In Committee to Relocate Marilyn v. City of Palm Springs (Feb. 23, 2023, D080907) __Cal.App.5th__ [2023 Cal. App. LEXIS 120], the Fourth District Court of Appeal held that the petition filed by the Committee to Relocate Marilyn (Committee), challenging the determination by the City of Palm Springs (City) to issue a Notice of Exemption (NOE) for an art installation on a public street, was timely, vacating the trial court’s sustaining of the demurrer without leave to amend. In a separate holding, not discussed further in this summary, the Court also ordered the trial court to overrule the City’s demurrer as to the Committee’s other causes of action alleging that the City did not have the authority under both the Vehicle Code and Municipal Code to close the public street.

In 2016, the City approved a plan to install “Forever Marilyn,” a 26-foot-tall, 34,000-pound statue of the actress Marilyn Monroe (Statue or Project), in a public park in the City. In late 2020, the City approved a change to the proposed location of the Statue to a nearby City street, creating a vehicle-free, pedestrian-only “art walk.” The terms of this plan involved the vacation of the public’s vehicular access rights on the portion of the street where the Statue was to be located. After approval of the plan, the City filed an NOE for the Project on December 29, 2020, under CEQA’s “Class 1” exemption for existing facilities. (CEQA Guidelines, § 15301.) In January of 2021, the Committee reached out to the City to inquire whether the City still intended to close vehicular access to the street through the vacation process, and the City Attorney responded in February that the City, instead, intended to temporarily restrict vehicular access to the street because the City was unlikely to meet the statutory requirements necessary to vacate the street. The City’s Development Services Director authorized the temporary street closure in March of 2020, and the Committee filed an amended petition in April alleging that the Project would have adverse environmental impacts on traffic, aesthetics, and historical resources. The City demurred the CEQA allegation on the grounds that it was untimely because it was not asserted within 35 days of the filing of the NOE, and the trial court sustained the demurrer without leave to amend.

On appeal, the Committee asserted that filing the NOE did not trigger the shortened 35-day statute of limitations because the City’s decision after the NOE was filed, to temporarily close the street instead of vacating it, represented a substantial change to the Project that frustrated CEQA’s goal of informed public participation. Primarily relying on two court decisions, Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929 and Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, both of which dealt with post-approval changes to projects and lack of public notice, the Court agreed with the Committee that the City’s decision not to permanently vacate the street after filing the NOE was a substantial change to the Project that reset the statute of limitations to 180 days from the time the City informed the Committee of the decision. Although the City argued that the temporary closure blocked vehicle access to the street in the same way as the vacation and the revised-Project would likely have less environmental impacts as a result, the Court disagreed, finding that the type of vehicular access restrictions were materially different and that the duration of the closure “surely could have significantly different environmental impacts.” Moreover, the City’s failure to notify the public about the change deprived the public of the chance to evaluate the changed project and make its own decisions to challenge the Project. Applying the 180-day statute of limitations from the date that the City informed the Committee of its decision not to vacate the street, the Court held that the Committee’s CEQA challenge was timely, and ordered the trial court to vacate its order sustaining the demurrer without leave to amend.

Key Point

• Substantial changes made to a project after the issuance of an NOE may extend the time petitioners have to challenge the determination under CEQA.

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