CALIFORNIA SUPREME COURT UPDATE: Filing Of NOD Triggers 30-Day Statute Of Limitations For All CEQA Challenges

In Committee for Green Foothills v. Santa Clara Board of Supervisors, (— Cal.Rptr.3d —-, Cal., February 11, 2010), the California Supreme Court addressed the issue of which statute of limitations applies in a situation where a notice of determination has been filed, but the action alleges no environmental review was undertaken. The Supreme Court held that the filing of a notice of determination (“NOD”) “triggers a 30-day statute of limitations for all” California Environmental Quality Act (“CEQA”) “challenges to the decision announced in the notice.”


Leland Stanford Junior University (“University”) applied for a community plan and general use permit for the purpose of adding buildings to its campus. An environmental impact report (“EIR”) was prepared for the overall project (“Permit EIR”) that “identified environmental effects and proposed specific mitigation measures” and found “that the development would significantly impact public access to recreational facilities.” One identified mitigation measure directed University to dedicate certain trail easements contained within the Santa Clara County Trails Master Plan and coordinate with the parks department of Santa Clara County (“County”) about the location, uses, construction, and management of the trails. County’s Board of Supervisors (“Board”) certified the Permit EIR on December 12, 2000, and approved the Permit, which “was expressly conditioned on satisfaction of mitigation measures discussed in the Permit EIR.” University was required to “‘dedicate easements for, develop, and maintain the portions of the two trail alignments which cross [University] lands shown in the 1995 Santa Clara Countywide Trails Master Plan (Routes S1 and C1).’” Within one year after the Permit was approved, University “’was required to identify trail easements and reach agreements with the County on issues of trail construction, management and maintenance.”

County and University discussed trail alignments but did not reach an agreement that was presented to the Board until December 2005. The agreement specifically provided that its purpose was to satisfy the condition of the permit. The Board authorized County to enter into the agreement and “found that no CEQA review was currently required . . . because approval of the Trails Agreement did not ‘constitute County approval of construction, operation or maintenance of specific trail improvements.’” The Trails Agreement instead “contemplated that, before any trail improvements were made, ‘detailed construction [would] be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley and Town of Los Altos Hills.’” The Board concluded these jurisdictions would be required to determine what further environmental review would be necessary. Therefore, the Board concluded “County was not required to conduct further CEQA review before entering into the Trails Agreement.”

On December 16, 2005, County filed a NOD with the county clerk, which described the S1 trail alignment. County also reported that an EIR had been prepared for the trail project and that findings had been made “pursuant to section 15091 of the CEQA.” On December 29, 2005, County filed a revised NOD, which included the C1 and C2 trail routes, and “‘reported that the County had approved an agreement for the C1 and C2 alignments, but had not approved any specific trail improvements.’” The revised NOD “explained that plans for such improvements would be reviewed and considered by San Mateo County and the towns of Portola Valley and Los Altos Hills” and noted that an EIR had been prepared and findings had been made under CEQA. The revised NOD was posted from December 20, 2005, through January 19, 2006.

On June 9, 2006, 171 days after the filing and posting of the NOD, the Committee for Green Foothills (“Committee”) filed a petition for writ of mandamus challenging County’s approval of the Trails Agreement. County demurred to Committee’s petition on the ground that the petition was barred by the statute of limitations. The trial court found the petition was not timely filed within the 30-day limitations period. A Court of Appeal reversed the decision of the trial court finding that a 180-day statute of limitations applied.


The California Supreme Court reversed the decision of the Court of Appeal. The Supreme Court found that “[t]he Legislature clearly intended the 30-day statute [of limitations] to apply when an agency files a NOD, and this limitations period may not be extended based on the nature of the CEQA violation alleged.”

“Whenever a local agency ‘approves or determines to carry out a project’ that is subject to CEQA, the agency must file a NOD within five working days in the county clerk’s office of each county where the project will be located.” The NOD “must reflect the agency’s determination as to whether the project will have a significant effect on the environment and must state whether an EIR has been prepared.” On the other hand, “[i]f a local agency finds a project is exempt from CEQA, it must file a notice of exemption with all appropriate county clerks.” Each type of notice must be made available for public inspection for 30 days. The purpose of the filings of notice “is to alert the public about environmental decisions.”

CEQA section 21167 establishes the “statutes of limitation for all actions and proceedings alleging violations of CEQA.” There are five subdivisions in section 21167 and “[w]ith the exception of subdivision (a), each of the limitation periods in section 21167 is triggered by the filing of notice of determination or exemption and continues for only 30 or 35 days.” The Court noted, subdivision (a) applies where “an action charging the public agency with approving or undertaking a project having a significant effect on the environment without any attempt to comply with CEQA,” subdivision (b) applies “to an action alleging that the public agency has improperly determined that the project does not have a significant effect on the environment,” subdivision (c) applies “to an action alleging that the EIR fails to comply with the requirements of CEQA,” subdivision (d) applies “to an action charging that the public agency has improperly determined that the project is exempt from CEQA,” and finally, “subdivision (e) is a catchall provision governing an action based on any other failure of the public agency to comply with CEQA.” The limitation period for subdivision (a) is 180 days and starts when a project is approved or begun.

The question before the Court was whether the filing of a NOD triggers “one of the 30-day statutes of limitation in section 21167, regardless of the type of CEQA violation alleged.” The Court found the “language of section 21167 strongly suggests that the Legislature intended the filing of a NOD to trigger a 30-day statute of limitations.” The 180-day limitations period does not apply because it only applies to lawsuits which allege that an agency approved or undertook a project without determining whether or not the project would have a significant effect on the environment. “If an agency has made no determination about the environmental impact of a project, it has no determination to announce.”

Here, the situation involved an agency that affirmatively decided that no environmental review was required and then disclosed its findings to the public in a NOD. The Trails Agreement “was not a project but a subsequent activity encompassed within the Permit EIR and the Trails Master Plan SEIR.” The Court stated, “Because in-depth environmental review was previously undertaken in these program EIR’s, further review is generally not required except in limited circumstances.”

The Court determined “for the purposes of defining the statute of limitations, it is not what type of violation the plaintiff has alleged, but whether the action complained of was disclosed in a public notice.” If “an agency gives the public notice of its decision that a project is exempt from CEQA, just like a notice of any other determination under CEQA, the public can be expected to act promptly in challenging this decision.” However, if an agency does not give any notice “the public is held to constructive notice based on the start of the project, the Legislature has determined that a longer [180-day] limitations period should apply.”

The Court held that if a valid NOD has been filed “any challenge under CEQA must be brought within 30 days, regardless of the nature of the alleged violation.” The CEQA “does not authorize an extension of this 30-day period if the suit alleges that, despite the filing of a NOD, the project was approved without prior environmental assessment.”

The Court’s bright-line rule that the filing of a NOD triggers a 30-day statute of limitations promotes certainty, and allows “local government and developers to proceed with projects without the threat of potential future litigation.” The Court noted that “[i]f the 30-day limitation periods triggered by the filing of a NOD could be defeated by a mere allegation that the parties proceeded without having made a sufficient determination about potential environmental impacts, the certainty normally afforded by the filing of a NOD would be lost.” Uncertainty would arise because developers would have to wait 180 days to start a project because of potential litigation.

Because County filed a NOD, Committee was required to file its challenge within 30 days. The Court also found that the NOD was not defective and no new CEQA document was required. Accordingly, the Supreme Court reversed the decision of the Court of Appeal and found that Committee’s lawsuit was time-barred.


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