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Alliance For the Protection of the Auburn Community Environment Et v. County of Placer

February 28, 2013

ALLIANCE FOR THE PROTECTION OF THE AUBURN COMMUNITY ENVIRONMENT ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF PLACER, DEFENDANT AND RESPONDENT; BOHEMIA PROPERTIES, LLC, REAL PARTY IN INTEREST AND RESPONDENT.



(Super. Ct. No. SCV0028200)

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

Alliance for Protection of Auburn Com Environment v. County of Placer

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant County of Placer (County) certified an environmental impact report (EIR) prepared by real party in interest Bohemia Properties, LLC (Bohemia) for the development of a 155,000-square-foot building (the project). Plaintiffs Alliance for the Protection of the Auburn Community Environment, Joseph H. Marman, and Lari L. Knedel (Alliance) filed a petition for a writ of mandate under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) challenging the project's approval and alleging CEQA violations. Bohemia filed a demurrer, which the County joined, arguing the petition was barred by the applicable statute of limitations. The court sustained the demurrer without leave to amend and denied Alliance's motion seeking relief on the grounds of mistake or excusable neglect. Alliance appeals, contending it is entitled to relief under Code of Civil Procedure section 473.*fn1 We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008 Bohemia submitted an application for the proposed development of the project. The County concluded the project required an EIR. A draft EIR was circulated, followed by a public comment period and eventually a final EIR.

The final EIR was circulated on June 16, 2010, and the County certified it on July 8, 2010. Alliance filed a written appeal of the certification on July 16, 2010. On September 28, 2010, the County held a public hearing on Alliance's appeal and again certified the final EIR. The notice of determination (NOD) was filed on September 29, 2010.

Based on the September 29, 2010, filing of the NOD, Alliance's petition challenging the EIR was due by October 29, 2010. However, Alliance filed its petition on November 1, 2010.

In its petition, Alliance argued the EIR did not comply with CEQA's requirements and the County based its approval on inadequate findings in violation of CEQA. According to Alliance, the EIR failed to analyze significant impacts posed by the project on air quality, traffic and circulation, and urban decay; failed to analyze cumulative impacts or mitigate impacts; and failed to consider a reasonable range of alternatives. Alliance contended the County violated CEQA by adopting findings not supported by substantial evidence.

Alliance submitted an ex parte application for relief on the grounds of mistake or excusable neglect, which was denied without prejudice on November 10, 2010. The court found the request premature since Bohemia had not yet challenged the filing of the petition as untimely.

In January 2011 Bohemia filed a demurrer to Alliance's petition, alleging it was not filed within the limitations period. Alliance filed a motion for relief under section 473 on January 19, 2011, and filed an opposition to the demurrer two weeks later.

The trial court concluded that Alliance's petition was barred by the mandatory provisions of Public Resources Code section 21167. Under section 21167, the 30-day statute of limitations within which to bring a challenge to the County's approval of Bohemia's EIR expired on October 29, 2010. As the court ...


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