REMY, THOMAS, MOOSE and MANLEY, LLP ATIORNEYS AT LAW

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1 MICIIAF.L II REMY Tl A A TIIOMAS OF COUNSEL JAMES G MOOSE WI IlTMAN F MA LEY ANDREA K LEISY TIFFA Y K WRIGHT ABRJ A V TELLER ASHLE T CROCKER REMY, THOMAS, MOOSE and MANLEY, LLP ATIORNEYS AT LAW 455 CAPI r0l MALL, SUITE 210 SACRAMENTO. CALIFORNIA Telephone (916) Facstmtle (916) E-matl mfo!u'nmmlaw com hnp.//ww\ nmmla\\ com JENNIFER S IIOLMA MICIIELE A TO G AMY R HIGUERA HOWARD F. WILKINS Ill MeGAN M QUI AMANDA R OERLIN JASON W. HOLDER LAURA M HARRIS KATHRYN C COTTER COURTNEY K FRJEH BRIAN J PLANT OF COUNSEL Chief Justice Ronald M. George and 350 McAllister Street San Francisco, CA Re: Request for Depublication- Stockton Citi::ens for Sensible Planning v. City of Stockton (Third Appellate District -- No. C050885) (2007) 157 Cai.App.4th 332 Dear Chief Justice George and Associate Justices: On November 28, 2007, the Third Appellate District published an opinion in Stockton Citi::ens for Sensible Planning v. City of Stockton (2007) 157 Cai.App.4th 332 ("Stockton Citizens"). Pursuant to Rule of the California Rules of Court, we respectfully request that the California Supreme Court order the depublication of this opinion. The Court should depublish the Stockton Citizens opinion because it will sow significant confusion for public agencies attempting to comply with the California Environmental Quality Act (''CEQA"). As a general matter, the rules governing the statute of limitations applicable to CEQA lawsuits are straightforward and easy to understand and apply. The Stockton Citizens decision introduces significant uncertainty into those rules. This uncertainty will mean that, in a wide range of circumstances, public agencies and the development community will not know whether the statute of limitations for a CEQA challenge has expired. Such uncertainty has real and substantial costs. We therefore recommend ordering depublication. { DOC. I}

2 Page 2 Interest of the Requesting Parties Our practice focuses on CEQA. Our firm publishes the "Guide to CEQA.. (Solano Press Books, 11 th ed. 2007), a treatise often cited by the Courts in CEQA decisions. Our clients include public agencies, developers, and citizens' groups. In this instance, we submit this letter on our own behalf. We also submit this letter on behalf of the League of California Cities. The League of California Cities is an association of 4 78 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians. The League is advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys from all regions of the State. The Committee monitors litigation of concern to municipalities, and identifies those cases that are of statewide - or nationwide - significance. The Committee has identified this case as being of such significance. We also submit this letter on behalf of the following public agencies: City of American Canyon City of Chico City of Santa Cruz City of Santa Rosa Imperial County Kings County These public agencies have a substantial interest in the depublication of the Stockton Citi::ens opinion. As public agencies, these agencies are charged with complying with CEQA. They must also defend their CEQA compliance efforts in Court. They therefore have a significant stake in ensuring that the rules governing CEQA litigation are easy to understand and apply. Clarity is paramount. Unfortunately, the Stockton Citizens opinion muddies what had previously been relatively straightforward rules. Because the reasoning adopted by the majority in Stockton Citizens is inconsistent with the statute and existing precedent, the opinion should be ordered depublished. The Importance of The Issue The Legislature has adopted a variety of rules designed to ensure that CEQA challenges are relatively easy to bring. Standing requirements are permissive. (Pub. Resources Code, 21177, subd. (b); California Aviation Council v. County of Amador { DOC, I)

3 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}

4 January 24, Page 4 The preeminent mechanism for ensuring a "speedy'' legal process is the relatively short statute of limitations adopted by the Legislature for bringing a CEQA challenge. (Pub. Resources Code, 21167: see CEQA Guidelines, 15112, subd. (a) [describing statutes of limitations applicable to CEQA petitioners as "unusually short"].) 1 Prior to the Third District's decision in Stockton Citizens, determining and applying the proper statute of limitations was a relatively straightforward matter. Now, it is not. Basis of Request for Order Depublishing Decision A determination whether the statute of limitations has expired is not a decision on the merits. Rather, it is a determination whether the plaintiff has filed its petition within the applicable deadline. If the petitioner misses the statute, then the petition is dismissed, regardless of the merits of its claims. (Lee v. Lost Hills Water Dis/. (1978) 78 Cal.App.3d 630, 634.) As Justice Nicholson notes in his dissent, the majority's opinion in Stockton Citizens subverts these principles. The majority opinion reaches the merits of the petitioners' claims, and concludes the Director of the Community Development Department did not have authority to approve the proposed project as consistent with previous entitlements approved for the site. In particular, the majority finds the Director violated CEQA because its action was not an "approval," and because the Director lacked authority to grant an approval in any event. The majority then cites these errors to conclude that the statute of limitations had not commenced. As Justice Nicholson observed in his dissent: "The majority opinion turns the statute of limitations on its head, arguing in effect the statute does not commence to run if the agency s decision violated CEQA. No California court has conditioned the running of a statute oflimitations upon the validity of the complainant's allegations, as the majority opinion does here. Applying the statute of limitations as the majority opinion does obliterates the statute." (Stockton Citizens, supra, 157 Cal.App.4th at p. 353.) The reasoning employed by the majority opinion to circumvent the statute of limitations is far-reaching. The majority states the Director did not have authority to 11 The "CEQA Guidelines" appear at title 14 of the California Code of Regulations, commencing at section { DOC; I}

5 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

6 Page 6 activity falls within a statutory exemption (CEQA Guidelines, 15025, subd. (a)(1), ) These sorts of decisions are endemic. Under the reasoning adopted by the Stockton Citizens majority, however, even if an agency were to post a notice of exemption with respect to an approval it regarded as ministerial, the decision would be vulnerable to attack long after the 35-day statute of limitations had expired, if a Court were to reach the merits and determine that, in fact, the approval was not "ministerial.'' The same is true with respect to staff determinations that an activity is not a "project" or is statutorily exempt. Under the logic adopted by the Stockton Citizens majority, all of these decisions would exceed the authority of agency staff. As such, these decisions would not constitute a lawful "approvals" within the meaning of CEQA and, as a consequence, the posting of a notice of exemption would not commence the statute of limitations. As a consequence, the statute of limitations set forth in section would be read out of the statute. This result is contrary to settled law. (Pub. Resources Code, ["It is the intent of the Legislature that courts, consistent with generally accepted rules of statutory interpretation, shall not interpret [CEQA] or the [CEQA Guidelines] in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines."]; Napa Valley Wine Train, Inc. v. Public Utilities Commission (1990) 50 Cal. 3d 3 70 [because CEQA is a legislative enactment, the courts must apply statutory exemptions without regard to whether underlying activity may have significant impacts on environment]; Board of Supervisors of Riverside County v. Superior Court ( 1994) 23 Cal.App.4th 830, 839 ["if a statute is clear on its face and operates fairly, its unambiguous terms must prevail even if the result is to bar a CEQA challenge."].) Conclusion On our own behalf as CEQA practitioners, as well as on behalf of the public agencies listed above, we respectfully request that the Court order depublication of the Third District's decision in Stockton Citizens. ( DOC: I}

7 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, 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

9 IBI D D D 1B1 D BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at San Francisco, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to r ceive documents, in an envelope or package designated by the overnight service carrter. BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to Rule of the California Rules of Court. The telephone number of the sending facsimile machine was The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The sending facsimile machine (or the machine used to forward the facsimile) issued a transmission report confirming that the transmission was complete and without error. Pursuant to Rule 2.306(g)( 4), a copy of that report is attached to this declaration. BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. FEDERAL: I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on, at Sacramento, California. Mona De Marco { DOC. I }W02- WEST: F J V\ PROOF OF SERVICE