Save Lafayette Trees v. City of Lafayette

*152 Petitioners Save Lafayette Trees, Michael Dawson, and David Kosters (collectively Save Lafayette Trees) appeal an order sustaining without leave to amend a demurrer to their petition for writ of mandate challenging the City of Lafayette's (city) approval of a letter of agreement for tree removal (agreement) with real party in interest Pacific Gas and Electric Company (PG&E). Save Lafayette Trees contends the trial court erred in concluding that service of its petition for a writ of mandate was untimely under Government Code 1 section 65009. In an opinion filed on October 23, 2018, we concluded that the claims asserted under the planning and zoning law (§ 65000 et seq.), the city's general plan, and the city's tree protection ordinance (Lafayette Mun. Code, § 6-1701 et seq. (tree ordinance)) are barred by section 65009, subdivision (c)(1)(E), but that the claim asserted under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ) was timely filed and served under Public Resources Code sections 21167, subdivision (a) and 21167.6, subdivision (a). Accordingly, we affirmed the order sustaining the demurrer as to the second, third, and fourth…

We concur fully in the reasoning and holding that the claims Save Lafayette Trees, Michael Dawson, and David Kosters alleged under the Planning and Zoning Act, the city's general plan and the city's tree protection ordinance (planning and zoning law claims) were not timely served, and that we must affirm the demurrer without leave to amend on those claims. We also agree that the California Environmental Quality Act (CEQA) claim was timely served, as required under the controlling statute, Public Resources Code section 21167.6. Thus, we concur fully in the judgment.

We write separately because it is unnecessary to address whether the time for filing the CEQA claim was governed by Public Resources Code section 21167, or the shorter period provided in Government Code section 65009. 1 The petition was timely filed even if we assume, without deciding, that the shorter section 65009 limitations period applied to all the alleged claims. The critical question that bears on the CEQA claim is whether it was timely served.

As the lead opinion concludes, the CEQA service provision in Public Resources Code section 21167.6 applies "[n]otwithstanding any other law." While section 65009 states…