14 2008 | Opening brief on the merits filed counsel for rpi/aplt. Wal-Mart Stores, Inc |
| Apr 15 2008 | Opening brief on the merits filed counsel for rpi /aplts. A. G. Spanos Constr. (8.25.(b)) |
| May 9 2008 | Request 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 2008 | Extension 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 2008 | Request 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 2008 | Extension 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 2008 | Answer brief on the merits filed counsel for respondents (8.25(b)) |
| Jul 9 2008 | Request 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 2008 | Extension 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 2008 | Reply brief filed (case fully briefed) counsel for RPI, A. G. Spanos Constr., Inc. |
| Jul 21 2008 | Reply brief filed (case fully briefed) Wal-Mart Stores, Inc., real party in interest and appellant, by Robert J. Stumpf, Counsel |
| Aug 20 2008 | Received 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 2008 | Received application to file Amicus Curiae Brief California Bldg. Industry Assoc., in support of real party in interest (non-party) |
| Aug 20 2008 | Request for judicial notice filed (granted case) Calif. Building Industry Association (non-party) |
| Aug 21 2008 | Received application to file Amicus Curiae Brief Planning and Conservation League in support of respondents (non-party) (8.25(b)) |
| Aug 28 2008 | Amicus curiae brief filed California Building Industry Association |
| Aug 28 2008 | Permission 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 2008 | Amicus curiae brief filed Planning and Conservation League |
| Aug 28 2008 | Permission 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 2008 | Amicus curiae brief filed League of California Cities and California and California State Association of Counties. |
| Aug 28 2008 | Permission 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 2008 | Request 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 2008 | Request 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 2008 | Request 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 2008 | Extension 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 2008 | Extension 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 2008 | Extension 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 2008 | Response to amicus curiae brief filed counsel for RPI, Wal-Mart Stores, Inc. |
| Oct 8 2008 | Response 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 2008 | Response 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 2008 | Response 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 2008 | Change of contact information filed for: counsel for resps. Stockton Citizens for Responsible Planning, et al. |
| Aug 31 2009 | Received Court of Appeal record 1 box (5 vols. of Admin. Recs.) |
| Nov 10 2009 | Order 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 2010 | Case ordered on calendar to be argued Wednesday, January 27, 2010, at 9:00 a.m., in San Francisco |
| Jan 15 2010 | Supplemental 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 2010 | Filed: 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 2010 | Filed: 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 2010 | Filed: counsel for rpi and aplt. Wal-Mart Projects, Inc. Notice of Additional Authority. |
| Jan 19 2010 | Filed: 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 2010 | Order 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 2010 | Order 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 2010 | Request for judicial notice denied Amicus curiae California Building Industry Association's request for judicial notice, filed August 20, 2008, is denied. |
| Jan 27 2010 | Cause argued and submitted |
| Mar 30 2010 | Notice of forthcoming opinion posted To be filed on Thursday, April 1, 2010. |
| Briefs | |
| Apr 14 2008 | Opening brief on the merits filed |
| Apr 15 2008 | Opening brief on the merits filed |
| Jun 24 2008 | Answer brief on the merits filed |
| Jul 15 2008 | Reply brief filed (case fully briefed) |
| Jul 21 2008 | Reply brief filed (case fully briefed) |
| Aug 28 2008 | Amicus curiae brief filed |
| Aug 28 2008 | Amicus curiae brief filed |
| Aug 28 2008 | Amicus curiae brief filed |
| Oct 7 2008 | Response to amicus curiae brief filed |
| Oct 8 2008 | Response to amicus curiae brief filed |
| Oct 8 2008 | Response to amicus curiae brief filed |
| Oct 8 2008 | Response to amicus curiae brief filed |
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| 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) |
