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Recent Court of Appeal Decision Confirms that CEQA Statutes of Limitations Cannot be Extended Without a Project Proponent’s Consent

Recent Court of Appeal Decision Confirms that CEQA Statutes of Limitations Cannot be Extended Without a Project Proponent’s Consent

Key Points

  • In Save Lafayette Trees v. East Bay Regional Park District, two of the parties to the lawsuit entered into an agreement in an attempt to extend the California Environmental Quality Act (“CEQA;” Pub. Resources Code, § 21000 et seq.) deadline to file a lawsuit.
  • The Court of Appeal ruled that the case should be dismissed because the proponent of the project at issue was not a party to that agreement, and agreements to extend filing deadlines are only effective when the project proponent is a party to that agreement.
  • The Court of Appeal’s ruling affirms prior court decisions that have warned parties seeking to extend CEQA filing deadlines to obtain the approval of project proponents.

In late June, the California Court of Appeal issued a published opinion in Save Lafayette Trees v. East Bay Regional Park District (Cal. Ct. App., June 30, 2021, No. A156150; 2021 WL 2677595), which affirmed a crucial procedural detail for agreements to extend CEQA statutes of limitations. Specifically, the Court of Appeal ruled that the case should be dismissed because the proponent of the project at issue never agreed to extend the deadline to file a CEQA lawsuit.

Like many CEQA cases, Save Lafayette Trees involves a dispute that stretched back over several years. On March 21, 2017, the East Bay Regional Park District (“EBRPD”) Board of Directors held a public hearing at which it committed to accept funding from Pacific Gas & Electric (“PG&E”) for environmental restoration and maintenance at Briones Regional Park and Lafayette-Moraga Regional Trail. As part of this restoration and maintenance program, EBRPD agreed to allow PG&E to remove trees located within 14 feet of a gas pipeline located on EBRPD property, resulting in the removal of 245 trees. In exchange, PG&E agreed to pay EBRPD $1,000 per tree (for a total of $245,000). PG&E also agreed to provide one replacement tree for each of the 31 EBRPD-owned trees within the City of Lafayette (as required by the City of Lafayette’s Tree Protection Ordinance).

Following the public hearing, EBRPD’s Board approved a resolution authorizing the maintenance and payment agreement with PG&E. On March 22 and 23, 2017, representatives of EBRPD and PG&E signed a memorandum of understanding (“MOU”) regarding the implementation of the maintenance plan. On June 27, 2017, EBRPD filed a Notice of Exemption under CEQA in the county clerk’s office, announcing that the Board of Directors had reviewed and determined the MOU was not an activity subject to CEQA. It was further determined that “any activity related to the MOU would be categorically exempt” under CEQA exemptions for work on existing pipelines (Pub. Resources Code, §21080.23), work on existing facilities (CEQA Guidelines, §15301(b)), replacement or reconstruction (CEQA Guidelines, §15302), or minor alterations to land (CEQA Guidelines, §15304).

With very rare exceptions, a CEQA lawsuit cannot be filed any later than 180 days after “the agency’s decision [to approve the project] or commencement of the project.” (Pub. Resources Code, §21167 [most lawsuits are subject to 30 or 35-day statutes of limitations].) In this case, the agreement to remove the trees was approved by EBRPD’s Board on March 21, 2017, so the 180-day statute of limitations expired on September 18, 2017. However, on July 31, 2017, Save Lafayette Trees and EBRPD entered into an agreement by which they agreed to “toll all applicable statutes of limitations for 60 days” (the “tolling agreement”). PG&E did not consent to the tolling agreement. On September 29, 2017, before the 60-day tolling period expired, Save Lafayette Trees filed a lawsuit against EBRPD and PG&E, challenging the approval of the MOU. The lawsuit alleged that EBRPD failed to undertake a CEQA analysis of the potential environmental impact of the tree removal before approving the MOU.

PG&E asked the trial court to dismiss the lawsuit on the basis that PG&E was not a party to the tolling agreement, and the tolling agreement was therefore invalid. The trial court agreed and dismissed the lawsuit because PG&E was a necessary and indispensable party to the lawsuit, and the other parties could not toll the statute of limitations without PG&E’s consent. Save Lafayette Trees appealed the trial court’s decision, but the Court of Appeal affirmed the dismissal. The Court of Appeal held that “the CEQA cause of action was subject to dismissal because PG&E, a necessary and indispensable party to that cause of action, had not consented to the tolling agreement.” (Slip op. at p. 11.)

The Court of Appeal observed that the “primary purpose of CEQA’s statutes of limitations is to protect project proponents from extended delay, uncertainty and potential disruption of a project caused by a belated challenge to the validity of the project’s authorization.” (Slip op. at p. 16.) The Court of Appeal rejected Save Lafayette Trees’ argument that project proponents are not always necessary parties to tolling agreements in CEQA cases because this “would in practice defeat the primary purpose of the limitation period (protection from delay and uncertainty) because no settlement agreement could be reached without all necessary parties, including PG&E.” (Slip op. at p. 16.) Ultimately, the Court of Appeal’s ruling is consistent with prior published opinions, which also agreed that the project proponent, the public agency, and the party asserting noncompliance with CEQA are the three parties that must agree to toll the limitation period. (See, e.g., Salmon Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195, 204.)

As a fallback argument, Save Lafayette Trees asserted that the 180-day statute of limitations did not begin to run until several weeks after the March 21, 2017 approval of the resolution. According to Save Lafayette Trees, the resolution and MOU did not clearly explain that the maintenance activities would involve the removal of trees, and the 180-day limitations period did not begin until they had constructive notice of the full scope of the project, which occurred several weeks later. The Court of Appeal rejected this argument, noting that records from the March 21, 2017 hearing show that EBRPD “was committed to a definite course of action by issuing a resolution authorizing (and directing the execution of an agreement) accepting funding from PG&E for the cost of the tree replacement (following necessary removal of 245 trees).” (Slip op. at p. 18.) Accordingly, Save Lafayette Trees had constructive notice of the scope of the proposed project on March 21, 2017, and the lawsuit was therefore filed outside the 180-day limitations period.

The Court of Appeal’s decision is only the latest to confirm that CEQA petitioners need to be especially mindful of all applicable limitations periods and all requirements for entering into tolling agreements to extend any limitations period. If you have any questions about CEQA deadlines or CEQA tolling agreements, please reach out to any member of Hanson Bridgett’s Land Use Practice.

For More Information, Please Contact:

Ellis Raskin
Ellis Raskin
Senior Counsel
Los Angeles, CA
Sean Marciniak
Sean Marciniak
San Francisco, CA