Ct.App. 3 C050885 San Joaquin County Super. Ct. No. CV024375 Judge: K. Peter Saiers*fn1 and Carter P. Holly.
The opinion of the court was delivered by: Baxter, J.
The California Environmental Quality Act (CEQA or Act; Pub. Resources Code, § 21000 et seq.)*fn2 seeks to ensure that public agencies will consider the environmental consequences of discretionary projects they propose to carry out or approve. On the other hand, the Act is sensitive to the particular need for finality and certainty in land use planning decisions. Accordingly, the Act provides "unusually short" limitations periods (Cal. Code Regs., tit. 14, § 15000 et seq. (CEQA Guidelines), § 15112, subd. (a)) after which persons may no longer mount legal challenges, however meritorious, to actions taken under the Act's auspices.
The shortest of all CEQA statutes of limitations apply to cases in which agencies have given valid public notice, under CEQA, of their CEQA-relevant actions or decisions. The filing and posting of such a notice alerts the public that any lawsuit to attack the noticed action or decision on grounds it did not comply with CEQA must be mounted immediately.
Certain projects are statutorily exempt from CEQA, and these include "[m]inisterial projects" - those whose approval involves little or no exercise of discretion or judgment by the public agency. (§ 21080, subd. (b)(1) (section 21080(b)(1)); CEQA Guidelines, § 15369.) If a local agency determines that a project it has approved or decided to carry out is exempt for this reason, it may file a "notice of [this] determination" - otherwise known as a notice of exemption, or NOE. (§ 21152, subd. (b) (section 21152(b)); CEQA Guidelines, §§ 15062, 15374.) An action or proceeding alleging "that a public agency has improperly determined that a project is not subject to [CEQA]" must be commenced "within 35 days from the date of the filing" of the NOE. (§ 21167, subd. (d) (section 21167(d)); CEQA Guidelines, § 11512, subd. (c)(2).)
Here, under the ostensible authority of a previously adopted master development plan (MDP) for a large urban tract, the City of Stockton (City), through the Director of its Community Development Department (Director), purported to approve, as consistent with the MDP, the construction of a Wal-Mart Supercenter*fn3 on certain parcels within the tract. City then filed an NOE announcing its determination that the approval came within CEQA's exemption for ministerial actions.
Nearly six months later, plaintiffs filed this suit challenging the Wal-Mart approval under CEQA. To avoid the 35-day bar of section 21167(d), plaintiffs urge that, because the Director's "approval" was invalid and ineffective for various procedural and substantive reasons, the NOE was void and could not trigger the 35-day statute of limitations. Plaintiffs also contend the NOE itself was defective in form and content, and thus could not cause the 35-day limitations period to begin running.
The trial court and the Court of Appeal accepted such arguments, but we find them unpersuasive. We agree with appellants that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency's determination that it has approved a CEQA-exempt project. By describing the project in question, setting forth the agency's action or decision, and detailing the reasons for the exemption finding, this notice tells the public that the brief period within which a CEQA challenge to the propriety of the noticed action or decision may be commenced has begun to run.
Plaintiffs' claim that an NOE can trigger the 35-day limitations period only if it announces a valid project approval runs counter to the principle that limitations periods apply regardless of the merits of the claims asserted, and do not depend on whether a timely action would have been successful. It also contravenes the purpose of notice-based statutes of limitations, as well as the Legislature's intent - clearly expressed in section 21167(d) - that suits claiming an agency has "improperly determined" a project to be exempt from CEQA must be brought within 35 days after an NOE that complies with CEQA requirements is filed.
Hence, plaintiffs' claims that the Director's approval action was procedurally flawed, and substantively mistaken, cannot delay commencement of the 35-day statute of limitations triggered by City's filing of the NOE. Plaintiffs were free to claim, in a lawsuit, that the underlying approval process failed to comply with CEQA, but only if they commenced such litigation within 35 days after the NOE was filed.
We also reject plaintiffs' assertion that the NOE itself was defective in form and content, and thus failed to trigger the 35-day limitations period. The NOE, we conclude, demonstrates minimal compliance with CEQA. Plaintiffs' CEQA claims, contained in a lawsuit filed more than 35 days after the NOE was filed, are therefore barred. Accordingly, we will reverse the judgment of the Court of Appeal.
A.G. Spanos Park is a 1239-acre tract in northwest Stockton, bisected by Interstate 5 into 586-acre Spanos Park East and 653-acre Spanos Park West. In 1989, after completion of staged and supplemental environmental impact reports (EIR's), as required by CEQA, City had approved a plan for development of the entire tract that envisioned a mix of residential, commercial, recreational, and open-space uses. Spanos Park West would be divided into two broad components: a commercial component and a medium- to high-density residential component. The overall plan called for a total of 7,460 residential units, 2,983 of which were to be built in Spanos Park West. Thereafter, Spanos Park East was almost completely built out, and Spanos Park West was graded for residential development.
In 2001, due to changed market conditions, A.G. Spanos Construction Company (Spanos) proposed revisions in the plan for Spanos Park West. Under the revised proposal, 138 acres, designated The Villages at Spanos Park West (Villages), and originally slated for high-density residential development, would be rezoned single-family residential and developed with low- to medium-density housing. Another portion, designated as the A.G. Spanos Business Park (Business Park), would be placed in a mixed- use, or MX, zone (Stockton Planning & Zoning Code, § 16-075 et seq.),*fn4 intended to encourage the multiple-use development of large tracts, including high-density residential, business, professional, and retail, as set forth for each site in an MDP.
An MDP was prepared for the Business Park. The MDP declared it was intended to serve as "the primary land use and regulatory document that establishes the standards and strategies used to guide the course of development for a flexible plan mixed use project." (MDP, § 1.1.) Included within the MDP was a land use summary for the entire Business Park tract, which "indicate[d] the recommended primary land use and the range of land uses considered for each conceptual parcel in the Plan Area." (Id., § 3.3.1, italics added.) Four parcels within this zone, parcels 17, 17a, 18, and 19, comprising some 48 acres, were identified "primar[il]y" for multifamily residential development. (Id., table 3-1, Land Use Summary.)
A recurrent theme of the MDP was ensuring the ability to respond to changing economic circumstances during the development process, within the limits of general land use guidelines. The MDP's stated purpose was "to create the framework of maximum flexibility for the development of the Business Park while remaining consistent with the policies, general land uses and programs of the City's General Plan." (MDP, § 1.3.) Thus, the land use summary described above was said to "represent[ ] a possible pattern of uses that respond to market conditions and the developer's expectations at a specific point in time. Because of the inherent flexibility of the M-X zoning designation, the Conceptual Plan also represents a range of land use options that comply with the criteria established by the M-X Zone." (Id., § 3.3.1, italics added.) Up to 225,000 square feet of "[r]etail" space was listed among optional uses for adjacent parcels 17a, 18, and 19. (Id., table 3-1, supra.)
Concurrently with the MDP, and in return for residential density concessions in the Villages area, Spanos was to execute a Density Transfer Agreement (Density Agreement). This agreement obligated Spanos to construct a minimum of 935 multifamily residential units within the Business Park. (DTA, § 4.2.) Significant amendments to the MDP, and to the DTA (id., § 12.1), would require a noticed public hearing and legislative action by City's governing body. (Gov. Code, §§ 65867, 65867.5, 65768; Stockton Planning & Zoning Code, § 16-208.B.)
Once the MDP was adopted, an application for a project or use "that [was] not consistent with and [did] not share the same or similar characteristics of an allowed use identified within the [MDP]" could be approved only if the Business Park's Design Review Board recommended that the City issue a conditional use permit, and thereafter City's planning commission issued such a permit. If the planning commission's decision to issue the permit was then appealed to the city council, the council could uphold the decision only if it found, upon substantial evidence, that the proposed project or use would not create internal inconsistencies within the MDP and was consistent with the Business Park's goals and objectives. (MDP, § 8.3.)
However, under the MDP (id., § 8.2) and provisions of City's zoning ordinance (see Stockton Planning & Zoning Code, § 16-208.F), the Design Review Board and the Director were required to approve, on City's behalf, specific projects within the Business Park if they determined these projects were consistent with the MDP's criteria, goals, and purposes. A project approval by the Director could be appealed to the planning commission within 10 days. (MDP, § 8.4.)
A second supplemental EIR (the Spanos Park West SEIR) was prepared to evaluate the environmental implications of the revised Spanos Park West proposal. On January 29, 2002, after a duly noticed public hearing, the city council certified the Spanos Park West SEIR, made the necessary zoning changes, adopted the requisite amendment of City's general plan, and approved the MDP and the Density Agreement.
In the fall of 2003, Doucet & Associates (Doucet), acting on behalf of appellant Wal-Mart Stores, Inc. (Wal-Mart), submitted to the Design Review Board a detailed proposal and plans for a 207,000-square-foot retail store to be sited on parcels 17 and 17a of the Business Park, comprising some 22.38 acres. By a letter of October 29, 2003, the Design Review Board advised the Director that, in the board's opinion, "[t]he above project submittal is consistent and the design of the proposed retail development is in accordance with the standards and guidelines associated with the [MDP]."
On December 15, 2003, the Director wrote to Doucet, stating that "[i]nitial staff review of the above-noted plans has been completed and it has been determined that [they] are in substantial conformance with the Spanos Park West Master Development Plan," subject to five minor listed "corrections." The face of the December 15, 2003, letter indicates that copies were sent to Spanos, and to various City officials, including a deputy planning director, a plan check engineer, an assistant fire marshal, a senior environmental control officer, program managers in the City Public Works and Economic Development Departments, and a parks facility planner.
In a letter to the Director dated the next day, December 16, 2003, Spanos reported that it had constructed 308 of the 935 MX-zone multifamily residential units required by the Density Agreement, but that "due to high market demand for [c]ommercial [p]roperties, Spanos presently lack[ed] the space" within the zone to accommodate the additional 627 units. The letter therefore asked that construction of those units be postponed pending revision of City's general plan, and it offered Spanos's "assur[ance]" that the company would build the additional units, within 10 years, at other City locations. The Director countersigned the letter as "[a]pproved this 17th day of December, 2003."
On February 5, 2004, Judy Davidoff, an attorney at Steefel, Levitt & Weiss, wrote the Director on behalf of Wal-Mart. The Davidoff letter indicated "our understanding" that the Director's December 15, 2003, letter to Doucet constituted his approval of the plans for the construction of a retail store within the Business Park. Noting that section 8.4 of the MDP permitted an appeal to the planning commission within 10 days of the Director's decision approving such a project, the letter sought to "confirm that your December 15, 2003, letter was the `decision' required by [s]section 8.2 for the above project," and that the time for appeal of the decision had therefore passed. As confirmation, the letter asked the Director to initial and return an enclosed copy. In this mandate proceeding, the Director has declared that he initialed and returned the copy as requested, thus confirming he had approved the project as consistent with the MDP.*fn5
On February 17, 2004, City, through the Director, filed with the county clerk an NOE for the project. *fn6 The "Project Title," as set forth in the NOE, was a "Site Plan, Grading Plan, Landscape Plan, Building Evaluations and Design Approval under the Spanos Park West Master Development Plan." The NOE identified Doucet as the project "applicant," named Spanos as the "property owner," and described the location of the project - the A.G. Spanos Business Park - as "a fully entitled master planned development governed by" an MDP adopted in January 2002. According to the NOE, "the primary goal of the [MDP] is to create a mix of [high quality] compatible commercial businesses and office space." The specific subject of the NOE was described as a "retail use" to be constructed in two phases - the first of 138,722 square feet, and the second of 68,888 square feet - on parcels totaling some 22.38 acres. The NOE indicated that the project was located in an MX zoning district and that the "property's primary land use designation is commercial." Wal-Mart was not named in the NOE, and the project was not identified as a Wal-Mart Supercenter. The NOE declared that "[t]he [p]roject is consistent with the Development Standards set forth in the [MDP] and the proposed retail use and site layout meets the intent and standards of the [MDP] as well as the City of Stockton's General Plan and zoning regulations."
In larger, boldfaced lettering, the NOE included the following additional notification: "This is to advise that the City of Stockton Community Development Director, as directed and authorized under the Spanos Park West Master Development Plan (MDP1-00) has determined that the Site Plan, Grading Plan, Landscape Plan, Building Elevations and Design applicable to the Project conform to the standards set forth in the Spanos Park West Master Development Plan, which determination is a ministerial action not subject to CEQA review under Public Resources Code Section 21080(b)(1) and CEQA Guidelines Section 15369."
On February 24, 2004, Doucet applied for a use permit for off-sale of alcoholic beverages at the site of the proposed project. An attachment to the permit application again described the project as a 207,000-square-foot retail store, to be built in the Business Park in two stages. The attachment recited that staff had reviewed the proposed construction plans, and had determined they were consistent with City's zoning ordinance and the MDP.
The 35-day period following the filing of the NOE expired on March 23, 2004.*fn7 On March 15, 2004, well within that period, William D. Kopper, plaintiffs' attorney, wrote to City requesting that he be put on the notice list "for the proposed Wal-Mart Supercenter at the southwest corner of 8-Mile Drive and Interstate 5." Kopper's letter asked for "notice of Wal-Mart's application to build a Supercenter at this site, a copy of all staff reports, and the notice of any hearings."
On July 22, 2004, plaintiffs Stockton Citizens for Sensible Planning, Rosemary Atkinson, Paul Diaz, and Susan Rutherford Rich filed in San Joaquin County Superior Court a verified petition for writ of mandate. City and its council were named as defendants. Spanos, Doucet, and various "Does" were named as real parties in interest. By stipulated order, Wal-Mart was later added as a named real party in interest.
In its principal cause of action, the petition alleged that defendants and real parties had violated CEQA by proceeding with the Wal-Mart project without obtaining a new EIR to assess its environmental effects. According to the petition, though City's staff had determined the project to be consistent with the previously approved MDP for Spanos Park West, as addressed in the 2002 Spanos Park West SEIR, the new plan would allow a 207,000-square-foot retail store to be constructed on parcels designated by the MDP as primarily for high-density residential development. Thus, the petition asserted, the Wal-Mart project represented, in fact, a substantial deviation from the design, goals, and purposes of the MDP, and created new environmental issues not adequately addressed by the existing environmental study.*fn8
City, Spanos, Doucet, and Wal-Mart demurred to the CEQA claims, and moved to strike them, on grounds they were untimely, because the suit had not been commenced within 35 days after the filing of the NOE. The trial court overruled the demurrers and denied the motions to strike. The court reasoned that the CEQA limitations issue depended on whether the Director's December 15, 2003, letter to Doucet ...