Why it matters: The 30 day statute of limitations for CEQA challenges was upheld to bar litigation alleging that a project, as constructed, was different from how that project was described in the CEQA document.
Facts: On January 24, 2007, the San Mateo County Community College District and San Mateo County College District Board of Trustees (collectively, District) approved a Mitigated Negative Declaration (MND) for the College of San Mateo Facilities Improvement Project (Project). The District filed a notice of determination (NOD) for the Project on February 15, 2007. Over four years later, on July 1, 2011, Citizens for a Green San Mateo (Citizens) filed a petition for writ of mandate, challenging the pruning and removal of trees conducted by the District in connection with the Project.
As contemplated in the MND, the Project’s improvements included the enhancement of entry and pedestrian corridors, traffic circulation improvements, renovation of various buildings and parking lots, building demolition, and construction of new buildings. With respect to tree removal—the subject of Citizens’ ire—the MND’s Project Description indicated that “Tree removal could occur [as] a result of building construction or demolition and would be compensated with the planting of replacement trees and vegetation around new or renovated buildings and parking lots, at campus entrances, at the proposed new roundabouts, and within the overall enhanced landscape design for the campus.”
Citizens contended that the District violated CEQA when it removed trees on the hillsides surrounding the campus, alleging that the “clear-cutting” of more than 200 mature trees was outside the scope of the Project and was not contemplated by the MND. As a result, Citizens asserted that the applicable statute of limitations was 180 days from the commencement of construction (i.e., the actual observance of the tree removal in January 2011) and not 30 days from the filing of the NOD in 2007 (Pub. Res. Code §§ 21108(a), 21152(a)). The District argued that Citizens’ challenge was untimely, even if the 180 day statute of limitations applied.
The Decision: The Court of Appeal denied Citizens’ petition for a writ of mandate, finding that the lawsuit was barred under both the 30- and 180-day statutes of limitations.
- 30 Day Statute of Limitations – Citizens argued that the tree removal component of the Project was materially different from the Project described in the MND and NOD, and that the 30-day statute of limitations was therefore inapplicable. This argument relied upon a narrow interpretation of the tree removal contemplated in the MND, with which the Court refused to agree. The Court’s rationale was as follows: “While it is true that the IS/MND and the NOD do not specifically refer to tree removal along the Loop Road, the references to the removal of an ‘unknown number’ of trees, together with the goal of visually enhancing the campus through a variety of ‘landscape hierarchies,’ arguably put the public on notice that trees could be removed anywhere on campus, including along the Loop Road.” The Court therefore found that the tree removal was not an independent project, as Citizens contended, but rather a subsequent activity encompassed within the original Project that only could have been challenged within 30 days from the filing of the NOD in 2007.
- 180 Day Statute of Limitations – The Court’s decision then takes the interesting—and unnecessary—step of applying the 180-day statute of limitations to Citizens’ claims, “[a]ssuming arguendo that the District failed to adequately notify the public of the tree cutting activities.” Public Resources Code Section 21167(a) imposes a 180 day statute of limitations for actions where a lead agency has not determined whether the project may have a significant effect on the environment. Here, the Court determined that the 180 days commenced in November 2010 when the contract for the Project improvements, including tree trimming, was approved. Among other things, the staff report issued in advance of that contract award specifically referenced the contract up for bid included “tree work at the North Perimeter Road [a.k.a. Loop Road] as directed by the local Fire Marshall.” Since the District's actions in November 17, 2010, triggered the 180 day limitations period in Section 21167(a), the Court concluded that Citizens’ July 1, 2011, petition was untimely. This conclusion provided the Court with a second reason to deny Citizens’ petition.
Practice Pointers: Our takeaways from Citizens for a Green San Mateo:
- This decision underscores the importance of filing an NOD after agency approval in order to rely on the 30-day statute of limitations. The Court liberally interpreted the description of tree trimming activities in the MND. Essentially, the Court said that Citizens were on notice that trees could be trimmed anywhere on the Project site based on the MND’s broad language and the Project’s overall goals. Project applicants should be as inclusive as possible in project descriptions, even where precise details are not known.
- The Court soundly rejected Citizens’ argument that notice is required to trigger the 180 day statute of limitations under Section 21167(a). According to the Court, all that is required is that the public agency make a formal decision to “carry out or approve the project.” Here, because the District held a hearing and prepared a staff report that described the tree trimming activities, the 180 day statute of limitations—even if one applied—ran from that date instead of the commencement of work.