Published on February 9, 2021, the Court of Appeal in Organizacion Comunidad de Alviso v. City of San Jose held that the City of San Jose’s (“City’s”) posting of a second, revised Notice of Determination (“NOD”) adequately triggered CEQA’s abbreviated, 30-day statute of limitations despite the fact that the City failed to provide a copy to the Petitioner’s representative as requested. While CEQA requires lead agencies to provide notices to those who have requested them, the Court held that the revised NOD in this instance provided constructive notice sufficient to trigger the 30-day statute and dismiss the case.
In this case, the City considered an action to rezone fallow farmland from agricultural to light industrial uses. While under consideration by the City, a representative of the Petitioner (Mr. Espinoza) requested that he be placed on the public notice list for the project pursuant to CEQA. The City council held a hearing on the project in October 2017, during which the project applicant (Microsoft) appeared and Petitioner’s representative (Mr. Espinoza) commented on the project. The City certified the EIR and approved the project.
The City later filed a NOD with the county clerk, but the NOD erroneously named the original owner of the property as the project applicant. The City provided a copy of the first NOD to Mr. Espinoza pursuant to his request, in accordance with Public Resources Code (“PRC”) section 21167(f). Five days after posting the first NOD, the City filed a second NOD correctly naming Microsoft as the project applicant, per PRC section 21167(c); however, the City failed to provide a copy of the second NOD to Mr. Espinoza. Within 30 days of the posting of the first NOD, Petitioner filed a CEQA Petition for Writ of Mandate, naming the original owner, not Microsoft, as the real party in interest. The trial court dismissed the case because Petitioner failed to name a necessary and indispensable party (the applicant, Microsoft). Because Petitioner failed to name Microsoft within CEQA’s 30-days limitations period, the trial court dismissed the case as time barred.
On review, the Court of Appeal upheld the lower court’s dismissal. The Court found that the City violated CEQA by failing to send the second NOD to Mr. Espinoza, as required under PRC section 21167(f). However, the Court held that this violation is without a remedy in CEQA and did not render the second NOD defective. CEQA’s plain language establishes that the posting of NODs provides sufficient notice to trigger the shorter statute of limitations, regardless of any parallel requirement under Section 21167(f) or possible inefficiencies that might result from later-filed corrected NODs.
There was no dispute that the Petitioner failed to sue Microsoft until more than 30 days after the filing of the second NOD with the Clerk-Recorder, and that the statute of limitations would bar suing Microsoft. The Court found that the two NODs were not in conflict such that notice was defective per PRC section 21167(c) because the second NOD included all of the required (and accurate) information. Because the initial petition did not name Microsoft, the petition was defective and beyond CEQA’s short 30-day limitations period.
Lastly, the Court rejected the Petitioner’s arguments that it be allowed to substitute Microsoft as a party pursuant to the relation-back doctrine in Code of Civil Procedure section 474. The Court found that Petitioner knew or should have known that Microsoft was the project applicant based on the City’s posting of the second NOD.
A petition for review has been filed with the California Supreme Court. The Supreme Court is likely to decide as early as May 2021 whether to hear the case.