Court Sets Strict Rules for Calculating Limitations on CEQA Challenges

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The California Court of Appeal recently issued a decision that establishes two bright line rules – one for calculating when the statute of limitations for CEQA actions subject to a Notice of Determination (NOD) has run and one for calculating how long the NOD must be posted before it can be removed. The NOD is one of the most critical notices filed in the CEQA process, as it establishes the very short statutes of limitations for bringing challenges under CEQA. If a NOD is not filed and posted for the requisite 30 days, a 180-day statute of limitations applies. The Court held that the 30-day statute of limitations period for CEQA challenges under Public Resources Code Section 21167(c) and the 30 days required for posting the NOD are both counted starting from the day after the day the NOD is first posted. The Court also held that NODs must remain posted for the full 30 days; premature removal of a posted notice, even if by only a few hours, will result in application of the 180-day statute of limitations.

After a local agency decides to approve or carry out a project for which an Environmental Impact Report (EIR) or negative declaration has been prepared, the agency must file a NOD with the county clerk within five working days after approval of the project. Public Res. Code (CEQA) § 21152(a). The NOD must be made available for public inspection and posted within 24 hours of receipt for a period of at least 30 days. CEQA § 21152(c). Where a public agency has filed a NOD in compliance with these requirements, the filing and posting of the NOD starts a 30-day statute of limitations on legal challenges under CEQA. CEQA § 21167(b), (c), (e). If a NOD is not filed, the statute of limitations period is 180 days after the public agency’s decision to carry out or approve the project. CEQA § 21167(a).

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