Approval of Initial Entitlement Triggers CEQA Statute of Limitations, Even Where Project Requires Additional Entitlements for Implementation

March 28th, 2022

By: Dustin Peterson



In the partially published Crenshaw Subway Coalition v. City of Los Angeles (2022) 75 Cal.App.5th 917, the Second District Court of Appeal affirmed the trial court’s judgment dismissing the claims of Crenshaw Subway Coalition (Coalition) alleging that the City of Los Angeles and the City Council (collectively, City), represented by the Thomas Law Group on the CEQA claim, had violated the federal Fair Housing Act (FHA), California’s Fair Employment and Housing Act (FEHA), and CEQA by approving a mixed-use redevelopment project (Project). In the published portion of the opinion, which is not discussed further in this summary, the Court held that the Coalition’s gentrification-based theory of disparate impacts would require the City to use and consider race in making local planning decisions and was, therefore, not a cognizable legal claim under either the FHA or FEHA. In the unpublished portion of the opinion, the Court concluded that the Coalition’s CEQA claim was untimely.

In late 2016, the Department of City Planning (Department), the entity the City designated to consider vesting tentative tract maps (VTTMs), held a noticed hearing to decide whether to certify an EIR and approve a VTTM for the Project. The Department approved the VTTM and certified the EIR in a letter of determination issued in early 2017, and issued a notice of determination (NOD) 61 days later. Later that year, the City approved additional entitlements the Project required, including a development agreement and amended the applicable zoning and height limitations. In 2018, 558 days after the Department approved the VTTM, the Coalition filed suit alleging housing discrimination and a CEQA claim. The trial court sustained the City’s demurrer to the CEQA claim, finding it to be untimely because it was filed more than 30 days after the City posted its NOD and, alternatively, more than 180 days after Project approval.

On appeal, the Coalition argued that the Department’s actions did not constitute an “approval” because the City still needed to approve other elements of the Project. The Court noted that the approval of a project occurs upon the first decision that commits a public agency to a definite course of action. Further, approval of a VTTM, whether conditional or not, provides a vested right to proceed with development. As such, the Court found that the VTTM approval fell “comfortably within the definition of ‘approval’ for CEQA purposes.”

The Coalition further argued that the Project could not have been approved by the Department because a “project” is defined as the “whole of an action,” and the Project was not final until the City denied all administrative appeals of the subsequent entitlement approvals. The Court held that CEQA Guidelines section 15378(c) foreclosed this argument, as it explicitly acknowledges that a project may require subsequent discretionary approvals by agencies, and that the term “project” refers to the activity which is being approved, not each separate government approval.

Finally, the Coalition claimed that the City should be equitably estopped from invoking the limitations period because the notice for the Department’s hearing on the Project was misleading in that it was unclear from the notice whether the Department was acting in an advisory or a decision-making capacity. While the Court acknowledged that the Department’s notice could possibly be interpreted as being potentially unclear and ambiguous, it found that the Coalition did not meet the unusually high burden of “avoiding grave injustice” needed to claim equitable estoppel against a public entity. Moreover, the Court noted that statements that are merely doubtful or questionable inferences do not rise to the level of certainty required to invoke equitable estoppel. As such, the Court held that the Coalition’s CEQA claims were untimely, and affirmed the trial court’s judgment sustaining the City’s demurrer.