CEQA Notice of Determination Omitting Material Change in Project Does Not Trigger Statute of Limitation Period

Ventura Foothills Neighbors v. County of Ventura (2014)

232 Cal.App.4th 429

The Second District Court of Appeal held recently that the County of Ventura abused its discretion when it failed to prepare a supplemental EIR for a project that was built materially different than described in the EIR. This case highlights the pitfalls of changing projects without updating and properly noticing environmental review documents.

The case arose from a challenge to the project by neighboring residents, who became aware of the change, an increase in building height by 15 feet, after construction started. The County processed an Addendum EIR before construction, but that document only addressed the change in building location, and not the structure’s increased height. Residents asserted their claim against the County once certain phases in the building’s construction made it clear that the height would rise to 90 feet, and disrupt many of the surrounding neighborhood’s ocean and hillside views. The County defended the challenge, maintaining that the statute of limitations ran 30 days after the County published its Notice of Determination, and the residents’ claims were time-barred.

The Court rejected this argument, stating that the County’s Notice of Determination did not provide notice to the public of the increased building height, only of the project’s change in location. Further, because the notice and the addendum did not review the increase in building height, the residents only became informed of the substantial change in the project after construction commenced. As a result, because the residents filed their action within 180 days of when they knew, or reasonably should have known that the project under way differed substantially from the one described in the EIR, their claims were not time-barred.

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