In Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, the Court of Appeal for the Second Appellate District affirmed the trial court’s decision requiring Ventura County (the County) to prepare a supplemental environmental impact report (EIR) to evaluate the impacts associated with increasing the height of a medical office building previously approved to be developed within the Ventura County Medical Center from 75 feet to 90 feet.
The County originally approved an EIR in 1993 stating the building would have a maximum height of 75 feet. In 2005, the County prepared an addendum to the 1993 EIR to evaluate potential impacts of relocating the building a few hundred feet northwest from the original location. The addendum only addressed relocation of the building and did not disclose that the building height would increase by twenty percent. The County filed a Notice of Determination (NOD) after approving both the original 1993 EIR and the 2005 addendum. In May of 2008, a community group known as Ventura Foothill Neighbors, learned about the change in height when a citizen noticed equipment at the construction site and inquired what was being built. Approximately two months after discovering the change, Ventura Foothill Neighbors filed a petition for writ of mandate and sought a preliminary injunction to stop construction of the building. The trial court declined to enjoin construction and the County completed the building in 2010.
The key question before the court was whether the statute of limitations expired before Ventura Foothill Neighbors filed its lawsuit. The County argued that the lawsuit should be viewed as a challenge to the 1993 EIR or at least the 2005 addendum and, therefore, the lawsuit was filed well after the 30 day statute of limitation ran under either of the NODs. The court disagreed. The court reasoned filing of the NOD triggers a 30-day window for all CEQA challenges “to the decision announced in the notice.” In this case, neither the 1993 EIR nor the 2005 addendum mentioned the change in height of building. As a result, respondent had 180 days from when it “knew or reasonably should have known the project differed substantially from the one described in the EIR.” As Ventura Foothill Neighbors discovered the change in May of 2008 and filed its lawsuit in July of 2008, the lawsuit was timely.
The court also held the change in height from 75 feet to 90 feet constituted a substantial change in the project requiring a major revision in the EIR. Therefore, the court concluded that the County should have prepared a supplemental EIR to analyze the impacts associated with the change in height.
An NOD filed creates a short statute of limitations to challenge actions of the lead agency pursuant to CEQA. However, an NOD only covers the project as defined in the NOD and associated environmental document (e.g. EIR, addendum, etc.). To avoid uncertainty and reduce the potential for future litigation, a lead agency should make sure to clearly define the project in an NOD and associated environmental document.