Ct.App. 6 H030986 Santa Clara County Super. Ct. No. CV065186. Judge: Leslie C. Nichols.
The opinion of the court was delivered by: Corrigan, J.
In general, challenges to governmental action under the California Environmental Quality Act (CEQA)*fn1 face unusually short statutes of limitation. (§ 21167.) Most limitation statutes are triggered by the filing of a public notice, which reports an agency's determination about the applicability of CEQA or the potential environmental impact of a project. (§§ 21108, 21152.) As we explain in greater detail, an action challenging this determination must generally be brought within 30 days after the notice is filed. (§ 21167, subds. (b), (c) & (e).)
This case involves a particular kind of challenge following a notice of determination (NOD). If an NOD has been filed, but an action alleges that no environmental review was undertaken, which statute of limitations applies: (1) the general 30-day limit on challenges following a notice, or (2) the longer 180-day period provided for a case alleging that no environmental determination was made (§ 21167, subd. (a))? We hold that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. This interpretation is consistent with the language of section 21167 and the general approach of all notice-based statutes of limitation. The Legislature clearly intended the 30-day statute to apply when an agency files an NOD, and this limitations period may not be extended based on the nature of the CEQA violation alleged.
Because the Court of Appeal reached a contrary conclusion, we reverse that judgment.
In 2000, the Leland Stanford Junior University (Stanford) applied for a community plan and general use permit (Permit) to add buildings on its campus. An environmental impact report (EIR) prepared for the overall project (the Permit EIR) identified potential environmental effects and proposed specific mitigation measures. The Permit EIR found that the development would significantly impact public access to recreational facilities. In addition to requiring improvements to area parks, a mitigation measure in the Permit EIR directed that Stanford dedicate certain trail easements shown on the Santa Clara County (County) Trails Master Plan*fn2 and coordinate with the County parks department regarding the trails' locations, uses, construction and management. On December 12, 2000, the County's Board of Supervisors (Board) certified the Permit EIR and approved the Permit. The Permit was expressly conditioned on satisfaction of mitigation measures discussed in the Permit EIR. Relevant here, condition I.2 required Stanford to "dedicate easements for, develop, and maintain the portions of the two trail alignments which cross Stanford lands shown in the 1995 Santa Clara Countywide Trails Master Plan (Routes S1 and C1) . . . ." Specifically, within one year after Permit approval, Stanford was required to identify trail easements and reach agreements with the County on issues of trail construction, management and maintenance.*fn3
Stanford and County staff proposed an agreement in December 2001, but the Board took no action and directed the parties to explore other alternatives for alignment of the S1 trail. In June 2002, the Board directed County staff to proceed with environmental analysis of five S1 routes and four C1 routes. A dispute soon arose about the location of the C1 route, and the Board directed that work be suspended on the C1 alignment. Analysis of the S1 alignment proceeded, however, and a supplemental EIR (SEIR) analyzing three potential S1 routes was published on September 20, 2004. A final SEIR for the S1 trail was completed and presented to the Board on September 13, 2005.
Stanford and the County explored possible alignments for the C1 trail on both sides of San Francisquito Creek. An alignment on the western side would require the agreement and cooperation of San Mateo County, the City of Menlo Park, and the Town of Portola Valley. A trail located on the eastern side would be within Santa Clara County's jurisdiction. However, the eastern alignment was thought to have potentially significant environmental impacts, and County staff believed regulatory approval could be difficult to obtain. On September 13, 2005, the Board instructed County staff to pursue an agreement with Stanford on the location of the C1 alignment.
Subsequent negotiations produced the "Trails Agreement,"*fn4 which was presented to the Board in December 2005. The Trails Agreement recites that its purpose is to satisfy condition I.2 of the Permit. Stanford agreed to dedicate easements for the S1 trail and portions of the C1 trail, construct and maintain the S1 trail, and fund improvements to the C1 trail by providing $8.4 million to San Mateo County and $2.8 million to the Town of Portola Valley. The agreement also requires that Stanford provide $1.05 million to the Town of Los Altos Hills for improvements to the C2 connector trail.*fn5 These funds were intended to pay for C1 trail construction and for "costs to comply with CEQA or to implement mitigation measures . . . ." A map attached to the Trails Agreement shows the C1 trail on the western side of San Francisquito Creek. Elsewhere, however, the agreement explains that this route is "only one possible alignment." The final placement of the C1 trail would depend on further environmental analysis and Stanford's agreement with San Mateo County and the Town of Portola Valley.
On December 13, 2005, the Board authorized the County to enter the Trails Agreement. It also made numerous CEQA findings about existing and proposed trails and certified a final SEIR for the S1 trail. The Board found that no CEQA review was currently required for the C1 trail because approval of the Trails Agreement did "not constitute County approval of construction, operation or maintenance of specific trail improvements" of the C1 trail. Instead, the Trails Agreement contemplated that, before any trail improvements were made, "detailed construction plans [would] be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley and Town of Los Altos Hills . . . ." The Board observed that when these jurisdictions ultimately consider detailed designs and construction plans, "they will be required by CEQA to determine the type and extent of environmental review that is necessary for their actions," and the Trails Agreement provides funds to pay for this environmental review. Accordingly, the Board concluded the County was not required to conduct further CEQA review before entering into the Trails Agreement. The Board thus implicitly determined this aspect of the agreement did not constitute a new project subject to independent CEQA review. Because the agreement obligated Stanford to build trail segments on its own land and to provide funding "for trail construction and environmental compliance" on segments outside the County, the Board found that Stanford had satisfied Permit condition I.2.
On December 16, 2005, the County filed an NOD with the county clerk. The notice described only the S1 trail alignment. It reported that an EIR had been prepared for this trail project and findings had been made "pursuant to section 15091 of CEQA."*fn6 Four days later, on December 20, 2005, the County filed a revised NOD. The revised notice included the C1 and C2 trail routes in its description of the project and identified the Board's actions with respect to the trail alignments as part of the project description. Specifically, the notice reported that the County had approved an agreement for the C1 and C2 alignments, but had not approved any specific trail improvements. It explained that plans for such improvements would be reviewed and considered by San Mateo County and the towns of Portola Valley and Los Altos Hills. The revised NOD again stated that an EIR had been prepared and findings made under CEQA. The revised NOD was posted for 30 days, from December 20, 2005, through January 19, 2006.
On June 9, 2006, 171 days after the revised NOD was filed and posted, the Committee for Green Foothills (Committee) filed a petition for writ of mandamus challenging the County's approval of the Trails Agreement. The Committee complained that the County had violated CEQA by approving a C1 trail alignment located in San Mateo County and Portola Valley without having conducted the necessary environmental review. The County demurred on the ground that the petition was barred by the statute of limitations. The court took judicial notice of both NOD's and sustained the demurrer, reasoning that the timely filing of the notices had triggered the 30-day statute of limitations in section 21167, subdivisions (b), (c) and (e). Although the court initially allowed the Committee leave to amend, it later sustained a demurrer to the amended petition without leave to amend and entered judgment in favor of the County and Stanford.
The Court of Appeal reversed and directed the trial court to grant the Committee another opportunity to amend the petition. The Court of Appeal concluded there was "a reasonable possibility" the Committee could allege facts sufficient to bring its case within the 180-day statute of limitations for actions claiming that an agency approved a project without having determined its potential environmental effects. (§ 21167, subd. (a).) We reverse.
On review from an order sustaining a demurrer, "we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose. [Citations.]" (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We may also consider matters that have been judicially noticed. (Serrano v. Priest (1971) 5 Cal.3d 584, 591; City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870.) " `A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]' [Citation.]" (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.)
II. Statute of Limitations
Whenever a local agency "approves or determines to carry out a project" that is subject to CEQA, the agency must file an NOD within five working days in the county clerk's office of each county where the project will be located. (§ 21152, subd. (a).)*fn7 The notice must reflect the agency's determination as to whether the project will have a significant effect on the environment and must state whether an EIR has been prepared. (§§ 21108, subd. (a), 21152, subd. (a).) A similar procedure is required if the agency decides to embark on a project it believes is exempt from CEQA (§§ 21080, subd. (b), 21172). If a local agency finds a project is exempt from CEQA, it must file a notice of exemption with all appropriate county clerks. (§ 21152, subd. (b).) Both types of notice must be available for public inspection for 30 days. (§§ 21108, subd. (c), 21152, subd. (c).)
The purpose of these filings is to alert the public about environmental decisions. "Public notification serves the public's right `to be informed in such a way that it can intelligently weigh the environmental consequences of any contemplated action and have an appropriate voice in the formulation of any decision.' (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 804.) This public participation assists the agency in weighing mitigation measures and alternatives to a proposed project. ...