The Sixth Appellate District Court of Appeal, in Center for Biological Diversity v. County of San Benito (July 24, 2024, Nos. H051322, H051323) ___Cal.App.5th___ (originally unpublished but ordered published on August 6, 2024), held that CEQA’s statute of limitations is triggered by the final decision of the lead agency and not necessarily by an intermediate decision subject to appeal.
In October 2022, the San Benito County Planning Commission approved a roadside commercial development featuring a restaurant, produce stand, visitor center, and gas station and certified its environmental impact report (EIR). The County timely filed a notice of determination (NOD) pursuant to Public Resources Code (PRC) section 21152 and CEQA Guidelines section 15094. Challengers, including the Center for Biological Diversity, Protect San Benito County, and the Amah Mutsun Tribal Band, appealed the Planning Commission’s project approval and EIR certification to the Board of Supervisors, and, on November 8, 2022, the Board denied the appeals and certified the EIR, after which the County filed a second NOD.
On December 9, 2022, challengers filed petitions claiming CEQA and planning and zoning law violations, and the Real Party in Interest (the applicant) demurred on grounds that litigation was time barred under PRC section 21167(c) because the petitions had been filed more than 30 days after the first NOD was filed in October. The trial court sustained the demurrer, and petitioners appealed.
The Sixth District disagreed with the trial court. It emphasized that PRC section 21152(a) requires agencies to file NODs “after the [project] approval or determination becomes final,” and that an approval’s finality is governed by local rules, pursuant to CEQA Guidelines section 15352(a). San Benito County Code, pursuant to the court, “expressly provides” that an approval is final after the deadline for an appeal has expired without an appeal having been filed or, upon appeal, not “until the Board of Supervisors takes action to approve or deny.” Consequently, here, because an appeal was indeed filed, it was the second NOD that triggered the CEQA statute of limitations for filing suit. The court also held, essentially, that the “doctrine of exhaustion of administrative remedies” requires an administrative appeals decision to constitute a final approval because, otherwise, CEQA’s statutory provision allowing this remedy (PRC § 21151(c)) would be rendered impermissibly ineffective, as might the provision requiring a CEQA administrative record to include all “documentation of the final public agency decision” (PRC § 21167.7(e)(9)).
This decision is not groundbreaking or surprising—it follows similar holdings in several prior cases. It is however a valuable reminder to lead agencies, and CEQA practitioners who counsel them, that it is the absolute final agency approval which starts the formal CEQA litigation clock, and that an agency determination on an administrative appeal likely constitutes a final approval (unless local rules say otherwise). This is critical knowledge for both challengers and defenders of project approvals where multiple NODs are filed, and particularly important for agency staff deciding whether a subsequent NOD is necessary (it is) after an administrative appeal determination has been made by decisionmakers.
Whether or not CEQA requires filing a second NOD at the conclusion of an administrative appeals period without a timely appeal having been filed is a question not addressed in this case, although it is one considered by CEQA practitioners. Filing two back-to-back NODs can be cumbersome and confusing. Nevertheless, even if a second NOD is technically required under these circumstances, the failure to file an administrative appeal under the ‘doctrine of exhaustion of administrative remedies’ would essentially moot any would-be petitioner’s claim.
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