Guerrero v. City of L.A. ( 2024 )

Filed 1/17/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DELIA GUERRERO et al., B326033 c/w
B327032
Plaintiffs and Respondents,
(Los Angeles
v. County
Super. Ct. No.
CITY OF LOS ANGELES, 21STCP02307)
Defendant and Appellant;
TTLC LOS ANGELES – EL SERENO LLC et
al.,
Real Parties in Interest and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Maurice A. Leiter, Judge. Reversed and
remanded with directions.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, John W. Heath, Sr., and Terry Kaufman
Macias Assistant City Attorneys, Kathryn Phelan and Marvin
Bonilla Deputy City Attorneys; Downey Brand and Andrew
Skanchy for Defendant and Appellant.
Sheppard, Mullin, Richter & Hampton, Todd E. Lundell
and T. Brooke Miller, for Real Parties in Interest and Appellants.
Carstens, Black & Minteer, Amy C. Minteer, Michelle N.
Black and Sunjana Supekar for Plaintiffs and Respondents.
_______________________
INTRODUCTION
Plaintiffs and respondents Delia Guerrero and Coyotl +
Macehualli Citizens (Objectors) filed a petition for writ of
mandate, alleging that the decision by the City of Los Angeles
(the City) to approve a real estate development project planned
by real parties in interest TTLC Los Angeles – El Sereno, LLC
and The True Life Companies, LLC (Applicants) violated the
California Environmental Quality Act (CEQA), Public Resources
Code section 21000 et seq.1 The City and Applicants (collectively,
Appellants) unsuccessfully demurred, arguing the petition was
untimely. The trial court granted Objectors’ petition, directing
the City to vacate project approvals and prepare an
environmental impact report (EIR) evaluating the environmental
impacts of the project.
Appellants contend the Objectors’ CEQA claims are barred
by the statute of limitations. Alternatively, they contend that
there is no substantial evidence of a fair argument that the
project may have a significant environmental impact. We agree
that the petition was untimely, and accordingly, we reverse and
remand with directions to dismiss the petition.
1 All further undesignated statutory references are to the
Public Resources Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Project Development and Approval
This appeal concerns a private development project to
subdivide a 218,270 square foot parcel of hillside real estate in
Northeast Los Angeles and build 42 single-family homes (the
Project). As initially proposed, the Project required removal of 68
protected black walnut trees. When the City conducted an initial
study, it determined that the Project did not require an
environmental impact report (EIR) under CEQA, and instead
prepared a mitigated negative declaration (MND) in June 2016.2
Applicants later redesigned the Project to change the lot
sizes, rearrange the proposed locations of homes, and address
tree removal and replacement. As redesigned, the Project would
require zoning changes due to the proposed lot sizes and
locations, as well as approvals for retaining walls of varying
heights. The City updated the MND in March 2017 to reflect the
2 “Mitigated negative declaration” means a negative
declaration prepared for a project when the initial study has
identified potentially significant effects on the environment, but
(1) revisions in the project plans or proposals made by, or agreed
to by, the applicant before the proposed negative declaration and
initial study are released for public review would avoid the effects
or mitigate the effects to a point where clearly no significant
effect on the environment would occur, and (2) there is no
substantial evidence in light of the whole record before the public
agency that the project, as revised, may have a significant effect
on the environment. (Cal. Code Regs., tit. 14, § § 15369.5.)
3
changes to the Project.3 The City’s approval of the Project then
proceeded in three stages.
Stage 1: The Planning Department Approves a Vesting Tentative
Tract Map and Adopts the MND
After a January 23, 2020 noticed public hearing, the
Department of City Planning (Planning Department),4 on
March 3, 2020, approved a vesting tentative tract map and
adopted the MND that had been prepared in March 2017 for the
Project. A 30-page determination letter summarized the
numerous conditions applicable to the Project.5 Among other
3 A list of the discretionary approvals included in the MND
identifies two additional approvals not relevant to our discussion:
issuance of a tree removal permit and approval of a haul route to
remove 78,000 cubic yards of soil.
4 The Planning Department was acting in its capacity as
the Deputy Advisory Agency under the Subdivision Map Act.
(See Coalition for an Equitable Westlake/MacArthur Park v. City
of Los Angeles (2020) 47 Cal.App.5th 368, 374, fn. 4 (CEWM).)
5 The letter began by stating, “In accordance with the
provisions of CEQA Guidelines Section 15074(b), the [Planning
Department] found that after consideration of the whole of the
administrative record, including the [MND], and all comments
received, with the imposition of mitigation measures, there is no
substantial evidence that the project will have a significant effect
on the environment; found that the MND reflects the
independent [judgment] and analysis of the City; found that the
mitigation measures have been made enforceable conditions on
4
things, the letter required execution of a covenant and agreement
binding Applicants and all successors to various obligations,
including restrictions on haul routes and specifics relating to tree
removal and replacement. It also described conditions for issuing
a grading or building permit or recording a final map, including
demonstrating that no zoning code violations exist. On March 25,
2020, the City filed a Notice of Determination (NOD), which
stated that the Planning Department adopted the MND and a
mitigation monitoring program, and approved the vesting
tentative tract map.
Stage 2: The Area’s Planning Commission Authorizes Retaining
Walls and Recommends Approval of the Proposed Zone
Change
At a May 13, 2020 noticed public hearing held virtually, the
East Los Angeles Area Planning Commission (Planning
Commission) adopted the previously-prepared MND,6 and made
the project; and adopted the MND and the Mitigation Monitoring
Program prepared for the MND.”
6 The letter of determination states the Planning
Commission found “pursuant to CEQA Guidelines Section
15074(b), after consideration of the whole of the administrative
record, including the [MND], and all comments received, with the
imposition of the mitigation measures, there is no substantial
evidence that the project will have a significant effect on the
environment; Found the [MND] reflects the independent
judgment and analysis of the City; Found the mitigation
measures have been made enforceable conditions on the project;
5
zoning determinations and adjustments necessary for the
Applicant to construct retaining walls and use varying wall
heights.7 The Planning Commission also approved and
recommended that the City Council adopt the zone change
needed for the Project. A letter of determination summarizing
these actions was mailed on January 14, 2021, and an NOD was
filed on February 4, 2021.
Stage 3: City Council Approves the Zone Change
On June 8, 2021, the City adopted the zone change as
recommended by the Planning Commission, as well as the
previously prepared MND.8 An NOD was filed on June 18, 2021.
and Adopted the [MND] and the Mitigation Monitoring Program
prepared for the [MND].”
7 The Planning Commission acted in its capacity as a
Zoning Administrator and a Board of Zoning Adjustment under
Los Angeles Municipal Code sections 12.24, 12.26, and 12.28, and
Government Code sections 65900 et seq.
8 The City Council Agenda item stated that the council
would “FIND, pursuant to CEQA Guidelines Section 15074(b),
after consideration of the whole of the administrative record,
including the MND . . ., and all comments received, with the
imposition of the mitigation measures, there is no substantial
evidence that the project will have a significant effect on the
environment; FIND that the MND reflects the independent
judgment and analysis of the City; FIND that the mitigation
measures have been made enforceable conditions on the project;
and, ADOPT the MND and the MMP prepared for the MND.”
6
B. The Objectors’ Petition for Writ of Mandate
On July 16, 2021, the Objectors filed a petition for writ of
mandate, followed by a first amended petition filed on August 13,
2021. The first amended petition alleged violations of CEQA, the
Planning and Zoning Law (Gov. Code, § 65000, et seq.), and the
Subdivision Map Act (Gov. Code, § 66410, et seq.). Appellants
filed a joint demurrer to the petition, which the Objectors
opposed.
On March 1, 2022, the trial court sustained the demurrers
to the causes of action for violations of the Planning and Zoning
Law and the Subdivision Map Act, but overruled the demurrer to
the CEQA cause of action, reasoning that the petition was timely
because it was filed within thirty days of the June 18, 2021 NOD.
After trial, the court concluded the Project as approved may have
significant environmental impacts that were not mitigated by the
MND, and again rejected the argument that the Objectors’ CEQA
claim was barred by the statute of limitations. The court issued a
peremptory writ of mandate vacating the City’s various
approvals: the adoption of the MND and the mitigation
monitoring program; the actions relating to retaining walls and
wall heights; and the zone change. The court ordered all Project
activity to stop until additional approvals were granted based on
a legally adequate EIR. The City and Applicants timely appealed
the court’s decision and the final writ of mandate and judgment.9
9 This court ordered the two appeals consolidated.
We
construe the consolidated appeals as a single appeal from a final
judgment. (See Laraway v. Pasadena Unified School Dist. (2002)
98 Cal.App.4th 579, 583.)
7
DISCUSSION
A. Applicable Law and Standard of Review
CEQA Overview
CEQA is designed “ ‘to “[e]nsure that the long-term
protection of the environment shall be the guiding criterion in
public decisions.” ’ ” (Friends of College of San Mateo Gardens v.
San Mateo County Community College Dist. (2016) 1 Cal.5th 937,
944 (College of San Mateo), quoting No Oil, Inc. v. City of Los
Angeles (1974) 13 Cal.3d 68, 74.) “CEQA was enacted to (1)
inform the government and public about a proposed activity’s
potential environmental impacts; (2) identify ways to reduce, or
avoid, those impacts; (3) require project changes through
alternatives or mitigation measures when feasible; and (4)
disclose the government’s rationale for approving a project.”
(Protecting Our Water & Environmental Resources v. County of
Stanislaus (2020) 10 Cal.5th 479, 487 (POWER), citing California
Building Industry Assn. v. Bay Area Air Quality Management
Dist. (2015) 62 Cal.4th 369, 382.)
“To implement these goals, CEQA requires state and local
government agencies to first determine whether a proposed
activity is a project subject to CEQA, and then to determine
whether the project is exempt from CEQA or requires some form
of a CEQA document, whether that be an EIR, a negative
declaration, or an MND.” (CEWM, supra, 47 Cal.App.5th at
pp. 376–377 [reviewing definitions of different CEQA
documents].)
8
CEQA operates, not by dictating pro-environmental
outcomes, but rather by mandating that “decision makers and the
public” study the likely environmental effects of contemplated
government actions and thus make fully informed decisions
regarding those actions. (Neighbors for Smart Rail v. Exposition
Metro Line Construction Authority (2013) 57 Cal.4th 439, 447;
Cal. Code Regs., tit. 14, § 15002, subd. (a)(1) [a “basic purpose[ ]
of CEQA [is] to . . . [¶] (1) [i]nform governmental decision makers
and the public about the potential, significant environmental
effects of proposed activities”].)10 Since CEQA was first enacted,
the California Supreme Court has “held that ‘the Legislature
intended . . . [C]EQA to be interpreted in such manner as to
afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.’ [Citation.]”
Union of Medical Marijuana Patients, Inc. v. City of San Diego
(2019) 7 Cal.5th 1171, 1184.)
CEQA Statute of Limitations
Once a public agency has approved a project after
considering its environmental effects, CEQA allows for judicial
review of the agency’s compliance with CEQA. (§ 21167.) An
untimely filed challenge is to be dismissed. (Guidelines, § 15112,
subd. (b); Stockton Citizens for Sensible Planning v. City of
Stockton (2010) 48 Cal.4th 481, 499 (Stockton).)
10 The administrative regulations implementing CEQA
appear in title 14, division 6, chapter 3 of the California Code of
Regulations, and will be referred to as the “CEQA Guidelines.”
(POWER, supra, 10 Cal.5th at p. 488, fn. 3.)
9
“CEQA specifically requires that any lawsuit alleging
CEQA noncompliance must be filed within 30 days after a facially
valid NOD is filed.” (CEWM, supra, 47 Cal.App.5th at p. 378;
Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 50 (Green Foothills); § 21167,
subds. (b), (c), & (e).) If the agency determines that a project is
exempt from CEQA’s requirements and files a notice of
exemption (NOE), the applicable statute of limitations is 35 days.
(§§ 21108, subd. (b); 21152, subd. (b); § 21167, subd. (d); Green
Foothills, supra, 48 Cal.4th at p. 47.) If the agency does not file
an NOD or NOE, or if the relevant notice is invalid, then a
petitioner has 180 days from project approval to file a lawsuit.
(§ 21167, subd. (a); Green Foothills, at p. 47.)
We review de novo the question of whether Objectors’
petition is barred by the statute of limitations. (Ventura Foothill
Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, 434.)
B. Analysis
We agree with Appellants that the trial court erred when it
found Objectors timely filed their petition under section 21667.
Objectors’ petition was filed on July 16, 2021, more than a year
after the City’s March 25, 2020 NOD triggered the statute of
limitations to challenge CEQA compliance. As we explain below,
even though the City’s approval of the vesting tentative tract
map in March 2020 was conditioned on later discretionary
approvals, it still constituted project approval under CEQA. The
March 25, 2020 NOD triggered the statute of limitations on
challenges to the adequacy of the MND, and any CEQA challenge
filed more than 30 days later was untimely.
10
We are unpersuaded by the Objectors’ argument that their
petition was timely based on the June 18, 2021 NOD filed after
the City approved the zone changes necessary to vest the
Applicants’ rights under the Subdivision Map Act. The Objectors’
argument is flawed for several reasons. First, it ignores that
CEQA requires a public agency to conduct environmental review
of a proposed project as early as feasible in the land use planning
process. Second, Objectors’ argument does not take into account
that for projects falling under CEQA that are subject to multiple
discretionary approvals, it is the first approval that triggers the
running of the statute of limitations, and later approvals do not
restart the statute of limitations clock. Third, Objectors ignore
the role of a notice of decision in triggering the statute of
limitations for a party to challenge an agency’s CEQA
compliance. Fourth, with respect to the Project at issue,
Objectors fail to identify any material changes to the Project that
arguably could have triggered a new statute of limitations on the
City’s responsibility to prepare a subsequent or supplemental
EIR. Considering all of these factors, there is no basis in law to
support the trial court’s determination that the Objectors’
petition timely challenged the adequacy of the MND under
CEQA.
Environmental Review at Earliest Opportunity
“CEQA Guidelines call for CEQA review at an early stage
in any process that will lead to an impact on the environment.
Environmental documents (environmental impact reports or
negative declarations) ‘should be prepared as early as feasible in
the planning process to enable environmental considerations to
11
influence project program and design.’ ([CEQA Guidelines],
§ 15004, subd. (b).) Without first carrying out CEQA review,
agencies must not ‘take any action which gives impetus to a
planned or foreseeable project in a manner that forecloses
alternatives or mitigation measures that would ordinarily be part
of CEQA review.’ ([CEQA Guidelines], § 15004, subd. (b)(2)(B).)”
(Friends of the Sierra Railroad v. Tuolumne Park & Recreation
Dist. (2007) 147 Cal.App.4th 643, 654.) “At the same time, CEQA
review is premature if the agency action in question occurs too
early in the planning process to allow meaningful analysis of
potential impacts. Although environmental review must take
place as early as is feasible, it also must be ‘late enough to
provide meaningful information for environmental assessment.’
([CEQA Guidelines], § 15004, subd. (b).)” (Ibid.)
Rather than drawing any distinctions between different
types of possible agency actions granting approval for a proposed
project, CEQA focuses instead on the discretionary nature of such
an approval. CEQA’s environmental review requirements “apply
to discretionary projects proposed to be carried out or approved
by public agencies, including, but not limited to, the enactment
and amendment of zoning ordinances, the issuance of zoning
variances, the issuance of conditional use permits, and the
approval of tentative subdivision maps unless the project is
exempt from [CEQA].” (§ 21080, subd. (a), italics added.)
The mere possibility that a project may change as it moves
through the planning process does not preclude applying CEQA’s
environmental review requirements at the early stages of project
review. The California Supreme Court has “rejected the
argument that approval of a private project for CEQA purposes
was limited to an unconditional agreement by the agency which
12
irrevocably vested development rights.” (Van de Kamps Coalition
v. Board of Trustees of Los Angeles Community College Dist.
(2012) 206 Cal.App.4th 1036, 1046–1047, italics added, citing
Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134
(Save Tara).) Instead, environmental review must be conducted
before, “as a practical matter, the agency has committed itself to
the project as a whole or to any particular features, so as to
effectively preclude any alternatives or mitigation measures that
CEQA would otherwise require to be considered, including the
alternative of not going forward with the project.” (Save Tara, at
p. 139.)
In the present case, the City correctly conducted its
environmental review of the Project before making any project
approvals. Consistent with the CEQA policy of early
environmental review, the Project was then revised to reduce the
number of trees being removed, and the March 2017 MND
included mitigation measures such as replacing protected trees.
The Project revisions were incorporated into the vesting tentative
tract map approved in March 2020, and reflected in the MND
adopted at the same Planning Department meeting. As we
explain next, the conditions incorporated into the vesting
tentative tract map approval did not diminish its status as a
project approval under CEQA.
Project Approval
The longest limitations period applicable to CEQA claims is
180 days, under section 21167, subdivision (d), which “starts
running on the date the project is approved by the public agency.”
(Van de Kamps Coalition v. Board of Trustees of Los Angeles
13
Community College Dist., supra, 206 Cal.App.4th at p. 1045.)
The meaning of the terms “project” and “approval” are clarified in
the statutory language, the CEQA Guidelines, and caselaw, and
the Planning Department’s March 2020 approval of the vesting
tentative tract map meets the CEQA definition of a project
approval.
“[T]he Legislature clearly sought to place strict limits on
the time during which projects may be challenged under CEQA.”
(Green Foothills, supra, 48 Cal.4th at p. 50 [reviewing legislative
history and policy reasons for promoting prompt resolution of
CEQA challenges].) “To ensure finality and predictability in
public land use planning decisions,” “CEQA provides unusually
short statutes of limitations on filing court challenges to the
approval of projects . . . .” (CEQA Guidelines, § 15112, subd. (a);
Stockton, supra, 48 Cal.4th at p. 499.) Decisions applying those
strict limits account for “the Legislature’s clear determination
that ‘ “the public interest is not served unless CEQA challenges
are promptly filed and diligently prosecuted.” ’ [Citations.]”
(Stockton, at p. 500.)
CEQA defines a “project” as “an activity which may cause
either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the
environment,” including, among other things, “[a]n activity that
involves the issuance to a person of a lease, permit, license,
certificate, or other entitlement for use by one or more public
agencies.” (§ 21065.) The CEQA Guidelines explain further that
“project” “refers to the activity which is being approved and which
may be subject to several discretionary approvals by
governmental agencies. The term ‘project’ does not mean each
separate governmental approval.” (CEQA Guidelines, § 15378,
14
subd. (c), italics added; see Citizens for a Megaplex-Free Alameda
v. City of Alameda (2007) 149 Cal.App.4th 91, 105 (Megaplex-Free
Alameda).) “Under CEQA, ‘project’ ‘refers to the underlying
activity which may be subject to approval by one or more
governmental agencies; it does not refer to each of the several
approvals sequentially issued by different agencies.’ [Citations.]
‘This definition ensures that the action reviewed under CEQA is
not the approval itself but the development or other activities
that will result from the approval.’ [Citation.]” (Megaplex-Free
Alameda, supra, 149 Cal.App.4th at p. 106.)
CEQA Guidelines define “approval” as “the decision by a
public agency which commits the agency to a definite course of
action in regard to a project intended to be carried out by any
person.” (CEQA Guidelines, § 15352, subd. (a).) “With private
projects, approval occurs upon the earliest commitment . . .” by
the public agency to issue an entitlement. (Id. at § 15352, subd.
(b).) “Generally speaking, an agency acts to approve a proposed
course of action when it makes its earliest firm commitment to it,
not when the final or last discretionary approval is made.”
(North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227
Cal.App.4th 832, 859, citing Save Tara, supra, at p. 134.) An
approval under CEQA is “not dependent on ‘final’ action by the
lead agency, but by conduct detrimental to further fair
environmental analysis.” (John R. Lawson Rock & Oil, Inc. v.
State Air Resources Bd. (2018) 20 Cal.App.5th 77, 99, italics
added.)
Here, the City made its earliest firm commitment to the
Project when it approved the vesting tentative tract map, even
though there were conditions attached to the approval. “The
Subdivision Map Act contemplates that the local agency, when it
15
approves a tentative map, will normally attach conditions to that
approval, such as the completion of planned subdivision
improvements, and will approve the final map only after
certifying that the subdivider has complied with those specified
conditions.” (Youngblood v. Board of Supervisors (1978) 22
Cal.3d 644, 652 [conditional approval of a tentative map is an
approval for the purpose of determining that map’s consistency
with the existing general plan].) The Subdivision Map Act gives
local governments authority to regulate the design and
improvement of land subdivisions in California. (City of West
Hollywood v. Beverly Towers, Inc. (1991) 52 Cal.3d 1184, 1189
(Beverly Towers).) “The local entity’s enforcement power is
directly tied to its power to grant or withhold approval of a
subdivision map.” (Pacific Palisades Bowl Mobile Estates, LLC v.
City of Los Angeles (2012) 55 Cal.4th 783, 799.) “The purpose of a
conditional tentative map is to identify the requirements to which
the developer must conform; the developer must demonstrate
that he or she has fulfilled the conditions of the tentative map
before approval of the final map will be given. [Citations.] The
developer cannot record a final map if the conditions of a
tentative map are not satisfied.” (Lincoln Place Tenants Assn. v.
City of Los Angeles (2007) 155 Cal.App.4th 425, 446–447.)
The City’s approval of the vesting tentative tract map here
represented its earliest firm commitment to approving the
Project. Just like any other tentative tract map, the final map
would not be approved unless the conditions on the tentative
tract map were met; but if the developer met the conditions
identified on the tentative map, final map approval would be
granted.
16
The Objectors call attention to Government Code section
66498.3, subdivision (a), allowing a city to condition approval of a
vesting tentative tract map on the developer obtaining the
necessary change in zoning. The purpose of a vesting tentative
tract map, in contrast to an ordinary tentative tract map, “is to
allow a developer who needs additional discretionary approvals to
complete a long-term development project as approved,
regardless of any intervening changes in local regulations.”
(Beverly Towers, supra, 52 Cal.3d at p. 1194.) However, delaying
a tentative tract map’s vesting status until the zone change is
approved only impacts the developer’s protection against
subsequent changes in local regulations (see 7 Miller & Starr,
Cal. Real Estate (4th ed., Dec. 2023 update) § 20:13); it does not
change our analysis that approval of the tentative tract map
constitutes project approval under CEQA.
Notices of Decision
The City’s March 25, 2020 NOD was effective to trigger a
30-day statute of limitations on any challenge to the validity of
the MND. “For purposes of the CEQA statutes of limitation, the
question is not the substance of the agency’s decision, but
whether the public was notified of that decision.” (Green
Foothills, supra, 48 Cal.4th at p. 51.) “[T]he posting of an NOD
‘alerts the public that any lawsuit to attack the noticed action or
decision on grounds it did not comply with CEQA must be
mounted immediately.’ ” (Committee for Sound Water & Land
Development v. City of Seaside (2022) 79 Cal.App.5th 389, 401,
quoting Stockton, supra, 48 Cal.4th at p. 488.)
17
In enacting and amending section 21167, the Legislature
clearly sought to place strict limits on the time during which
projects may be challenged under CEQA. To this end, it
mandated that CEQA suits be brought within 30 days after an
NOD is filed. (§ 21167, subds. (b), (c) & (e).) (Green Foothills,
supra, 48 Cal.4th at p. 50.) “The filing of the notice of
determination begins a 30-day statute of limitations on court
challenges to approval of the project under CEQA.” (El Dorado
Union High School Dist. v. City of Placerville (1983) 144
Cal.App.3d 123, 129; § 21167, subd. (c); CEQA Guidelines,
§ 15112, subd. (c)(1).)
Because the Objectors contend that there was no project
approval until the City Council approved the zone change in June
2021, they argue that the March 25, 2020 NOD was filed before
project approval, and was therefore ineffective to trigger the 30-
day statute of limitations. However, as already explained, the
City correctly conducted its environmental review as early as
feasible, and the March 2020 approval of the vesting tentative
tract map was a valid project approval under CEQA. Therefore,
the March 25, 2020 NOD triggered the 30-day limitations period
for challenging CEQA compliance.
No Subsequent or Supplemental MND
Once an environmental document (whether an EIR, an
MND or a negative declaration) is certified, the public agency’s
role under CEQA is generally complete. (See § 21166;
Guidelines, §15162 subds. (a) and (c); College of San Mateo,
supra, 1 Cal.5th at p. 945 [for many projects, adoption of the
MND “is the end of the environmental review process”].) “ ‘The
18
limitations period starts running on the date the project is
approved by the public agency and is not retriggered on each
subsequent date that the public agency takes some action toward
implementing the project.’ ” (Citizens for a Green San Mateo v.
San Mateo County Community College Dist. (2014) 226
Cal.App.4th 1572, 1594–1595; American Chemistry Council v.
Department of Toxic Substances Control (2022) 86 Cal.App.5th
146, 204.)
When a project changes after an agency has already
adopted a CEQA document,11 “section 21166 provides that ‘no
subsequent or supplemental environmental impact report shall
be required’ unless at least one or more of the following occurs:
(1) ‘[s]ubstantial changes are proposed in the project which will
require major revisions of the environmental impact report,’ (2)
there are ‘[s]ubstantial changes’ to the project’s circumstances
that will require major revisions to the EIR, or (3) new
information becomes available. (§ 21166.)” (College of San
Mateo, supra, 1 Cal.5th at p. 945.) “ ‘If changes to a project or its
circumstances occur or new information becomes available after
adoption of a negative declaration,’ and if no subsequent EIR is
required, the agency ‘shall determine whether to prepare a
subsequent negative declaration, an addendum, or no further
documentation.’ (CEQA Guidelines, § 15162, subd. (b).) CEQA
Guidelines further provide that an agency must prepare an
addendum to a previously certified EIR ‘if some changes or
additions are necessary but none of the conditions described in
Section 15162 calling for preparation of a subsequent EIR have
11 Although the language of section 21166 only describes
EIRs, the same criteria apply for a negative declaration or an
MND. (College of San Mateo, supra, 1 Cal.5th at pp. 945–946.)
19
occurred.’ (Id. § 15164, subd. (a).) An addendum to an adopted
negative declaration ‘may be prepared if only minor technical
changes or additions are necessary or none of the conditions
described in Section 15162 calling for the preparation of a
subsequent EIR or negative declaration have occurred.’ (Id.
§ 15164, subd. (b).)” (College of San Mateo, supra, 1 Cal.5th at
p. 946.)
Once the statute of limitations has expired, “any challenges
under CEQA to later approvals or to changes in the project are
‘ “limited to the legality of the agency’s decision about whether to
require a subsequent or supplemental EIR, or subsequent
negative declaration, and the underlying EIR or negative
declaration may not be attacked.” ’ [Citations.] . . . [T]his
limitation applies even if the original MND was invalid or in
some way defective. [Citations.]” (Megaplex-Free Alameda,
supra, 149 Cal.App.4th at p. 110.)
Objectors contend that Appellants’ reliance on case law
involving supplemental or subsequent environmental review is
misplaced, and that the cases are distinguishable. They argue
that because the City adopted the MND in June 2021 pursuant to
CEQA Guidelines, section 15074, subdivision (b), their CEQA
challenge was timely. However, because the limitations period
for challenging the MND closed 30 days after the March 3, 2020
NOD was filed, and because there have been no changes to the
Project requiring a subsequent or supplemental MND, the later
adoptions of the same MND cannot restart or retrigger a new
limitations period.
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DISPOSITION
The judgment is reversed, and the matter is remanded for
the trial court to enter an order dismissing the first amended
petition filed by Delia Guerrero and Coyotl + Macehualli Citizens.
Appellants the City of Los Angeles and real parties in interest
TTLC Los Angeles – El Sereno, LLC and The True Life
Companies, LLC are awarded their costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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