CEQA Case Report: Understanding the Judicial Landscape for Development[i]
In a published opinion issued on October 23, 2018, Save Lafayette Trees v. City of Lafayette, Case No. A154168, the California Court of Appeal upheld the trial court’s decision to grant a demurrer without leave to amend with respect to challenges to the substantive and procedural requirements of applicable planning and zoning laws, but reversed with respect to a challenge brought pursuant to CEQA, concluding that the 180-day statute of limitations applicable to CEQA claims applied to the claim filed by Save Lafayette Trees, Michael Dawson, and David Kosters (together Petitioners) alleging non-compliance with CEQA.
In summary, the Court of Appeal determined:
- If two statutes of limitation of equal authority apply to a claim brought pursuant to CEQA — one contained in a general state planning and zoning law and the other contained in a statute specific to CEQA — and the two cannot be reconciled, the more specific limitations period pursuant to CEQA prevails.
Petitioners filed a petition for writ of mandate challenging the City of Lafayette’s (City’s) approval of a letter agreement allowing a public utility company to remove trees without obtaining a permit. City filed a demurrer, claiming that the petition was time-barred under the 90-day limitations period applicable to zoning and planning decisions under state law. The trial court agreed, sustaining the demurrer without leave to amend. Petitioners appealed. The Court of Appeals upheld the lower court decisions as to Petitioners’ general challenge to City’s decision, concluding that pursuant to California Government Code section 65009, any decision by a “legislative body” regarding a variance, a conditional use permit, or other permit provided for by a local zoning ordinance must be filed and served within 90 days of the decision, but reversed as to Petitioners’ challenge pursuant to CEQA, concluding that a more specific limitations period promulgated pursuant to CEQA was controlling as to that claim.
Background for Appeal
On March 27, 2017, City approved an agreement with a public utility company authorizing the company to remove up to 272 trees within its local natural gas pipeline right-of-way. Of the trees to be removed, approximately 216 were protected. Under City’s tree protection regulations, removal of protected trees required the public utility company to:
- Provide information about the project
- Obtain a tree removal permit
- Perform mitigation
The public utility company was willing to comply with the first and third conditions, but refused to seek a permit. City conceded, authorizing the public utility company to remove the trees through a municipal provision that enabled City to “allow the removal of a protected tree to protect the health, safety and general welfare of the community.”
On June 26, 2017, Petitioners filed a challenge to City’s action. Petitioners alleged, among other things, that City had failed to comply with CEQA before approving the agreement with the public utility company. City demurred, arguing, among other things, that the petition was time-barred by Government Code section 65009, a state law provision requiring that challenges to zoning and planning decisions be filed and served within 90 days of the challenged decision. Although City acknowledged that the petition had been timely filed, City argued that the claim was nonetheless barred because petitioners did not serve the claim until after the 90-day deadline had passed. The trial court agreed and sustained City’s demurrer without leave to amend. Petitioners appealed.
Reconciling Conflicting Limitations Periods Applicable to Claims Brought Under CEQA
On appeal, Petitioners alleged that the 90-day limitations period contained in Government Code section 65009, applicable to state planning and zoning decisions was not applicable to their claim under CEQA. Government Code section 65009 provides that “no action or proceeding shall be maintained…unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body’s decision”. The limitations period applies to an action brought “to determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit or any other permit.” Instead, Petitioners argued that a more specific CEQA limitations period contained in Public Resources Code sections 21167(a) and 21167.6 (a) applied to their challenge brought pursuant to CEQA. Public Resources Code section 21167(a) provides that an action “alleging that a public agency is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project might have a significant effect on the environment shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project”. Public Resources Code section 21167.6 (a) further requires that the public agency be served not later than 10 days after such cause of action is filed. Petitioners noted that, under the 180-day limitations period, their petition was timely filed and served.
Applying de novo review, the court determined that while the Government Code section 65009 applied broadly to Petitioners’ substantive and procedural challenges to City’s decision to authorize the tree removal pursuant to applicable planning and zoning law, the challenge pursuant to CEQA was not barred by the 90-day limitations period, despite the fact that both the CEQA limitations period and the 90-day limitations period were of equal authority and could both be applied to the relevant facts.
The court noted that, as a general rule, if two statutes relate to the same subject, the more specific of the two will prevail unless they can be reconciled. The court explained that, in order to reconcile Government Code section 65009 and Public Resources Code sections 21167(a) and 21167.6 (a), , they must be “construed in reference to each other so as to harmonize the two in such a way that neither become surplusage.” Here, the court determined that the two statutes could not be reconciled because there was no way to apply both limitations periods without rendering one statute superfluous. Since the two limitations periods could not be reconciled, the court concluded that the more specific period in Public Resources Code sections 21167(a) and 21167.6 (a) must prevail, and that to apply the 90-day limitations period would impermissibly shorten the limitations period provided pursuant to CEQA.
Accordingly, the court upheld the lower court decisions as to Petitioners’ general challenge to City’s decision, concluding that any decision” by a “legislative body” regarding a variance, a conditional use permit, or other permit provided for by a local zoning ordinance must be filed and served within 90 days of the decision, but reversed the trial court’s judgment as to Petitioners’ CEQA challenge, concluding that Petitioners’ CEQA claim was not time-barred since the longer statute of limitations applicable to such claims applied.
- Opinion by Justice Pollak, with Presiding Justice Siggins and Judge Ross of the Superior Court of California, County of San Francisco, sitting Pro Tem, concurring.
- Trial Court: Superior Court of Contra Costa County, Case No. MSN17-1142, Judge Steven K. Austin.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g. under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).