It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements puts the litigation on hold, and can help facilitate settlement by taking the pressure of litigation off the front burner.
In Salmon Protection and Watershed Network v. County of Marin, involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention later brought by property owners potentially affected by the CEQA lawsuit. As the settlement discussions were undertaken (ultimately unsuccessful), the property owners were left in an indeterminate state as to what to do with their property.
The property owners' complaint in intervention, following the filing of the underlying CEQA action, alleged that the underlying CEQA lawsuit was barred due to the passage of the statute of limitations, and that any extension between the petitioner and the county was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the First Appellate District court upheld the dismissal of the complaint in intervention.
The appellate court held that the fact pattern was one in which no private party was involved, as there would be in the instance of a lawsuit challenging approval of a private project. Given that the interests of property owners potentially affected by the litigation were only "incidental," their concurrence was not required as a condition to the validity of the tolling agreement.
Salmon Protection and Watershed Network v. County of Marin (April 20, 2012, A133109) 205 Cal.App.4th 195.
For Plaintiffs: Environmental Law Clinic at Stanford Law School, Deborah A. Sivas, Alicia E. Thesing, Leah J. Russin, Tori Ballif
For Defendants: Patrick K. Faulkner, Nancy S. Grisham; Remy, Thomas, Moose and Manley, LLP, James G. Moose, Jennifer S. Holman, Jeannie Lee