In a feat of chronological gymnastics regarding a proposed development in the City of Napa, the Court of Appeal for the First Appellate District held that a Notice of Determination posted over the course of 31 calendar days was not posted long enough to satisfy the California Environmental Quality Act's requirement that it be posted for 30 days.
CEQA provides for shortened statutes of limitations to challenge project approvals if the local agency files and posts a Notice of Determination (NOD) according to Public Resources Code section 21152. The shortened statute of limitations means that a project opponent has 30 days, rather than 180 days to challenge the project approval. Public Resources Code section 21152 requires the local agency to file a notice of determination within five days of the project approval. The notice then must be posted within 24 hours of the receipt and shall remain posted for 30 days. In Latinos Unidos de Napa v. City of Napa, supra, (196 Cal.App.4th 1154), the Court of Appeal held that for the shortened 30-day statute of limitations to apply the notice must be both filed and posted, and the notice must be posted for 30 days, excluding the first day, and must be posted for the entire 30th day.
On June 16, 2009, the City of Napa approved revisions to the housing element of its general plan, and related general plan and zoning amendments, concluding the project would have no environmental effects beyond those identified and mitigated in the 1998 general plan. On June 17, 2009, the city filed an NOD with the county clerk. The cash register receipt shows the document was received at 9:05 on June 17. According to the Clerk, the NOD was posted from 10:00 a.m. on June 17, 2009 until at least 10:00 a.m. on July 17, 2009.
Petitioners Latinos Unidos, a group that advocates for affordable housing in the region, visited the clerk's office at 11:29 a.m. on July 17, 2009 and found no NOD posted. On September 17, 2009, Petitioner filed a petition for writ of mandate challenging the project approval, claiming the longer 180-day statute of limitations applied, rather than the shorter 30-day statute of limitations, because the NOD had not been posted for the full 30-days required by Public Resources Code section 21152 subdivision (c). The trial court granted the city's motion for a judgment on the grounds that the petition was barred by the 30-day statute of limitations. Petitioners appealed.
Petitioners based their claim that the longer statute of limitations applied on an interpretation of the posting period in CEQA on Code of Civil Procedure section 12 which excludes the first day of posing and includes the last. Petitioner further argued that the NOD must be posted for the entire 30th day to satisfy the 30-day requirement.
The city argued the notice was posted over the course of 31 days – from 10:00 a.m. on June 17 to 10:00 am on July 17. The City further argued that even if the first day is excluded from the calculation, the NOD was posted for part of the 30th day, and thus, was adequate. Petitioners argued, that when calculated according to Code of Civil Procedure section 12, which excludes the first day and includes the last, the 30th day of posting was July 17. Further, Petitioners argued that the notice should have been posted for the full day on July 17, pointing to Scoville v. Anderson (1901) 131 Cal. 590 and other case law holding that the effect of fractions of days are disregarded when time is computed.
The court agreed with the petitioners.
The court rejected the city's argument that Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) (see CP&DR Legal Digest Vol. 25, No. 4, Feb. 2010) stood for the proposition that the 30-day statute is triggered when the NOD is filed, not when it is posted. The court also rejected the City's argument that it had substantially complied with the 30-day posting requirement, stating that "any assessment of substantial compliance would introduce an element of subjective line-drawing into an area where clarity and precision are vital."
The court held that because the NOD had not been posted for the full 30 days as calculated according to Code of Civil Procedure section 12, the 180-day statute of limitations applied and the dismissal was reversed.
The practical effect of this case is that the 30-day posting period in 21152(c) is actually 32 days. However, the effect will be limited, given that a potential project opponent risks missing his filing deadline if he or she actually waits to see if the NOD was posted for the full statutory 30 days.
Latinos Unidos de Napa v. City of Napa (2011) 196 Cal. App. 4th 1154, No. A129584.
For Plaintiff and Appellant: Law Offices of David Grabill and David Grabill.
For Defendants and Respondents: Jarvis, Fay, Doporto & Gibson, Andrea J. Saltzman, Rick W. Jarvis and Julie M. Randolph
Leslie Walker is an attorney with Abbott & Kindermann, LLP, of Sacramento.