Citizens of Lake Murray Area Association v. City Council of San Diego

*438 Opinion

Citizens of Lake Murray Area Association (Association) appeal a judgment dismissing its petition for a peremptory writ of mandate, entered following the sustaining of the San Diego City Council’s (Council) demurrer to the petition and the Association’s election to stand on its pleadings. The sole issue presented is whether compliance by the county clerk with the statutory duty of posting notices of determination of environmental actions taken by a public agency under the California Environmental Quality Act (CEQA) 1 is mandatory in order for the special statute of limitations within the act to commence running? We answer in the affirmative and reverse the judgment.

Factual and Procedural Background

On October 6, 1981, the Association petitioned for a peremptory writ of mandate alleging the Council abused its discretion in determining a proposed project would not significantly affect the environment. The Council demurred, asserting the special statute of limitations within CEQA for initiating judicial review of environmental decisions. The trial court sustained the demurrer with 20 days leave to amend. On November 3, 1981, the judgment of dismissal was filed, as the…

Citizens of Lake Murray Area Association (Association) appeal a judgment dismissing its petition for a peremptory writ of mandate, entered following the sustaining of the San Diego City Council's (Council) demurrer to the petition and the Association's election to stand on its pleadings. The sole issue presented is whether compliance by the county clerk with the statutory duty of posting notices of determination of environmental actions taken by a public agency under the California Environmental Quality Act (CEQA) [1] is mandatory in order for the special statute of limitations within the act to commence running? We answer in the affirmative and reverse the judgment.

On October 6, 1981, the Association petitioned for a peremptory writ of mandate alleging the Council abused its discretion in determining a proposed project would not significantly affect the environment. The Council demurred, asserting the special statute of limitations within CEQA for initiating judicial review of environmental decisions. The trial court sustained the demurrer with 20 days leave to amend. On November 3, 1981, the judgment of dismissal was filed, as the Association elected to…

I concur in the result, and would reverse the judgment of dismissal with leave to answer.

I believe the statute of limitations is clearly spelled out in Public Resources Code section 21167, subdivision (b). I read the section as encompassing the requisites of the statute’s running, i.e., the filing of the notice required in this instance by subdivision (a) of section 21152.

Notice of council action, however, is fundamental to the rights of the parties in actions of this nature (see Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 257 [ 104 Cal.Rptr. 761 , 502 P.2d 1049 ]). Public Resources Code section 21152, subdivision (c), provides a means of giving constructive notice of the action taken by the council and is an essential element of public participation in the council’s determination. The failure to observe the obligations to be performed should *442 not prejudice the interested parties. I believe the failure to post notice should estop the city from raising the statute of limitations or any other defense that proper notice might have cured unless the petitioners had actual notice. In that case, the failure to give constructive notice by posting would not be…