CEQA Challenge Barred by 35-Day Statute of Limitations for Categorically Exempt Infill Project

February 24th, 2014

By: Amy Higuera



In an unpublished decision, Friends of the Landmark Filbert Cottages v. City and County of San Francisco, 2014 Cal. App. LEXIS 564, the First District Court of Appeal rejected a CEQA challenge to an infill project near San Francisco’s Russian Hill. The court applied CEQA’s 35-day statute of limitations and affirmed that the public interest is best served by allowing projects to move forward once the statute of limitations period has expired, regardless of the merits of the project’s approval.

The project at issue involved renovation and remodeling of the historic Filbert Street Cottages.  The city planning commission approved the project on April 8, 2010 and relied on a categorical exemption from CEQA review for infill development projects.  This approval triggered a 30-day period for appeal to the city board of supervisors. After the 30 days expired, on May 10, 2010, the city posted a notice of exemption (NOE). Posting of the notice started the 35-day statute of limitations to challenge the project’s approval under CEQA.

On June 17, 2010, thirty-eight days after the planning commission posted the NOE, neighbors attempted to appeal the planning commission decision.  The city advised that the appeal was untimely.  In January, 2011, two additional permits were issued by the city building department. The neighbors again attempted to appeal, but the city advised that no appeal process was available for issuance of building permits for project that have already received authorization from the planning commission.  The neighbors, together with the Friends of the Landmark Filbert Cottages, thereafter filed a petition for writ of mandate.

Friends of the Landmark Filbert Cottages conceded that it missed both the 30-day deadline to appeal to the board of supervisors and the 35-day statute of limitations to challenge use of a categorical exemption to approve the project. However, they argued that the statute of limitations was tolled because the city had not adopted a formal process for administrative appeals, as required by Public Resources Code section 21151.

The court rejected this argument and found that the interim procedures the city had in place to process appeals satisfied the obligations under section 21151. Citing the California Supreme Court in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, the court held that flaws in the decision making process do not toll a facially-valid and properly filed NOE. Allowing “perceived defects” in an administrative appeal process to invalidate the NOE and toll the statute of limitations did not serve the public interest in resolving challenges quickly and allowing projects to go forward.

Friends of the Landmark Filbert Cottages also argued that the 2011 building permits created a second opportunity to appeal the project to the board of supervisors. The court disagreed, finding that issuance of these permits was a ministerial action that necessarily followed the city’s formal approval of the project in May 2010. As the subsequent issuance of permits is not material for CEQA purposes, the deadline to challenge the project in court remained 35 days from the original approval.   In rejecting their arguments, the court noted that the Friends were clearly trying to circumvent CEQA’s 35-day deadline and stop a project that had complied with every CEQA requirement.