(Super. Ct. No. CV024375) APPEAL from a judgment of the Superior Court of San Joaquin County, Lesley Holland, Judge.
The opinion of the court was delivered by: Blease , Acting P. J.
CERTIFIED FOR PUBLICATION
Plaintiffs Stockton Citizens for Sensible Planning, Rosemary Atkinson, Paul Diaz, and Susan Rutherford Rich petitioned for writ of mandate to direct defendants City of Stockton (City) and Stockton City Council to vacate its approval of a Wal-Mart Supercenter in the A.G. Spanos Business Park Development in Stockton. After our Supreme Court issued its decision in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 489 (Stockton Citizens), holding that plaintiffs' California Environmental Quality Act (CEQA; Pub. Resources Code § 21000 et seq.) cause of action was barred because the suit was not commenced within 35 days after the notice of exemption (NOE) for the project was filed (Pub. Resources Code, § 21167, subd. (d)), the trial court entered judgment on the pleadings in favor of City and real parties in interest Wal-Mart Stores, Inc. (Wal-Mart), A.G. Spanos Construction, Inc. (Spanos), and Doucet & Associates, Inc. (Doucet) on plaintiffs' remaining claims on the ground they were time barred under Government Code*fn1 section 65009, subdivision (c)(1)(E), because the suit was not commenced within 90 days after City approved the project.
Plaintiffs appeal, contending City's approval of the project, which was in the form of a letter to real parties from the director of City's Community Development Department (Director), did not trigger the 90-day limitations period under section 65009, subdivision (c)(1)(E), because that subdivision is limited to challenges concerning variances and permits issued after a decision by a legislative body.
We shall conclude that section 65009, subdivision (c)(1)(E), is not so limited, and that it applies to the Director's approval of the Wal-Mart Supercenter project because the Director was acting as City's zoning administrator and was exercising powers granted by local ordinance when he approved construction of the Wal-Mart Supercenter. Because plaintiffs' second cause of action alleging planning and zoning violations was not commenced within 90 days of the project's approval, we shall conclude it is time barred. Because the remaining causes of action are dependent upon the timeliness of the second cause of action, we shall further conclude that those causes of action are barred as well. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On review of a judgment on the pleadings, we accept as true facts pleaded in the complaint and subject to judicial notice. (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738 (Wise).)*fn2 Because this appeal concerns the narrow issue of whether plaintiffs' causes of action are time barred, a detailed recitation of the facts is not required. Suffice it to say that on December 15, 2003, the Director wrote to Doucet concerning its "recent submittal of the Site Plan, Pre-Expansion Elevations, Post-Expansion Elevations and Conceptual Landscaping Plan." That letter stated in pertinent part: "Initial 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."*fn3
On February 17, 2004, City, through the Director, filed with the county clerk an NOE for the project. The NOE gave the location of the project as the "Northwest corner of Trinity Parkway and Consumes Drive, City of Stockton," stated that the project was located on approximately 22.38 acres within the A.G. Spanos Business Park Development, "a fully entitled master planned development governed by a Master Development Plan . . . adopted . . . on January 9, 2002," and described the project as "a retail use consistent with the Development Plan," to be built in two sequential phases, of approximately 138,272 and 68,888 square feet respectively. Announcing City's finding of a CEQA exemption, the NOE declared that the 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 . . . ."
On April 6, 2004, William D. Kopper, plaintiffs' attorney, wrote to City opposing the issuance of a use permit allowing the Wal-Mart Supercenter to sell alcoholic beverages.
On July 22, 2004, plaintiffs initiated the instant action by filing a verified petition for writ of mandate, alleging that City and real parties in interest had violated CEQA (first cause of action), planning and zoning laws (second cause of action) and California's Constitution (third cause of action). The petition also included derivative claims for injunctive (fourth cause of action) and declaratory relief (fifth cause of action).
City and real parties in interest demurred to the CEQA claims, and moved to strike them, on the ground they were untimely because the suit had not been commenced within 35 days after the filing of the NOE. (Pub. Resources Code, § 21167, subd. (d).)*fn4 The trial court overruled the demurrer and denied the motion to strike, finding that the resolution of the CEQA limitations issue depended on whether the Director's December 15, 2003, letter to Doucet constituted City's "approval" of the project, an issue that could not be decided on the face of the pleadings.
Ultimately, the trial court rejected the statute of limitations defense on the merits and issued a peremptory writ of mandate, ordering City to set aside all approvals and permits for the Wal-Mart Supercenter project, and to prepare a new environmental impact report addressing the project's environmental implications. On the limitations issue, the trial court reasoned that City's filing of the NOE could start the running of the 35-day limitations period only if the NOE gave notice that City had "approv[ed]" a project it deemed to be exempt from CEQA. The court determined the Director's December 15, 2003, letter, upon which the NOE was based, was not such an "approval" because it was entitled " 'Status Report,' " it was only a letter "not a formal order of approval," it included five conditions that required further action by the applicant, and it found that the submitted proposal was only in "substantial" compliance with the MDP. Thus, the court concluded, plaintiffs had 180 days to file suit, and their action was thus timely.
Spanos and Wal-Mart appealed, again asserting the CEQA claims were untimely under the 35-day limitations period set forth in Public Resources Code, section 21167, subdivision (d). We affirmed the trial court's decision but the Supreme Court granted review and reversed (Stockton Citizens, supra, 48 Cal.4th at p. 489). The court rejected the notion that unless the agency has validly approved a project, its filing of an NOE--the triggering event for the 35-day limitations period--has no force or effect and cannot cause the 35-day limitations period to begin to run. (Id. at p. 504.) Rather, the court held that "persons seeking to challenge an agency decision on CEQA grounds may not, for purposes of the statute of limitations, go behind the agency's declaration in an NOE that it has approved a project. Instead, they must bring their action within 35 days after the NOE is filed and posted." (Id. at p. 501, fn. 10.) The court found that "the Director's letter of December 15, 2003, represented City's final decision, correct or mistaken, that the Wal-Mart construction project could go forward. Unless a timely legal challenge to this decision was successful on the merits, nothing further was required to allow the construction process to commence." (Id. at p. 510.) The court further observed that the NOE complied with CEQA's requirements and provided petitioners with adequate notice of City's approval of the project to trigger CEQA's 35-day statute of limitations. (Id. at p. 515.) The court also determined that the NOE provided plaintiffs adequate inquiry notice of the Director's approval to trigger their duty to investigate the potential for other grounds for challenging that ...