Can a public agency and a party disputing the adequacy of an environmental impact report (EIR) prepared in connection with the adoption of a general plan amendment effectively agree to toll the limitations period for filing a petition challenging the adequacy of the EIR? We agree with the trial court that they may do so and that the court properly sustained a demurrer to a complaint in intervention alleging the untimeliness of the petition that was later filed when the negotiations prompting the tolling agreements failed to produce a settlement.
Background
On September 14, 2010, Salmon Protection and Watershed Network (SPAWN)
The Marin Countywide General Plan requires the county to implement stream conservation area policies, and the Update in connection with which the EIR was prepared does so for the San Gerónimo Valley watershed.
Interveners are owners of properties within the affected area of the San Gerónimo Valley watershed. Their complaint in intervention alleges that “[t]he pendency of the action creates uncertainty . . . about what ‘development’ if any will be allowed on their properties in the future, and this in turn reduces the present value of their properties, [f] The injunctive relief sought by the petition would directly and immediately restrict interveners from any development, or further development, on their properties, and this would interfere with their freedom to use their properties in a manner consistent with the County general plan and pertinent zoning. This in turn would cause or continue diminution in the value of their properties.” Alleging that CEQA, “taken as a whole, evidences a legislative intent that the limitations stated in section 21167 are mandatory and jurisdictional” and that the tolling agreements therefore were ineffective, interveners requested the court to find that SPAWN’S petition was untimely filed and to dismiss the petition.
The county, although defending the sufficiency of the EIR, joins SPAWN in defending the validity of the tolling agreements. The League of California Cities, the California State Association of Counties, the California Building Industry Association, and the Sierra Club have filed amicus curiae briefs arguing that tolling agreements serve a constructive function, are regularly entered and do not violate any statutory proscription.
Following the dismissal of the complaint in intervention, interveners have timely appealed.
Discussion
Section 21167, subdivision (b) provides: “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 21152.” Interveners contend this limitation can neither be waived nor tolled by agreement.
There is an equally strong public policy, however, recognized in just as many cases, to encourage the settlement of controversies in preference to litigation. Our Supreme Court “recognized a century ago that settlement agreements ‘ “are highly favored as productive of peace and good will in the community,” ’ as well as ‘ “reducing the expense and persistency of litigation.” ’ [Citation.] The need for settlements is greater than ever before. ‘Without them our system of civil adjudication would quickly break down.’ ” {Neary v. Regents of University of California (1992)
The county tells us that “[s]uch tolling agreements conserve judicial and local agency resources that have become increasingly strained in recent years. The use of tolling agreements to extend the statute of limitations period for the purpose of avoiding litigation and preserving local agency resources has therefore become common practice of Marin County (as well as many other counties and cities).” According to the amicus curiae brief submitted by the League of California Cities and the California State Association of Counties, “CSAC and League member agencies across California have, for years, relied on tolling agreements to aid in prompt resolution of land use disputes. If this vital tool is removed, many tolling agreements now in effect will be invalid and project opponents will feel compelled to immediately protect their rights and enter time-consuming and costly litigation.” According to the amicus curiae brief of the California Building Industry, “[I]t is not uncommon for litigation in the trial court and Court of Appeal to go on for two to three years, or more, before a final decision is reached. That is why a tool, such as a tolling agreement, which facilitates meaningful settlement discussions aimed at heading off litigation is so important.” The amicus curiae brief of the Sierra Club concurs: “tolling agreements avoid unnecessary litigation and are consistent with CEQA’s overarching objective of minimizing environmental harm. In the Sierra Club’s experience, tolling agreements provide an
Constructive negotiations often will require the parties to conduct additional research, obtain additional studies, and confer with other affected parties, often including other “responsible agencies” (§ 21069). As the present case illustrates, these and other steps inherent in constructive negotiations may require far longer than 30 days to complete. To be sure, the present case also illustrates that such negotiations may not always be fully successful, but in many cases they will be.
For these very reasons, the desirability and validity of agreements tolling other limitation periods have long been recognized. (E.g., Brownrigg v. deFrees (1925)
The policy favoring prompt resolution of CEQA disputes and the policy of encouraging settlement are not irreconcilable. In many cases, settlement will resolve the controversy much sooner than could be accomplished by trial and appeal. More fundamentally, the principal reason for seeking the prompt resolution of a CEQA dispute is to minimize the
The dispute in the present case differs from the prototypical CEQA controversy concerning the approval of a site-specific project in that the
Interveners point to the jurisprudential maxim recognized in our Civil Code that “Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.” (Civ. Code, § 3513.) The limitation period in section 21167 undoubtedly serves public purposes but, as just indicated, its primary purpose is to protect project proponents from extended delay, uncertainty and potential disruption of a project caused by a belated challenge to the validity of the project’s authorization. While others may be incidentally affected by an agreement to defer potential litigation, their indirect concerns are not sufficient to prevent those directly affected from waiving or agreeing to extend the limitation period.
The language of Civil Code section 3513 might be read to imply that the county cannot agree to extend the limitation period because only those for whose benefit a law is “solely” intended may waive the benefit of that law. But “the use of the word ‘solely’ in this statute does not compel the conclusion that waiver is precluded if there is any incidental benefit to the public from a statutory right. . . . Because it is difficult to conceive of a statutory right enacted solely for the benefit of private individuals that does not also have an incidental public benefit, a literal reading of Civil Code section 3513 would eliminate the established rule that rights conferred by statute may be waived unless specific statutory provisions prohibit waiver.”
Similarly, in this case interveners are at most only incidentally affected by the adoption of the amendment to the countywide plan. They have submitted no specific project to the county for its approval. To the extent that the plan update has any adverse effect on their property, they were entitled to be heard before the board of supervisors approved the Update, and their arguments as to the asserted deficiencies of the EIR and invalidity of the plan’s approval may be considered by the court in these writ proceedings.
Interveners argue further that even if the tolling agreement was effective to prevent the running of the limitation period imposed by section 21167, the action nonetheless is time-barred by the 90-day limitation period imposed by
The parties disagree whether this provision has any application to the present action since SPAWN’S petition alleges only violations of CEQA and does not allege any violation of the provisions of the Planning and Zoning Law. They disagree further with respect to the import of subdivision (g) of section 65009 of the Government Code which provides, with one inapplicable exception, that “this section shall not affect any law prescribing or authorizing a shorter period of limitation than that specified herein.” SPAWN and the county argue that since section 21167 does provide a shorter limitation period, subdivision (g) renders section 65009 inapplicable. Interveners, relying largely on Royalty Carpet Mills, Inc. v. City of Irvine (2005)
We need not decide whether Government Code section 65009 can ever apply to an action based solely on alleged CEQA violations because even on the assumption that it can, we see no reason to conclude that the parties directly affected are precluded from agreeing to toll its limitation periods, any more than they are precluded from tolling the shorter period prescribed in CEQA. Interveners argue that Civil Code section 3513, discussed above, precludes a tolling agreement with respect to the limitation periods in Government Code section 65009. This contention may have more force with respect to Government Code section 65009 than to section 21167, because section 65009 applies to suits challenging the adoption of general plans and states explicitly that it is intended to provide certainty to property owners as well as to local governments. Nonetheless, we believe that the general public remains only an incidental beneficiary of Government Code section 65009, thus permitting the governmental agency to waive or extend its limitation period. The governmental agency controls the timing for adoption of a general plan and confronted with objections, may defer adoption pending further study and discussions if it sees fit to do so. The 90-day time limit in Government Code section 65009, subdivision (c)(1)(A) requires service of a complaint only on “the legislative body,” and the public body is the only necessary party to the suit challenging the adoption of the plan.
Thus, we conclude that the tolling agreements entered between SPAWN and the county were valid and effective, and thus that the trial court properly sustained their demurrers to the complaint in intervention.
Disposition
The judgment dismissing the complaint in intervention is affirmed.
Siggins, J., and Jenkins, J., concurred.
A petition for a rehearing was denied May 11, 2012, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied July 11, 2012, S202887. Cantil-Sakauye, C. J., did not participate therein.
Notes
SPAWN is a project of Turtle Island Restoration Network, a California nonprofit corporation.
All statutory references are to the Public Resources Code unless otherwise noted.
This provision is to remain in effect only until January 1, 2016, unless extended by further legislation. (§ 21167.10, subd. (g)(1).)
Equally unpersuasive is the significance interveners attach to statements in sections 21080.1 and 21167.2 that decisions concerning CEQA compliance are final and conclusive “unless challenged as provided in Section 21167” (§ 21080.1, subd. (a)) or if no action “is commenced during the period prescribed in subdivision (c) of Section 21167” (§ 21167.2). Neither statement is concerned with whether the time limitations in section 21167 may be extended by agreement.
The county advises the court that although no settlement was reached in this case, through their negotiations the parties did narrow the issues that remain in controversy.
Section 21167.6.5, subdivision (a), as it read prior to 2011, began: “The petitioner or plaintiff shall name, as a real party in interest, any recipient of an approval that is the subject of an action or proceeding brought pursuant to Section 21167, 21168, or 21168.5 . . . .” The provision now begins: “The petitioner or plaintiff shall name, as a real party in interest, the person or persons identified by the public agency in its notice filed pursuant to subdivision (a) or (b) of Section 21108 or Section 21152 . . . (§ 21167.6.5, subd. (a), as amended by Stats, 2011, ch. 570, § 3.)
Although the recipient of an approval is a necessary party to the proceedings within the meaning of Code of Civil Procedure section 389, subdivision (a), and may be an indispensable party, i.e., a party without whom the action may not “in equity and good conscience” proceed (Code Civ. Proc., § 389, subd. (b); see, e.g., County of Imperial v. Superior Court (2007)
The situation is no different in principle if the public agency has taken action to authorize itself to proceed with a project. In that case, it is the public agency itself that stands to be harmed by delayed or extended litigation over CEQA compliance and therefore is the only other party that must agree with the party challenging CEQA compliance to enter an effective tolling agreement.
CEQA of course defines very broadly a “project” for which an environmental analysis is required. (§ 21065.) The adoption of a general planning document is a project for CEQA purposes. {Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
See also, e.g., Brownrigg v. deFrees, supra,
Interveners requested intervention solely to raise the limitations issue. They did not request the right to address the merits of SPAWN’S petition. The arguments in opposition to the petition presumably will be made by the county.
In Royalty Carpet Mills, Inc. v. City of Irvine, supra,
If a party challenges an agency decision directly affecting a specific development or permit, invoking the 90-day limitation under Government Code section 65009, subdivision (c)(1), (c)(1)(D) or (E), the project proponent would be a necessary party to the litigation and an effective tolling agreement could not be entered without its consent.
SPAWN’S request that we take judicial notice of certain legislative history materials is denied as unnecessary to the disposition of this appeal.