guerilla war of attrition by which project opponents wear out project proponents."

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3 Chief Justice Ronald M. George and Associate Justices of the Supreme Court of California January 24, 2008 Page 3 (1988) 200 Cal. App. 3d 337,349 [cone. opn. by Blease, J.].) So are rules governing exhaustion of administrative remedies. (Pub. Resources Code, , subd. (a).) Petitioners have the option of electing to prepare the record of proceedings as a means of holding down costs. (Pub. Resources Code, , subd. (b)(2); Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176, 179.) Awards of attorneys' fees are often available to successful petitioners, in order to provide incentives for lawyers to take on CEQA litigation at little or no cost to citizens' groups. (Code Civ. Proc., ; Friends of"b" Street v. City ofhayward (1980) 106 Cal.App.3d 988, 994 [enforcement of CEQA recognized as appropriate basis of fee award].) The flip side is that CEQA litigation imposes significant costs on public agencies and the development community. As one Court noted, "the Legislature has recognized that, particularly in the CEQA context, time is money." (County of Orange v. Superior Court (2003) 113 Cal. App. 4th 1, 12.) In recognition of these costs, the Legislature has adopted various mechanisms designed to ensure that, although CEQA litigation is relatively easy to initiate, lawsuits must be filed promptly and, once filed, resolved quickly. These mechanisms include preference on Court calendars (Pub. Resources Code, I, subd. (a)), designation of specialized "CEQA judges" (Pub. Resources Code, , subd. (b)), deadlines for serving the petition and for preparing the record of proceedings (Pub. Resources Code, , subds. (a), (b)(l)), and requiring petitioners to request a hearing within 90 days of filing the petition (Pub. Resources Code, , subd. (a)). As these requirements demonstrate, "(t]he Legislature has obviously structured the legal process for a CEQA challenge to be speedy, so as to prevent it from degenerating into a guerilla war of attrition by which project opponents wear out project proponents." (County of Orange v. Superior Court, supra, 113 Cal.App.4th at p. 12 (ita! ics in original); see also Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 111 ["CEQA contains a number of procedural provisions evidencing legislative intent that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted"].) The California Supreme Court has also recognized the importance of prompt resolution of CEQA disputes, and the need for finality with respect to CEQA decisions once they are made. This presumption of finality acts to preclude reopening the CEQA process even if an environmental analysis is later discovered to have been fundamentally inaccurate and misleading in the description of a project's significant environmental effect or the severity of its consequences. (Laurel Heights Improvement Association v. Regents of the University ofcalifornia (1993) 6 Ca1.4th 1112, 1130.) { DOC: I}

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5 Chief Justice Ronald M. George and Associate Justices of the Supreme Court of California January 24, 2008 Page 5 approve the project because the Director was not a "public agency." Yet, CEQA allows public agencies to delegate to staff a variety of functions, including the determination whether a project is exempt from CEQA. (CEQA Guidelines, 15025, subd. (a)(l); see El Morro Community Assn. v. California Department of Parks and Recreation (2004) 122 Cal. App. 4th 1341, [state agency had discretion to delegate CEQA decisions to agency staff].) The majority opinion does not cite or distinguish this express authorization to delegate such activities. Abundant and uniform case law holds that, where an agency invokes a statutory or categorical exemption for purposes of CEQA, the agency need not hold a public hearing, adopt formal findings, or follow any particular procedures. (CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529, [statutory exemption]; Association for Protection of Environmental Values in Ukiah v. City of Ukiah (1991) 2 Cal.App.4th 720, 731 [categorical exemption]; see also Muzzy Ranch Co. v. Solano County Ailport Land Use Commission (2007) 41 Cal.4th 372 [project fell within "common sense" exemption based on determination reflected solely in "notice of exemption'' posted by agency staff]; CEQA Guidelines, 15087, subd. (i) ["Public hearings may be conducted on the environmental documents, either in separate proceedings or in conjunction with other proceedings of the public agency. Public hearings are encouraged, but not required as an element of the CEQA process."].) Yet, the majority's opinion suggests that, if the statute of limitations is to commence, then that decision must be made following formal notice of the agency's decision. The problem with this suggestion is that the only notice expressly called for by CEQA is the posting of a "notice of exemption." (CEQA Guidelines, ) In this instance, the majority opinion concedes that the agency posted such a notice. (Stockton Citizens, supra, 157 Cal.App.4th at p. 343.) At that point, the sole issue ought to have been whether the petitioners commenced the lawsuit within 35 days of the posting of that notice. (Pub. Resources Code, 21167, subd. (d).) Public agencies routinely make decisions at a staff level, without holding public hearings, providing formal notice, or adopting findings. To cite but one example, many actions by public agencies consist of the issuance of"ministerial" approvals that are exempt from CEQA. (Pub. Resources Code, 21080, subd. (b)(1); CEQA Guidelines, 15060, subd. (c)(l).) Ministerial approvals include licenses, building permits, final subdivision maps, and utility service connections. (CEQA Guidelines, 15268, subd. (b).) Other examples include the agency's threshold determination whether a proposed activity is a "project" (CEQA Guidelines, 15060, subd. (c)(3), 15378), and whether an { DOC, If

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7 Chief Justice Ronald M. George and Associate Justices of the Supreme Court of California January 24, 2008 Page 7 cc: See attached proof of service { DOC. I)

8 PROOF OF SERVICE CALIFORNIA SUPREME COURT I am employed in the County of Sacramento; I am over the age of eighteen years and not a party to the within entitled action; my business address is 455 Capitol Mall, Suite 210, Sacramento, CA On January 24, 2008, I served the following document(s) described as REQUEST FOR DEPUBLICATION on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Co-Counsel for Petitioner/AppeiJant Wal-Mart Stores, Inc.: Michael D. Early, Esq. Steefel, Levitt & Weiss One Embarcadero Center, 30 th Floor San Francisco, CA Telephone: Facsimile: Attorneys for Appellant A.G. Spanos Construction, Inc.: John Briscoe, Esq. Brisco, Ivester & Bazel LLP 155 Sansome Street, 7th Floor San Francisco, CA Telephone: Facsimile: California Court of Appeal Third Appellate District Deena Fawcett, Clerk 914 Capitol Mall Sacramento, CA Telephone: Attorneys for Respondent Stockton Citizens For Sensible Planning, Rosemary Atkinson, Paul Diaz and Susan Rutherford Rich: William D. Kopper, Esq. Law Offices of William D. Kopper 417 E Street Davis, CA Telephone: Facsimile: Maxwell M. Freeman Thomas H. Keeling Michael L. Gurev Chad R. Vanisko Freeman, D'Aiuto, Pierce, etc Grand Canal Blvd., Suite 4 Stockton, CA Telephone: Facsimile: The Honorable K. Peter Saiers San Joaquin County Superior Court 222 E. Weber Avenue, #303 Stockton, CA Telephone: Office of the City Attorney City of Stockton Richard E. Nosky, Jr. Guy D. Petzold 425 North ElDorado Street Stockton, CA { DOC: I) -1- PROOF OF SERVICE

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