Center for Biological Diversity v. County of San Benito CA6 ( 2024 )

Filed 7/24/24 Center for Biological Diversity v. County of San Benito CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CENTER FOR BIOLOGICAL
DIVERSITY et al., H051322
(San Benito County
Plaintiffs and Appellants, Super. Ct. No. CU2200247)
v.
COUNTY OF SAN BENITO,
Defendant and Respondent;
HENRY RUHNKE et al.,
Real Parties in Interest and
Respondents.
AMAH MUTSUN TRIBAL BAND, H051323
(San Benito County
Petitioner and Appellant, Super. Ct. No. CU2200249)
v.
COUNTY OF SAN BENITO,
Defendant and Respondent;
HENRY RUHNKE et al.,
Real Parties in Interest and
Respondents.
I. INTRODUCTION
This action arises from the proposal of real parties in interest Henry Ruhnke,
Thomas John McDowell and Victoria Knight McDowell Charitable Remainder Unitrust,
and Thomas John McDowell and Victoria Knight McDowell, trustees (collectively,
McDowell Trust) to develop a large commercial roadside attraction known as the Betabel
Project. The Board of Supervisors of respondent County of San Benito (County) certified
an environmental impact report (EIR) pursuant to CEQA1 and approved the conditional
use permit for the Betabel Project after denying the appeals of project opponents the
Center for Biological Diversity and Protect San Benito County (collectively, the Center)
and the Amah Mutsun Tribal Band from the County Planning Commission’s initial
project approval.
Appellants the Center and the Amah Mutsun Tribal Band both challenged the
Board of Supervisors’ project approval by filing a verified petition for writ of mandate
that included causes of action alleging that the EIR for Betabel Project violated CEQA
and the project approval violated state planning and zoning laws.
The McDowell Trust demurred on the grounds that the CEQA causes of action in
both writ petitions were time-barred because the petitions were filed after expiration of
the 30-day limitations period provided by section 21167, subdivision (c) for an action
alleging that an EIR does not comply with CEQA. In support of the demurrer, the
McDowell Trust argued that the 30-day period commenced when the County Planning
Commission (Planning Commission) filed a notice of determination on October 14, 2022,
after making the initial decision to approve the Betabel Project.
The Center and Amah Mutsun Tribal Band opposed the demurrer, contending that
the 30-day limitations period commenced later, when the County Board of Supervisors
1
California Environmental Quality Act, Public Resources Code section 21000, et
seq. All statutory references are to the Public Resources Code unless otherwise
indicated.
2
filed a second notice of determination on November 10, 2022, after denying their appeals
from the Planning Commissions’ decision and approving the Betabel Project.
The trial court agreed with the McDowell Trust, sustained the demurrer without
leave to amend, and entered judgments of dismissal. Appellants the Center and Amah
Mutsun Tribal Band appeal from the judgments of dismissal on the ground that the trial
court erred in ruling that their CEQA causes of action were time-barred under
section 21167, subdivision (c).2 For the reasons stated below, we conclude that the trial
court erred and therefore we will reverse the judgments of dismissal.
II. CEQA STATUTE OF LIMITATIONS
CEQA “provides ‘unusually short’ limitations periods (Cal. Code Regs., tit. 14,
§§ 15000 et seq., 15112, subd. (a))[3] after which persons may no longer mount legal
challenges, however meritorious, to actions taken under the Act’s auspices.” (Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488 (Stockton
Citizens).) “Most limitation statutes are triggered by the filing of a public notice, which
reports an agency’s determination about the applicability of CEQA or the potential
environmental impact of a project. (§§ 21108, 21152.)” (Committee for Green Foothills
v Santa Clara County Bd. Of Supervisors (2010) 48 Cal.4th 32, 38-39 (Committee for
Green Foothills).)
Under CEQA, the public notice regarding project approval includes the following:
“If a local agency approves or determines to carry out a project that is subject to this
division, the local agency shall file a notice of determination [NOD] within five working
2
This court ordered that the appeals in case Nos. H051322 and H051323 be
considered together for purposes of record preparation, briefing, oral argument, and
disposition.
3
“The regulations that guide the application of CEQA are set forth in title 14 of
the California Code of Regulations and are often referred to as the CEQA Guidelines.
[Citation.]” (Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552,
1561, fn. 5; hereafter CEQA Guidelines or Guidelines.)
3
days after the approval or determination becomes final, with the county clerk of each
county in which the project will be located . . . .” (§ 21152, subd. (a); CEQA Guidelines,
§ 15094.) “ ‘Approval’ means 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. The exact date of approval of any project is a matter determined by each
public agency according to its rules, regulations, and ordinances. Legislative action in
regard to a project often constitutes approval.” (CEQA Guidelines, § 15352, subd. (a).)
“If a state or local agency has filed an NOD stating whether a project will have a
significant environmental impact (see §§ 21108, subd. (a), 21152, subd. (a)), the statute
of limitations for all types of CEQA claims related to the project is 30 days from the date
the notice was filed. The 30-day statute applies to . . . claims challenging the adequacy of
an EIR (§ 21167, subd. (c)).”4 (Committee for Green Foothills, supra, 48 Cal.4th at
p. 47, italics omitted; see also Stockton Citizens, supra, 48 Cal.4th at p. 500 [same].)
The purpose of “[a] bright-line rule that the filing of an NOD triggers a 30-day
statute of limitations promotes certainty, allowing local governments and developers to
proceed with projects without the threat of potential future litigation. (§ 21167.2 [after
expiration of the 30-day period in § 21167, subd. (c), an EIR is conclusively presumed to
be valid].” (Committee for Green Foothills, supra, 48 Cal.4th at p. 50.) Thus, the
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.”
(Stockton Citizens, supra, 48 Cal.4th at p. 488; see also Organizacion Comunidad De
Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 793.)
4
Section 21167, subdivision (c) provides: “An action or proceeding alleging that
an environmental impact report does not comply with this division shall be commenced
within 30 days from the date of the filing of the notice required by subdivision (a) of
[s]ection 21108 [(notice of determination by state agency)] or subdivision (a) of
[s]ection 21152 by the lead agency [(notice of determination by local agency)].”
4
III. FACTUAL BACKGROUND
Our summary of the facts is drawn from the allegations of the writ petitions and
the request for judicial notice filed below. In reviewing a ruling sustaining a demurrer
without leave to amend, we assume the truth of the properly pleaded factual allegations
and the matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.)
In 2021 the McDowell Trust applied to the County for a conditional use permit for
a proposed commercial roadside attraction known as the Betabel Project, which would
include a gas station, a convenience store, a restaurant, amusement buildings with
exhibits, a motel, a banquet hall, an outdoor pool, an outdoor movie screen, and an
outdoor event center.
The 26-acre Betabel Project site is located on Betabel Road west of Highway 101.
The project site is within the aboriginal homeland of the Mutsuh people, whose
descendants now comprise the Amah Mutsun Tribal Band. The Integrative Cultural
Resource Survey conducted on the project site in May and June of 2022 uncovered
artifacts, identified ethnobotanical resources, and also identified the likely location of
numerous tribal cultural resources. The survey included recommendations to avoid or
reduce impacts to Indigenous cultural resources, which were provided to the County and
the McDowell Trust. In August 2022 the Betabel Ethnographic Study identified new
tribal cultural resources that would be adversely impacted by the construction of the
Betabel Project.
The County released a draft EIR for the Betabel Project in July 2022, followed by
the release of a final EIR in September 2022. On October 12, 2022, the Planning
Commission held a public hearing and, following the hearing, a majority of the Planning
Commission voted to certify the final EIR and approve the conditional use permit for the
Betabel Project. On October 14, 2022, the Planning Commission filed a NOD giving
public notice of its decision.
5
The Center and the Amah Mutsun Tribal Band each appealed the Planning
Commission’s decision to approve the Betabel Project to the County Board of
Supervisors. On November 8, 2022, the Board of Supervisors held a public hearing on
the appeals. Following the public hearing, a majority of the Board of Supervisors voted
to adopt Resolution No. 2022-132 denying the appeals, certifying the final EIR, and
adopting a mitigation monitoring and reporting program and a statement of overriding
considerations pursuant to CEQA.
On November 10, 2022, the County filed a NOD giving public notice of the Board
of Supervisor’s decision regarding the Betabel Project with the San Benito County Clerk
pursuant to section 21152.
IV. PROCEDURAL BACKGROUND
A. The Center’s Writ Petition
On December 9, 2022, the Center filed a verified petition for writ of mandate
challenging the County’s approval of the Betabel Project. The Center named County and
the County Board of Supervisors (collectively, County) as respondents and the McDowell
Trust entities as real parties in interest.
The writ petition included a first cause of action for violation of CEQA, which
alleged that the EIR for the Betabel Project was deficient in its analysis of the
environmental impacts of the project in many respects, including inadequate analysis and
mitigation of significant impacts, failure to require feasible mitigation measures,
inadequate analysis of project alternatives, failure to respond adequately to comments on
the draft EIR, and an unsupported statement of overriding considerations.
The writ petition also included a second cause of action for violation of state
planning and zoning laws, which alleged that the County had adopted findings of general
plan consistency that were not supported by substantial evidence.
6
The Center sought a writ commanding the County to, among other things, set
aside its certification of the final EIR and its approval of the conditional use permit for
the Betabel Project.
B. Amah Mutsun Tribal Band’s Writ Petition
On December 9, 2022, the Amah Mutsun Tribal Band filed a verified petition for
writ of mandate challenging the County’s approval of the Betabel Project. The writ
petition included a first cause of action for violation of CEQA, which alleged that the
final EIR was deficient in numerous respects, including failure to analyze all of the
project’s impacts on individual sites or features with cultural or archeological
significance, and failure to utilize the Betabel Ethnographic Study in the analysis of
project impacts on tribal cultural resources. The writ petition also included a second
cause of action for “[v]iolation of AB 52,” alleging that the County had failed to comply
with CEQA’s requirement that “lead agencies undertaking CEQA review consult with
California Native American Tribes possessing a traditional and cultural connection to the
geographic area of a proposed project.”
Additionally, the writ petition included a third cause of action alleging that the
County violated state planning and zoning laws by approving a project that is inconsistent
with the County’s general plan and other planning laws.
The Amah Mutsun Tribal Band sought a writ of mandate commanding the County
to, among other things, to set aside its certification of the EIR and approvals of the
Betabel Project.5
C. McDowell Trust’s Demurrer
The McDowell Trust demurred to the writ petitions filed by the Center and the
Amah Mutsun Tribal Band on the ground that the first cause of action for violation of
CEQA in both petitions was time-barred because the allegations, in combination with
In the January 24, 2023 order, the trial court ordered that the two writ petitions
5
were consolidated for all purposes other than judgment as related cases.
7
matters judicially noticeable, showed that the writ petitions were filed after the expiration
of the 30-day limitations period provided by section 21167, subdivision (c) for an action
alleging that an EIR does not comply with CEQA.
In support of the demurrer, the McDowell Trust relied upon its request for judicial
notice of the NOD that the Planning Commission had filed on October 14, 2022. The
McDowell Trust argued that the 30-day limitations period provided by section 21167,
subdivision (c) was triggered when the Planning Commission filed an NOD on
October 14, 2022, announcing that the Planning Commission had decided to approve the
conditional use permit for the Betabel Project. Since the writ petitions were filed on
December 9, 2022, more than 30 days later, the McDowell Trust contended that the writ
petitions were time-barred. The McDowell Trust also contended that the appeals to the
Board of Supervisors from the Planning Commission’s decision by the Center and the
Amah Mutsun Tribal Band did not affect the expiration of the 30-day limitations period
on November 14, 2022.
County filed a joinder in the McDowell Trust’s demurrer, arguing in its points and
authorities that the relevant Public Resources Code provisions and San Benito County
Code provisions required the Center and Amah Mutsun Tribal Band to file their action
challenging the approvals of the Betabel Project within 30 days of the first NOD, which
was filed by the Planning Commission on October 14, 2022.
D. Opposition to Demurrer
The Center and the Amah Mutsun Tribal Band filed opposition to the McDowell
Trust’s demurrer, contending that the Planning Commission’s October 14, 2022 NOD did
not trigger the section 21167, subdivision (c) 30-day limitations period. They asserted
that the Planning Commission’s decision to certify the EIR and approve a conditional use
permit for the Betabel Project was not final due to their appeals of that decision to the
Board of Supervisors. According to the Center and the Amah Mutsun Tribal Band, their
8
writ petitions were timely filed within 30 days after the Board of Supervisors denied their
appeals and filed a second, operative NOD on November 10, 2022.
In opposing the demurrer, the Center and the Amah Mutsun Tribal Band
emphasized that section 21152, subdivision (a) requires a local agency to file a NOD
within five working days after a project approval becomes final, and the CEQA
Guidelines, section 15352, subdivision (a) provides that the date of final project approval
is to be determined under the local agency’s rules, regulations, and ordinances. In San
Benito County, they pointed out, San Benito County Code section 25.02.003,
subdivision (K)(1) provides that the Planning Commission’s approval of a conditional
use permit becomes final when the deadline for an appeal by the public or applicant has
expired without the filing of an appeal. They also pointed out that the San Benito County
Code expressly states that where the Planning Commission’s approval of a conditional
use permit is appealed, the approval is not final until the Board of Supervisors takes
action to approve or deny the application for a conditional use permit. (San Benito
County Code, § 25.02.003, subd. (K)(2).)
Since the Center and Amah Mutsun Tribal Band had timely appealed the Planning
Commission’s certification of the EIR and approval of the conditional use permit for the
Betabel Project within the 10-day period provided by San Benito County Code
section 25.01.008, subdivision (B) for appeals from the Planning Commissions’
decisions, they argued that the Planning Commission’s project approval was not final.
For that reason, they further argued that the NOD filed by the Planning Commission
on October 14, 2022, had no legal effect and did not trigger the section 21167,
subdivision (c) 30-day limitations period for filing a writ petition challenging the
adequacy of the EIR.
Instead, the Center and the Amah Mutsun Tribal Band urged, their writ petitions
were timely filed within 30 days after the notice of determination was filed on
November 10, 2022, following the Board of Supervisors’ denial of their appeals of the
9
Planning Commission’s decision and final approval of the Betabel Project. The Center
and Amah Mutsun Tribal Band also maintained that they had properly exhausted their
administrative remedies with respect to their opposition to the County’s approval of the
Betabel Project under with the doctrine of exhaustion of administrative remedies, which
is applicable to CEQA litigation.
E. The Trial Court’s Order and Judgment
In the June 2, 2023 order, the trial court sustained the demurrer to the cause of
action for violation of CEQA in both writ petitions without leave to amend. Both the
Center and the Amah Mutsun Tribal Band subsequently requested dismissal of the cause
of action for violation of state planning and zoning laws in their writ petitions, and
dismissals were entered as requested on June 9, 2023.
On June 30, 2022, the trial court filed a judgment of dismissal of the Center’s writ
petition and a judgment of dismissal of the Amah Mutsun Tribal Band’s writ petition.
V. DISCUSSION
On appeal, the Center and the Amah Mutsun Tribal Band argue that the trial court
erred in sustaining the McDowell Trust’s demurrer without leave to amend and entering
judgments of dismissal on the grounds that the CEQA causes of action in their writ
petitions were time-barred.6
We begin our evaluation of the contentions on appeal with the standard of review
applicable to a judgment of dismissal based upon an order sustaining a demurrer without
leave to amend.
6
We granted the application of the Winnemem Wintu Tribe, Communities for a
Better Environment, and Restore the Delta for leave to file an amicus curiae brief in
support of appellants. We also granted the application of the California Attorney General
for leave to file an amicus curiae brief in support of appellants.
10
A. Standard of Review
“The legal sufficiency of a petition for writ of mandate may be tested by demurrer.
[Citation.]” (Committee for Sound Water & Land Development v. City of Seaside (2022)
79 Cal.App.5th 389, 399.) The standard of review on appeal from an order of dismissal
after a demurrer is sustained without leave to amend is de novo. (Committee for Green
Foothills, supra, 48 Cal.4th at p. 42.) In performing our independent review of the
complaint, we assume the truth of all facts properly pleaded by the plaintiff. (Evans v.
City of Berkeley (2006) 38 Cal.4th 1, 6 (Evans).)
Additionally, “we give the complaint a reasonable interpretation, and read it in
context.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).)
However, we do not assume the truth of “ ‘ “contentions, deductions or conclusions of
fact or law.” ’ ” (Evans, supra, 38 Cal.4th at p. 6.) We may also consider matters that
are subject to judicial notice and facts appearing in any exhibits attached to the
complaint. (Code Civ. Proc, § 430.30, subd. (a); Schifando, at p. 1081.)
Our Supreme Court has stated that “ ‘ “[a] demurrer based on a statute of
limitations will not lie where the action may be, but is not necessarily, barred. [Citation.]
In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively
appear on the face of the complaint [and matters subject to judicial notice]; it is not
enough that the complaint shows that the action may be barred.” ’ ” (Committee for
Green Foothills, supra, 48 Cal.4th at p. 42; see Code Civ. Proc, § 430.30, subd. (a).)
B. The Parties’ Contentions
On appeal, the Center and the Amah Mutsun Tribal Band reiterate their arguments
below that they timely filed their writ petitions on December 9, 2022, within 30 days
after the NOD filed on November 10, 2022, pursuant to the relevant Public Resources
Code provisions and relevant San Benito County Code provisions. They contend, as they
did below, that the November 10, 2022 NOD filed after the Board of Supervisors
approved the Betabel Project is the operative NOD for purposes of commencing the
11
section 21167, subdivision (c) 30-day limitations period for an action alleging that an EIR
does not comply with CEQA, not the NOD filed on October 14, 2022, after the Planning
Commission’s decision to approve the Betabel Project. They further contend that the
Planning Commission’s decision to approve the project was not a final approval and
therefore that approval had no legal effect due to their appeal of that decision to the
Board of Supervisors. Additionally, they argue that the principles of administrative law
are violated if they are required to bring a CEQA action seeking judicial review of the
Planning Commission’s nonfinal decision without exhausting their administrative remedy
of an appeal of the Planning Commission’s decision to the Board of Supervisors, as the
final decision-making authority, before filing suit.
The McDowell Trust responds that the trial court did not err in ruling that the writ
petitions were time-barred because the petitions were filed more than 30 days after the
October 14, 2022 NOD that followed the Planning Commission’s decision to certify the
EIR and approve their application for a conditional use permit for the Betabel Project.7
According to the McDowell Trust, the 30-day limitations period provided by
section 21167, subdivision (c) runs from the first notice of a project’s approval, even if
there is a second NOD. The McDowell Trust construes the provisions of the Public
Resources Code and the San Benito County Code to provide that the Planning
Commission’s NOD was final when it was filed within five working days of the Planning
Commission’s decision, and therefore the first NOD triggered the 30-day limitations
period.
7
The McDowell Trust’s request for judicial notice of (1) a county record
consisting of an email chain; (2) a county record consisting of an email chain and a copy
of an October 13, 2022 signed conditions of approval; and (3) a state Fish and Game fee
receipt is denied as irrelevant. (See People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 422, fn. 2 [“any matter to be judicially noticed must be relevant
to a material issue”].)
12
The McDowell Trust explains that “[b]etween the time of the Planning
Commission approval and any appeal, however, the approval is valid and final. The
County properly filed the NOD here in the window between October 12, [2022] when the
Planning Commission acted, and October 24, [2022] when the appeals were filed.” The
appeals of the Planning Commission’s decision did not affect the finality of that decision,
the McDowell Trust asserts, because “[t]he actual language of the [County] Code [section
25.02.003, subd. (K)] does not prohibit the decision from being final before the deadline
for an appeal has expired; it simply confirms that it will forever be final after the deadline
has run without an appeal.”
C. Analysis
Since the parties’ statutory interpretations differ with regard to the implementation
of the section 21167, subdivision (c) CEQA limitations period, and also differ regarding
the interpretation of the pertinent San Benito County Code provisions, we begin our
analysis with the well-established rules of statutory construction.
1. Statutory Interpretation
“[O]ur fundamental task is to ascertain the Legislature’s intent so as to effectuate
the purpose of the statute. [Citation.] We begin with the language of the statute, giving
the words their usual and ordinary meaning. [Citation.] The language must be construed
‘in the context of the statute as a whole and the overall statutory scheme, and we give
“significance to every word, phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ’ [Citation.]” (Smith v. Superior Court (2006) 39 Cal.4th 77, 83
(Smith).)
“If the statutory terms are ambiguous, we may examine extrinsic sources,
including the ostensible objects to be achieved and the legislative history. [Citation.] In
such circumstances, we choose the construction that comports most closely with the
Legislature’s apparent intent, endeavoring to promote rather than defeat the statute's
general purpose, and avoiding a construction that would lead to absurd consequences.
13
[Citation.]” (Smith, supra, 39 Cal.4th at p. 83.) The rules that govern interpretation of
statutes also govern the interpretation of ordinances and administrative regulations.
(Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73
Cal.App.5th 985, 1025; Berkeley Hillside Preservation v. City of Berkeley (2015) 60
Cal.4th 1086, 1097.)
2. The Writ Petitions Were Timely Filed
In the present case, we determine that application of the rules of statutory
interpretation shows that, under the pertinent Public Resources Code and San Benito
County Code provisions, the trial court erred in ruling that the writ petitions were time-
barred. As we will discuss, a plain language interpretation of those provisions compels
the conclusion that the writ petitions were timely filed within 30 days after the operative
November 10, 2022 NOD that was filed following the Board of Supervisors’ denial of the
appeals of the Center and the Amah Mutsun Tribal Band and final approval of the
Betabel Project.
We begin our plain language analysis with the applicable limitations period, which
is provided by section 21167, subdivision (c): “An action or proceeding alleging that an
environmental impact report does not comply with this division shall be commenced
within 30 days from the date of the filing of the notice required by . . . subdivision (a) of
[s]ection 21152 by the lead agency [(notice of determination by local agency)].”
Thus, “[i]f a valid NOD has been filed . . . , any challenge to that decision under
CEQA must be brought within 30 days, regardless of the nature of the alleged violation.”
(Committee for Green Foothills, supra, 48 Cal.4th at p. 48.) A valid NOD contains the
elements required by the Guidelines, such as identification and location of the project.
(Guidelines, § 15094, subd. (b).)
The time to file an NOD is addressed in section 21152, subdivision (a), which
provides in part that “[i]f a local agency approves or determines to carry out a project that
is subject to this division, the local agency shall file a notice of determination within five
14
working days after the approval or determination becomes final, with the county clerk of
each county in which the project will be located.” (Emphasis added.)
The finality of a project approval is governed by local rules: “Under the CEQA
Guidelines, the timing of an agency’s ‘approval’ of a project is a matter determined by
the agency’s own rules, regulations, and ordinances. (Guidelines, § 15352, subd. (a).)”
(Stockton Citizens, supra, 48 Cal. 4th at pp. 495-496.)
In San Benito County, the San Benito County Code expressly provides as follows
with respect to the finality of an approval of a conditional use permit. First, “ [t]he
Planning Commission’s approval [of a conditional use permit] shall be final when the
deadline for an appeal by the public or applicant has expired without the filing of an
appeal.” (San Benito County Code, § 25.02.003, subd. (K)(1).) Second, “[a]pplications
[for a conditional use permit] which have been appealed shall be deemed not approved
until the Board of Supervisors takes action to approve or deny.” (San Benito County
Code, § 25.02.003, subd. (K)(2).)
The time limit for appealing a decision of the Planning Commission is 10 days:
“Any decision of the Planning Commission may be appealed within ten calendar days
after the date of the Planning Commission’s decision to the Board of Supervisors.” (San
Benito County Code, § 25.01.008, subd. (B).) The San Benito County Code also
generally provides that “[t]he decision of the hearing body shall be considered final
unless a decision is appealed. In all cases, the Board of Supervisors shall represent the
final authority.” (San Benito County Code, § 25.01.007, subd. (B)(6).)
Applying these rules, it is apparent that the Planning Commission’s approval of
the conditional use permit for the Betabel Project did not constitute a final approval, since
the Center and the Amah Mutsun Tribal Band timely appealed the approval to the Board
of Supervisors during the 10-day period to appeal after the Planning Commission’s
decision. (See § 21152, subd. (a); San Benito County Code, § 25.02.003, subd. (K)(1) &
(2).) Consequently, the October 14, 2022 NOD filed by the Planning Commission did
15
not follow a final approval, and for that reason, the October 14, 2022 NOD was not
effective to commence the 30-day limitations period provided by section 21167,
subdivision (c) for an action challenging the adequacy of an EIR. (See Committee for
Green Foothills, supra, 48 Cal.4th at p. 47.)
We therefore determine that the 30-day limitations period provided by
section 21167, subdivision (c) began to run on November 10, 2022, the date the Board of
Supervisors filed a NOD after its final approval of the Betabel Project and denial of the
appeals of project opponents the Center and Amah Mutsun Tribal Band. Accordingly,
the writ petitions of the Center and the Amah Mutsun Tribal Band were timely filed
within the 30-day limitations period on December 9, 2022.
The California Supreme Court decisions relied upon by the McDowell Trust for a
contrary conclusion do not support their contention that the section 21167,
subdivision (c) 30-day limitations period is triggered by an NOD filed after a local
agency’s initial project approval, regardless of whether the initial approval has been
appealed to the final decision-making body and a second NOD was filed following the
final decision-making body’s final project approval.
In Stockton Citizens, supra, 48 Cal.4th 481, our Supreme Court addressed another
short CEQA statute of limitations: “An action or proceeding alleging ‘that a public
agency has improperly determined that a project is not subject to [CEQA]’ must be
commenced ‘within 35 days from the date of the filing’ of the NOE [(notice of
exemption)].’ (§ 21167, subd. (d) (section 21167(d)); CEQA Guidelines, § 15112,
subd. (c)(2).)” (Id. at p. 488.)
The issue in Stockton Citizens, supra, 48 Cal.4th 481 was whether the project
opponents timely filed their writ petition challenging a decision by the City of Stockton’s
Director of Community Development that a project was exempt from CEQA review. (Id.
at pp. 488-489.) The City of Stockton, through the Director, filed an NOE for the project
on February 17, 2004, and therefore the 35-day period following the filing of the NOE
16
expired on March 23, 2004. (Id. at p. 494.) Our Supreme Court ruled that the project
opponents’ writ petition was untimely filed months later, rejecting their contentions that
Director’s approval “was invalid and ineffective for various procedural and substantive
reasons” and “defective in form and content, and thus could not cause the 35-day
limitations period to begin running.” (Id. at p. 489.)
The court in Stockton Citizens, supra, 48 Cal.4th at page 489 determined “that
flaws in the decision-making process underlying a facially valid and properly filed NOE
do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging
the agency’s determination that it has approved a CEQA-exempt project. By describing
the project in question, setting forth the agency’s action or decision, and detailing the
reasons for the exemption finding, this notice tells the public that the brief period within
which a CEQA challenge to the propriety of the noticed action or decision may be
commenced has begun to run.”
Thus, the decision in Stockton Citizens, supra, 48 Cal.4th 481 is distinguishable
because the fact situation did not involve a project opponent’s appeal of a local agency’s
initial CEQA-related decision to the final decision-making body. In Stockton Citizens,
supra, only one NOE was at issue, and the court did not address a situation where, as
here, two notices were filed. Accordingly, the decision in Stockton Citizens does not
support the proposition that an initial NOD filed after a local agency’s initial CEQA-
related decision commences the section 21167, subdivision (c) 30-day limitations period
regardless of whether the initial decision has been appealed to the final decision-making
body. “An appellate decision is not authority for everything said in the court’s opinion
but only ‘for the points actually involved and actually decided.’ [Citations.]” (Santisas
v. Goodin (1998) 17 Cal.4th 599, 620.)
The decision in Committee for Green Foothills, supra, 48 Cal.4th 32 is similarly
distinguishable. In that case, the Santa Clara County Board of Supervisors authorized the
County of Santa Clara to enter into an agreement with Stanford University pertaining to
17
the alignment of certain trails that crossed Stanford lands. (Id. at p. 41.) The County
filed a NOD on December 16, 2005, that described one trail alignment and a revised
NOD on December 20, 2005, regarding the agreement for two other trail alignments.
(Ibid.)
The issue addressed in Committee for Green Foothills, supra, 48 Cal.4th 32 was
whether the project opponents had timely filed a writ petition that challenged the County
of Santa Clara’s approval of the trails agreement on the ground that no CEQA review of
the trail alignments had been conducted. (Id. at pp. 41-42.) The writ petition was filed
171 days after the revised NOD was filed on December 20, 2005. (Ibid.) Our Supreme
Court ruled that because the writ petition was filed more than 30 days after the County of
Santa Clara “disclosed its approval of the Trails Agreement in an NOD, the action is
clearly time-barred under section 21167, subdivision (e).”8 (Id. at p. 52.)
The decision in Committee for Green Foothills, supra, 48 Cal.4th 32 is therefore
distinguishable because it did not involve a second NOD that was filed after project
approval by the final decision-making body that denied an appeal from a local agency’s
initial project approval and filing of a initial NOD. Accordingly, the decision does not
support the proposition that an initial NOD commences the section 21167, subdivision (c)
30-day limitations period regardless of whether the initial local agency’s project approval
that preceded the filing of the initial NOD has been appealed to a final decision-making
body.
The parties also submitted letter briefs regarding the recent decision in Guerrero v.
City of Los Angeles (2024) 98 Cal.App.5th 1087 (Guerrero). The decision in Guerrero is
also distinguishable and does not support the McDowell Trust’s contention that the writ
The section 21167, subdivision (e) catchall provision states: “An action or
8
proceeding alleging that another act or omission of a public agency does not comply with
this division shall be commenced within 30 days from the date of the filing of the notice
required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152.”
18
petitions were untimely filed by the Center and the Amah Mutsun Tribal Band more than
30 days after the NOD filed by the Planning Commission, despite their appeals of the
Planning Commission’s decision to approve the McDowell Trust’s application for a
conditional use permit to the Board of Supervisors and the filing of subsequent NOD
announcing the Board of Supervisor’s final approval.
In Guerrero, supra, 98 Cal.App.5th 1087 the issue was whether the project
opponent’s writ petition alleging the City of Los Angeles’ decision to approve a
mitigated negative declaration for a project violated CEQA was timely filed more than
30 days after the NOD announcing that decision. (Id. at pp. 1099-1100.) The Guerrero
court rejected the project opponent’s argument that the 30-day limitations period ran from
a later NOD that announced the City’s decision to approve the Planning Commission’s
recommendation of a zoning change for the same project, finding instead that the 30-day
period ran from the earlier NOD that announced approval of the mitigated negative
declaration. (Id. at p. 1097.) The fact situation in Guerrero, supra, did not involve
successive NODs regarding the same conditional use permit, nor did the decision involve
an appeal of a Planning Commission’s decision to the Board of Supervisors, and
therefore the decision is not helpful to the McDowell Trust.
3. Doctrine of Exhaustion of Administrative Remedies
Finally, we agree with the Center and the Amah Mutsun Tribal Band, and with
amicus curiae, that to rule that the writ petitions were untimely filed because the 30-day
limitations period provided by section 21167, subdivision (c) commenced when the
Planning Commission filed an NOD after its nonfinal decision, despite the appeals of that
decision to the Board of Supervisors, would violate the doctrine of exhaustion of
administrative remedies.
“[T]he rule is that where an administrative remedy is provided by statute, relief
must be sought from the administrative body and this remedy exhausted before the courts
will act.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 (Abelleira).)
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The doctrine “is not a matter of judicial discretion, but is a fundamental rule of
procedure . . . binding upon all courts.” (Id. at p. 293.)
“This court has explained that ‘ “[t]he exhaustion doctrine is principally grounded
on concerns favoring administrative autonomy (i.e., courts should not interfere with an
agency determination until the agency has reached a final decision) and judicial
efficiency (i.e., overworked courts should decline to intervene in an administrative
dispute unless absolutely necessary).” [Citation.] . . . Therefore, ‘[u]ntil an available
“administrative procedure has been invoked and completed, there is nothing that the . . .
court may review; it cannot interfere in the intermediate stages of the proceeding.’
[Citation.]’ [Citation.]” (Monterey Coastkeeper v. Monterey County Water Resources
Agency (2017) 18 Cal.App.5th 1, 12 (Monterey Coastkeeper).)
CEQA provides for an administrative remedy in section 21151, subdivision (c):
“If a nonelected decisionmaking body of a local lead agency certifies an environmental
impact report, approves a negative declaration or mitigated negative declaration, or
determines that a project is not subject to this division, that certification, approval, or
determination may be appealed to the agency’s elected decisionmaking body, if any.”
(Guidelines, § 15090; see Abelleira, supra, 17 Cal.2d 280, 292; see, e.g., Clews Land &
Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 172 [project opponent’s
challenge to a mitigated negative declaration was barred because it did not exhaust its
administrative remedies in proceedings before the city council]; McCann v. City of San
Diego (2021) 70 Cal.App.5th 51, 76 [exhaustion of administrative remedies applies to
notice of exemption].) Moreover, CEQA requires the record in all proceedings alleging
CEQA violations pursuant to section 21167 to include comprehensive “documentation of
the final public agency decision.” (§ 21167.6, subd. (e)(9).)
Here, the San Benito County Code provides an appeals process for the Planning
Commission’s decision regarding an application for a conditional use permit. First,
“[t]he Planning Commission shall act as the Review Authority for conditional use
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permits.” (San Benito County Code, § 25.02.003, subd. (B).) Second, “[a]nydecision of
the Planning Commission may be appealed within ten calendar days after the date of the
Planning Commission’s decision to the Board of Supervisors.” (San Benito County
Code, § 25.01.008, subd. (B).) “The decision of the hearing body shall be considered
final unless a decision is appealed. In all cases, the Board of Supervisors shall represent
the final authority.” (San Benito County Code, § 25.01.007, subd. (B)(6).)
Accordingly, the final public agency decision that is subject to judicial review in
this case is the Board of Supervisors’ November 8, 2022 final decision denying the
appeals of the Planning Commission’s approval of the conditional use permit for the
Betabel Project and certifying the final EIR pursuant to CEQA. Judicial review of the
Planning Commission’s October 12, 2022 nonfinal decision to certify the EIR and
approve the conditional use permit would constitute interference in the intermediate
stages of a CEQA proceeding in violation of the doctrine of exhaustion of administrative
remedies. (See Monterey Coastkeeper, supra, 18 Cal.App.5th at p. 12.)
For these reasons, we conclude that the trial court erred in sustaining the
McDowell Trust’s demurrer to the writ petitions without leave to amend on the grounds
that the writ petitions were untimely filed, and we will reverse the judgments of
dismissal.
VI. DISPOSITION
In H051322, Center for Biological Diversity, et al. v. County of San Benito, the
June 30, 2022 judgment of dismissal is reversed and the matter is remanded to the
superior court with directions to vacate its order sustaining the demurrer to the petition
for writ of mandate without leave to amend and to enter a new order overruling the
demurrer. Costs on appeal are awarded to plaintiffs.
In H051323, Amah Mutsun Tribal Band v. County of San Benito, the June 30,
2022 judgment of dismissal is reversed and the matter is remanded to the superior court
with directions to vacate its order sustaining the demurrer to the petition for writ of
21
mandate without leave to amend and to enter a new order overruling the demurrer. Costs
on appeal are awarded to plaintiffs.
22
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
GREENWOOD, P. J.
WILSON, J.
Center for Biological Diversity et al. v. County of San Benito et al.
H051322
H051323