Environmental and Natural Resources

by Rick McNeil and Colin Higgins

In Citizens For A Green San Mateo, plaintiff (environment group) challenged the removal of more than 200 trees as part of upgrades to the College of San Mateo campus (“CSM”). Plaintiff filed a petition for writ of mandate, alleging that the tree removal was outside the scope of an initial study and mitigated negative declaration (“IS/MND”) that the San Mateo County Community College District and San Mateo County College District Board of Trustees (collectively the “District”) adopted years earlier relating to the facility upgrades at CSM. The petition was granted by the trial court.

The Court of Appeal reversed the trial court, finding that plaintiff’s CEQA challenge was barred by the statute of limitations. The Court explained that the tree removal was within the scope of the project, as the initial study explained that the project “would result in the removal and pruning of an unknown number of trees.” Since plaintiff’s challenge was brought more than 30 days after the District approved the IS/MND and issued a notice of determination, the Court of Appeal found that plaintiff’s action was “clearly time-barred” by CEQA’s 30-day statute of limitations.

Basic Facts:
The San Mateo County Community College District and San Mateo County College District Board of Trustees (collectively the “District”) own and operate the College of San Mateo (“CSM”), a community college in San Mateo. In 2006, the District adopted a master plan to improve the facilities at CSM. The District prepared an initial study, which analyzed the project’s potential environmental impacts and concluded that “all potentially significant impacts could be avoided or reduced to a less-than-significant level with the implementation of various mitigation measures.”
During the review period for the initial study and mitigated negative declaration (“IS/MND”), there were no comments from plaintiff (environmental group) on either document. In addition, there were no challenges to either document at the public hearing. Thereafter, the Board of Trustees unanimously adopted the IS/MND. Two years later another public hearing was held to award the construction contract for part of the project, at which no public comments or challenges were made to the project.
Once construction began, a member of plaintiff contacted the District to express concern over the removal of certain trees. The plaintiff then challenged the mitigated negative declaration through a petition for writ of mandate alleging that the District’s removal of over 200 mature trees was outside the scope of the IS/MND. The petition was granted by the trial court.

Appellate Decision (Reversed):
On appeal, the District argued that plaintiff’s challenge was barred by CEQA’s statute of limitations. The Court of Appeal agreed and reversed the trial court, holding that plaintiff’s challenge was time-barred under both CEQA’s 30-day statute of limitations and 180-day statute of limitations.

The Court of Appeal first explained that since the District filed a notice of determination relating to the project, any challenge to the project had to be brought within 30 days after the filing of the notice. Plaintiff argued that the 30-day statute of limitations was inapplicable because the specific area where the trees were removed was not described in the IS/MND and, as such, the notice of determination was ineffective.

The Court of Appeal rejected this argument, finding the statements in the initial study that the project “would result in the removal and pruning of an unknown number of trees” together with the project’s goal of visually enhancing the campus through a variety of “landscape hierarchies,” put the public on notice that trees could be removed anywhere on the CMS campus. Since plaintiff’s challenge was brought more than 30 days after the District approved the IS/MND and issued a notice of determination, the Court of Appeal found that plaintiff’s action was “clearly time-barred.”

The Court of Appeal further held that even if CEQA’s 180-day statute of limitations applied, plaintiff’s CEQA challenge was still time barred. CEQA’s 180-day statute of limitations applies if an agency “is carrying out or has approved a project that may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment” and “shall be commenced within 180 days from the date of the public agency’s decision to carry out or approve the project.” The Court of Appeal explained that the District’s first commitment to the part of the project that included the challenged tree removal was when the construction contract was awarded, more than 180 days before plaintiff filed its petition. Accordingly, plaintiff’s claim was barred by the 180-day statute of limitations as well.

Citizens for a Green San Mateo v San Mateo Community College District,
— Cal.Rptr.3d —-, 2014 WL 2735052 (Cal.App. 1 Dist.) (June 17, 2014)

Trial Court Judge:
Clifford Cretan, San Mateo County Superior Court

Appellate Panel:
Judge Reardon presiding
Judges Rivera, Humes concurring