In Center for Biological Diversity v. County of San Benito (2024) 104 Cal.App.5th 22, the Sixth District held that CEQA’s 30-day statute of limitations begins to run from the date of filing the notice of determination (NOD) following the lead agency’s final approval of a project, in this case the denial of petitioners’ administrative appeal. In doing so, the court held that the finality of a project approval is governed by local rules pursuant to CEQA Guidelines section 15352.

Factual Background

On October 12, 2022, the county planning commission certified an EIR and approved a conditional use permit for the Betabel Project, a commercial roadside attraction that included a gas station, convenience store, a restaurant, a motel and other amenities. The county filed an NOD on October 14, 2022, following the planning commission’s approval. Petitioners appealed the planning commission’s decision to the board of supervisors. On November 10, 2022, the board voted to deny the appeals and approve the Project. The county filed a second NOD on the same day. On December 9, 2022, the petitioners filed writ petitions alleging violations of CEQA.

Real Parties in Interest demurred alleging the CEQA claims were filed more than 30 days after filing the NOD, and thus were time-barred. Real Parties contended that the NOD filed on October 14, 2022, triggered the 30-day statute of limitations, and that the petitioners’ administrative appeals did not affect the expiration of the 30-day limitation after the filing of the first NOD. The trial court agreed and sustained Real Parties’ demurrer. The petitioners appealed.

The Court of Appeal’s Decision

Reversing the trial court, the Court of Appeal applied a straightforward analysis of statutory construction to rule that the writ petitions were timely filed under the plain meaning of the Public Resources Code and the relevant county code provisions. The court noted that Public Resources Code section 21152, subdivision (a), requires a local agency to file an NOD within five working days after the approval or determination becomes final, and that local rules govern the finality of a project pursuant to CEQA Guidelines section 15352, subdivision (a). Here, the county code provided that the planning commission’s approval of a conditional use permit becomes final when the deadline to appeal expires without the filing of an appeal. A separate county code provision expressly provided that those “applications which have been appealed shall be deemed not approved until the board takes action to approve or deny.” Because the planning commission’s decision on the Project was timely appealed by the petitioners, the NOD filed after the planning commission’s action did not constitute a final approval and therefore did not trigger the 30-day statute of limitations.

The court noted that to rule that the writ petitions were untimely would run afoul of the principles of administrative law, requiring petitioners to bring a CEQA action to challenge a non-final decision without first exhausting their administrative remedies before filing suit.

– Natasha Roland