Superior Court of Marin County, No. A133109, Lynn Duryee, Judge. (Marin County Super. Ct. No. CIV1004866)
The opinion of the court was delivered by: Pollak, Acting P. J.
CERTIFIED FOR PUBLICATION
Can a public agency and a party disputing the adequacy of an environmental impact report (EIR) prepared in connection with the adoption of a general plan amendment effectively agree to toll the limitations period for filing a petition challenging the adequacy of the EIR? We agree with the trial court that they may do so and that the court properly sustained a demurrer to a complaint in intervention alleging the untimeliness of the petition that was later filed when the negotiations prompting the tolling agreements failed to produce a settlement.
On September 14, 2010, Salmon Protection and Watershed Network (SPAWN)*fn1 filed a petition for a writ of mandate against the County of Marin and its board of supervisors (collectively, the county) alleging the EIR that the county certified in connection with the adoption of the Marin Countywide General Plan Update (Update) failed to comply with the requirements of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)*fn2 The county certified the EIR and filed a notice of determination in compliance with section 21152, subdivision (a) and section 15094 of the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15094) on November 6, 2007. Subsequently, SPAWN and the county entered a series of tolling agreements extending the 30-day limitation period in section 21167 for the filing of a complaint challenging the sufficiency of the EIR until September 14, 2010, during which time the parties engaged in unsuccessful settlement negotiations. In March 2011 a group of property owners was granted leave to intervene to allege that SPAWN's petition is untimely because the purported agreement tolling the statute of limitations is not permitted under CEQA. Following briefing and argument, the trial court sustained without leave to amend demurrers to the complaint in intervention filed by SPAWN and by the county, holding that the tolling agreements are not prohibited by CEQA or by Government Code section 65009, upon which the interveners also relied. The court observed, "CEQA encourages parties to avoid litigation through pretrial settlements and negotiated dispositions, which may include the use of tolling agreements."
The Marin Countywide General Plan requires the county to implement stream conservation area policies, and the Update in connection with which the EIR was prepared does so for the San Geronimo Valley watershed. SPAWN challenges the adequacy of the cumulative impacts analysis in the EIR. Its petition prays for a writ of mandate ordering the county "to set aside its CEQA findings in relation to impacts on coho salmon and steelhead in the San Geronimo watershed and to prepare a supplemental EIR that properly addresses the impacts of the [Update] and the potential for mitigation and/or alternatives that would avoid or substantially reduce significant impacts to these species," and for an injunction prohibiting the county "from approving development projects within stream zones in the San Geronimo watershed until the county has complied with the writ."
Interveners are owners of properties within the affected area of the San Geronimo Valley watershed. Their complaint in intervention alleges that "[t]he pendency of the action creates uncertainty . . . about what 'development' if any will be allowed on their properties in the future, and this in turn reduces the present value of their properties. [¶] The injunctive relief sought by the petition would directly and immediately restrict interveners from any development, or further development, on their properties, and this would interfere with their freedom to use their properties in a manner consistent with the County general plan and pertinent zoning. This in turn would cause or continue diminution in the value of their properties." Alleging that CEQA, "taken as a whole, evidences a legislative intent that the limitations stated in section 21167 are mandatory and jurisdictional" and that the tolling agreements therefore were ineffective, interveners requested the court to find that SPAWN's petition was untimely filed and to dismiss the petition.
The county, although defending the sufficiency of the EIR, joins SPAWN in defending the validity of the tolling agreements. The League of California Cities, the California State Association of Counties, the California Building Industry Association, and the Sierra Club have filed amicus briefs arguing that tolling agreements serve a constructive function, are regularly entered and do not violate any statutory proscription.
Following the dismissal of the complaint in intervention, interveners have timely appealed.
Section 21167, subdivision (b) provides: "An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by . . . subdivision (a) of section 21152." Interveners contend this limitation can neither be waived nor tolled by agreement.
Interveners are correct that there is a strong public policy, recognized in numerous decisions, favoring the prompt disposition of CEQA challenges. CEQA not only requires the prompt filing of complaints alleging that a project has been approved in noncompliance with any of its provisions (§ 21167), but the act establishes numerous shortened time limits for the conduct of the litigation and the rendering of a final decision (e.g., §§ 21167.1, 21167.4, 21167.6). There is "a key policy served by these statutes: 'the prompt resolution of challenges to the decisions of public agencies regarding land use. [Citation.]' [Citation.] CEQA 'contains a number of provisions evidencing the clear "legislative determination that the public interest is not served unless challenges under CEQA are filed promptly" [citations].' . . . 'Patently, there is legislative concern that CEQA challenges, with their obvious potential for financial prejudice and disruption, must not be permitted to drag on to the potential serious injury of the real party in interest.' " (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 50; see also, e.g., Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500 ["CEQA's purpose to ensure extremely prompt resolution of lawsuits claiming noncompliance with the Act is evidenced throughout the statute's procedural scheme."].)
There is an equally strong public policy, however, recognized in just as many cases, to encourage the settlement of controversies in preference to litigation. Our Supreme Court "recognized a century ago that settlement agreements ' "are highly favored as productive of peace and good will in the community," ' as well as ' "reducing the expense and persistency of litigation." ' [Citation.] The need for settlements is greater than ever before. 'Without them our system of civil adjudication would quickly break down.' " (Neary v. Regents of the University of California (1992) 3 Cal.4th 273, 277; see also, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1166 ["Settlements of disputes have long been favored by the courts."].) Indeed, CEQA itself includes provisions encouraging the parties to reach a settlement after litigation has commenced (§§ 21167.8, 21167.9) and, in 2010, section 21167.10 was added to the statute to authorize prelitigation mediation which automatically tolls the statutory limitation periods until the completion of the mediation (§ 21167.10, subd. (d); Stats. 2010, ch. 496, § 9).*fn3
If all parties directly involved in a controversy concerning the adequacy of an EIR or compliance with other provisions of CEQA are disposed to seek a mutually acceptable means of resolving the controversy and agree to toll the period for commencing litigation, the interests of both those parties and the public are promoted by permitting the settlement discussions to proceed without the distraction of litigation. If those challenging compliance with CEQA must file suit within the short 30-day deadline or lose their right to do so, time and effort that otherwise could be devoted to the search for common ground would be devoted to the demands of litigation--from preparing the pleadings to complying with the accelerated schedule required of CEQA litigation. The parties would be required to devote themselves and their resources to sharpening ...