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Latinos Unidos De Napa v. City of Napa et al

June 27, 2011

LATINOS UNIDOS DE NAPA, PLAINTIFF AND APPELLANT,
v.
CITY OF NAPA ET AL., DEFENDANTS AND RESPONDENTS.



Trial Court Napa County Superior Court Trial Judge Honorable Raymond A. Guadagni Honorable Francisca P. Tisher Napa County Super. Ct. No. 26-49634

The opinion of the court was delivered by: Marchiano, P.J.

CERTIFIED FOR PUBLICATION

Affordable housing advocates Latinos Unidos de Napa (plaintiff) filed a petition for writ of mandate against the City of Napa (City), its City Manager, and its Community Development Director (defendants) seeking to set aside the City's approval of revisions to the housing element of its general plan, and related general plan and zoning amendments (the Project), on the ground that an environmental impact report (EIR) for the Project is required. The City had concluded that the Project would not result in any new significant environmental effects that were not identified and mitigated in its 1998 general plan program EIR, and filed a notice of determination (NOD) to that effect with the county clerk. The court dismissed plaintiff's petition on statute of limitations grounds.

At issue in this appeal is Public Resources Code section 21152, subdivision (c), that requires the county clerk to post the NOD "for a period of 30 days."*fn1 We conclude calculation of the 30-day period under this statute is governed by Code of Civil Procedure section 12, which excludes the first day of posting and includes the last. We further conclude the NOD must be posted for the entire last (30th) day to satisfy the 30-day posting requirement. Consistent with these conclusions, we reverse the judgment of dismissal of plaintiff's case, which was based on the running of the statute of limitations.

I. BACKGROUND

On June 16, 2009, the City Council approved Resolution R2009 80 adopting the general plan housing element amendment, Resolution R2009 79 with conforming amendments to the land use element and map, and the first reading of Ordinance 02009 11 with conforming amendments to the zoning code and map. Section 21152, subdivision (a) provides that "[w]henever a local agency approves or determines to carry out a project that is subject to this division, the local agency shall file notice of the approval or the determination within five working days after the approval or determination becomes final, with the county clerk of each county in which the project will be located." On June 17, 2009, the City filed its NOD with the Napa County Clerk stating that no new EIR was required for the Project. The NOD was hand delivered by City staff to the county clerk on that date, and a cash register receipt for payment of an administrative fee shows that the county clerk received the document at 9:05 a.m.

Section 21152, subdivision (c) directs "[a]ll notices filed pursuant to this section shall be available for public inspection, and shall be posted within 24 hours of receipt in the office of the county clerk. A notice shall remain posted for a period of 30 days. Thereafter, the clerk shall return the notice to the local agency with a notation of the period it was posted." On July 17, 2009, Napa County Deputy Clerk Recorder Joan Jorgensen prepared and executed a "County Clerk's Certificate of Posting," in which she certified that she had posted the NOD in the county clerk's office "for the following time period: 6/17/2009 through 7/17/2009."

Jorgensen stated in declaration she had no specific recollection of the NOD in this case, but that her signature on the certificate of posting showed that she would have followed the office's standard procedure for NOD's in this instance. Jorgensen said when an NOD is received for filing and posting, it is "cashiered," "which creates an electronic record of the date and time payment is received. Immediately after the cashiering is completed, the Clerk who cashiered the notice stamps the original Notice 'filed' . . . Once the Notice is thus filed, a Deputy Recorder-Clerk then posts the original, filed notice on a bulletin board in the public area of the office for a period of at least 30 days after the date on which the notice is first posted (not counting the day on which the notice is first posted, so that there are actually at least 31 days during which the notice is posted all or part of the day). The normal procedure is to remove the filed, original notice no earlier than 4:00 p.m. (and usually between 4:30 and 5:00 p.m.) of the 30th day of the posting period, although it is possible that a notice could be removed earlier in the day."

Jorgensen said when an NOD is hand delivered by City staff, "we typically post it within less than an hour of its having been cashiered. Thus, the [NOD in this case] would have been posted by 10 a.m. on June 17, 2009. Based upon my signature on the County Clerk's Certificate of Posting and the fact that the certificate states that the notice was posted from June 17, 2009 through July 17, 2009, and based upon our office's standard procedures and the procedures which I normally follow, I am certain that the notice was posted at least until 10 a.m. (and likely later) on July 17, 2009. It was thus posted for at least a full 30 day period, from 10 a.m. on June 17, 2009, until at least 10 a.m. on July 17, 2009."

Plaintiff's counsel, David Grabill, stated in a declaration he and another attorney, Dylan Saake, went to the Napa County Clerk's office on the morning of July 17, 2009, to see if an NOD for the Project was posted. They did not find a posted NOD for the Project, and Grabill took a photo of the bulletin board at 11:29 a.m. to make a record of the date and time they inspected the posted documents. Saake executed a declaration corroborating Grabill's statements.

Plaintiff filed its petition for writ of mandate under the California Environmental Quality Act (§ 21000 et seq. (CEQA)), and complaint for declaratory and injunctive relief, against defendants on September 17, 2009. Additional causes of action were added in a first amended petition. Defendants moved for judgment on the CEQA cause of action on the ground that it was barred by the running of the 30-day statute of limitations set forth in section 21167, subdivision (e) because it was commenced more than 30 days after the filing of the NOD with the county clerk.*fn2 Plaintiff argued in opposition to the motion that the 180-day statute of limitations of section 21167, subdivision (a) applied because the filing and posting of the NOD failed to comply with statutory requirements. Plaintiff maintained the NOD was not posted for 30 days as mandated by section 21152, subdivision (c), and that the NOD was filed prematurely on June 17, 2009, because part of the Project, Ordinance 02009 11, was not finally approved until July 7, 2009.

The court rejected plaintiff's arguments, and granted defendant's motion for judgment on the CEQA cause of action. Plaintiff thereafter voluntarily dismissed its other causes of action, and judgment was entered for defendants from which plaintiff now appeals.

II. DISCUSSION

The Jorgensen declaration provided substantial evidence that the NOD in this case was posted over the course of 31 consecutive days, from 10:00 a.m. on June 17, 2009, until at least 10:00 a.m. on July 17, 2009. Plaintiff submits that this period of posting was insufficient to comply with the 30-day posting requirement of section 21152, subdivision (c) because the period of posting should be calculated pursuant to Code of Civil Procedure section 12, which states: "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." If the first day of posting is excluded here, the 30th day of ...


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