Affordable housing advocates Latinos Unidos de Napa (plaintiff) filed a petition for writ of mandate against the City of Napa (City), its city manager, and its community development director (defendants) seeking to set aside the City's approval of revisions to the housing element of its general plan, and related general plan and zoning amendments (the Project), on the ground that an environmental impact report (EIR) for the Project is required. The City had concluded that the Project would not result in any new significant environmental effects that were not identified and mitigated in its 1998 general plan program EIR, and filed a notice of determination (NOD) to that effect with the county clerk. The court dismissed plaintiff's petition on statute of limitations grounds.
At issue in this appeal is Public Resources Code section 21152, subdivision (c), that requires the county clerk to post the NOD "for a period of 30 days."
On June 16, 2009, the city council approved resolution No. R2009 80 adopting the general plan housing element amendment, resolution No. R2009 79 with conforming amendments to the land use element and map, and the first reading of ordinance No. 02009 11 with conforming amendments to the zoning code and map. Section 21152, subdivision (a) provides that "[w]henever a local agency approves or determines to carry out a project that is subject to this division, the local agency shall file notice of the approval or the determination within five working days after the approval or determination becomes final, with the county clerk of each county in which the project will be located." On June 17, 2009, the City filed its NOD with the Napa County Clerk stating that no new EIR was required for the Project. The NOD was hand delivered by City staff to the county clerk on that date, and a cash register receipt for payment of an administrative fee shows that the county clerk received the document at 9:05 a.m.
Section 21152, subdivision (c) directs "[a]ll notices filed pursuant to this section shall be available for public inspection, and shall be posted within 24 hours of receipt in the office of the county clerk. A notice shall remain posted for a period of 30 days. Thereafter, the clerk shall return the notice to the local agency with a notation of the period it was posted." On July 17, 2009, Napa County Deputy Clerk Recorder Joan Jorgensen prepared and executed a "County Clerk's Certificate of Posting," in which she certified that she had posted the NOD in the county clerk's office "for the following time period: 6/17/2009 through 7/17/2009."
Jorgensen stated in declaration she had no specific recollection of the NOD in this case, but that her signature on the certificate of posting showed that she would have followed the office's standard procedure for NOD's in this instance. Jorgensen said when an NOD is received for filing and posting, it is "cashiered," "which creates an electronic record of the date and time payment is received. Immediately after the cashiering is completed, the Clerk who cashiered the notice stamps the original Notice `filed' .... Once the Notice is thus filed, a Deputy Recorder-Clerk then posts the original, filed notice on a bulletin board in the public area of the office for a period of at least 30 days after the date on which the notice is first posted (not counting the day on which the notice is first posted, so that there are actually at least 31 days during which the notice is posted all or part of the day). The normal procedure is to remove the filed, original notice no earlier than 4:00 p.m. (and
Jorgensen said when an NOD is hand delivered by City staff, "we typically post it within less than an hour of its having been cashiered. Thus, the [NOD in this case] would have been posted by 10 a.m. on June 17, 2009. Based upon my signature on the County Clerk's Certificate of Posting and the fact that the certificate states that the notice was posted from June 17, 2009 through July 17, 2009, and based upon our office's standard procedures and the procedures which I normally follow, I am certain that the notice was posted at least until 10 a.m. (and likely later) on July 17, 2009. It was thus posted for at least a full 30 day period, from 10 a.m. on June 17, 2009, until at least 10 a.m. on July 17, 2009."
Plaintiff's counsel, David Grabill, stated in a declaration he and another attorney, Dylan Saake, went to the Napa County Clerk's office on the morning of July 17, 2009, to see if an NOD for the Project was posted. They did not find a posted NOD for the Project, and Grabill took a photo of the bulletin board at 11:29 a.m. to make a record of the date and time they inspected the posted documents. Saake executed a declaration corroborating Grabill's statements.
Plaintiff filed its petition for writ of mandate under the California Environmental Quality Act (§ 21000 et seq.; CEQA), and complaint for declaratory and injunctive relief, against defendants on September 17, 2009. Additional causes of action were added in a first amended petition. Defendants moved for judgment on the CEQA cause of action on the ground that it was barred by the running of the 30-day statute of limitations set forth in section 21167, subdivision (e) because it was commenced more than 30 days after the filing of the NOD with the county clerk.
The court rejected plaintiff's arguments, and granted defendant's motion for judgment on the CEQA cause of action. Plaintiff thereafter voluntarily dismissed its other causes of action, and judgment was entered for defendants from which plaintiff now appeals.
The Jorgensen declaration provided substantial evidence that the NOD in this case was posted over the course of 31 consecutive days, from 10:00 a.m. on June 17, 2009, until at least 10:00 a.m. on July 17, 2009. Plaintiff submits that this period of posting was insufficient to comply with the 30-day posting requirement of section 21152, subdivision (c) because the period of posting should be calculated pursuant to Code of Civil Procedure section 12, which states: "The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." If the first day of posting is excluded here, the 30th day of posting was July 17, 2009. Plaintiff further argues that posting for only a fraction of that last day, as apparently occurred in this case, does not satisfy the 30-day posting requirement.
Defendants identify no clear expression of intent, or compelling reason, to except the computation of the 30-day period in section 21152, subdivision (c) from the general rule of Code of Civil Procedure section 12. Defendants acknowledge Code of Civil Procedure section 12 applies in calculating the 30-day statutes of limitations in section 21167 that run from the filing of an NOD. Defendants call section 21152, subdivision (c) "a durational requirement, not a statute of limitations," and claim that plaintiff's argument to the contrary is "created ... out of whole cloth," but multiple authorities establish that the 30-day statutes of limitations do not begin to run until both the filing and the posting of an NOD, as we now explain.
Section 15094 of the Guidelines states in relevant part: "... (d) If the lead agency is a local agency, the local lead agency shall file the notice of determination with the county clerk of the county or counties in which the project will be located .... [¶] (e) A notice of determination filed with the county clerk shall be available for public inspection and shall be posted within 24 hours of receipt for a period of at least 30 days.... [¶] ... [¶] (g) The ... filing and posting of the notice of determination pursuant to subdivisions (d) and (e) above for local agencies, start a 30-day statute of limitations on court challenges to the approval under CEQA." (Italics added; see also Guidelines, § 15112, subd. (c) [where an NOD has been filed in compliance with Guidelines, § 15094, the statute of limitations is "30 days after the filing of the notice and the posting on a list of such notices"].) In Lake Murray, supra, 129 Cal.App.3d at pages 439-441, the court rejected an argument that "the mere filing of the notice of determination with the county
Defendants cite Green Foothills, supra, 48 Cal.4th 32, for the proposition "[t]he 30-day statute of limitations [under CEQA] is triggered when the NOD is filed, not by the posting of the NOD for 30 days." Some of the language in Green Foothills, viewed in isolation, could be taken to support defendants' position. The court held "that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decisions announced in the notice," even when "an action alleges that no environmental review was undertaken." (Id. at p. 39.) The court noted that "[t]he NOD plays a crucial role in determining the period during which CEQA challenges may be brought" (id. at p. 43), and concluded that "[i]f a valid NOD has been filed (§§ 21108, subd. (a), 21152, subd. (a)), any challenge to that decision under CEQA must be brought within 30 days, regardless of the nature of the alleged violation" (id. at p. 48). Although section 15094, subdivision (g) of the Guidelines states the "filing and posting" of an NOD "start a 30-day statute of limitations" (italics added), Green Foothills refers to this Guideline as "stat[ing] that the filing of such a notice invariably `start[s] a 30-day statute of limitations.'" (Green Foothills, supra, at pp. 48-49, italics added.) The court observed that "[a] bright-line rule that the filing of an NOD triggers a 30-day statute of limitations promotes certainty, allowing local governments and developers to proceed with projects without the threat of potential future litigation." (Id. at p. 50.)
Contrary to defendants' argument, Green Foothills supports our conclusion that Code of Civil Procedure section 12 governs the time within which an NOD is deemed to be posted. The court stated the controlling NOD in that case "was posted for 30 days, from December 20, 2005, through January 19, 2006." (Green Foothills, supra, 48 Cal.4th at p. 41.) If, as defendants maintain, the posting period includes the first day on which the NOD is posted, then the NOD in Green Foothills would have been posted for 31 days, rather than 30. While it is possible that the opinion may have been referring simply to compliance with the 30-day posting requirement of section 21152, subdivision (c), it appears the court was counting actual days of posting pursuant to Code of Civil Procedure section 12, excluding the first day and including the last ("through January 19"). (Green Foothills, supra, at p. 41, italics added.)
Apart from Green Foothills, the only cases defendants can muster against the application of Code of Civil Procedure section 12 here are Derby v. City of Modesto (1894) 104 Cal. 515 [38 P. 900] (Derby), and Municipal Imp. Co. v. Thompson (1927) 201 Cal. 629 [258 P. 955] (Thompson). However, the decisions in Derby and Thompson were discredited by Scoville v. Anderson (1901) 131 Cal. 590 [63 P. 1013] (Scoville), and Ley, supra, 212 Cal. 587.
Derby involved a statute that allowed a city to act "`after the publication'" of an ordinance "`for at least two weeks.'" (Derby, supra, 104 Cal. at p. 521.) The ordinance was published from October 6, 1892, to October 19, 1892, and the city acted on October 20, 1892. The court upheld the city's action, concluding that the 14 days of publication from October 6 to 19 satisfied the two-week publication requirement. The court declined to apply
The issue in Scoville, supra, 131 Cal. 590 was whether an attachment lien was dissolved because the property was attached within one month prior to the commencement of insolvency proceedings. The attachment occurred on January 24, 1896, and the insolvency proceedings were instituted on February 24, 1896. The court applied Code of Civil Procedure section 12, excluded the day of the attachment from the one-month period, and upheld a judgment invalidating the attachment lien. The court wrote: "In measuring and computing time it has been the rule from a very early day in this state to exclude the day upon which the event happened, a rule and method of computation differing from that of the earlier English practice, which was the inclusive method, under which the time began to run upon the day of the happening of the event. Thus, while in People v. Clark [(1851)] 1 Cal. [406,] 408, it is said that the general rule seems to be that in the computation of time from an act done, the day of the act is to be computed, in the next case of Price v. Whitman [(1857)] 8 Cal. 412, the exclusive rule is adopted, and it is said: `Of late the general rule of construction seems to have been to exclude the first day'; and in Iron [M.] Co. v. Haight [(1870)] 39 Cal. 540, where it was sought to have the court return to the earlier or inclusive rule, it is said: `We think we are bound by the gravest considerations of public order and security not at this late day to disturb the rule so distinctly and authoritatively settled.' Finally, the matter was definitively put at rest by a provision placed in the codes to the effect that `the time in which any act provided by law is to be done is computed by excluding the first day and including the last.' (Code Civ. Proc., [§] 12, Civ. Code, [§] 10, Pol. Code, [§] 12.)" (Scoville, supra, 131 Cal. at p. 594.)
Thompson involved a statute that allowed a county to act when "`twenty days have elapsed since the posting ... of [a] resolution of intention ....'" (Thompson, supra, 201 Cal. at p. 631.) The resolution was posted on September 25, 1923, and the county acted on October 15, 1923. The court rejected an argument the county acted before the posting period expired, holding that "the date of the posting ... should be included in the computation of the twenty-day period ...." (Id. at p. 632.) The court declined to apply Code of Civil Procedure section 12 to exclude the first day of posting because of the "peculiar wording" of the statute in question, which referred to 20 days "`since the posting,'" rather than "`after the day of posting.'" (Thompson, at p. 632.) The court added, contrary to the reasoning in Scoville: "It was early recognized as settled that `where the reckoning is to be made from an "act done [here the posting of the notice on September 25th] the day upon which it was done must, of necessity, be counted as one day, because if that day be excluded, then the count, instead of being from the
The court then decided Ley, supra, 212 Cal. 587, where, as we have said, it applied Code of Civil Procedure section 12 in calculating a 30-day publication period specified in a city charter. Citing Scoville, supra, 131 Cal. 590, and echoing Scoville's recognition of the "grave[]" need for a "definite and certain" method of computing time, the Ley court held that "the general rule" of Code of Civil Procedure section 12 should be applied in the absence of a clearly expressed intention to the contrary (Ley, supra, 212 Cal. at pp. 594-595)—a holding that has endured into the present century (Anthony B., supra, 104 Cal.App.4th at p. 682). Ley rejected an argument based on Thompson that the first day of publication should be counted as part of the 30-day period: "Counsel seek to avoid the ordinary rule of computation of time, which excludes the first day and includes the last, as set forth in section 12 of the Code of Civil Procedure and section 12 of the Political Code, on the theory that the statutory rule has no application to a situation when the reckoning is to be made from an `act done'. In such a case, it is contended, the day upon which the act is to be done must be counted as one day. ([Thompson, supra, 201 Cal. at p. 631].) Assuming the existence of such an exception to the ordinary rule for computation of time, we do not believe the situation here presented comes within the exception. The express language of ... the charter is that no ordinance shall go into effect `until' the expiration of thirty days from its publication. Properly interpreted, this would seem to mean thirty days after the publication, which necessarily excludes the day of publication." (Ley, supra, 212 Cal. at p. 594.)
Although Ley did not mention the Derby case, Ley's rationale effectively overruled Derby. In Derby, an action could be taken "`after the publication'" of an ordinance "`for at least two weeks'" (Derby, supra, 104 Cal. at p. 521, italics added), a situation where, under the above quoted reasoning in Ley, the first day of publication is excluded. Derby's counting of that first day thus cannot be reconciled with Ley.
Ley also relegated Thompson to its "peculiar" facts. (Thompson, supra, 201 Cal. at p. 632 [describing the wording of the statute at issue in that case].) Reichardt v. Reichardt (1960) 186 Cal.App.2d 808, 810 [9 Cal.Rptr. 225] (Reichardt), observed that Ley limited the rule applied in Thompson, which counted the first day of a time period "`"where the reckoning is to be made from an `act done,'"'" "to cases in which it appears that that rule clearly
These cases are persuasive and accordingly the application of Code of Civil Procedure section 12 cannot be avoided here based on Thompson or Derby.
The judgment of dismissal is reversed.
Margulies, J., and Banke, J., concurred.
"(b) An action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152. [¶] ... [¶]
"(e) An action or proceeding alleging that another act or omission of a public agency does not comply with this division shall be commenced within 30 days from the date of the filing of the notice required by subdivision (a) of Section 21108 or subdivision (a) of Section 21152." (§ 21167.)
We do not construe section 21152, subdivision (c) to mandate an NOD be posted on the last day of the 30-day period any longer than the county clerk's office is actually open to the public on that date.
