Project Opponents Had 180 Days to Sue Regarding Lack of Analysis

November 1, 2002

Legal Digest, other, Vol. 17 No. 11 Nov 2002

Opponents of a proposed recycling center were too late in filing a lawsuit regarding a city's failure to prepare an environmental study on the city's sale of land to the recycling company, the Fourth District Court of Appeal has ruled. The opponents had 180 days from October 19, 1999 — the day the City of San Bernardino adopted a resolution approving the sale and finding that no further environmental review was needed — to file the lawsuit the court ruled. Opponents, who missed that deadline by nearly a month, contended they did not even learn about the project until nearly two months after the fact. But the court ruled the lack of notice about the city's decision not to require environmental review did not matter because the city was only carrying out a previously approved redevelopment plan San Bernardino approved the "Northwest Redevelopment Project" and an environmental impact report in 1982. The redevelopment plan anticipated the 1,477-acre project area would include a variety of light and heavy industrial uses. In 1999, Bio-Mass, an industrial recycling company, offered to purchase 10 acres of land owned by the redevelopment agency to build of a corporate headquarters and a drop-off facility for recycling of construction materials, yard waste and other items. Bio-Mass and the city eventually completed the sale, and the City Council, acting as the Redevelopment Agency board, adopted the final resolutions. In November of that year, Bio-Mass applied for a conditional use permit allowing solid waste collection on the site. The city prepared a mitigated negative declaration for the use permit, and both the use permit and environmental document were approved in early 2000. The city later rescinded the use permit. On May 4, 2000, the Cimarron Ranch Neighborhood Association and one citizen filed a lawsuit contending the city had violated the California Environmental Quality Act by not preparing an environmental impact report on the sale of the property. The opponents also argued that the sale amounted to a "substantial change" from the redevelopment plan, and that change also triggered an EIR. San Bernardino County Superior Court Judge James Edwards ruled for the opponents. But a unanimous three-judge panel of the Fourth District, Division Two, reversed the lower court. The appellate court based its decision strictly on the statute of limitations question. The statute of limitations began running on October 19, the court ruled. Documents related to the sale were available to the public prior to the October 19 hearing, the court noted. Moreover, "neither the statutes nor the CEQA guidelines require a redevelopment agency to afford public notice and comment for the agency's decision not to conduct further environmental review of an individual component of a redevelopment plan," Justice Barton Gaut wrote for the court. Because the city made no CEQA determination on the property sale, the statute of limitations was 180 days, which is considerably longer than if the city had found the project exempt or adopted an environmental document. Opponents missed the 180-day deadline. Gaut noted that opponents were not denied their chance to object to the recycling center, as evidenced by the city's later decision to rescind the use permit. The Case: Cumming v. City of San Bernardino Redevelopment Agency, No. E030566, 02 C.D.O.S. 9326, 2002 DJDAR 10423. Filed August 9, 2002. Ordered published September 9, 2002. The Lawyers: For Cumming: James DeAguilera, (909) 307-5750. For the city: Christopher Lockwood, Lewis D'Amato, Brisbois & Bisgaard, (909)387-1130.

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