Title 14. California Code of Regulations

Chapter 3. Guidelines for Implementation of the

California Environmental Quality Act

 

Article 15. Litigation

 

Sections 15230 to 15233

 

15230. Time Limits and Criteria

 

Litigation under CEQA must be handled under the time limits and criteria described in Sections 21167 et seq. of the Public Resources Code and Section 15112 of these Guidelines in addition to provisions in this article.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21167 et seq., Public Resources Code.

 

Discussion: This section provides a cross-reference to the statutory sections which govern litigation under CEQA.

 

15231. Adequacy of EIR or Negative Declaration for Use By Responsible Agencies

 

A final EIR prepared by a Lead Agency or a Negative Declaration adopted by a Lead Agency shall be conclusively presumed to comply with CEQA for purposes of use by Responsible Agencies which were consulted pursuant to sections 15072 or 15082 unless one of the following conditions occurs:

 

(a) The EIR or Negative Declaration is finally adjudged in a legal proceeding not to comply with the requirements of CEQA, or

 

(b) A subsequent EIR is made necessary by Section 15162 of these Guidelines.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Sections 21080.1, 21166, 21167.2, and 21167.3, Public Resources Code.

 

Discussion: This section is added to clarify the ways in which a Responsible Agency is affected by litigation involving the adequacy of environmental documents prepared by the Lead Agency. This section implements CEQA Section 21167.2 but provides additional interpretation. This Guideline section limits the conclusive presumption that an EIR complies with CEQA to situations where the Lead Agency consulted with the Responsible Agency. The statutory presumption was based on the idea that the Responsible Agency had been consulted and had an opportunity to make its views known to the Lead Agency.

 

15232. Request for Hearing

 

In a writ of mandate proceeding challenging approval of a project under CEQA, the petitioner shall, within 90 days of filing the petition, request a hearing or otherwise be subject to dismissal on the court's own motion or on the motion of any party to the suit.

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21167.4, Public Resources Code.

 

Discussion: Experience with Section 21167.4 of CEQA has revealed an ambiguity that needs interpretation in the Guidelines. Section 21167.4 provides in part: ". . . the petitioner shall request a hearing within 90 days of filing the petition or otherwise be subject to dismissal. . . ." The section does not make it clear whether only the request must be made within 90 days after filing the petition, or whether the hearing must be had within 90 days.

 

15233. Conditional Permits

 

If a lawsuit is filed challenging an EIR or Negative Declaration for noncompliance with CEQA, Responsible Agencies shall act as if the EIR or Negative Declaration complies with CEQA and continue to process the application for the project according to the time limits for Responsible Agency action contained in Government Code Section 65952.

 

(a) If an injunction or a stay has been granted in the lawsuit prohibiting the project from being carried out, the Responsible Agency shall have authority only to disapprove the project or to grant a conditional approval of the project. A conditional approval shall constitute permission to proceed with a project only when the court action results in a final determination that the EIR or Negative Declaration does comply with the provisions of CEQA (Public Resources Code Section 21167.3(a)).

 

(b) If no injunction or stay is granted in the lawsuit, the Responsible Agency shall assume that the EIR or Negative Declaration fully meets the requirements of CEQA. The Responsible Agency shall approve or disapprove the project within the time limits described in Article 8, commencing with Section 15100, of these Guidelines and described in Government Code Section 65952. An approval granted by a Responsible Agency in this situation provides only permission to proceed with the project at the applicant's risk prior to a final decision in the lawsuit (Public Resources Code Section 21167.3(b)).

 

Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21167.3, Public Resources Code; Kriebel v. City Council (1980) 112 Cal. App. 3d 693.

 

Discussion: This section combines the statutory provision dealing with conditional permits with administrative interpretations. While the statute limits the authority of the Responsible Agency to granting a conditional approval for a project, this Guideline section follows case law by providing authority to disapprove the application as well.