Real Estate and Land Use

February 20, 2015

Failure to Describe Project Changes Results in 180-Day Statute of Limitations for CEQA Challenge (Ventura Foothills Neighbors v. County of Ventura)

Why it matters: When a project’s subsequent CEQA documents fail to clearly provide public notice of material changes to a project, CEQA’s short statutes of limitation may not apply.

Facts: In 1994 the County of Ventura certified an environmental impact report (EIR) for the proposed construction of a five-story ambulatory care clinic building in the City of Ventura. The EIR stated that “[t]he building would be up to 75 feet in height,” but the notice of determination (NOD) filed for the EIR simply stated that the County would construct an “Ambulatory Care Clinic,” with no mention of the building’s height. After filing the NOD, detailed building plans were prepared, which showed the building’s height to the roofline to be 72 feet, while parapets would increase the total building height to slightly over 88 feet.

The County delayed construction of the building until May 2005, when it decided to relocate the building 200 feet north and 160 feet west of the original location. The County prepared an addendum to the EIR, which concluded that no subsequent or supplemental EIR was required, due to the fact that the relocated building would be virtually the same size and configuration as the original, and would have fewer impacts on the views of nearby residents. The addendum did not note that the building would exceed the maximum 75-foot height stated in the EIR, and the NOD filed for the addendum in May 2005 did not mention the building’s height at all. In 2007 the plans for the building were modified to show the height of the building as 90 feet, including parapets.

In May 2008 members of Ventura Foothills Neighbors (Neighbors) asked construction site personnel about a large piece of construction equipment located on the site and were told that the planned building would measure 90 feet in height. Neighbors filed a petition for a writ of mandate in July 2008. Meanwhile, the County commenced and completed construction of the 90-foot building. In January 2014 the trial court granted a peremptory writ of mandate directing the County to prepare and recirculate a focused supplemental EIR, limited to height and profile impacts of the constructed building. The County appealed, claiming Neighbors’ petition was barred by CEQA’s 30-day statute of limitations.

The Decision: The Court of Appeal quickly dismissed the County’s first argument that Neighbors’ petition was barred by the expiration of the 30-day statute of limitations following the County’s June 1994 filing of the NOD for the EIR, agreeing with Neighbors that its challenge was regarding the County’s failure to prepare a supplemental EIR, instead of an addendum, for the building in 2005. The Court next reviewed the proper use of an addendum, finding that a lead agency may utilize an addendum only if the changes to the project do not substantially modify the analysis in the original EIR. Quoting a well-known California real estate treatise, the Court found that an “addendum is acceptable, rather than a new or supplemental EIR, when there are only minor technical changes or additions which do not raise important new issues about the significant effects on the environment.” (9 Miller & Starr, Cal. Real Estate (3d ed. 2011).) Looking at the addendum prepared by the County, the Court found that it solely addressed the relocation of the building, and not its increase in height from the 75 feet stated in the EIR to the 90 feet that was eventually proposed and constructed. Finding that this change from 75 to 90 feet constituted a substantial change to the project, the Court found that the County’s use of an addendum was inappropriate, and that it abused its discretion in not preparing a supplemental EIR.

The Court next rejected the County’s claim that Neighbors’ petition was time-barred by the 30-day statute of limitations triggered by the filing of the NOD for the addendum in May 2005, finding that this 30-day statute of limitations was inapplicable because the County did not provide notice to the public of the increase in the building’s height. Quoting Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 39, the Court found that “the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice.” (Emphasis added.) Here, because both the addendum and NOD were silent on the issue of the building’s increase in height, a 180-day statute of limitations began to run from the date Neighbors “knew or reasonably should have known that the project under way differs substantially from the one described in the EIR.” (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 939.) The Court found this date to be May 22, 2008, when Neighbors’ members were first informed that the Clinic was going to be 90 feet high. Therefore, the petition was timely filed. The Court upheld the trial court’s order granting a peremptory writ of mandate.

Practice Pointers: Some suggested responses to this decision are the following:

When a project materially changes from its description in an EIR or a Negative Declaration, a lead agency’s use of an addendum, instead of a supplemental or subsequent EIR, may not be justified.
Any such material changes to a project should be clearly communicated in the CEQA documents prepared for the revised project, including the filed NOD.
Should an NOD fail to clearly disclose any such material changes, a lead agency may not be able to seek the protection of CEQA’s short statute of limitations.