Court of Appeal Confirms (Again) that CEQA Statute of Limitations Runs from the First Project Approval

The Second District Court of Appeal confirmed again that the California Environmental Quality Act (CEQA) favors finality in rejecting a challenge to a subsequent project approval for a 42-single family home project in Los Angeles.

In Guerrero v. City of Los Angeles the Court of Appeal reversed a trial court judgment setting aside a mitigated negative declaration (MND) and requiring an Environmental Impact Report (EIR) for the project because petitioners did not sue within the 30 days after the Notice of Determination (NOD) for the MND and first project approval in 2020. Confirming long-standing law against re-opening CEQA for every subsequent action that implements a project, the Court held “later adoptions of the same MND cannot restart or retrigger a new limitations period.”

Background

As is not uncommon for many developments, the City’s approval of the project involved many steps and revisions of the project, during which the City filed numerous NODs. The City originally adopted the MND when the City’s Planning Department approved a vesting tentative tract map on March 3, 2020. On March 25, 2020, the City filed a NOD pursuant to CEQA Guidelines Section 15074. Then, in May 2020, the City’s Planning Commission approved various zoning determinations and adjustments for the project, and recommended the City Council adopt the zone change required for the project. A letter of determination was issued on January 14, 2021, and a second NOD was filed on February 4, 2021. On June 8, 2021, the City Council again adopted the MND, rezoned the site, and filed a third NOD on June 18, 2021. On July 16, 2021, Petitioners filed a challenge to the City Council’s 2021 project approvals.

Court of Appeal’s Findings

Petitioners claimed their CEQA claim was timely because it was filed within 30 days of the third NOD. The Court of Appeal disagreed finding “[i]t is the first approval that triggers the running of the statute of limitations, and later approvals do not restart the statute of limitations clock.” The Court based its decision on the following reasons:

  • Environmental Review Must Occur at Earliest Feasible Opportunity. The Court recognized that “[t]he mere possibility that a project may change as it moves through the planning process does not preclude applying CEQA’s requirements at the early stages of project review.” Here, the City properly conducted its environmental review before making any project approvals.
  • CEQA’s Statute of Limitations is Triggered by the First Project Approval, Even for Projects Subject to Numerous Discretionary Approvals. CEQA Guidelines, § 15378 further makes clear that a “project” subject to CEQA “refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” As the Court noted, “the City made its earliest firm commitment to the Project when it approved the vesting tentative tract map, even though there were conditions attached to the approval,” and, thus, that was the proper “project approval” for triggering CEQA’s limitations periods.
  • The 30-Day Statute of Limitations Applies Where an NOD is Filed. For these reasons, “[t]he City’s March 25, 2020 NOD was effective to trigger a 30-day statute of limitations on any challenge to the validity of the MND.”
  • A New Statute of Limitations is Triggered Only Where Subsequent or Supplemental Review is Required. The Court also noted CEQA’s statutory presumption under Public Resources Code section 21166 against additional environmental review for implementing approvals, which is limited to where there are substantial project changes, new information or changed circumstances resulting in new or more severe impacts. The Court rejected Petitioners argument that this presumption did not apply the prior CEQA review as an MND. The Court noted the presumption still applied: “there have been no changes to the Project requiring a subsequent or supplemental MND, the later adoptions of the same MND cannot restart or retrigger a new limitations period.”

Conclusion

The key take away is that in multi-phase development projects, the first project approval in a series of discretionary project approvals for the same project always will trigger CEQA’s statute of limitations.

Once that limitations period has run, there can be no further CEQA compliance challenges to the project unless subsequent or supplemental review is triggered under Public Resources Code §21166. This is the same even when the project was originally approved based on a MND, rather than an EIR. To allow otherwise, reasoned the Court, would undermine the need for finality and predictability for land use decisions.

Navigating Your 1L Summer: The Application and Interview Process and How To Make the Most of Your 1L Summer

Join Meyers Nave attorneys on Monday, November 13, for advice on navigating the perplexing world of getting a job at a law firm and learn about Meyers Nave’s 10-week summer 1L Diversity Fellowship Program.

The webinar will cover:

  • Finding the right law firm for you
  • Successfully navigating the interview process from beginning to end
  • Tips for a successful summer – stories of triumph and tribulation
  • The goal of Meyers Nave’s 1L Diversity Fellowship Program

Panelists:

  • David Mehretu, Co-Chair of the Diversity Committee and Trial and Litigation Principal
  • Kris Kokotaylo, Government and Regulatory Affairs Principal
  • Neha Shah, Co-Chair of the Diversity Committee and Labor and Employment Senior Associate
  • Kiana Amiri-Davani, Land Use and Environmental Associate

Date: Monday, November 13, 2023

Time: 4:00-5:00pm PST/7:00-8:00pm EST

Cost: Complimentary

Register HERE.

Virtual Presentation: This webinar will be provided on the Zoom platform. You will receive an email with log-in instructions upon completion of your registration.

1L Diversity Fellowship: For more information on our 1L Diversity Fellowship Program, please click HERE.

Questions? Please contact Sharon Mettler at 510.808.2000 or smettler@meyersnave.com.

Deborah Fox named one of Daily Journal’s 2023 “Top 100 Lawyers”

Meyers Nave is pleased to announce that Deborah J. Fox, has been named to the Daily Journal’s 2023 “Top 100 Lawyers,” a prestigious list that honors and recognizes “the best lawyers in California based on their legal accomplishments, professional reputation, and contributions to the legal community.”

As Principal of the Meyers Nave Trial and Litigation practice group, Deborah handles high-stakes litigation and crisis management around controversial matters at the intersection of law and societal evolution. She has built a reputation as a go-to attorney for sensitive political issues that attract intense media attention and elevated public scrutiny, helping to shape California’s legal landscape and confirming her as one of the state’s top lawyers.

Daily Journal subscribers can read the full article here.

Meyers Nave Attorneys Recognized as 2024 “Best Lawyers in America” and “Best Lawyers: Ones to Watch in America”

Meyers Nave is proud to have six lawyers recognized in The Best Lawyers in America® and one lawyer recognized in The Best Lawyers: Ones to Watch in America® 2024 editions.

Their legal expertise and professional accomplishments reflect the high regard of numerous Meyers Nave practices, including commercial litigation, eminent domain, employment law, environmental law, land use, litigation, municipal law and natural resources law. Their recognitions also demonstrate Meyers Nave’s reputation for excellent client work from attorneys in each of our offices throughout California.

We congratulate the following attorneys on their 2024 Best Lawyers rankings:

Inclusion in Best Lawyers® is based on nomination, voting and evaluation by peers in the same practice area and geographic region. Best Lawyers® assesses the information and checks each attorney’s status with local bar associations. Lawyers do not pay to be included.  First published in 1983, The Best Lawyers in America is regarded as a definitive guide to excellence in the legal profession.

State Adopts Expansive CEQA Infrastructure Streamlining Plan

On July 10, Governor Newsom signed five California Environmental Quality Act (CEQA) reform bills (SB 145, 146, 147, 149 & 150) as part of an infrastructure streamlining plan that the Governor’s office has called the “the state’s most ambitious permitting and project review reforms in a half-century.” Another component of this plan was Executive Order (EO) N-8-23 issued by Governor Newsom on May 19 which included measures to streamline the permitting and approval process for infrastructure projects intended to maximize California’s share of federal money under the Infrastructure Investment and Jobs Act and Inflation Reduction Act. Combined, the changes will provide for significant streamlining for qualifying infrastructure projects while providing more modest changes to litigation procedure in CEQA cases.

SB 149 amends Public Resources Code section 21167.6 to clarify and streamline procedures related to the preparation of the administrative record for the judicial review of legal challenges brought under CEQA in order to reduce litigation time. These new procedures, which apply to all types of projects, will include allowing a public agency to elect to prepare the record, setting a time limit for a petitioner to prepare the record within a 60 day deadline following notification of election to prepare the record, requiring good cause for extensions of record preparation and requiring that the record be prepared in a hyperlinked electronic format with limited exception. SB 149 also contains a CEQA Judicial Streamlining measure that provides for expedited judicial review of challenges under CEQA to certain water, transportation related, clean energy, and semiconductor or microelectronic projects. For the defined types of projects, any CEQA litigation, including appeals, would need to be resolved, to the extent feasible, within 270 days.

SB 146 permanently extends Government Code § 13979.2, which allows the California Secretary of Transportation to assume responsibilities under NEPA, and eliminates the January 1, 2025 sunset provision under existing law. As a result, the NEPA approval process will likely be streamlined given that joint federal/state agency preparation of documents is a more complicated and lengthy process. SB 147 includes reclassifying certain fully protected species and exempting any change in the California Endangered Species Act (CESA) status of any of the remaining exempted species from compliance with CEQA. In particular, the law repeals the four existing statutes designating species as “fully protected” under California law and consolidates regulations into the CESA. SB 145 requires Caltrans to ensure construction of three wildlife crossings over I-15 if an intercity passenger rail project is constructed, while SB 150 embeds workforces and community benefit requirements into contracting related to several federal programs.

Prior to passage, the plan’s legislative package was composed of 11 CEQA reform bills. Governor Newsom asked the state legislature to fast track the 11 CEQA reform bills concurrent with their duty to adopt a budget by June 15. However, the reform bills were not included in the Budget Act of 2023 passed on June 15 (SB 101). Instead, the reform bills were passed by the Legislature as separate bills in conjunction with an amended budget. The five bills included nearly all the content of the 11 CEQA reform bills except that the Governor agreed to drop a provision that could have fast-tracked the Delta Conveyance project. The language of the Governor’s Executive Order is general and broad in scope. Its implementing measures still need to be developed by an Infrastructure Strike Team responsible for maximizing federal and state funding opportunities for California infrastructure projects.

If you have any questions about the CEQA reform bills, please contact a member of Meyers Nave’s Land Use and Environmental Law team.

Camille Hamilton Pating and Janice Brown have been recognized as California’s “Top Labor & Employment Lawyers” by The Daily Journal in 2023

We are excited to share that Camille Hamilton Pating and Janice Brown have been recognized as California’s “Top Labor & Employment Lawyers” by The Daily Journal in 2023.

Their exceptional contributions to the legal profession and dedication to labor and employment law have earned them this prestigious honor.

Camille Hamilton Pating, Chair of Meyers Nave’s Labor and Employment Practice and Workplace Investigations Practice, is considered an esteemed expert in employment law. She “has conducted around 300 investigations for businesses, local governments, schools, and even police departments.” Her commitment to championing Diversity, Equity, Inclusion, and Belonging programs and her innovative training initiatives make her a true trailblazer.

Janice Brown, Principal in Meyers Nave’s Labor and Employment Practice and Workplace Investigations Practice, “is considered something of an expert” and boasts over 35 years of experience in trial, arbitration, and appellate matters. She is not only a pioneering force in the legal profession but also a trusted advisor to her clients. Janice’s dedication to promoting diversity and inclusivity has been instrumental in advancing the legal field.

Join us in congratulating Camille and Janice for their well-deserved recognition!

To learn more about their outstanding achievements, visit their bios and explore the Labor and Employment Practice page on our website. We are immensely proud of their contributions to our firm and the California community.