Emergency Pandemic Tolling no Excuse for Untimely CEQA Suit; Petitioner’s Attempts to Evade Procedural Dismissal Unsuccessful

August 22nd, 2022

By: Sam Bacal-Graves



In Committee for Sound Water & Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, the Sixth District Court of Appeal upheld the trial court’s finding that a CEQA challenge to a proposal to develop a large “Mixed-Use Urban Village” on the former Fort Ord military base (Project) was time-barred. The Court also found that an alleged violation of due process to have been mooted by changes in the law governing land use on the former military base.

In 2017, KB Bakewell (KB) proposed to redevelop a site within the former Fort Ord military base, and, in March of 2020, the City of Seaside (City) prepared and certified an EIR, and approved the Project, including a specific plan. On March 6, 2020, the City issued a Notice of Determination, beginning a 30-day statute of limitations. On April 6, 2020, the Committee for Sound Water & Land Development (Petitioners) filed suit, raising causes of action under CEQA. Petitioners subsequently dismissed their suit without prejudice, but filed a second suit on September 1, 2020, raising the same claims and adding the Fort Ord Reuse Authority (FORA), the agency charged with determining the consistency of development projects within the Fort Ord Reuse Plan at the time of the Project’s approval, as an additional respondent.

KB demurred to the second lawsuit, arguing that it was untimely as to the CEQA claims, even after application of the California Judicial Council’s Emergency rule 9, which tolled statutes of limitations in 2020 due to the COVID-19 pandemic. As to a due process claim asserted against FORA arising out of the agency’s alleged failure to provide notice of the consistency hearing for the Project, KB argued that FORA no longer existed, and that the claim was therefore moot and the relief sought unable to be provided. The City also demurred, arguing that the second suit was a sham pleading, filed to circumvent an unavoidable procedural defect Petitioners caused in their first suit – the failure to request a hearing within 90 days – which would have required its dismissal. The trial court granted both demurrers without leave to amend and Petitioners appealed.

Statute of Limitations

As originally adopted on April 6, 2020, Emergency rule 9 tolled all civil statutes of limitations until 90 days after the Governor lifted the declared COVID-19 state of emergency. But in May of that year, the Judicial Council amended the rule, in light of public comment on the importance of CEQA’s unusually short limitations periods, to toll shorter statutes of limitations only from April 6, 2020 until August 3, 2020.

The City and KB argued that straightforward application of the amended rule rendered the suit untimely. Petitioners maintained that the amended rule was unreasonable – an ex post facto law improperly influenced by lobbyists. Petitioners also argued that they had only dismissed their first lawsuit in August 2020 because their attorney was unaware of the amendment. The Court found Petitioners’ arguments to be unavailing. Case law has long held that shortening of a limitations period is permissible if it allows reasonable time to remedy before the statute cuts off a right. Here, Petitioners’ rights were not cut off by the shortened period – they were in fact able to file a lawsuit within the applicable limitations period. In fact, Emergency rule 9 provided them with two additional months to file suit, which they would not have had absent the rule.

Having ruled the CEQA causes of action to be untimely, the Court of Appeal declined to reach the City’s sham pleading contentions.

Mootness

FORA was created by statute to plan for, finance, and carry out the redevelopment of Fort Ord. The authorizing statues became inoperative by their own terms once 80 percent of the former base had been designated for development or reuse. This included a provision requiring projects to be consistent with the Fort Ord Reuse Plan. The substance of Petitioners’ due process claim was that FORA had been required by statute to determine the Project’s consistency at a public hearing, and failed to notify Petitioner of the hearing despite their request. However, as the Court noted, with repeal of the authorizing statutes the Project was no longer required to be consistent with the Plan. Thus, whatever the merits of Petitioners’ due process contentions, they could no longer be provided with effectual relief. Petitioners maintained that their claim were not mooted by the dissolution because the claims applied to the organization’s successor in interest – the City – which had assumed FORA’s obligations. The Court again rejected these claims for lack of effectual relief. As such, the Court found the claim to be moot.

Lastly, the Court upheld the trial court’s decision to refuse leave to amend, finding that Petitioners had not met their burden to show that amendments could cure the identified defects.

Key Points:

  • Noncompliance with CEQA’s procedural requirements can result in dismissal for unwary petitioners



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