In Schellinger Brothers v. City of Sebastopol, (— Cal.Rptr.3d —-, Cal.App. 1 Dist., December 2, 2009), a California Court of Appeal considered whether a trial court erred when it refused to issue a writ of administrative mandamus to compel a city council to certify a proposed environmental impact report (“EIR”) where the city council had failed to certify an EIR within one year. The Court of Appeal held the one-year time limit for certifying an EIR in the California Environmental Quality Act (“CEQA”) is not an iron-clad rule that permits no exception and the trial court correctly decided not “to interject itself into the still on-going process of preparing an EIR.”
Schellinger Brothers (“Schellinger”) is a partnership who has the option to buy a property upon which it wants to construct a housing and commercial development. Schellinger first submitted an application to the City of Sebastopol (“City”) to construct the development in January 2001. The project then consisted of 182 single-residence houses and a 16,300 square foot commercial development. City began preparation of an EIR. A draft EIR was released for comment in March 2002.
Schellinger formally resubmitted its application in April 2002 but it continually made changes to the project until the first public hearing was held in June 2002. By the time the first public hearing was held, Schellinger had reduced the size of the commercial space and the number of houses to 177. The City’s planning commission recommended certification of the draft EIR with some modifications. Schellinger again changed the project in August 2002 just as the city council was about to consider the draft EIR. After two public hearings and during the time the city council was still considering the EIR, Schellinger decided to resubmit its project proposal. When Schellinger resubmitted a new proposal in May 2003, the project consisted of 145 housing units and no commercial center. On June 23, 2003, City deemed Schellinger’s application complete.
After it became clear that Schellinger’s project implicated City’s open space ordinance, City folded the open space analysis into the EIR and recirculated the draft EIR for public comment in August 2004. After a public comment period, City’s planning commission conditionally recommended certification of the recirculated draft EIR. Due to persistent opposition to the project, the city council gave Schellinger the opportunity to respond to questions and comments from the council and the public. In May 2006, Schellinger again modified the project proposal by reducing the number of housing units to 125. City and Schellinger agreed to undergo a mediation of the project controversy. After mediation, a revised proposal was set to go before the city council that set the number of housing units at 125 but revived the commercial space component. However, there was not enough support on the city council for the mediated project. Schellinger demanded that City comply with its legal duty to approve the project as proposed by the May 2003 application. On June 5, 2007, the city council decided the draft EIR needed to be circulated again for further public comment and additional analysis on environmental issues.
Schellinger refused to pay City for further processing of the application and City halted the administrative proceedings. Schellinger filed a complaint in a superior court alleging violation of Government Code section 65589.5, breach of contract, and breach of the mediation agreement. Schellinger sought a peremptory writ directing City to certify the EIR. The trial court granted judgment in favor of City.
The Court of Appeal affirmed the decision of the trial court. Schellinger claimed City’s failure to certify an EIR within one year mandates the issuance of a writ to require City to certify an EIR. The court found there is no “deemed approved” provision that applies when an agency fails to comply with the one-year time requirement in CEQA.
Public Resources Codes section 21151.5 provides that for projects undergoing CEQA review “each local agency shall establish, by ordinance or resolution, time limits that do not exceed the following: One year for completing and certifying environmental impact reports.” The one-year period commences on “the date on which an application requesting approval of the project is received and accepted as completed by the local agency.” Schellinger’s application was deemed complete on June 23, 2003. Schellinger claims City’s deadline for completing the EIR was June 23, 2004, and because City failed to meet this deadline, the court must issue a writ to direct City to certify an EIR and approve the project.
The court rejected Schellinger’s “contention that the one-year time limit for certifying an EIR established by section 21151.5 of CEQA constitutes an iron-clad one-size-fits-all rule that permits . . . no exception.” Section 21151.1, by its own terms, “does not fix the one-year period in cement” because local ordinances and resolutions may provide for different types of EIRs and different time limits for different types and classes of projects. Local legislation may also provide for reasonable extensions of time. Also, the period for completing and certifying an EIR may be suspended if the applicant causes unreasonable delay in meeting requests from the agency.
Schellinger also cited the Housing Accountability Act in support of its request to compel City to certify the proposed EIR. Government Code section 65589.5 reduces the scope for a local government to “reject or make infeasible housing developments . . . without a thorough analysis of the economic, social, and environmental effects” unless the local agency adopts specific written findings. An applicant may bring an action to enforce this section. The Housing Accountability Act, however, does not contain a provision to automatically approve an EIR if the local action is not completed within a specified time period.
The court concluded that neither of the statutory provisions cited by Schellinger “imposes a self-executing deadline within which an EIR must be certified.” The court found “[n]either section 21151.5 of CEQA, nor Government Code section 65589.5 . . . constitute a categorical or jurisdictional bar to preparation and certification of an EIR taking more than 365 days after the project’s application is deemed complete.”
Also, the court determined Schellinger was responsible for a significant portion of the delay and it “acquiesced in the City taking more than a year to certify an EIR.” The Court of Appeal stated that it was “not insensitive to the possibility that CEQA is subject to manipulation and elongation that may verge on abuse of the process.” Although the length of the process lends support to Schellinger’s position, Schellinger’s active participation in the process for over three years after the date it claims City lost its discretionary jurisdiction directs the conclusion that Schellinger cannot now seek strict enforcement of the one-year time limit.
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