with the permission of LexisNexis.
101 Cal. App. 4th 1229; 125 Cal. Rptr.
2d 42; 2002 Cal. App. LEXIS 4616; 2002 Cal. Daily Op. Service 9326;
2002 Daily Journal DAR 10423
STEWART D. CUMMING et al.,
Plaintiffs and Respondents,
CITY OF SAN BERNARDINO REDEVELOPMENT AGENCY,
Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA,
FOURTH DISTRICT, DIVISION TWO
August 9, 2002,
August 9, 2002,
Lewis, D'Amato, Brisbois
& Bisgaard, Christopher D. Lockwood and Delmar
Williams for Defendant and Appellant.
Law Offices of James DeAguilera
and James DeAguilera for Plaintiffs and Respondents.
The Redevelopment Agency of the City of San Bernardino (the Agency) appeals from a judgment granting a petition for writ of
mandate. The petition asserted that the Agency had violated CEQA, the
California Environmental Quality Act, when it approved the sale of
redevelopment property by the Agency to California Bio-Mass, Inc. (Bio-Mass).
Stewart D. Cumming and the Cimarron Ranch Neighborhood Association (Cimarron), a group of 378 homeowners, were
the petitioners below and are the respondents on appeal. We reverse on the
grounds the petition is barred by the 180-day statute of limitations set forth
in Public Resources Code section 21167. n1 We also deny petitioners' request
for judicial notice. n2
2. FACTUAL AND PROCEDURAL
We derive the following account from the
court record and the administrative record as contained in the joint appendix
supplied by the parties.
The 10-acre parcel, the subject of this
action, is part of the Northwest Redevelopment Project, 1477.9 acres controlled
by the Agency and located in the City of San Bernardino (City). In 1982, the Agency prepared an environmental impact report (EIR) for the Northwest Redevelopment
Project. The 1982 EIR anticipated the project would include industrial uses, such as light
manufacturing, warehouse and storage, repair facilities, and "heavier
industrial or extraction uses subject to further environmental analysis of
specifically proposed projects." Redevelopment was planned to occur over a
In February 1999, Bio-Mass, an industrial
recycling company, made an offer to purchase the subject 10 acres. Bio-Mass
planned to build new corporate headquarters and a drop-off facility for
recycling activities. Actual processing of the recyclable material would occur
The Agency negotiated with Bio-Mass about
the sale and development of the property and prepared a disposition and
development agreement, dated September 1999. The agreement provides that
Bio-Mass's proposed development of the property is consistent with the
Northwest Redevelopment Project plan. The agreement also provides that the
City's building and zoning requirements apply to Bio-Mass's proposed
development and that approvals by other government agencies may be required.
On October 4, 1999, and October 11, 1999, as required by
Health and Safety Code sections 33431 and 33433 for the sale of redevelopment
property, the City and the Agency published a notice of a public hearing
concerning approval of the agreement. The supporting documents, available for
public review, described the proposed project as being "an organic
recycling and transfer facility" collecting "green waste, wood waste,
wallboard, paper, C&D material, pre-post food material and liquids"
for processing at another site. On October 18, 1999, the Agency and the City both adopted resolutions approving the sale of
the land to Bio-Mass and also finding no further environmental review was
presently necessary under CEQA in connection with the Agreement.
In November 1999, Bio-Mass applied to the
City for a conditional use permit (CUP) allowing solid-waste collection. The
City prepared an initial CEQA study and a revised initial study, recommending
the preparation and adoption of a mitigated negative declaration.
According to the petitioners, they first
learned about the proposed Bio-Mass development on December 13, 1999, in connection with the CEQA review for the CUP.
The City Planning Commission approved the
CUP on March 21, 2000. The City
adopted the mitigated negative declaration on April 17, 2000. But the CUP has since been rescinded.
In the interim, the sale of the property to
Bio-Mass has been completed.
On May 4, 2000, petitioners Cumming and Cimarron filed their petition for writ of
In their second cause of action, the only
cause of action remaining against the Agency, the petitioners allege, somewhat
unintelligibly, that the Agency had approved the sale of the property to
Bio-Mass for use as a recycling transfer facility for solid waste and
authorized and gave its approval for Bio-Mass to apply for a CUP for the
facility. The petitioners further allege these two actions were
"projects" under CEQA and that the Agency failed to comply with CEQA
by not preparing a new EIR, evaluating the "solid waste
transfer facility" as a "substantial change" from the Northwest
Development Project, especially in view of more stringent environmental
regulations adopted since 1982.
The court granted the petition on the
second cause of action and issued a peremptory writ directing the Agency to set
aside its finding of October 18, 1999, that no further environmental review was
required at that time; to comply with CEQA, perhaps by preparing a subsequent
or supplemental EIR; and to reconsider its decision
that the Bio-Mass property be developed as a recycling transfer facility.
3. TIMELINESS OF THE PETITION FOR WRIT
The only issue argued by the Agency on
appeal is that the petition for writ of mandate was not timely because it was
filed more than 180 days after October 18, 1999, the date the Bio-Mass sale was
approved and the City and the Agency made the finding that no further environmental
review was then required for approval of the agreement. In opposition,
respondents argue that they did not know about the scope of the agreement until
December 13, 1999, when they first
learned about Bio-Mass's pending application for the CUP. Because the facts are
not disputed, we review the issue de novo. n3
As part of a redevelopment project, the
Bio-Mass property is subject to special rules under CEQA. First, in contrast to
petitioners' allegations that the Agency's actions constituted discrete
"projects," the 1982 Northwest Redevelopment Project plan is deemed
to be a single project. n4 Additionally, although the redevelopment plan
contemplated that there could be "further environmental analysis of
specifically proposed projects," CEQA provides that subsequent
environmental review of a redevelopment project is limited: "Further
environmental review . . . in furtherance of . . . a redevelopment plan shall
be conducted if any of the events specified in Section 21166 have occurred."
n5 Section 21166 states that a subsequent or supplemental EIR shall be required if there have
been substantial changes in the project, changes in circumstances, or new
information triggering the need for a new further environmental review. n6 The
CEQA Guidelines elaborate: "An EIR on a redevelopment plan shall be
treated as a program EIR with no subsequent EIRs required for individual components of the
redevelopment plan unless a subsequent EIR or a supplement to an EIR would be required by Section 15162
or 15163." n7 Sections 15162 and 15163 of the CEQA Guidelines repeat the
factors identified in section 21166 as to when another EIR should be prepared for a
redevelopment project. n8
The CEQA Guidelines also provide a
subsequent or supplemental EIR or a subsequent negative
declaration shall be subject to the requirements of public notice and public
comment. n9 But neither the statutes nor the CEQA Guidelines require a
redevelopment agency to afford public notice and comment for the agency's
decision not to conduct further environmental review of an individual component
of a redevelopment plan.
Here, the Agency's sale of the subject 10
acres to Bio-Mass needed no additional public notice than that given as
required by Health and Safety Code sections 33431 and 33433. The documents
pertaining to the sale and describing the full scope of the project, including
the proposed collection of solid waste, were available for public review before
the hearing on October 19, 1999. Furthermore, as the record demonstrates, the petitioners successfully
raised their objections to the solid waste recycling collection center in their
challenge to the City's approval, now rescinded, of the CUP. We cannot predict
what use Bio-Mass will be permitted ultimately to make of the subject property.
But, based on the foregoing analysis, no defect existed in the notice given by
the Agency in connection with the sale and the decision not to conduct
additional environmental review before the sale.
We recognize that the Agency focuses its
argument not on the legitimacy of the public notice given of the sale without
further environmental review, but on the limitations issue. Notwithstanding the
validity of the public notice, the Agency maintains the petitioners' challenge
is too late. We agree.
The governing statute of limitations for
CEQA actions is section 21167. Subdivision (a) provides a special 180-day
statute of limitations for CEQA challenges to a public agency's approval of a
project "which may have a significant effect on the environment without
[the agency's] having determined whether the project may have a significant
effect on the environment." The same limitations period applies "if a
project is undertaken without a formal decision by the public agency, within
180 days from the date of commencement of the project." In the present
case, if we accept the petitioners' characterization of the Bio-Mass sale as a
"project," the Agency approved the sale without further environmental
review on October 19, 1999. Before that
date, the Agency published notice of the sale as required by the Health and
Safety Code. Therefore, the limitations period for a CEQA challenge of the
Agency's approval of the sale began to run on October 19, 1999.
The petitioners rely on two cases, neither
of which assists them. The first case, Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., n10 is distinguishable. In Concerned Citizens, the court held a
legal challenge could be filed within 180 days of when the complaining party
either knew or reasonably should have known of substantial changes in the
construction of an outdoor stadium. But Concerned Citizens did not
involve redevelopment property. Therefore, it did not address the special CEQA
rules applicable to redevelopment property. Also, Concerned Citizens
involved substantial changes in a public works project without any notice to
the public. The petitioners allegedly did not find out about the enlargement of
the stadium until after the first noisy concert was held.
The present case differs from Concerned
Citizens because the scope of the Bio-Mass project was disclosed in the
public documents made available for review before the sale was approved. The
public record gave notice sufficient to start the statute of limitations
running. n11 Therefore, if the petitioners found any reason to object, they
should have challenged the sale's approval within 180 days of October 18, 1999.
Endangered Habitats League, Inc. v.
State Water Resources Control Bd. n12 also does not support the petitioners because there an action was
filed within 30 days of final approval of a project, not more than 180 days
after approval, as here. Nor did the case involve redevelopment property.
Based on our independent review, we
conclude the trial court was wrong both when it found the public notice of the
sale was inadequate and in its application of the holding of Concerned
Citizens, which we deem to be inapplicable to the factual scenario of this
case. We reverse and vacate the trial court's award of attorney's fees to the
petitioners. The Agency shall recover its costs on appeal.
Hollenhorst, Acting P. J., and Ward, J., concurred.
n1 All further statutory references
are to the Public Resources Code unless otherwise stated.
n2 Evidence Code section 452.
n3 Edward Fineman
Co. v. Superior Court (1998) 66 Cal. App. 4th 1110,
1116 [78 Cal. Rptr. 478].
n4 Section 21090; Meaney
v. Sacramento Housing & Redevelopment Agency (1993) 13 Cal. App. 4th 566,
584 [16 Cal. Rptr. 2d 589].
n5 Section 21090.
n6 Section 21166.
n7 California Code of Regulations,
title 14, section 15180.
n8 California Code of Regulations,
title 14, sections 15162 and 15163.
n9 California Code of Regulations, title
14, sections 15162, subdivision (d), and 15163, subdivision (c).
n10 Concerned Citizens of Costa Mesa v. 32nd Dist. Agricultural Assn. (1986) 42 Cal. 3d 929, 937-939
[231 Cal. Rptr. 748, 727 P.2d 1029].
n11 Community Cause v. Boatwright
(1981) 124 Cal. App. 3d 888, 902
[177 Cal. Rptr. 657].
n12 Endangered Habitats League, Inc. v.
State Water Resources Control Bd. (1997) 63 Cal. App. 4th 227,
234, 240-243 [73 Cal. Rptr. 2d 388].