Public Agency And Party Challenging EIR May Agree To Toll Limitations Period

A court of appeal recently held that a public agency and a party who was challenging the adequacy of an environmental impact report (“EIR”) that was prepared for adoption of an amendment to a general plan could agree to toll the limitations period that applies to filing a petition to challenge an EIR’s adequacy.  (Salmon Protection and Watershed Network v. County of Marin (— Cal.Rptr.3d —-, Cal.App. 1 Dist., April 20, 2012).


On November 6, 2007, the County of Marin certified an EIR in connection with the adoption of the Marin Countywide General Plan Update (“Update”) and filed a notice of determination in compliance with CEQA Guidelines sections 21152, subdivision (a) and 15094.  The Salmon Protection and Watershed Network (“SPAWN) and County entered into a series of agreements to toll the 30-day limitations period found in Public Resources Code section 21167 for filing a complaint to challenge the sufficiency of an EIR.  The County and SPAWN engaged in unsuccessful negotiations to settle SPAWN’s claim that the EIR was not sufficient.  The agreements tolled the limitations period until September 14, 2010, and on that date, SPAWN filed a petition for writ of mandate against County and its board of supervisors.  SPAWN alleged that the EIR for the Update failed to comply with California Environmental Quality Act (“CEQA”) requirements.

A group of property owners (“Owners”) asked the trial court to intervene in SPAWN’s action against County.  Owners alleged that SPAWN’s petition was untimely filed because CEQA does not allow agreements such as the one entered into between County and SPAWN to toll the statute of limitations.  The trial court initially granted the Owners’ petition to intervene but ultimately rejected the Owners’ contention that the tolling agreements were prohibited by CEQA.

Pursuant to the Marin Countywide General Plan, the County must implement stream conservation area policies.  The Update implements such policies for the San Geronimo Valley watershed.  SPAWN challenged the adequacy of the cumulative impacts analysis in the EIR and asked the trial court for an injunction to prohibit the County from approving development in the San Geronimo Valley watershed’s protected stream zone.  Owners own property within the San Geronimo Valley and claim that SPAWN’s action against the County creates uncertainty and reduces the present value of their properties.

Although the County does not agree with SPAWN's claim regarding the sufficiency of the EIR, it defends the validity of the tolling agreements.  The trial court dismissed the Owners’ complaint in intervention and the Owners appealed.


The court of appeal affirmed the dismissal of the Owners’ complaint in intervention.  Neither CEQA nor the Government Code prohibit SPAWN’s and County’s agreements to toll the statute of limitations.

Although there is a strong public policy that favors prompt disposition of CEQA challenges, there is an equally strong public policy to encourage settlement of controversies instead of letting them proceed to litigation.  CEQA includes provisions to encourage parties to reach a settlement before commencing litigation. 

If all parties who are directly involved in a controversy about compliance with CEQA want to resolve the controversy and they agree to toll the period for commencing litigation, the interests of the parties and the public are promoted by allowing settlement.  Because a party who has received approval for its project by a public agency is a real party in interest in a challenge under CEQA to the validity of the approval of the project, any agreement to toll the limitations period must be approved by the proponent of the project.  There are three parties who must agree to toll the limitations period—the proponent of the project, the public agency, and the party who asserts noncompliance with CEQA.

Here, the dispute is different from a CEQA controversy that involves the approval of a site-specific project for which an EIR was prepared.  There is no individual project at issue here.  Instead, the EIR challenged by SPAWN was prepared for an amendment to a countywide plan.  The court noted that although the Owners’ property may be indirectly affected by the Update, they are not the real parties in interest in litigation to challenge the adoption of the Update because they are not indispensable parties.  Even though the Owners “may request intervention to address the merits of [C]ounty’s approval [this] does not mean they have the right to compel commencement of litigation while the parties to the dispute pursue settlement discussions.” 

Also, Government Code section 65009, subdivision (c)(1)(A), which imposes a 90-day limitations period for legal actions against a county regarding a Planning and Zoning law, does not prohibit the tolling of the limitations period.  The court concluded “that the general public remains only an incidental beneficiary of Government code section 65009, thus permitting the governmental agency to waive or extend its limitation period.” 


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey,  Daniel J. O’Hanlon or Leslie Z. Walker | 916.321.4500