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In Center for Biological Diversity v. County of San Benito (2024) 104 Cal.App.5th 22, the Court of Appeal held that the statute of limitations for two CEQA challenges did not begin to run until the Board of Supervisors had heard and decided appeals from the Planning Commission. Because the County of San Benito’s local ordinance stated that a decision was not final until the Board  had heard an appeal or the time for an appeal had passed, the second of two NODs filed after the Board hearing and decision triggered the 30-day CEQA statute of limitations. Additionally, the court found that a contrary determination would violate the doctrine of exhaustion of administrative remedies.

Background

Real parties in interest, collectively the McDowell Trust, sought to develop a large commercial project west of Highway 101 known as the “Betabel Project” (or “Project”). In 2021, the McDowell Trust applied to the County of San Benito (“County”) for a conditional use permit for the property. In September 2022, the County released the final EIR for the Project. On October 12, 2022, the Planning Commission held a public hearing, which resulted in the Planning Commission’s vote to certify the final EIR and approve the conditional use permit for the project. The notice of determination (“NOD”) for the Commission’s approval was filed on October 14, 2022.

The Center for Biological Diversity (“Center”) and the Amah Mutsun Tribal Band (“Amah Mutsun”) both appealed the Planning Commission’s approval of the Project to the County Board of Supervisors (“Board”). On November 8, 2022, the Board of Supervisors held a public hearing to consider the appeals, after which they adopted a resolution denying the appeals and certifying the final EIR. The County then filed a second NOD on November 10, 2022.

Subsequently, on December 9, 2022, the Center filed a verified petition for writ of mandate challenging the County’s approval of the Project on the ground that the EIR was deficient in its analysis of environmental impacts. The petition also included a cause of action for violation of state planning and zoning laws. The Amah Mutsun filed a separate writ petition challenging approval of the final EIR and asserting a violation of state planning and zoning laws.

The McDowell Trust, real party in interest and joined by the County, demurred to the writ petitions on the grounds that they were time-barred under Section 21167 because they were filed more than thirty days after the first October 14 NOD. The trial court sustained the demurrer for the CEQA causes of action in both writ petitions without leave to amend. The Center and the Amah Mutsun both requested, and were granted, dismissal of their causes of action for violation of state planning and zoning laws but appealed the CEQA statute of limitations decision. The Court of Appeal ordered that the appeals in both cases be considered together for purposes of record preparation, briefing, oral argument, and disposition.

The Court of Appeal

On appeal, the court reversed the trial court’s decision to sustain McDowell Trust’s demurrer without leave to amend. The Center and the Amah Mutsun (collectively, “Appellants”) argued that the November 10, 2022, NOD filed after the Board’s approval was the operative NOD for purposes of the Section 21167 30-day statute of limitations. The Appellants also asserted that principles of administrative law would be violated if they were required to file an action for judicial review of the Planning Commission’s nonfinal, intermediate decision without exhausting their administrative remedy of the appeal of that decision to the Board. Because the County created a mechanism for appeals, reviewing at the earlier stage would be an interference with this administrative remedy.

Timeliness of the Writ Petitions

The court found that the writ petitions were timely filed because the conditional use permit approval was not final until the Board had ruled on the appeals from the Planning Commission. The court noted that Section 21152 governs the timeline to file an NOD, stating that the NOD must be filed within five working days “after the approval or determination becomes final” and that the finality of a project is governed by local rules. In San Benito County, a conditional use permit becomes final once the deadline for an appeal has passed or the Board has made a decision on an appeal because “[a]pplications [for a conditional use permit] which have been appealed shall be deemed not approved until the Board of Supervisors takes action to approve or deny.” The court found that the Planning Commission’s approval of the conditional use permit was not the final approval because the Appellants subsequently appealed that decision to the Board. Because the Planning Commission’s approval was not final, the October 22 NOD did not commence the 30-day statute of limitations to challenge the EIR. The court determined that the statute of limitations began to run the day the Board filed the second NOD, November 10, 2022, and thus the writ petitions filed on December 9, 2022, were timely.

Violation of the Doctrine of Administrative Remedies

The court also agreed with the Appellants’ argument that the use of the earlier NOD to trigger the statute of limitations would constitute an interference with the doctrine of exhaustion of administrative remedies because the Planning Commission’s decision was only part of an intermediate proceeding and was not the final decision. Because the County created a mechanism for the appeal of Planning Commission decisions to the Board, the final public agency decision subject to judicial review was the Board’s November 8, 2022, final decision denying the appeals and approving the conditional use permit. The court noted that reviewing the earlier NOD issued by the Planning Commission would therefore be an “interference in the intermediate stages of a CEQA proceeding in violation of the doctrine of exhaustion of administrative remedies.”

Key Point

This case serves as an important reminder to review local ordinances to determine when the statute of limitations for CEQA claims is triggered.