The Early Bird Catches the Worm – CEQA Statute of Limitations Lessons from Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles
Environmental/Land Use Alert (April 21, 2020)On April 2, 2020, in Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles, the Court of Appeal, Second District held that any substantive challenge to a project approval, including attacks to the validity of a notice of determination (NOD) based on scope of agency authority, can only be made within the short statute of limitations triggered by a facially valid NOD. The simple, yet crucially important lesson from Coalition for an Equitable Westlake is: never put off till next year what you must do within 30 days.
On March 3, 2017, the Deputy Advisory Agency (Agency) for the City of Los Angeles (City) approved a tract map and certified a Mitigated Negative Declaration (MND) for a mixed-use project. The Agency determination letter noted that any appeal of its decision had to be made to the City’s Planning Commission within 10 days. No appeal followed; and, on March 15, 2017, the Agency filed an NOD in compliance with Public Resources Code section 21152(a). In addition to the NOD listing the required information pursuant to section 21152(a), the NOD informed the public that its filing commenced the 30-day period to challenge the project approvals. In October 2017, the Planning Commission approved conditional use permits related to the project. In November 2017, two tenants of an existing building on the project site appealed the Planning Commission’s approvals to the City Council. On January 31, 2018, the City Council denied the appeal and approved general plan amendments in connection with the project.
Almost a year after the NOD was filed, the Coalition sought to set aside the City’s project approvals and documents prepared and approved under CEQA. The Coalition argued the 30-day statute of limitations was not triggered because the Agency lacked authority to make CEQA findings. The Court was not persuaded.
The Court confirmed the general rule that the short statute of limitations started running upon the filing of a facially valid NOD and petitioners were obligated to bring any challenge within that time, regardless of the nature of the alleged violation. The Court found that the NOD for the project did not fall into one of the two exceptions to the general rule. The first recognized exception applies if the NOD is invalid on its face – the information required to be contained in the NOD pursuant to Public Resources Code section 21157 is incorrect or missing. The second exception is triggered when the NOD is filed before the project approval. Because neither exception applied to the NOD for the project, and the Coalition filed suit outside of the 30-day period, the Court held as untimely the Coalition’s challenge of the Agency’s authority to adopt the MND.
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