On December 15, 2014, the Second District Court of Appeal (Division 6) issued a pithy published opinion affirming the Ventura County Superior Court’s judgment.  The judgment granted a peremptory writ of mandate requiring Ventura County to prepare a supplemental EIR for a completed medical clinic building on the Ventura County Medical Center Campus (campus).  Ventura Foothills Neighbors v. County of Ventura (2d Dist., Div. 6, 2014) ____ Cal.App.4th ____, 2014 WL 702189.

County originally certified an EIR for a 75-foot high, five-story ambulatory care clinic (clinic building) at a specific location on the campus in January 1994, and filed an NOD for the project at that time.  County then delayed construction for over a decade and, in May 2005, decided to relocate the clinic building 200 feet north and 160 feet west of the original location.  It prepared an addendum to the 1994 EIR concluding no subsequent or supplemental EIR was required and that the relocated building, which was represented as being virtually the same size and configuration as the original, would have fewer impacts on the views of nearby residents.  Neither the May 25, 2005 NOD filed for the addendum, nor the addendum itself, mentioned that the building would vary from the maximum 75-foot height stated in the EIR.

In May 2008, members of plaintiff group first learned, after inquiring during construction activity, that the building was actually to be constructed to a height of 90 feet.  In July 2008, plaintiffs sued under CEQA to compel an adequate supplemental EIR analyzing impacts of the changed project on residential views; in August 2008, plaintiffs’ motion for a preliminary injunction was denied; in October 2010, the clinic building was completed; and in January 2014, the trial court issued its order granting a peremptory writ of mandate directing County to prepare and recirculate a focused supplemental EIR, limited to height and profile impacts of the clinic building as built and where built to its 90-foot height, and directing County to consider appropriate mitigation (though not including height and size reduction) if it found a significant impact.

The County and various of its agencies (“County”) appealed, contending plaintiffs’ action was barred by CEQA’s 30-day statute of limitations based on the 2005 NOD. In rejecting this argument and affirming, the Court of Appeal reviewed the issue of applicability of the statute of limitations on undisputed material facts de novo.  It held the increase in the building’s height from 75 to 90 feet effected substantial changes to the project, requiring major revisions in the EIR, and that County’s conclusory arguments addressed solely to the building’s change in location, rather than its height increase, were insufficient to overcome the presumption of correctness attaching to the trial court’s judgment requiring a supplemental EIR.  Further, it called appellants’ argument that even a challenge based on a hypothetical doubling of the building’s height would be time barred “nonsense.”  While the filing of an NOD triggers a 30-day period “for all CEQA challenges to the decision announced in the notice” (quoting Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 39), the decision announced in the NOD here was relocation of the clinic building, not any increase in its height.  Because neither the NOD nor EIR addendum mentioned anything about any change in the clinic building’s height, the public received no formal notice about this change in the project and therefore CEQA’s maximum 180-day statute of limitations applied and began to run on May 22, 2008 – the date when plaintiffs’ members were first informed of the building’s height increase to 90 feet.  (Citing Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Association (1986) 32 Cal.3d 929, 939 [holding “if the agency makes substantial changes in a project after the filing of the EIR and fails to file a later EIR in violation of section 21166, subdivision (a), an action challenging the agency’s noncompliance with CEQA may be filed within 180 days of the time the plaintiff knew or reasonably should have known that the project under way differs substantially from the one described in the EIR.”].)  Since plaintiffs’ CEQA action was filed within this 180-day period, the court held it was timely.

Invoking the prose of Oliver Wendell Holmes, the Court of Appeal viewed the addendum’s and NOD’s complete failure to mention the project’s material height change, in a context where the project’s impacts on residential ocean views were obviously a major issue, as “government … [failing to] turn[] a square corner in dealing with some of its citizens – adjacent property owners – when it increased the height of a building in violation of the spirit, if not the letter, of [CEQA].”  The message to lead agencies seems clear:  When your project materially changes from that described in the EIR, proceed with caution when using an addendum and, in any event, disclose the material changes in both the NOD and addendum – or be prepared to lose the benefits of the shorter CEQA limitations period the NOD would otherwise trigger.