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

The Committee for Green Foothills, a California nonprofit corporation, (Committee) brought a petition for a writ of mandamus to enforce the California Environmental Quality Act (CEQA) (Pub. Res. Code,  21000 et seq.)[1] against the County of Santa Clara (County) and its Board of Supervisors (Board). The litigation arose from the Board's December 13, 2005 resolution approving an agreement to be entered with the Board of Trustees of Leland Stanford Junior University (Stanford)[2] to satisfy Condition I.2 of a General Use Permit approved in 2000 (GUP). The condition required Stanford to dedicate easements for, develop and maintain portions of trails, identified as the C1 and S1 trails on the 1995 Santa Clara Countywide Master Plan, that crossed Stanford's lands. The December 2005 resolution selected a final alignment for the S1 trail from among several potential alternative routes, certified the S1 Trail Alignment Environmental Impact Report (EIR) and made CEQA findings for the S1 trail alignment, determined "no further CEQA review is required by the County prior to execution" of the "Agreement for Trail Easements, Construction, Management and Maintenance and Grant of Easements" (trails agreement) with Stanford insofar as the agreement concerned the C1 and C2 trail alignments, and approved the execution of the trails agreement. Among other things, the trails agreement authorized portions of the C1 trail to be developed outside Santa Clara County in San Mateo County and the Town of Portola Valley instead of within the County, provided those other jurisdictions cooperated, and declared that the agreement's execution satisfied GUP Condition I.2.

The Committee makes no claim of wrongdoing with respect to the S1 trail. The gravamen of the Committee's claims is that the Board's resolution approved activities with respect to the C1 trail without the requisite CEQA environmental review and that environmental review was improperly deferred and left to other jurisdictions even though the Board's approval committed the County to a definite course of action that conflicted with GUP Condition I.2 requiring the development of a C1 trail within the County.

Respondents successfully demurred on statute of limitations grounds. The Committee appeals from the judgment of dismissal entered following the superior court's order. The principal issue before the trial court was whether the statute of limitations set forth in either section 21167 or Government Code section 65009, subdivision (c), barred the proceedings. We conclude that the court incorrectly sustained the respondents' demurrer without leave to amend on the ground the proceedings were necessarily time-barred.

A. Demurrer

"It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]" (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) "In ruling on a demurrer, a court may consider facts of which it has taken judicial notice. (Code Civ. Proc., 430.30, subd. (a).)" (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 456, fn. 9.) A facially sufficient pleading may be defective based upon judicially noticed facts and subject to demurrer. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

" 'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]' [Citation.]" (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781, italics added.)

A reviewing court examines a pleading de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (See McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) "In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 . . . .)" (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) We also accept as true those "facts that may be implied or inferred from those expressly alleged. (Rose v. Royal Ins. Co. (1991) 2 Cal.App.4th 709, 716 . . . .)" (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

"[W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "In assessing whether plaintiffs should be allowed leave to amend, we determine de novo whether the complaint states facts sufficient to state a cause of action under any possible legal theory. [Citation.] We are not limited to plaintiffs' theory of recovery or 'form of action' pled in testing the sufficiency of the complaint. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103 . . . .)" (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870.)

B. Procedural History and Background

On June 9, 2006, the Committee filed a petition for writ of mandamus challenging the approval of the changes to the C1 trail alignment on the ground the approval violated CEQA because no environmental review had been conducted prior to the decision. It sought to compel respondents to set aside the portion of the Board's December 13, 2005 resolution that "deems Stanford to have complied with GUP condition I.2 and allows the relocation of the C1 Trail Alignment to a location generally on the west side of San Francisquito Creek in the County of San Mateo and the Town of Portola Valley . . . ." It also sought injunctive relief precluding respondents "from engaging in any activity pursuant to the approval of the C1 Trail Alignment . . . in the above described Resolution, until the environmental review complies with CEQA and the C1 Trail Alignment complies with CEQA."

Respondents and the real parties in interest demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action (Code Civ. Proc.,  430.10, subd. (e)) in that it was time barred under section 21167, subdivision (c), (action alleging that an EIR does not comply with CEQA must be commenced within 30 days of filing the notice of determination) and California Code of Regulations, title 14, section 15112, subdivision (c)(1). They successfully asked the court to take judicial notice of the Board's December 13, 2005 resolution, the December 15, 2005 Notice of Determination, and revised December 20, 2005 Notice of Determination.

In the preamble to the resolution, the Board made the following factual statements. Stanford University "applied for a Community Plan and General Use Permit ('GUP') to allow development of an additional 2,035,000 square feet of non-residential academic development and 3,018 housing units at Stanford, which the Board of Supervisors approved on December 12, 2000." "GUP condition I.2 requires Stanford to 'dedicate easements for, develop, and maintain the portions of two trail alignments which cross Stanford lands shown in the 1995 Santa Clara Countywide Trails Master Plan (Routes S1 and C1).' " "[D]ue to complexities with the C1 alignment, including but not limited to a lawsuit between the County of San Mateo and property owners along a portion of the Alpine Road right-of-way within or near the C1 alignment, in 2001 the Board . . . directed County staff and Stanford to suspend work on the C1 alignment and to proceed with the S1 alignment to avoid any further delay in implementing the S1 alignment." A supplemental EIR for the S1 trail alignment "assesse[d] the project-specific environmental consequences of constructing one of the two trails that Stanford is required to dedicate as a result of a mitigation measure identified in the GUP EIR" and "analyze[d] the environmental effects of three potential primary S1 trail alignments, which are identified as S1-A, S1-C, and S1-D, and several alternative segments within the primary alignments . . . ."

As to the C1 trail route, the resolution's preamble stated: "Stanford has completed the portions of the C1 alignment that are within Santa Clara County." "[B]ecause the remaining portions of the C1 alignment lie within the jurisdiction of San Mateo County and the Town of Portola Valley, necessitating their . . . cooperation, Stanford has agreed to provide funding to San Mateo County ($8.4 million) and Portola Valley ($2.8 million) for trail construction and environmental compliance and to dedicate to those jurisdictions any easements that are needed for the trail across Stanford land."

In the portion of the resolution addressing CEQA compliance, the environmental review process to date was described. The resolution recognized that the GUP EIR had identified a significant environmental impact resulting from Stanford's development, which would reduce availability of recreational facilities but increase demand. It stated that a mitigation measure identified in the GUP EIR required Stanford to dedicate trail easements shown on the County Trails Master Plan in order to provide more recreational opportunities. It also referred to GUP Condition I.2, which required Stanford to "dedicate easements for, [and] develop and maintain the portions of the two trail alignments which cross Stanford lands shown in the 1995 Santa Clara County Countywide Trails Master Plan (Routes S1 and C1)."

In its resolution, the Board certified the final supplemental EIR "for the actions described in this Resolution and the Final S1 SEIR, i.e. the selection of the Alternative S1-C Alignment (Bicycle Lane along Deer Creek Road) and approval of the Agreement For Trail Easements pertaining to that alignment." The Board made other CEQA findings with respect to the S1 alignment. Its resolution stated that "[t]he S1 SEIR supplements the GUP EIR and the Santa Clara County Countywide Trails Master Plan Update SEIR, which are both considered program EIRs under CEQA."

In regard to the C1 and C2 trails, the resolution stated: "The Trails Master Plan SEIR is a program EIR that evaluates, at a broad level, the environmental effects of implementing the County's policies for the planning, acquisition, design, operations, and maintenance of Countywide trails and trail facilities. . . . The Trails Master Plan recognizes a variety of types of trail routes and acknowledges that some routes may extend beyond the borders of Santa Clara County." No reference was made to the GUP EIR or to any supplemental EIR for the C1 trail alignment. The Board did not make any detailed CEQA findings for the C1 trail alignment as it had done for S1 alignment in its resolution. The Board did not state that the approved activities with regard to the C1 trail had been examined in light of the GUP EIR and the Countywide Trails Master Plan EIRs or that any determination had been made that those activities were within the scope of those program EIRs.

The Board then made the following determinations with regard to the C1 and C2 alignments: "With regard to the C1 and C2 trail routes, the County's approval of the Agreement For Trail Easements does not constitute County approval of construction, operation or maintenance of specific trail improvements along those routes. The Agreement for Trail Easements contemplates that, prior to any trail improvements, detailed construction plans will be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley and Town of Los Altos Hills, and that those jurisdictions will have discretion to consider whether and how to improve trail improvements. Accordingly, the Board finds that no further CEQA review is required by the County prior to execution of the Agreement For Trail Easements."

The Board found with respect to Stanford's compliance with GUP Condition I.2: "Based on Stanford's commitments as reflected in the Agreement for Trail Easements, the Board finds Stanford to be in compliance with condition I.2 of the 2000 General Use Permit." The Board delegated to the Director of the County Parks and Recreation Department "the authority to take all further actions by the County that are necessary or appropriate to approve and fully implement the S1, C1 and C2 trail alignments in accordance with the Agreement for Trail Easements, following approval by County Counsel as to form and legality and approval by the Office of the County Executive."

An unsigned copy of the trails agreement was attached as Exhibit 1 to the Board's resolution. The agreement to be executed recited: "Condition I.2 of the GUP ('condition I.2') implements the Community Plan and the Trails Master Plan and provides: Stanford shall dedicate easements for, develop, and maintain the portions of the two trail alignments which cross Stanford lands shown in the Trails Master Plan (Routes S1 and C1), according to the following timeline: [] a. In consultation with the County Parks and Recreation Department, Stanford shall identify trail easements and complete Agreements for Trail Easements within one year of GUP approval. For purposes of this condition, the term 'easement' includes any other equally enforceable mechanism acceptable to the County Board of Supervisors. [] b. Stanford shall work with the County Parks and Recreation Department to identify responsibilities for trail construction, management and maintenance. An agreement regarding these issues, including but not limited to a time frame for implementation, shall be reached within one year of GUP approval."

The trails agreement further recited that "[t]he parties intend that by entering into this Agreement, Stanford satisfies condition I.2 of the GUP." The agreement explicitly declared: "Execution of this Agreement satisfies Condition I.2 of the General Use Permit. Stanford shall perform its covenants contained in this Agreement . . . ." It also declared: "The S1 and C1 alignments described in this Agreement are consistent with the Trails Master Plan. Stanford has identified trail easements for the portions of these alignments that cross its lands in consultation with the County Parks and Recreation Department."

In regard to implementation of the C1 trail, the trails agreement required Stanford to provide, at no cost, copies of its engineering plans of possible improvements to, and a possible trail alignment of, the C1 trail in the County of San Mateo and the Town of Portola Valley. It further stated that "the alignment shown on the existing plans is only one possible alignment for the C-1 Trail" and provided that "Stanford, the County of San Mateo and Town of Portola Valley will jointly determine the final alignment."

In addition to provisions implementing the S1 trail alignment, the agreement provided: "Stanford will also fund improvements to the C1 and C2 trails identified in the Trails Master Plan that are located within unincorporated San Mateo County, the Town of Portola Valley, and the Town of Los Altos Hills. Stanford will also dedicate easements for the portions of the C1 alignment that cross its lands in San Mateo County and the Town of Portola Valley." It obligated Stanford to make specified funds available to the County of San Mateo and the Town of Portola Valley. In regard to dedication of trail easements, the agreement provided: "Upon request and contemporaneous with the initial payment to each or at another time acceptable to the other jurisdictions, Stanford shall dedicate to San Mateo and Portola Valley public easements reasonably necessary for the C-1 Trail that cross [sic] Stanford's lands, and for the widening and improvement of it according to plans . . . ."

The trails agreement recognized the possibility that other jurisdictions might not enter into agreements to construct trail improvements, a condition precedent to Stanford's obligation to fund improvements by those jurisdictions, or other jurisdictions might not timely complete construction. In those eventualities, Stanford's obligation to fund trail improvements converted to an obligation to pay Santa Clara County in accordance with the agreement. The county was required to use those funds received from Stanford under this substitute provision in some unspecified way to mitigate "the adverse effect on recreational opportunities for existing or new campus residents and facility users that will be caused by the housing and academic development approved by the GUP, which will reduce the availability of recreational facilities while increasing the demand for such facilities," "provided the funds shall not be used for facilities on Stanford's lands without Stanford's consent."

The original Notice of Determination made no mention of the C1 trail alignment. The notice's project description and project location referred to only the S1 trail alignment. The only EIR mentioned in the notice was the EIR for the S1 trail alignment. The notice stated that "[t]he project will not have a significant effect on the environment," an EIR had been prepared for the project, approval of the project was conditioned upon mitigation measures, and "[f]indings were made pursuant to section 15091 of CEQA." The stamp on the Environmental Declaration of the Santa Clara County Clerk-Recorder shows the notice was posted December 16, 2005 through January 15, 2006.

The revised Notice of Determination changed the project description to include the Board's actions with respect to the C1 and C2 trail alignments. It referenced the EIR for the S1 Trail Alignment, the 2000 GUP EIR, and the "Countywide Trails Master Plan EIR/SEIR." The notice's statement of project location specified that the C1 alignment was "located generally on the west side of the creek in San Mateo County and the Town of Portola Valley, along the Alpine Road from Rural Lane to Arastradero Road (approximately 3 mi)." The notice's statement of project description included: "The County of Santa Clara approved the Agreement for Trail Easements with regard to the C1 and C2 trail routes, but the Agreement does not constitute County approval of construction, operation or maintenance of specific trail improvements along these routes. The Agreement contemplates that, prior to any trail improvements, detailed construction plans will be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley, and Town of Los Altos Hills for their discretion of how to improve the trail improvements." (Italics omitted.) Like the previous notice of determination, it stated that "[t]he project will not have a significant effect on the environment," an EIR had been prepared for the project, "Mitigation Measures have been made a condition of approval of the project," and "[f]indings were made pursuant to section 15091 of CEQA." The stamp on the Environmental Declaration of the Santa Clara County Clerk-Recorder showed the notice was posted "December 20, 2005 through January 19, 2005 [sic]."

The Committee successfully asked the court to take judicial notice of the following: (1) a December 13, 2005 memorandum to the Board from the director of the County's Department of Parks and Recreation; (2) a September 13, 2005 memorandum to the Board from the Planning Office of the County's Department of Planning and Development; (3) a public comment letter and response in the S1 Trail Alignment EIR;[3] and (4) the November 1995 Countywide Trails Master Plan map.

The December 2005 memorandum stated that the C1 trail alignment "concept noted in the GUP, and as depicted in the Countywide Trails Master Plan map, is to create a trail near San Francisquito Creek on Stanford's lands in Santa Clara County." (Italics added.) The memorandum described the difficulties encountered in attempting to implement this alignment due to potential environmental impacts to a riparian habitat and Stanford's rejection of an interior alignment. It indicated the current proposal was "to build a new trail, or renovate the existing trail, in a location generally west of San Francisquito Creek in San Mateo County and the Town of Portola Valley." The memorandum acknowledged that such an alignment would require cooperative agreements with those jurisdictions. As to CEQA compliance, the memorandum indicated that a supplemental EIR for the S1 Trail Alignment had been prepared and recommended that the Board certify it, select the alternative S1-C alignment, and make "related CEQA findings." The memorandum did not indicate any environmental review had been done with regard to the proposed changes to C1 trail alignment but acknowledged that "[t]he details of the C1 alignment must be further analyzed in the CEQA study . . . ."

The September 2005 memorandum made staff recommendations relating to the S1 trail alignment to the Board. It indicated that "staff [was] following the Board's direction to . . . proceed with S1 and to address C1 at a later date."

The response to the public comment, which complained about locating a trail in San Mateo County, clarified the "C1 route is not within the scope of this SEIR." The countywide trails map shows proposed trail routes within the County and possible points of connection to trail routes in adjacent counties.

The trial court sustained respondents' demurrer with leave to amend.

The Committee filed a new pleading, denominated "first amended petition for writ of mandamus." It alleged: "In December 2000, the County of Santa Clara, by and through its Board of Supervisors, ('Respondents') adopted the Stanford University Plan (CP) and 2000 General Use Permit ('GUP'), and certified the Stanford University CP/GUP Environmental Impact Report ('GUP EIR'). The GUP provided The Leland Stanford Junior University and the Board of Trustees of the Leland Stanford Junior University ('Stanford' or 'Real Parties') with entitlements for development of over two million square feet and over 3,000 housing units, subject to implementation of specified environmental mitigation measures and permit conditions of approval. Mitigations and conditions of approval included the dedication of the S1 and C1 Trails as specified in the Santa Clara Countywide Trails Master Plan ('SCC Trails Plan'). This condition was known as GUP Condition I.2. According to the GUP EIR, the mitigation measures were required in order to mitigate environmental impacts associated with Stanford's development because the 'CP/GUP will reduce the availability of recreational facilities while increasing the demand for such facilities.' The GUP EIR states that 'Stanford shall also dedicate the trail easements shown on the County Trails Master Plan.' GUP Condition I.2 requires that Stanford dedicate, develop and maintain the C1 Trail identified in the SCC Trails Plan."

The amended petition alleged that "the SCC Trails Plan does not call for C1 Trail to be located in San Mateo County and/or Portola Valley" and "the approval of the C1 Trail in San Mateo County and Portola Valley, agencies over which Respondents have no jurisdiction, does not meet GUP Condition I.2." It stated: "In December 2001, Stanford had proposed to satisfy GUP Condition I.2 pertaining to the C1 Trail by constructing a trail in the County of San Mateo first and if agreements could not be made with the involved jurisdictions (County of San Mateo, City of Menlo Park and the Town of Portola Valley), Stanford would commit to providing a trail near the east side of San Francisquito Creek in the County of Santa Clara. No agreement was ever reached between Stanford and the County of San Mateo or the Town of Portola Valley." It alleged that approval of relocating segments of the C1 trail to the County of San Mateo and the Town of Portola Valley without any environmental review violated CEQA. The petition averred "unlike the approval of the S1 Trail, there was no environmental review prepared for the proposed C1 Trail in the County of San Mateo and the Town of Portola Valley."

The amended petition asserted that the Board's approval of the C1 Trail in San Mateo County and the Town of Portola Valley in its December 2005 resolution "is subject to environmental review under CEQA because its approval is a 'project' under CEQA." It stated that "the S1 EIR does not review the environmental impacts of the proposed C1 Trail in San Mateo County and the Town of Portola Valley" and the "S1 EIR" explicitly stated: " 'The C1 trail route is not within the scope of the SEIR.' " This petition further alleged that the "Board of Supervisors abused its discretion by approving the C1 Trail outside of its jurisdiction without preparing any environmental review."

According to the petition, "[t]he C1 Trail, as provided for in the GUP and as depicted in the SCC Trails Plan, is designed to create a trail near San Francisquito Creek/Los Trancos Creek . . . on Stanford's lands in the County of Santa Clara." It stated that "the Agreement does not result in full compliance [with the permit condition] since the Agreement does not result in construction of the C1 Trail designated in the County Master Trails Plan as required by GUP Condition I.2."

In a first cause of action, the Committee sought declaratory relief in the form of a judicial declaration that both notices of determination had "no force and effect or validity" as they relate to the C1 Trail because respondents never "determined whether the proposed C1 Trail may have a significant effect on the environment . . . ." In a second cause of action, the Committee alleged that respondents County and Board had violated CEQA and abused their discretion by failing to "perform environmental review for the approval of the 'C1 Trail' in the County of San Mateo and the Town of Portola Valley." The Committee sought a writ of mandamus compelling respondents County and Board to (1) set aside the Board's resolution insofar as it "deems Stanford to have complied with GUP [C]ondition I.2" and allows construction of the C1 Trail "on the west side of San Francisquito Creek in the County of San Mateo and the Town of Portola Valley" and (2) compelling them to "comply with CEQA." It also sought injunctive relief preventing respondents "from engaging in any activity pursuant to the proposed C1 Trail as approved in the [Board's December 13, 2005] Resolution" until respondents "conduct environmental review and comply with CEQA."

In a third cause of action, the Committee alleged that, among other things, "CEQA and the CEQA Guidelines require that mitigation measures be fully enforceable through permit conditions, agreements and other measures," "Condition I.2 requires the C1 Trail to be built in accordance with the County Trails Master Plan," and respondents County and Board "have a mandatory duty to require compliance with Condition I.2." The Committee sought a writ of mandamus compelling respondents to enforce GUP Condition I.2.

Respondents filed a demurrer to the first amended petition on the ground it was time barred by section 21167, subdivisions (c) and (e), and by Government Code section 65009, subdivision (c). They argued that the CEQA statute of limitations barred any claim by the Committee that "the County did not comply with CEQA when it adopted the resolution approving the Trails Agreement" and Government Code section 65009, subdivision (c), barred any claim challenging the County's determination that Stanford was in compliance with GUP condition I.2.

The Committee countered that "when an agency fails to make any determinations whether a project will have a significant affect [sic] on the environment, the statute of limitations is 180 days" under section 21167, subdivision (a). It also contended that its petition for mandamus was simply an action to enforce an approved permit condition that had not been amended and, therefore, the 90 day limitation period under Government Code section 65009, subdivision (c), was inapplicable.

The Committee asked the trial court to take judicial notice of the May 2006 Annual Report No. 5 prepared by the Santa Clara County Planning Office regarding Stanford University's compliance with the conditions of the 2000 General Use Permit. The trial court denied the request.[4] In ruling on the demurrer, however, the trial court took judicial notice of the documents submitted with the prior demurrer but asserted it was taking notice of "the existence and filing of the documents" and "not the truth of the matters stated therein."

The trial court found that the notices of determination "did not lack any of the material information required and were at a minimum in substantial compliance with CEQA Guidelines  15094 . . . ." The court stated that the petition's allegations that "the County failed to conduct environmental review for the C1 Trail are contradicted by the judicially noticed documents and are disregarded." The court also indicated that it would disregard allegations contradicting the statement in the Board's resolution that GUP Condition I.2 had been complied with and, therefore, the Committee could not state facts sufficient to justify relief. It found that the mandamus proceeding to enforce GUP Condition I.2 "most closely resemble[d] a CEQA claim" and was subject to the 30-day limitations period under section 21167, subdivision (e). The trial court sustained the demurrer without leave to amend, finding that all challenges to the County's action were required to be filed within 30 days from the filing of the second notice of determination under section 21167, subdivision (b), (c), or (e), that is no later than January 19, 2006, and the defects could not be cured by amendment.[5]

A judgment of dismissal was entered and the Committee appealed.

C. Statute of Limitations Applicable to Writs of Traditional Mandamus

"It is established in this state that a mandamus proceeding is barred if not commenced within the period prescribed by the limitations statutes and that the limitation begins to run when the right first accrues. [Citations.]" (Barlow v. City Council of City of Inglewood (1948) 32 Cal.2d 688, 697.) "Rules of law relating to limitations of actions are applicable to mandamus proceedings. [Citation.]" (Ginns v. Savage (1964) 61 Cal.2d 520, 524.)

"Both mandamus and declaratory judgment are remedies available to enforce a variety of obligations; choice of the statute of limitations applicable to these remedies depends on the right or obligation sought to be enforced, and the statute's application generally follows its application to actions for damages or injunction on the same rights and obligations. [Citation.] Thus, a declaratory judgment action or mandate petition to enforce a statutory liability must be brought within the same three-year period after accrual of the cause of action (Code Civ. Proc., 338, subd. (a)) as an action for damages or injunction on the same liability. (Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 462-464 . . . ; Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427, 429-430 . . . .)" (Howard Jarvis Taxpayers Ass'n v. City of La Habra, supra, 25 Cal.4th at p. 821.) "It is often difficult to decide which statute of limitations governs an action for writ of mandate. The code provisions authorizing this action are silent as to the time within which it must be filed. (See Code Civ.Proc.,  1085 et seq.) Accordingly, the courts have developed the rule that the question is to be resolved not by the remedy prayed for but by the nature of the underlying right or obligation that the action seeks to enforce. (Allen v. Humboldt County Board of Supervisors (1963) 220 Cal.App.2d 877 . . . .)" (Green v. Obledo (1981) 29 Cal.3d 126, 141, fn. 10.)

D. CEQA's Statute of Limitation

"Section 21167 sets forth the time within which an action challenging a public agency's decision under the provisions of CEQA must be filed." (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1230.) The Committee insists that, although a notice of determination was filed, the applicable limitation period is 180 days under subdivision (a) of section 21167 because the Board never determined whether the approved changes regarding the C1 trail alignment may have a significant effect on the environment. Respondents maintain that "the 180-day limitations period is a fallback that applies only when the public agency has not provided official notice of its action" and the limitation period is 30 days whenever a legally sufficient notice of determination is filed, as they claim was done here. Respondents insist that subdivision (e) of section 21167 required the Committee to file suit within 30 days of the notice of determination.

Section 21167 provides in pertinent part: "An action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows: [] (a) An action or proceeding alleging that a public agency is carrying out or 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 shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project. [] (b) An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by . . . subdivision (a) of Section 21152. [] (c) An action or proceeding alleging that an environmental impact report does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by . . . subdivision (a) of Section 21152 by the lead agency. . . . [] (e) An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by . . . subdivision (a) of Section 21152."[6] Respondents recognize that section 21167, subdivision (d), which applies to projects determined to be not subject to CEQA, is inapplicable.[7]

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[1] All further statutory references are to the Public Resources Code unless otherwise stated.

[2] The university and its Board of Trustees are named as the real parties in interest.

[3] CEQA requires a lead agency to "consider comments it receives on a draft environmental impact report, proposed negative declaration, or proposed mitigated negative declaration if those comments are received within the public review period" and to prepare a written response to comments received on a draft environmental impact report. ( 21167, subd. (d); see Cal. Code Regs., tit. 14,  15088 [hereafter Cal. Code Regs., tit. 14,  15000 et seq. will be referred to as CEQA Guidelines, see fn. 8, ante.)

[4] This court granted the Committee's request to take judicial notice of the Santa Clara County Planning Office's Annual Report No. 5, prepared by the County of Santa Clara Planning Office, May 2006, which is a report on Stanford's development activity and compliance with GUP conditions. (Evid. Code,  452, subd. (c), 459.) In Appendix B, "GUP Conditions and Compliance Activities," the report noted in regard to Condition I.2 that the County approved the trails agreement with respect to the C1 and C2 trail routes but the agreement did not constitute "County approval of construction, operation or maintenance of specific trail improvements along these routes" and other jurisdictions would review and exercise their discretion regarding these trails.

[5] The trial court additionally found that the declaratory relief action failed because the declaratory relief action "simply repeats the claim of a CEQA violation" and declaratory relief "will not lie to determine issues raised in other causes of action before the Court." A declaratory relief cause of action does not fail to state a cause of action merely because it duplicates the claims made in another cause of action. (See Code Civ. Proc.,  1062 ["The remedies provided by this chapter are cumulative, and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party to such action, and no judgment under this chapter shall preclude any party from obtaining additional relief based upon the same facts"]; Ermolieff v. R.K.O. Radio Pictures (1942) 19 Cal.2d 543, 547 ["Neither the fact that a party has another remedy nor that a breach has occurred prior to the commencement of his action compels the court to deny relief. Ordinarily, the alternative remedy, such as damages, injunctive relief and the like would be more harsh, and if he chooses the milder remedy, declaratory relief, the court is not required for that reason to compel him to seek a more stringent one"]; see also Columbia Pictures Corp. v. De Toth (1945) 26 Cal.2d 753, 761 ["The remedies provided by the statute are cumulative and declaratory relief may be asked alone or with other relief, Code Civ.Proc.  1060-1062"].) If a pleading states facts sufficient to constitute a claim for mandamus or injunctive relief based upon violation of CEQA, those facts also should be sufficient to state an action for declaratory relief. We recognize, however, that a court may, under Code of Civil Procedure section 1061, exercise its discretion to refuse to provide declaratory relief "where its declaration or determination is not necessary or proper at the time under all the circumstances" and this discretionary authority may be applied on demurrer. (See Moss v. Moss (1942) 20 Cal.2d 640, 642-643 ["Where facts appear from the face of the complaint which would justify a trial court in concluding that its determination is not necessary or proper," a court may exercise its discretion under section 1061 of the Code of Civil Procedure]; see also Lord v. Garland (1946) 27 Cal.2d 840, 852; General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471; California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1624; cf. Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 732 [no circumstances appeared on face of the complaint indicating that declaratory relief was not "necessary or proper"].) The appellate record, however, does not demonstrate that the superior court was exercising its discretion under Code of Civil Procedure section 1061 but rather indicates that the court improperly concluded that appellant had failed to state a cause of action because the declaratory relief action was duplicative.

[6] A "project" under CEQA encompasses "the whole of the action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect change in the environment . . . ." (CEQA Guidelines,  15378, subd. (a);  21065.) The term "project" includes an activity involving issuance of a permit by one or more public agencies and "[a]n activity undertaken by a person [that is] supported in whole or in part through public agency contracts . . . ." (CEQA Guidelines,  15378, subds. (a)(2) and (a)(3);  21065.) "Project" refers to the activity which is being approved. (CEQA Guidelines,  15378, subd. (c).) A project may encompass a related series of actions that can be characterized as one larger project (see CEQA Guidelines,  15168, subd. (a) [Program EIR]; see also CEQA Guidelines,  15167 [Staged EIR]) or a project may consist of smaller individual projects that will be carried out in phases (see CEQA Guidelines,  15175, subd. (a) [Master EIR]; see also  21157 et seq. [same].)

[7] Subdivision (d) of section 21167 states: "An action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division pursuant to subdivision (b) of Section 21080 [exemptions] or Section 21172 [disasters] shall be commenced within 35 days from the date of the filing by the public agency, or person specified in subdivision (b) or (c) of Section 21065, of the notice authorized by subdivision (b) of Section 21108 [state agency] or subdivision (b) of Section 21152 [local agency]. If the notice has not been filed, the action or proceeding shall be commenced within 180 days from the date of the public agency's decision to carry out or approve the project, or, if a project is undertaken without a formal decision by the public agency, within 180 days from the date of commencement of the project."