In Guerrero et al v. City of Los Angeles (January 17, 2024, No. B326033 c/w B327032) ___Cal.App.5th___, the Second District Court of Appeal held that the project opponents did not timely file their CEQA lawsuit. The published opinion reverses a trial court decision that had found the lawsuit to be timely and concluded that environmental review for the project had been inadequate. Downey Brand partner Andrew Skanchy represented the City of Los Angeles (“City”) in the litigation and prevailed in arguing for reversal of that trial court ruling. Andrew’s win marks the eighth straight appellate victory for the attorneys in Downey Brand’s land use practice group on behalf of the City.
TTLC Los Angeles – El Sereno, LLC and The True Life Companies, LLC (“Applicants”) proposed to subdivide an undeveloped hillside in Northeast Los Angeles and construct 42 single-family homes (“Project”). The City determined that all potentially significant impacts could be mitigated to a less-than-significant level, and prepared an MND for the Project.
The approval process proceeded in three stages. First, the Department of City Planning (“Planning Department”) adopted the MND and approved a vesting tentative tract map for the subdivision. On March 25, 2020, the City filed a Notice of Determination (NOD). Second, on May 13, 2020, the East Los Angeles Area Planning Commission (“Planning Commission”) adopted the MND and approved zoning determinations and adjustments necessary for the Project to construct retaining walls and use varying wall heights at a virtual hearing. The Planning Commission also recommended that the City Council adopt the zone change necessary for the Project. A second NOD was filed February 4, 2021. Finally, the City Council approved the zone change as recommended by the Planning Commission. A third NOD was filed on June 18, 2021.
Project opponents Delia Guerrero and Coyotl + Macehualli Citizens (“Petitioners”) filed their lawsuit on July 16, 2021. The trial court determined the suit to be timely because it was filed within 30 days of the third NOD and ruled for Petitioners on the merits. The City and Applicants appealed.
On appeal, the Court agreed with the City and Applicants that the trial court had erred. The Court found that the applicable statute of limitations had expired before the lawsuit was filed because it began to run from the filing of the first NOD, not the third.
CEQA requires environmental review to be completed early in the entitlement process, and those requirements are expressly required by statute for “the approval of tentative subdivision maps.” (Pub. Resources Code, § 21080(a).) Petitioners maintained that there was no approval until the City Council approved the zone change and, therefore, that the prior NODs had been ineffective in triggering CEQA’s 30-day statute of limitations. However, the Court noted that CEQA approval occurs and environmental review must be completed when the agency makes the earliest firm commitment to a project, not when it issues its last discretionary approval.
Petitioners argued that the Planning Department had not approved the project for purposes of CEQA because the map entitlement had been conditional. While the trial court had agreed, the Court of Appeal cited case law and statutes establishing that conditional approval of tentative maps is standard practice, and found that this did not change that the map entitlement had been the first project approval for purposes of CEQA.
As Petitioners missed the statute of limitations to challenge the initial Project approval, and made no argument that subsequent or supplemental environmental review was required for the entitlements approved in the latter stages, the Court found the lawsuit to be untimely and remanded with instructions for the trial court to dismiss the petition.
Conclusions
- A conditional approval can still constitute approval under CEQA.
- An NOD filed after project approval triggers CEQA’s statute of limitations, and the limitations period is not restarted by the filing of subsequent NODs.
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