COMMITTEE FOR GREEN FOOTHILLS v. SANTA CLARACOUNTYBOARD OF SUPERVISORS

Filed 4/10/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Story Continued From Part I ..

Section 21152, subdivision (a), requires a local agency to file a notice of determination after it "approves or determines to carry out a project" subject to CEQA. The notice must "indicate the determination of the local agency whether the project will, or will not, have a significant effect on the environment and shall indicate whether an environmental impact report has been prepared pursuant to this division." ( 21152, subd. (a).) Where a lead agency "determines that a proposed project, not otherwise exempt from this division, would not have a significant effect on the environment," the agency must "adopt a negative declaration to that effect." ( 21080, subd. (c).) An EIR must be prepared where "there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment . . . ." ( 21080, subd. (d).)

When we consider CEQA as a whole, it is apparent that a notice of determination is meant to follow a determination of whether a project subject to CEQA may have a potential environmental effect, which determination is reflected in a negative declaration, a mitigated negative declaration, or an EIR. The CEQA Guidelines[1] support this understanding. "Before granting any approval of a project subject to CEQA, every lead agency or responsible agency shall consider a final EIR or negative declaration or another document authorized by these guidelines to be used in the place of an EIR or negative declaration." (CEQA Guidelines,  15004, subd. (a).) " 'Approval' means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person." (CEQA Guidelines,  15352, subd. (a).)[2]

A "notice of determination" is "a brief notice to be filed by a public agency after it approves or determines to carry out a project which is subject to the requirements of CEQA." (CEQA Guidelines,  15373.) CEQA Guidelines section 15112, subdivision (c)(1), provides that, "[w]here the public agency filed a notice of determination in compliance with Sections 15075 or 15094," the limitations period is "30 days after the filing of the notice and the posting on a list of such notices." CEQA Guideline section 15075 concerns notices of determination applicable to project approvals based upon adoption of a negative declaration or a mitigated negative declaration.[3] CEQA Guideline section 15094 concerns notices of determination applicable to project approvals based upon preparation and certification of an EIR.[4] Whether a project is approved based upon a negative declaration, a mitigated declaration, or an EIR, a notice of determination must contain the agency's determination of whether the project will have a significant effect on the environment (CEQA Guidelines,  15075, subd. (b)(4), 15094, subd. (b)(4)) and contain a statement that either a negative declaration or mitigated negative declaration was adopted (CEQA Guidelines,  15075, subd. (b)(5)) or "[a] statement that an EIR was prepared and certified pursuant to the provisions of CEQA" (CEQA Guidelines,  15094, subd. (b)(5)). Ordinarily, a notice of determination provides constructive notice and "limit[s] the appellate rights of those who seek to challenge the propriety of the governmental action by alleging that the public agency improperly determined the project has no significant effect on the environment." (Citizens of Lake Murray Area Assn. v. City Council (1982) 129 Cal.App.3d 436, 441.)

In this case, the revised notice of determination, of which the trial court took judicial notice, specified a number of EIRs: the Stanford University S1 Trail Alignment EIR, the GUP EIR, and the Countywide Trails Master Plan EIR/SEIR. The Board's December 2005 resolution, of which the trial court took judicial notice, identified the GUP EIR and Countywide Trails Master Plan SEIR as program EIRs under CEQA and the S1 Trail Alignment EIR as a supplement to those program EIRs.

The CEQA Guidelines describe different types of EIRs. (CEQA Guidelines,  15160 et seq.) "The most common type of EIR examines the environmental impacts of a specific development project." (CEQA Guidelines,  15161.) In contrast, a program EIR "may be prepared on a series of actions that can be characterized as one large project" and are related. (CEQA Guidelines,  15168, subd. (a).) "Subsequent activities in the program must be examined in light of the program EIR to determine whether an additional environmental document must be prepared." (CEQA Guidelines,  15168, subd. (c).) "If a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading either to an EIR or a negative declaration." (CEQA Guidelines,  15168, subd. (c)(1), italics added.) Contrariwise, "[i]f the agency finds that pursuant to Section 15162, no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required." (CEQA Guidelines,  15168, subd. (c)(2).)

CEQA Guidelines section 15162 details the conditions requiring a subsequent EIR. If any one of the specified conditions occurs after a project is approved, "a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any." (CEQA Guidelines,  15162, subd. (c).) One of those conditions is that substantial evidence shows "[s]ubstantial changes are proposed in the project" that will involve "new significant environmental effects or a substantial increase in the severity of previously identified significant effects . . .  ." (CEQA Guidelines,  15162, subd. (a)(1).) Under CEQA, no subsequent or supplemental environmental impact report is required unless one or more of the following events occurs: "(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available." ( 21166.)

CEQA Guidelines section 15163 permits preparation of a supplement to an EIR instead of a subsequent EIR if "[a]ny of the conditions described in [CEQA Guidelines] [s]ection 15162 would require the preparation of a subsequent EIR," and "[o]nly minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation." (CEQA Guidelines,  15163, subd. (a).) "If a subsequent or supplemental EIR is necessary, . . . the state CEQA Guidelines require that the later EIR receive the same circulation and review as the initial EIR. ([CEQA Guidelines], 15162, 15163; see Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 362, fn. 7, 363 . . . ; Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 822 . . . .)" (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936.)

Under CEQA Guidelines section 15164, a lead agency must "prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [CEQA Guidelines] Section 15162 calling for preparation of a subsequent EIR have occurred." (CEQA Guidelines,  15164, subd. (a).) "An addendum need not be circulated for public review but can be included in or attached to the final EIR . . . ." (CEQA Guidelines,  15164, subd. (c).) The addendum must contain a "brief explanation of the decision not to prepare a subsequent EIR pursuant to [CEQA Guidelines] Section 15162" and "[t]he explanation must be supported by substantial evidence." (CEQA Guidelines,  15164, subd. (e).) The CEQA Guidelines require the "decision-making body" to "consider the addendum with the final EIR . . . prior to making a decision on the project." (CEQA Guidelines,  15164, subd. (d).)

Program EIRs indicate a "tiering" of environmental analysis. The process of "tiering" "refers to the coverage of general matters in broader EIRs . . . with subsequent narrower EIRs or ultimately site-specific EIRs incorporating by reference the general discussions and concentrating solely on the issues specific to the EIR subsequently prepared." (CEQA Guidelines,  15385; see  21068.5.) "Tiering is appropriate when the sequence of EIRs is: [] (a) From a general plan, policy, or program EIR to a program, plan, or policy EIR of lesser scope or to a site-specific EIR. [] (b) From an EIR on a specific action at an early stage to a subsequent EIR or a supplement to an EIR at a later stage. Tiering in such cases is appropriate when it helps the lead agency to focus on issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe." (CEQA Guidelines,  15385; see  21093.)

"[O]nce a general project impact has been analyzed in the broadest first-tier EIR, the agency saves time and resources by relying on that first-tier analysis in later, more specific environmental analysis documents, provided of course that passage of time or factors peculiar to the later project phase do not render the first-tier analysis inadequate. (See 21083.3 [limited analysis required for development project consistent with general or community plan that was subject of earlier EIR]; CEQA Guidelines, Cal.Code Regs., tit. 14, 15152, subds. (d)-(f).)" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 431, fn. 7.) "Tiering is properly used to defer analysis of environmental impacts and mitigation measures to later phases when the impacts or mitigation measures are not determined by the first-tier approval decision but are specific to the later phases." (Id. at p. 431.) "While proper tiering of environmental review allows an agency to defer analysis of certain details of later phases of long-term linked or complex projects until those phases are up for approval, CEQA's demand for meaningful information 'is not satisfied by simply stating information will be provided in the future.' [Citation.] As the CEQA Guidelines explain: 'Tiering does not excuse the lead agency from adequately analyzing reasonably foreseeable significant environmental impacts of the project and does not justify deferring such analysis to a later tier EIR or negative declaration.' ([CEQA Guidelines,] 15152, subd. (b).)" (Ibid.) "Where a lead agency is using the tiering process in connection with an EIR for a large-scale planning approval, . . . the development of detailed, site-specific information may not be feasible but can be deferred, in many instances, until such time as the lead agency prepares a future environmental document in connection with a project of more limited geographical scale, as long as deferral does not prevent adequate identification of significant effects of the planning approval at hand." (CEQA Guidelines, 15152, subd. (c).)

The purpose of CEQA is to "compel government at all levels to make decisions with environmental consequences in mind." (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283.) "CEQA's fundamental objective is 'to ensure "that environmental considerations play a significant role in governmental decision-making." ' (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 797 . . . .)" (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d at p. 935.)

"The EIR has been aptly described as the 'heart of CEQA.' [Citations.]" (Citizens of GoletaValley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; see CEQA Guidelines,  15003, subd. (a).) "An environmental impact report is an informational document which, when its preparation is required by [CEQA], shall be considered by every public agency prior to its approval or disapproval of a project." ( 21061.) The purpose of EIRs is "to inform the public and its responsible officials of the environmental consequences of their decisions before they are made." (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564, italics added; see  21061.) "A fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project, not to inform them of the environmental effects of projects that they have already approved." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 394.)

In addition to identifying the significant environmental effects of a project, two of the specific purposes of an EIR are "to identify alternatives to the project" and "to indicate the manner in which those significant effects can be mitigated or avoided." ( 21002.1, subd. (a); see  21061, 21100; CEQA Guidelines,  15362.) "Under CEQA, a public agency must . . . consider measures that might mitigate a project's adverse environmental impact, and adopt them if feasible. ( 21002, 21081.)" (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 123.) "[A] decisionmaking agency is prohibited from approving a project for which significant environmental effects have been identified unless it makes specific findings about alternatives and mitigation measures. ( 21081; see also Environmental Council v. Board of Supervisors (1982) 135 Cal.App.3d 428, 439 . . . .)" (Id. at p. 134.) "The requirement ensures there is evidence of the public agency's actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision. [Citations.] Under CEQA, the public agency bears the burden of affirmatively demonstrating that, notwithstanding a project's impact on the environment, the agency's approval of the proposed project followed meaningful consideration of alternatives and mitigation measures. [Citation.]" (Ibid.)

A public agency must "provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures. Conditions of project approval may be set forth in referenced documents which address required mitigation measures or, in the case of the adoption of a plan, policy, regulation, or other public project, by incorporating the mitigation measures into the plan, policy, regulation, or project design." ( 21081.6, subd. (b).) The public agency must "adopt a reporting or monitoring program for the changes made to the project or conditions of project approval, adopted in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation." ( 21081.6, subd. (a)(1).)

In this case, the amended petition's allegations, which we must accept as true for purposes of demurrer, and the properly noticed official acts[5] suggest that respondents County and Board viewed development of the S1 and C1 trails as distinct subsequent activities or smaller projects under the program EIRs subject to separate environmental review and approval, they determined any environmental review of a site-specific C1 trail route was premature, and they conducted environmental review of only the proposed subsequent activities concerning the S1 trail alignment. Those allegations also indicate that the trails agreement did not entirely conform to GUP Condition I.2 with respect to the C1 trail alignment and in effect modified the permit condition and the larger development project authorized by the GUP. It appears that the Committee may be able to allege facts showing that the proposed changes with respect to the C1 trail alignment were sufficiently substantial to require an EIR subsequent or supplemental to the GUP EIR. (See  21166; CEQA Guideles,  15162-15163; see also CEQA Guidelines,  15064, subd. (f)(7) ["The provisions of [CEQA Guidelines] sections 15162, 15163, and 15164 apply when the project being analyzed is a change to, or a further approval for, a project for which an EIR . . . was previously certified"]; cf. Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 438 ["To the extent a subsequent subdivision proposal relies on different water sources than were proposed in the specific plan it implements, or the likely availability of the intended water sources has changed between the time of the specific plan and the subdivision application (or more has been learned about the impacts of exploiting those sources), changes in the project, the surrounding circumstances or the available information would exist within the meaning of section 21166, requiring additional CEQA analysis under that section"]; Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d at p. 937 [some changes allegedly made in a stadium project by a contract between a district and a builder "could be characterized as substantial enough to require the district to file a subsequent EIR to assess their environmental effects"].) In addition, the Committee may be able to state facts indicating that the proposed subsequent activities with regard to the C1 trail alignment should have been examined in light of the program EIRs to determine whether the activities were within the scope of the project covered by the program EIRs and whether those activities had potential environmental effects not fully examined in those EIRs and a new initial study leading to either another EIR or a negative declaration should have been prepared prior to any discretionary approval of those activities. (CEQA Guidelines,  15162, 15168.)

The noticed documents do not negate any critical allegations of the amended petition. If anything, they support them. Even though the revised notice of determination stated in preprinted language that "[a]n Environmental Impact Report has been prepared for this project pursuant to the provisions of CEQA" and "[t]he project will not have a significant effect on the environment," the comments in the "project description" section of the revised notice of determination, as well as in the Board's resolution, reasonably imply that the County and its Board formally determined that the time was not yet ripe for environmental review with respect to the C1 trail alignment activities and no CEQA review was conducted with respect to those activities. The noticed documents do not disclose any determination that the potential environmental impacts of the changes regarding the C1 trail alignment had been already analyzed at the programmatic level or any recognition that approval of changes to a project already approved may itself constitute approval of a project subject to CEQA and necessitate further environmental review.

Nevertheless, we recognize that a statute of limitation "operates conclusively across-the-board . . . with respect to all causes of action" regardless of merit. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 410.) "[T]he [CEQA] limitations period depends upon the nature of the alleged CEQA violation on which the governmental action is being challenged." (International Longshoremen's & Warehousemen's Union v. Board of Supervisors (1981) 116 Cal.App.3d 265, 271.) The Committee is not asserting that any of the identified EIRs failed to comply with CEQA or that the significant effect determination regarding the S1 trail were improper. Thus, as framed by the amended petition, this is neither "[a]n action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment" ( 21167, subd. (b)) nor "[a]n action or proceeding alleging that an environmental impact report does not comply with [CEQA]" ( 21167, subd. (c)), which leaves subdivisions (a) and (e) of section 21167 since respondents do not dispute that subdivision (d) (projects not subject to CEQA) is inapplicable here. "In substance, subdivision (a) pertains to an action charging the public agency with approving or undertaking a project having a significant effect on the environment without any attempt to comply with CEQA . . . and subdivision (e) is a catch-all provision governing an action based on any other failure of the public agency to comply with CEQA." (International Longshoremen's & Warehousemen's Union v. Board of Supervisors, supra, 116 Cal.App.3d at p. 271.)

Subdivisions (d) and (e) were added to section 21167 in 1974. (Stats. 1974, ch. 56,  3, p. 125.) The legislative history of Assembly Bill No. 2338 (1973-1974 Reg. Sess.), which amended sections 21108 and 211052 to require notices of determination whenever a public agency approves a project not subject to CEQA as well as amending section 21167, indicates that the bill's principal purpose was to shorten the time for challenging a determination that a project is not subject to CEQA. (See Assem. Com. on Planning and Land Use, Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) June 11, 1973; Assem. Com. on Planning and Land Use, Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended June 29, 1973, August 15, 1973; Assem. Com. on Planning and Land Use, Addendum to Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended June 29, 1973, August 15, 1973; Assem. Com. on Planning and Land Use, Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended June 29, 1973, August 29, 1973; Assem. Com. on Planning and Land Use, Addendum to Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended June 29, 1973, August 29, 1973; Agriculture and Services Agency, Enrolled Bill Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) Feb. 26, 1974; Office of Planning and Research, Enrolled Bill Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) Mar. 1, 1974; Department of Transportation, Enrolled Bill Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) Mar. 1, 1974.)

As to the addition of subdivision (e) to section 21167, the Legislative Analyst's analysis of the bill states in part: "The bill also provides that all actions not otherwise specified in law alleging any omission or illegal activity or process under CEQA shall be commenced within 30 days of the date of filing certain required documents . . . ." (Legis. Analyst, Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended June 29, 1973, Sept. 10 1973, italics added; see also Legis. Analyst, Analysis of Assem. Bill No. 2338 (1973-1974 Reg. Sess.) as amended Jan. 21, 1974, January 28, 1974.) The Legislative Counsel's Digest for the bill, which is also indicative of legislative intent (People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434), states in pertinent part that the bill "[p]rovides that any action or proceeding alleging that any act or omission of a public agency does not comply with the provisions of [CEQA], except for certain specific actions or proceedings, shall be commenced within 30 days after required filing of notice." (Legis. Counsel's Digest of Assembly Bill No. 2338 (1973-1974 Reg. Sess.) 2 Stats. 1974, Summary Dig., p. 12, italics added.)

The above descriptions are consistent with the language of section 21167, subdivision (e), which applies to "[a]n action or proceeding alleging that another act or omission of a public agency does not comply with [CEQA] . . . ." (Italics added.) "Another" in this context most reasonably means "different or distinct from the one first named or considered." (Webster's Third New International Dictionary, unabridged (1993 ed.) p. 89), that is those actions or proceedings specified in subdivisions (a) through (d) of section 21167. Thus, if this proceeding comes within the language of subdivision (a), the 30-day limitation period under subdivision (e) is inapplicable even if a notice of determination was filed.

We recognize that one of the enrolled bill reports stated: "[T]his bill provides for a 30-day statute of limitation on any discretionary determination made by a public agency on a project if the basis of such challenge is either that there has been an improper determination on potential significant effects or that the prepared environmental impact report is inadequate. Thus, essentially any determinations made by public agencies under the Environmental Quality Act will be subject to a 30 or 35 day challenge limitation, provided a notice of determination has been filed. If no notice is filed or utilized, a 180-day period of limitation applies." (Water Resources Board, Enrolled Bill Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) February 25, 1974.) While courts "have routinely found enrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing, instructive on matters of legislative intent" (Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19), we find this enrolled bill report unpersuasive since it conflicts with the language of the statute and is not echoed elsewhere in the legislative history.[6] (See People v. Garcia (2002) 28 Cal.4th 1166, 1172 ["We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning" and "[i]f there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said"].)

Furthermore, "when different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended." (People v. Jones (1988) 46 Cal.3d 585, 596.) The Legislature has demonstrated that it knows how to explicitly impose a shorter limitations period for certain actions following the filing of a notice of determination and yet it did not expressly require "an action or proceeding alleging that a public agency . . . has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment" to be commenced within 30 days of the filing of a notice of determination. (Cf.  21167, subds. (b)-(e).) The longer limitations period for challenging approvals lacking any determination of potential significant effect is entirely consistent with CEQA's fundamental purpose of compelling meaningful decision-making.

We conclude that there is a reasonable possibility that the Committee can allege facts sufficient to bring this proceeding within the purview of section 21167, subdivision (a), that is the Board approved changes and subsequent activities with respect to the C1 trail alignment that "may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment . . . ." ( 21167, subd. (a).) If we were to reach a contrary conclusion, we would not be interpreting the applicable law in a manner affording the fullest possible protection to the environment within the reasonable scope of the statutory language. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com'n, supra, 41 Cal.4th at p. 381 [A court must "bear in mind that '[t]he foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language" ' "]; but see  21083.1 [The Legislature's express intent is that "courts, consistent with generally accepted rules of statutory interpretation, shall not interpret this division or the state guidelines adopted pursuant to Section 21083 in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines"].)

Lastly, even though Committee attempts to characterize the County's obligation to enforce GUP condition I.2 as a present and continuing duty enforceable through a writ of mandamus, it is in essence a CEQA claim as well. Under the allegations of the amended petition, the Board's resolution must be viewed a de facto modification of that permit condition and the only alleged basis for the resolution's invalidity is the Board's failure to conduct environmental review of the proposed changes with respect to the C1 trail alignment. Consequently, the claim that respondents County and Board have a mandatory duty to enforce the original permit condition is likewise subject to the limitations period set forth by section 21167, subdivision (a), under the facts alleged.

Of course, our conclusion that this proceeding is not necessarily time-barred does not imply any view as to its substantive merits.

E. Government Code Section 65009

Respondents argued below that the 90-day statute of limitation set forth in Government Code section 65009, subdivision (c), barred the Committee's attack on the Board's decision as to how to implement GUP Condition I.2. With an exception not here applicable, Government Code section 65009, subdivision (c)(1), provides in pertinent part: "[N]o action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days after the legislative body's decision: . . . [] (E) To . . . determine the reasonableness, legality, or validity of any condition attached to a variance, conditional use permit, or any other permit."[7]

We begin by noting that the Committee was not actually challenging "the reasonableness, legality, or validity" of GUP Condition I.2 (see Gov. Code,  65009, subd. (c)(1)(E)) but rather it was attacking the validity of the Board's resolution that Stanford's contractual commitments under the trails agreement in fact satisfied the permit condition. Moreover, even assuming that Government Code section 65009, subdivision (c)(1)(E), reasonably could be construed as encompassing a resolution adopted to ostensibly implement a permit condition, section 21167 would nevertheless control here because that statute is specifically applicable to CEQA claims.

It is a well settled rule of statutory construction that "[a] specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates." (Rose v. State of California (1942) 19 Cal.2d 713, 724; Code Civ.Proc.,  1859 ["when a general and particular provision are inconsistent, the latter is paramount to the former"].) This principle is fully applicable to statutes of limitations. (See Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847, 859.) We conclude that the Committee's claims, being in essence all CEQA claims, are governed by the CEQA statute of limitations rather than the more general provisions of Government Code section 65009.

The judgment of dismissal is reversed. Upon remand, the superior court shall vacate its order sustaining a demurrer without leave to amend and issue an order sustaining a demurrer with leave to amend.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

Committee for Green Foothills v. Bd. Of Supervisors, County of Santa Clara, et al.

H030986

Trial Court: Santa Clara County Superior Court

Trial Judge: Hon. Leslie Nichols

Attorneys for Plaintiff

and Appellant: Wittwer & Parkin and

William P. Parkin and

Jonathan Wittwer

Attorneys for Defendants

and Respondents: Ann Miller Ravel,

County Counsel and

Lizanne Reynolds,

Deputy County Counsel

Attorneys for Real Parties

In Interest: Bingham McCutchen,

Barbara J. Schussman and

Julie Jones

Committee for Green Foothills v. Bd. Of Supervisors, County of Santa Clara, et al.

H030986

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] "The term 'CEQA Guidelines' refers to the regulations for the implementation of CEQA authorized by the Legislature (Pub. Resources Code, 21083), codified in title 14, section 15000 et seq. of the California Code of Regulations, and 'prescribed by the Secretary of Resources to be followed by all state and local agencies in California in the implementation of [CEQA].' (CEQA Guidelines, 15000.) In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564, fn. 3 . . . .)" (Muzzy Ranch Co. v. SolanoCountyAirportLand Use Com'n (2007) 41 Cal.4th 372, 380, fn.2.)

[2] "With private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project." (CEQA Guidelines,  15352, subd. (b).) The issue of whether an agreement constitutes an approval of a project requiring CEQA environmental review has previously arisen in a variety of contexts. (See. e.g. Citizens For A Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 106-108 [City council's adoption of resolution authorizing execution of development agreement constituted "approval" of theater project]; County of Amador v. City of Plymouth (2007) 149 Cal.App.4th 1089, 1103-1111 [municipal services agreement requiring City to take certain actions facilitating Indian gaming development constituted approval of project]; Concerned McCloud Citizens v. McCloud Community Services Dist. ( 2007) 147 Cal.App.4th 181, 192-197 [District's approval of conditional agreement with private bottling company for the development and use of the District's springs as a spring water source and construction of a bottling facility did not constitute approval of a project within the meaning of CEQA because the agreement was expressly not binding until the District completely complied with CEQA and there was no possibility of a CEQA challenge]; Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 229 [development agreement between county and landowner constitutes approval of a project because "it commits the parties to a definite course of action aimed at assuring construction of the Project, provided certain contingencies are met"]; see also County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963-965 [Irrigation District's resolution did not constitute project approval because it merely authorized negotiations regarding proposed purchase of a hydroelectric project and did not legally bind the district to a particular course of action and consequently notice of exemption was premature and invalid].)

[3] A "negative declaration" is "a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report." ( 21064; see CEQA Guidelines,  15371; see also  21080, subd. (c).) A "mitigated negative declaration" is "a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." ( 21064.5; see CEQA Guidelines,  15369.5) " 'Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." ( 21068; see CEQA Guidelines,  15382.)

[4] An EIR is "a detailed statement prepared under CEQA describing and analyzing the significant environmental effects of a project and discussing ways to mitigate or avoid the effects." (CEQA Guidelines,  15362; see  21061, 21100.)

[5] It is imperative to keep in mind that "[w]hile courts may notice official acts and public records, 'we do not take judicial notice of the truth of all matters stated therein.' [Citations.]" (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) "Generally, when there is 'multiple hearsay, the question is whether each hearsay statement fell within an exception to the hearsay rule. (Evid.Code, 1201.)' (People v. Reed [(1996)] 13 Cal.4th [ 217,] 224-225.)" (People v. Woodell (1998) 17 Cal.4th 448, 458-459.) "[M]ultiple hearsay is admissible for its truth only if each hearsay layer separately meets the requirements of a hearsay exception. (Evid.Code, 1200, 1201.)" (People v. Arias (1996) 13 Cal.4th 92, 149.) Thus, while courts properly may take judicial notice of official acts, including the official acts of a county (see Evid. Code, 452, subd. (c); Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; see also Oceanside Marina Towers Assn v. Oceanside Community Development Com. (1986) 187 Cal.App.3d 735, 740, fn. 3 [judicial notice taken that notice of determination was filed on particular date]), judicial notice "goes to the authenticity and contents of the documents, not to the absolute truth of their contents." (Gilbert v. State of California (1990) 218 Cal.App.3d 234, 241, fn. 5.)

[6] This enrolled bill report also erroneously stated: "Under the present Guidelines and the CEQA, only the negative declaration determination is subject to the requirement of filing a notice and the benefit of a 30-day limitation for challenging such a finding." (Water Resources Board, Enrolled Bill Rep. on Assem. Bill No. 2338 (1973-1974 Reg. Sess.) February 25, 1974.) In fact, as originally enacted, section 21167 required actions either alleging that "a public agency has improperly determined whether a project may have a significant effect on the environment" or alleging that "an environmental impact report does not comply with [CEQA]" to be commenced within 30 days after the notice of determination was filed. (Stats. 1972, ch. 1154,  16, p. 2278.)

[7] Government Code section 65009, subdivision (c)(1)(E), also provides a 90-day limitation period for actions or proceedings to "attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903." Government Code section 65901 concerns decisions by a board of zoning adjustment or zoning administrator on permit and variance applications and permits the local legislative body to authorize, by ordinance, "the board of zoning adjustment or zoning administrator to decide applications for variance from the terms of the zoning ordinance without a public hearing on the application." Government Code section 65903 relates to the authority of a board of appeals, created and established by local ordinance, to "hear and determine appeals from the decisions of the board of zoning adjustment or the zoning administrator." Respondents do not suggest that this portion of section 65009 applies here.