Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:

Regulatory Developments

The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.

OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.

Case Law Developments

There have been some interesting developments since my December 11, 2018 post on the First Appellate District Court of Appeal’s grant of rehearing of its October 23, 2018 published opinion in Save Lafayette Trees v. City of Lafayette (Pacific Gas and Electric Company, Real Party in Interest), Case No. A154168. (As background, a grant of rehearing serves to vacate the original opinion and sets the matter at large in the Court of Appeal; as full disclosure, I represented PG&E in this matter.)

The supplemental briefing on rehearing called for by the Court was completed on January 11, 2019. That briefing addressed the issue whether Appellants’ CEQA cause of action challenging the City’s land-use approval decision was time-barred (as found by the trial court) because Appellants failed to serve it within 90 days of the date of the challenged decision (as required by the statute of limitations contained in Government Code § 65009(c)(1)(E), part of the Planning and Zoning Law). While the issue on rehearing was under consideration, but prior to any new decision, Real Party PG&E’s much-publicized bankruptcy petition filing occurred on January 29, 2019, thereby effecting an automatic stay of litigation against debtor PG&E under federal bankruptcy law. Thereafter, on February 8, 2019, the First District filed its published opinion after rehearing, reaching the same result as it previously did – that the CEQA claim was not time-barred – but this time with fractured reasoning featuring additional lead opinion text and an approximately two-page concurring opinion.

The First District’s new published lead opinion (by Presiding Justice Pollak) continues to “distinguish” the Fourth District’s conflicting published appellate decisions in Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110 (“Royalty”) and Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743 (“Friends”) “on the ground that this case involves the longer time limit in Public Resources Code section 21167, subdivision (a) rather than the 30-day limit found in subdivision (b).” The lead opinion reasons that “[i]n Royalty the more specific provision in the Public Resources Code imposed a shorter limitation period, whereas in this case requiring service within 90 days would impermissibly cut in half the 180-day period for filing the CEQA action under the Public Resources Code[,]” which the lead opinion deems a “conflict [that] cannot be reconciled.” Interestingly, it supports this conclusion with a lengthy footnote citing reasoning in an unpublished 2006 opinion from the Second District. The lead opinion further reasons that even if Government Code § 65009’s 90-day statute of limitations for service and filing is considered to be the “more specific” statute, the complaint was timely filed within the 90-day period, and was timely served under CEQA’s 10-day period allotted for service under Public Resources Code § 21167.6, which the Court considers a “directly contradictory” provision that contains prefatory language stating it applies “[n]otwithstanding any other law.” Conspicuously absent from this portion of the opinion’s discussion is any mention of the legislative intent underlying the 90-day filing and service statute of limitations of Government Code § 65009(c)(1), its plain language stating it applies to bar “all persons” from “any further action or proceeding” after it expires (§ 65009(e)), and its expressly stated intent not to displace shorter statutes of limitations. (§ 65009(g).)

The concurring opinion (by Justices Siggins and Ross) agrees the CEQA claim was timely served under Public Resources Code § 21167.6; like the lead opinion, it does not explore the correctness or consequences of treating that service provision as a conflicting CEQA “statute of limitations” – something prior published decisions addressing it have never done. (Rather, prior decisions have stressed that the 10-day service provision does not impose a strict deadline, and can be extended indefinitely for good cause – characteristics which are the antithesis of a “statute of limitations”.) Interestingly, the two-justice concurrence (which forms the majority view on the CEQA issue) departs from the lead opinion in finding it unnecessary to address whether the time for filing the CEQA claim was governed by Public Resources Code § 21167’s 180-day period or Government Code § 65009’s shorter 90-day period since in this case there was no conflict between the two to be resolved here – the petition was undisputedly timely filed, even assuming the shorter statute of limitations applied, and therefore timely service was the “critical question.” The concurring opinion relies on the CEQA service provision’s “[n]otwithstanding any other law” language to conclude it controlled, and finds it unnecessary to engage in the “specific/general” analysis that the lead opinion adopts from Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847 and cites “to conclude that the CEQA statute of limitations [prevails because it] . . . is a narrower statutory scheme . . . .” The concurring opinion differs from the lead opinion on this point, stating: “Because the CEQA claim was timely filed and served this case does not require us to decide whether CEQA or the planning and zoning law is narrower and controls. We would defer that issue until presented with a case where its resolution will be material to the outcome.”

Neither opinion addresses the effect (if any) of the automatic bankruptcy stay.

What takeaways can be gleaned from the First District’s interesting new published opinion in this matter? As underscored by the concurring opinion, there is no majority holding as to whether CEQA’s 180-day statute of limitations for filing (Pub. Resources Code, § 21167(a)) would prevail over Government Code § 65009(c)(1)’s 90-day statute of limitations (which applies to both filing and service) in the event of a conflict because there was no conflict as to timely filing on the facts here – the petition (including its CEQA claim) was filed on the 90th day, thus complying with both statutes in that regard. Yet the perceived “conflict” between CEQA’s 180-day filing statute and the 90-day Government Code statute plainly drove the reasoning in the lead opinion, as reflected by the grounds it cited to distinguish Royalty and Friends, and by its remark that applying a 90-day service period would cut CEQA’s 180-day filing period in half.

Despite the issue being raised in the supplemental briefing, the lead and concurring opinions did not appear to recognize that CEQA’s “10-days after filing” service provision in § 21167.6 – located in a separate statutory section from its statute of limitations, which is contained in § 21167 – has never previously been construed as a “statute of limitations” for service that could “directly conflict” (and thus compete) with the “absolute” 90-day service limitations period of Government Code § 65009(c)(1) recognized in Royalty and Friends. Apart from the split the decision creates with those published Fourth District precedents, the ramifications of the opinion’s treatment of § 21167.6’s service provision as a “statute of limitations” were not explored; suffice to say that if this published decision stands, such ramifications could be highly unfavorable for future CEQA plaintiffs who timely file but fail to timely effect service of their actions. In essence, the reasoning of the Court in this case cannot be reconciled with the Fourth District’s precedents and appears to create an interesting new statute of limitations hurdle for CEQA plaintiffs in future cases in the First District. As CEQA practitioners will discover upon reading this case, Royalty, Friends, and the decision in Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830 cited in those decisions, this is the first published California case holding that CEQA’s 10-day service provision operates as a statute of limitations, which competes with and trumps the 90-day service statute of limitations of Government Code § 65009(c)(1). Unlike CEQA defendants in the Fourth Appellate District, First District defendants should now, logically, have two bites at a statute of limitations defense in CEQA cases, at both the filing and service stages. Stay tuned….

Other Developments

Finally, I’m honored to be co-presenting on a panel with Jonathan Shardlow on March 18, 2019, at this year’s excellent California Land Use Law & Policy Conference, at the Omni Hotel in Los Angeles. My panel starts at 3:30 p.m. and is entitled “The California Supreme Court and CEQA: What the Recent Decisions Tell Us About the Future of CEQA Review.” In addition to discussing recent Supreme Court decisions and grants of review, we will discuss ostensible splits and inconsistencies in published case law and what issues may be ripe for future Supreme Court review. Should be an interesting and lively discussion . . . hope to see you there!