• email
  • share

180-day Statute of Limitations Applies Unless CEQA Notice of Determination is Posted for 30 Full Days

Latinos Unidos De Napa v. City of Napa

In Latinos Unidos, the First District Court of Appeal addressed calculation of the 30 day posting period for CEQA Notices of Determination.  Applying Code of Civil Procedure § 12, the court determined that the 30 days commences on the first day after the Notice of Determination is posted and continues through the entire 30th day.

The plaintiffs challenged the City of Napa’s housing element update and other related general plan and zoning amendments approved on June 16, 2009.  On June 17, the City filed a Notice of Determination with the county clerk.  Thirty days later, on July 17, 2009, the county clerk certified that the NOD had been posted for the time period of June 17 through July 17, 2009.  The certification assumed compliance with the clerk’s standard procedures of posting NODs within an hour of their filing and removing the posted NOD no earlier than 4:00 pm on the 30th day.  In spite of these standard procedures, the plaintiffs stated the NOD was not posted when they viewed the posting board about 11:29 am on July 17.

At issue in this case was CEQA § 21152(c), which requires that Notices of Determination be posted for a period of 30 days.  CEQA § 21167 provides that a 30-day statute of limitations for CEQA-based challenges begins upon filing the NOD.  If the NOD is not properly posted, the limitations period is 180 days from the disputed approval.  The court first reviewed Section 21167 which refers to “filing” but not posting an NOD and determined that consistent with prior caselaw and CEQA Guidelines §§ 15094 and 15112, the 30-day limitations period is triggered by filing and posting the NOD.  The court further determined that Code of Civil Procedure (CCP) § 12 governs the time period that the NOD is posted.  Under CCP § 12, the 30-day period excludes the first day of posting and includes the last.  Thus, the 30-day posting period for the City’s approvals properly began on June 18, 2009, not June 17 as shown in the clerk’s certificate.  The posting period properly continued through all of July 17, 2009, not some fraction of that last day.  Based on the plaintiff’s evidence that the NOD was not posted in the late morning of the last day and the clerk’s standard procedures of removing posted NODs at 4:00 pm on the 30th day, the NOD was not posted for 30 full days under CCP § 12, and the statute of limitations was 180 days rather than 30 days.

In light of the direct link between the 30-day posting period and the shortened statute of limitations, CEQA practitioners should ensure to the extent possible that NODs are properly posted for a full 30 days, recognizing that this process is largely controlled by the county clerk.  First, we recommend checking with the local county clerk to determine what their standard procedures are for filing and posting NODs.  Second, we recommend that local agency NOD transmittals to the county clerk include a specific request that the NOD be posted for a full 30 days, calculated in accordance with CCP § 12, with the period commencing the first day after the notice is actually posted, and continuing through 30 complete days.

For more information on the Latinos Unidos case or other CEQA processing and litigation matters, please contact our attorneys at 800.464.3559.