Judge: Mary H. Strobel, Case: 21STCP02472, Date: 2023-01-05 Tentative Ruling

Case Number: 21STCP02472    Hearing Date: January 5, 2023    Dept: 82

             Petitioner Save the East Fork Association (“Petitioner”) petitions for a writ of mandate directing Respondents County of Los Angeles, County of Los Angeles Board of Supervisors, and County of Los Angeles Department of Regional Planning (collectively “Respondents” or “County”) to vacate and withdraw a “clean hands waiver” issued to Real Parties in Interest Bungee America, LLC and Saunders Mine, LLC (“Real Parties”) authorizing Bungee America’s operation of a commercial bungee jumping operation and associated camping, heliport, bathroom, and storage facilities.  Petitioner also seeks a writ directing Respondents to complete CEQA environmental review prior to reissuing a clean hands waiver or any other approval for the Project.  The court heard oral argument on November 10, 2022 and ordered supplemental briefing as further described below.

Judicial Notice

Petitioner’s Request for Judicial Notice (“RJN”) Exhibit A – Granted.

Background

Bungee America Operates Bungee Jumping Business at the “Bridge to Nowhere”

            Since 1993, Bungee America has operated a commercial bungee jumping business off the “Bridge to Nowhere,” which is located on a 50-acre private inholding within the Angeles National Forest, Sheep Mountain Wilderness, and San Gabriel Mountains National Monument on parcels identified by Assessor Parcel Numbers 8678-002-009, 8678-002-010, 8678-002-011 (“Property”).  (Opening Brief (“OB”) 4; AR 59 and 1880.)  The Property has no vehicle access; the only means of access is by an approximately five-mile hike or by helicopter.  (AR 20, 1918.)  Supplies are brought in by helicopter.  A bucket system is used for human waste, which is transported offsite by helicopter.  (Oppo. 4; AR 19-24, 80-81, 1886, 1918.)  Bungee America has been licensed by the State of California Amusement Ride Division for bungee operations at the Property since around 1993.  (AR 20, 1918.)  However, the use of the Property has not been permitted or approved by the County of Los Angeles. 

Notice of Violation; and Request for Clean Hands Waiver

            On or about May 8, 2014, the County’s Department of Regional Planning (“DRP”) issued a Notice of Violation to Saunders Mine LLC stating that an inspection was conducted at the Property and disclosed non-permitted uses, including bungee jumping operation, in the A-1 zone in which the Property is located.  (AR 3.)

            On or about October 28, 2014, Bungee America requested that DRP grant a “clean hands waiver” permitting the continued operation of the bungee jumping operation while DRP processed Bungee America’s application to re-zone the Property and for a conditional use permit (“CUP”) and other approvals. (AR 19.)

            Generally, County may not process or approve an application for an existing land use that was “not previously authorized by any statute or ordinance” and that “is being maintained or operated in violation of any applicable provision of” the County’s zoning code.  (Los Angeles County Code § 22.02.070(A).)  However, section 22.02.070(B) provides the following exception: “Where in the sole discretion of the Director, whose determination shall be final, the Director determines that the use in question is consistent with the objectives, goals, and policies of the General Plan, or that the continuation of said use is essential or desirable to the public convenience or welfare, this provision shall not apply.”  This exception is commonly referred to as a “clean hands waiver.” 

County’s Regional Planning Director Grants and Extends Clean Hands Waiver to Bungee America

            On or about July 3, 2018, DRP director Amy Bodek (“Director”) issued a clean hands waiver to Bungee America to “allow the bungee jumping facility (Bungee America) with associated camping, heliport, and use of five storage containers on the property,” subject to 13 conditions.  (AR 79-80.)  The conditions include maintenance of restroom facilities in accordance with Department of Public Health requirements, staffing of the site with knowledgeable personnel during certain hours, and an agreement to remove structures should the CUP be denied. (AR 79-82.)  Condition 7 also stated the following: “The applicant, property owner or person in charge of the premises shall not build any permanent or temporary structures, expand the bungee jumping facilities or bring any new cargo containers until the CUP, Parking Permit and Aviation Permit are approved and other required permits or approvals are obtained.”  (Ibid.)

The waiver was to expire on March 31, 2019, “unless an extension is granted.” (AR 80.)

            The Director of DRP granted extensions of the clean hands waiver several times, starting in April 2019.  The Director imposed several new conditions on Bungee America in extensions granted in April 2019, November 2019, and June 2020.  (OB 6-7; AR 206-207, 403, 470.)  On February 3, 2021, the Director extended the clean hands waiver by a full year, until February 4, 2022. (AR 471.)  On February 8, 2022, the Director extended the clean hands waiver until February 3, 2023.  The extension states: “All terms of the original Waiver, including amendments, remain in full force and effect…. While the extension is in effect, your client or any person is prohibited from expanding, enlarging, or adding additional uses, activities, or structures.”  (RJN Exh. A.) 

Petitioner Opposes Bungee America’s Operations and Objects to the Clean Hands Waiver and Extensions

            Since at least 2014, Petitioner or its president, Ben White, has objected to Bungee America’s use of the Property for bungee jumping operations.  (See e.g. AR 126.)  On February 24 and May 11, 2016, Petitioner’s counsel wrote the County to announce Petitioner’s opposition to Bungee America’s request for the clean hands waiver. (AR 19-24, 58-64, 2431-34.)  On March 25, 2019, Petitioner’s counsel wrote County asserting that the waiver should not be extended past its expiration date of March 31, 2019.  (AR 179-182.)

DRP Is Processing Bungee America’s Applications for Land Use Entitlements, and Is Conducting Environmental Review

Concurrent with the Director’s extensions of Bungee America’s clean hands waiver, DRP is processing Bungee America’s applications for a CUP and other land use entitlements. (AR 470.) Part of that process includes environmental analysis under CEQA. (AR 411.)

Writ Proceedings

             On July 30, 2021, Petitioner filed its original petition for writ of mandate. 

            On June 24, 2022, Petitioner filed its opening brief in support of the petition.  The court has received Respondents’ and Real Parties’ joint opposition, Petitioner’s reply, the administrative record, and the joint appendix.  Because Respondents and Real Parties filed a joint opposition, the court may refer to these parties collectively below as “Respondents.” 

            On October 31, 2022, the court approved the parties’ stipulation to authorize Petitioner to file a first amended petition and Respondents to file a first amended answer.  On November 2, 2022, Petitioner filed the first amended petition (“FAP”).  Respondents’ first amended answer was filed on October 28, 2022.  On November 4, 2022, Real Parties filed an answer. 

            On November 10, 2022, Petitioner’s petition for writ of mandate came before the court for hearing.  Following oral argument, the court continued the hearing to January 5, 2022 and ordered the parties to submit supplemental briefing on the following issue: If the February 22nd extension is considered a new project, is Petitioner’s challenge timely?  The court has received and considered the supplemental briefing.

Standard of Review

In an action challenging an agency’s decision under CEQA, the trial court reviews the agency’s decision for a prejudicial abuse of discretion.  (Pub. Res. Code, § 21168.5.)  “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”  (Ibid.; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435.)  “Whether an activity is a project is an issue of law that can be decided on undisputed data in the record.”  (County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, 669.)

Analysis

Petitioner contends that County’s decision to issue a clean hands waiver was a “discretionary decision” subject to CEQA.  (Opening Brief (“OB”) 9-10.)  In reply, Petitioner clarifies that it contends that “each Clean Hands Waiver is its own independent project.”  (Reply 6:2-4.)  Respondents contend that the clean hands waiver is not a “project” subject to CEQA because “the focus of this action does not and cannot cause a direct or indirect physical change in the environment.”  (Oppo. 10.)  Respondents also contend that, if there is a CEQA project at issue, it was the issuance of the clean hands waiver in July 30, 2018, and that this CEQA action is barred by the 180-day statute of limitations.  (Oppo. 8.)

Any CEQA Challenge to the Clean Hands Waiver Issued in July 2018 Is Time Barred

“‘To ensure finality and predictability in public land use planning decisions, statutes of limitations governing challenges to such decisions are typically short. [Citations.] The limitations periods set forth in CEQA adhere to this pattern; indeed, as the CEQA Guidelines themselves assert, ‘CEQA provides unusually short statutes of limitations on filing court challenges to the approval of projects under the act.’ (CEQA Guidelines, § 15112, subd. (a), italics added.)’ [Citation.] The longest limitations period applicable to a CEQA claim is 180 days from project approval or, if there was no formal approval, 180 days from the commencement of construction. (Id. at pp. 500–501, 106 Cal.Rptr.3d 858, 227 P.3d 416.) If a party does not file a court action challenging a project within this period, such a challenge is barred.”  (County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, 677-678.) 

Here, Petitioner filed this action in July 2021.  To the extent Petitioner contends that the Director’s issuance of the clean hands waiver in July 2018 violated CEQA, this action is clearly time barred.  Petitioner makes no argument to the contrary.

Are the Extensions of the Waiver New CEQA Projects?; and Is A CEQA Challenge to the Extensions Time Barred? 

The parties dispute whether the Director’s granting and extending of the clean hands waiver constituted a “project” or “projects” subject to CEQA.  “When a public agency is asked to grant regulatory approval of a private activity or proposes to fund or undertake an activity on its own, the agency must first decide whether the proposed activity is subject to CEQA. (Guidelines, § 15060, subd. (c).) In practice, this requires the agency to conduct a preliminary review to determine whether the proposed activity constitutes a ‘project’ for purposes of CEQA.”  (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185.) 

“Project” is defined as an “activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....” (Pub. Resources Code § 21065; see also CEQA Guidelines § 15378.) “Activity” includes “the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (§ 21065(c).)  “‘Project’ is given a broad interpretation ... to maximize protection of the environment.’ [Citation.]  ‘Project’ refers to ‘the whole of an action….”  (Riverwatch v. Olivenhain Mun. Water Dist. (2009) 170 Cal.App.4th 1186, 1203.)  The CEQA Guidelines further state, “The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” (CEQA Guidelines, § 15378(c).)

Here, the Director’s granting of a clean hands waiver under County Code section 22.02.070(B) was clearly a discretionary decision.  However, even for a discretionary decision, CEQA only applies if the activity “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”  (Pub. Resources Code § 21065.) 

In the opening brief, Petitioner did not develop an argument that the Director’s granting or extending of the waiver satisfied that legal standard.  (OB 9-11.)  In reply, Petitioner points out that a project may include “issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.”  (Reply 6.)  However, section 20165 states that such activities only constitute a “project” subject to CEQA if they may cause a direct or indirect physical change in the environment.  Thus, even if an extension of the waiver could be viewed as a “lease, permit, license, certificate, or other entitlement,” that would not in itself show that the extension is a project. 

In the Introduction section of the opening brief, Petitioner asserted that “Bungee America’s unlawful operation has substantial impacts on the surrounding natural environment and the people,” including “increased traffic and parking congestion at and near the trailhead for the East Fork Trail; excessive noise associated with operating a helicopter over and within protected Wilderness and park space; the discharge of waste from the unpermitted bathroom; and increased risks to human health and safety in areas hard to access by emergency responders.”  (OB 4.)  Petitioner provided no record citations, as required to support those contentions in a CEQA action.  (Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) 180 Cal.App.4th 1, 14 [court is “not required to search the record to ascertain whether it contains support for [the petitioner’s] contentions” and does not serve as “backup … counsel”].) 

Furthermore, as framed, these assertions were not directed at the granting of a clean hands waiver or extension of the waiver, but rather the historical operation of the bungee jumping business.  There is a material difference between County granting a temporary waiver of section 22.02.070(B) and approving a CUP and other entitlements for the bungee jumping operation.  Petitioner concedes that the bungee jumping activities were already occurring at the Property when the Director issued the clean hands waiver.  Petitioner does not develop an argument, with record citations, that issuance of the clean hands waiver would increase those activities or the environmental impact from the business during the temporary period in which DRP decides the CUP application.  Petitioner concedes that County is conducting CEQA review for Bungee America’s CUP application.  (Reply 6.) 

While Petitioner could plausibly make arguments that the clean hands waiver granted in July 2018 was a CEQA project, those arguments have not been sufficiently developed and supported with record citations.  In any event, even if the clean hands waiver issued in July 2018 was a CEQA project, Petitioner failed to challenge such decision within the 180-day statute of limitations as discussed above. 

Petitioner asserts for the first time in reply that the extensions are independent projects subject to new limitations periods.  (Reply 5-6.)  Because this argument was first raised in reply, the court has not received written opposition on the issue.   The court heard oral argument on this issue at the November 10, 2022 hearing, after which it ordered limited supplemental briefing. 

Assuming without deciding that the July 2018 waiver was a CEQA project, all of the extensions are reasonably viewed as part of the original discretionary “project” granted in July 2018.   Under CEQA, “project” refers to the “whole of an action.”  (CEQA Guidelines § 15378(a)) The CEQA Guidelines further state, “The term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” (CEQA Guidelines, § 15378(c).)  “This definition ensures that the action reviewed under CEQA is not the approval itself but the development or other activities that will result from the approval.  (Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572, 1592.) 

The July 2018 decision of the Director reflects her determination that the bungee jumping facility “is desirable to the public convenience.”  (AR 79.)  The Director stated that the waiver could be extended and imposed 13 conditions in July 2018 that apply to all of the extensions.  (AR 79-81.)  The “activity” that the Director approved in July 2018 was the waiver of section 22.02.070(B), subject to extensions.  Condition 7 also stated the following: “The applicant, property owner or person in charge of the premises shall not build any permanent or temporary structures, expand the bungee jumping facilities or bring any new cargo containers until the CUP, Parking Permit and Aviation Permit are approved and other required permits or approvals are obtained.”  Condition 9 required Bungee America to remove its bungee jumping facilities within 60 days of final denial of the CUP application.  Thus, the conditions imposed in July 2018 showed intent to maintain the status quo and not increase the bunging jumping operations until a decision is made on Bungee America’s CUP application.  These circumstances suggest that the “whole of the action” includes the original decision to issue the waiver and all extensions. 

Petitioner argues that “each Clean Hands Waiver is its own independent project,” citing Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572, 1593 [citing Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929] and Save Lafayette Trees v. East Bay Regional Park District (2021) 66 Cal.App.5th 21, 40.  (Reply 6.)  Petitioner provides no analysis of these cases showing they support Petitioner’s contentions.  Citizens for a Green San Mateo broadly interpreted a CEQA project to include possible impacts, in that case tree removals, of which the public was put on notice in the original approval.  Here, the July 2018 waiver contemplated extensions could be granted and imposed conditions that would apply to future extensions.  Citizens for a Green San Mateo supports a conclusion that the extensions were not new CEQA projects. 

Neither does Concerned Citizens of Costa Mesa, supra, discussed in Citizens for a Green San Mateo, support Petitioner’s argument.  In Concerned Citizens, petitioners challenged operation of a theater which was built and operated in a manner significantly different than described in project approvals years earlier.  The Court found the statute of limitations to challenge the project was not tied to the original approval because the challengers did not know or have reason to know that the project as it was being constructed was materially different than the one approved.  In contrast to the facts in Concerned Citizens, the extensions do not permit activities greater than those authorized in the July 2018 waiver. 

Petitioner argues “County has added numerous conditions, including requiring the removal of zip lines and other unpermitted structures, maintenance of the restroom facilities maintained at the site, reporting on the Project’s waste disposal methods, and even the preparation and submission of a draft CEQA Initial Study.”  (Reply 5.)   Petitioner does not show that any conditions imposed after July 2018 materially changed the activities that could possibly cause a physical change in the environment.  For instance, removal of zip lines would appear to decrease any purported environmental impacts.  Other new conditions, including that Bungee America establish a DRP trust fund, submit environmental analysis, or track waste disposal methods, also do not appear to enlarge the bungee jumping activities in any way that might suggest the extensions should be viewed as new projects.  (See OB 6-7, citing AR 206, 403, 470.) 

Moreover, the only “decisions” that Petitioner may have arguably challenged within the statute of limitations are the Director’s extensions of the waiver in February 2021 and February 2022.  The February 2021 extension imposed no conditions and asked for confirmation that the bunging jumping business was not operating in accordance with a Covid-19 “Safer at Home” order.  (AR 471.)  For the extension granted in February 2022, only the following two conditions were imposed:

1)    Submit a description and status of the current uses and activities maintained at the property, including number of containers, structures, or facilities, by March 8, 2022; and

2)    Submit current photos (exterior and interior) of all facilities, structures, and uses maintained at the property by March 8, 2022.

(RJN Exh. A.) 

Neither of those conditions materially changed the activities that were temporarily authorized to continue by the July 2018 waiver.  For all these reasons, Petitioner does not show that the extensions were new “projects” within the meaning of CEQA. 

            County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657 generally supports this conclusion.  (See Oppo. 7-8; Reply 5-6.)  In County of Mono, the Court of Appeal held that a city’s reduction in the allocation of water to lessees of land was not a new “project” subject to CEQA, but rather was “the latest in a string of discretionary water allocations that the 2010 Leases allowed Los Angeles to make.”  (Id. at 670.)  The County of Mono court found that the lessees had notice that city could impose reductions pursuant to the 2010 leases and could have challenged those environmental effects as part of the 2010 approval.  (See Id. at 678-679.)  Similarly here, the Director’s July 2018 approval of the clean hands waiver placed Petitioner on notice of the primary conditions of the waiver and also that the waiver could be extended.  Petitioner knew of these conditions in July 2018 and could have challenged the possible environmental impacts under CEQA at that time.  Accordingly, similar to the result in County of Mono, Petitioner’s action is time barred because Petitioner did not challenge the Director’s July 2018 decision within 180 days.

            Petitioner argues that “[u]nlike County of Mono where the City of Los Angeles had already found that the original 2010 lease agreement was exempt from CEQA when they approved the 2010 Lease Agreements, here Respondents never made any CEQA determination even on the original July 3, 2018, Clean Hands Waiver.”  (Reply 5.)  The court does not find that distinction persuasive.  It is not material to the limitations defense whether Respondents made any CEQA determination in July 2018.  Petitioner could have challenged the approval of the waiver, including the possibility of extensions, within 180 days of the decision in July 2018.  Because Petitioner did not, this action is time barred.

            As an alternative basis for decision, the court considers each extension as a separate project.  A challenge is moot as to any extension decision before February 2022.  Those extensions have all expired.  As to the February 2022 extension, the challenge was not timely filed.  In order to appropriately challenge the February 2022 extension under the CEQA statutory scheme, Petitioner was required to file the challenge 180 days from the date the Director granted the February 2022 extension.  (Pub. Resources Code, § 21167.)  The Director granted the February 2022 extension on February 8, 2022.  (RJN Exh. A.)  It follows, Petitioner was required to challenge the February 2022 extension no later than August 7, 2022.  Petitioner did not challenge the February 2022 extension until Petitioner filed the First Amended Petition for Writ of Mandate on November 2, 2022.  Accordingly, Petitioner’s challenge to the February 2022 extension is untimely. 

            In its supplemental briefing, Petitioner argues the challenge to the February 2022 extension is timely pursuant to two alternative theories: (1) equitable tolling, or (2) equitable estoppel.  (Supp. Brief 3 [“Petitioner requests that the Court find that equitable tolling or equitable estoppel suspends the running of CEQA’s 180-day limitations period . . . .”].) 

            Equitable Tolling.  Petitioner argues that under the doctrine of equitable tolling the applicable statute of limitations period did not commence on February 8, 2022—the date the Director granted the February 2022 extension—but, instead, commenced on September 21, 2022—the date on which Petitioner was notified of the February 2022 extension.  (Supp. Brief 3.)  Petitioner contends, in the name of fairness, the doctrine of equitable tolling should be applied to toll the statute of limitations period because, although Petitioner expressly requested that Respondent notify Petitioner of the status of the Project’s Clean Hands Waiver extension, Respondent “obfuscated the status of the Project’s Clean Hands Waiver” and failed to inform Petitioner of the extension on February 8, 2022.   (Ibid.)

            “The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine.  [Citation.]”  (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.)  “The doctrine of equitable tolling is used to ‘ “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” ’  [Citation.]”  (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 582.)  “The doctrine applies ‘occasionally and in special situations’ to ‘soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.’  [Citation.]  Courts draw authority to toll a filing deadline from their inherent equitable powers—not from what the Legislature has declared under any particular statute.  [Citation.]”  (Saint Francis Memorial Hospital v. State Department of Public Health (2020) 9 Cal.5th 710, 719-720.)  The doctrine of equitable tolling will apply where the following criteria have been satisfied: (1) timely notice to the defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by the plaintiff in filing the second claim.’  [Citation.]”  (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 582.)

            However, the doctrine of equitable tolling “ ‘is not immune’ from the operation of statutes.  [Citation.]  A court may conclude that explicit statutory language or a manifest policy underlying a statute simply cannot be reconciled with permitting equitable tolling, ‘even in the absence of an explicit prohibition.’  [Citation.]”  (Saint Francis Memorial Hospital, supra, 9 Cal.5th at p. 720.) 

While Petitioner argues, “[c]ourts have considered and applied equitable tolling . . . to suspend CEQA limitations periods[,]” the cases Petitioner cites do not support that statement.  (Supp. Brief 4:2-5.)  Of the three cases Petitioner references, only one  discusses the doctrine of equitable tolling—San Diego Navy Broadway Complex Coalition v. California Coastal Com., supra, 40 Cal.App.5th 563 (San Diego Navy Broadway).  (Ibid.; San Diego Navy Broadway, supra, 40 Cal.App.5th at 582.)  In that case, the court did not analyze equitable tolling as applied to a CEQA statute of limitations periods, but to the statute of limitations in the Coastal Act.  (San Diego Navy Broadway, supra, 40 Cal.App.5th at 576 [“Section 30801 provides the applicable statute of limitations.”]; Pub. Resources Code, §§ 30801 [included within Division 20 of Public Resources Code, entitled “California Coastal Act], 21000 et seq. [CEQA statutory scheme included within Division 13 of Public Resources Code].) 

The court is not persuaded equitable tolling should apply to the CEQA statute of limitations.  A recognized policy of CEQA is “to ensure extremely prompt resolution of lawsuits claiming noncompliance with the Act”.  (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 500.)  The Legislature has advanced this policy of prompt resolution of lawsuits by incorporating various procedural requirements within the CEQA statutory scheme, including, but not limited to, preferential calendar setting, expedited briefing and hearing schedules, and a short limitations period.  (Ibid.)  “[A]s the CEQA Guidelines themselves assert, ‘CEQA provides unusually short statutes of limitations on filing court challenges to the approval of projects under the act.  [Citation.]  As the CEQA Guidelines further explain, . . . [t]he statute of limitations cuts off the right of another person to file a court action challenging approval of the project after the specified time period has expired.’  [Citation.]”  (Id. at 499.) 

Even if equitable tolling may be applied to the CEQA statute of limitations, the court finds one of the requisite elements is unsatisfied. Petitioner has failed to sufficiently demonstrate it acted reasonably and in good faith in delaying its challenge to the February 2022 extension.  Petitioner knew the February 2021 extension was set to expire on February 4, 2022, however, Petitioner waited until September 21, 2022, approximately seven months after the extension expired, to inquire whether a further extension had been granted. 

Petitioner argues that he did act reasonably and in good faith to ascertain whether a new extension has been granted.  Petitioner contends County’s failure to inform him of the February 2021 extension supports equitably tolling of the statute of limitation.  Petitioner presents the following evidence.

On April 6, 2021, Petitioner’s counsel of record sent a letter to Respondent’s Department of Regional Planning (“Department”) requesting, among other things, that the Department “put . . . [Plaintiff’s counsel’s] Office on its notice list for any and all notices issued under the CEQA and the Planning and Zoning Law” with respect to the Project.  (Notice of Errata, Ex. A at 6.)  Petitioner contends this letter conferred upon Respondent a duty to inform Petitioner’s counsel of any additional extension of the clean hands waiver.  (Supp. Brief 6.)  However, it is not clear from this request that County was legally required to give notice to Petitioner of the clean hands waiver extension.  While Petitioner generally requested notice of “any and all actions or hearings related to activities undertaken, authorized, approved, permitted, licensed, or certified by the City [sic] and any of its subdivision for the Project,” the letter also provided a specific list of actions for which it requested notice.  That list included notice of any public hearing, and any notice prepared pursuant to CEQA.  Petitioner did not specifically list an extension of the clean hands waiver as one of the actions for which it requested notice. Petitioner develops no argument and presents no statutory authority that County was required to give notice to anyone of the clean hands waiver extension.  If there were no statutorily required notice, it was not reasonable for Petitioner to rely on its request to be added to the “notice list” and to fail to make any further inquiry shortly after the date it knew the existing clean hands waiver was expiring. 

Separate and apart from the April 6, 2021 letter, on January 14, 2022, Petitioner’s counsel of record emailed Richard Claghorn, Principal Regional Planner (“Mr. Claghorn”), requesting an update regarding the Project’s clean hands waiver.  (Notice of Errata, Ex. B.)  On January 19, 2022, Mr. Claghorn responded to Petitioner’s counsel’s email, stating “[t]he Clean Hands Waiver (CHW) for the project expires on February 4, 2022.  The applicant may submit a request for a time extension to extend the expiration date of the CHW, but as of this time we have not received a request for an extension.”  (Id. Ex. C.)  Subsequently, on January 28, 2022, Real Party submitted a request for an extension of the clean hands waiver, set to expire on February 4, 2022, for another period of one year.  (Id. Ex. E at p. 1 [“I am in receipt of your request received on January 28, 2022 to extend the terms of the Clean Hands Waiver (Waiver) for an additional period of one (1) year . . . .”].)  On February 8, 2022, the Department granted the one year extension of the clean hands waiver, which would remain effective through February 3, 2023.  (Id. Ex. E at p. 2.)  Respondent did not send notification to Petitioner of the clean hands waiver extension.  (Supp. Brief at p. 5:2-3 [“Petitioner was never notified of the County’s decision, to issue the February 8, 2022 Clean Hands Waiver”].) 

Nearly seven months later, on September 21, 2022, Petitioner's counsel sent an email to Mr. Claghorn requesting that Mr. Claghorn “look into whether the clean hands waiver was extended after February 2022.”  (Notice of Errata, Ex. D.)  On September 22, 2022, Mr. Claghorn responded to Petitioner’s counsel stating, “[t]he clean hands waiver for Bungee America was extended to 2/3/23.”  (Ibid.) 

            The court concludes Petitioner’s act of waiting seven months to inquire as to the status of the clean hands waiver cannot be considered a reasonable or good faith act.  Petitioner does not dispute that it knew as early as July 30, 2021—the date Petitioner filed the present action—that the clean hands waiver for the Project was scheduled to expire on February 4, 2022.  The expiration date was expressly alleged within Petitioner’s original petition for writ of mandate.  (Petition, ¶ 4 [“Most recently, by letter dated February 3, 2021, Regional Planning extended Bungee America’s clean hands waiver until February 4, 2022.”].)  While Petitioner did inquire as to whether an extension was granted before the impending expiration date (on January 14, 2022), Petitioner failed to act swiftly and promptly in ascertaining whether an extension was granted following the expiration of the clean hands waiver on February 4, 2022.  A reasonable litigant, aware of the “short” CEQA statute of limitation period would promptly ascertain whether a further extension was granted for the purposes of timely challenging it.  (Stockton Citizens for Sensible Planning, supra, 48 Cal.4th at 500.) 

Equitable Estoppel.  Petitioner argues, for reasons largely similar to those explained above, the court should apply the doctrine equitable estoppel and estop Respondent from asserting a defense on limitations grounds as Respondent’s bad faith conduct led to Petitioner’s failure to timely challenge the clean hands waiver extension granted on February 8, 2022.

“ ‘The doctrine of equitable estoppel is based on the theory that a party who by his declarations or conduct misleads another to his prejudice should be estopped from obtaining the benefits of his misconduct.  [Citation.]  Under appropriate circumstances equitable estoppel will preclude a defendant from pleading the bar of the statute of limitations where the plaintiff was induced to refrain from bringing a timely action by the fraud, misrepresentation or deceptions of defendant.’  [Citation.]  ‘A defendant should not be permitted to lull his adversary into a false sense of security, cause the bar of the statute of limitations to occur and then plead in defense the delay occasions by his own conduct.’  [Citation.]”  (Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1128.)  “ ‘In order to assert establish estoppel, the following four elements must be present: (1) the party to [be] estopped must be apprised of the facts; (2) he must intend that his conduct be acted on, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.’  [Citation.]”  (Ibid.)

“[A]lthough estoppel usually is based on affirmative conduct [citation], silence in the face of a duty to speak may support estoppel in some situations.”  (Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 384; Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268 [“The absence of affirmative conduct here does not end the inquiry, however.  An estoppel may arise from silence where there is a duty to speak.”].) 

The court concludes the doctrine of equitable estoppel is not applicable here.  Petitioner has failed to produce evidence demonstrating Respondent took action to induce Petitioner to delay a challenge to the clean hands extension granted on February 8, 2022.  The evidence submitted by Petitioner demonstrates Respondent did not mislead Petitioner for the purpose of delaying a timely challenge under CEQA.  Indeed, the evidence demonstrates Respondent only provided Petitioner with accurate and truthful representations regarding the status of the February 2022 extension.  As noted previously, when Petitioner inquired as to the status of a possible extension on January 14, 2022, Respondent truthfully stated “[t]he Clean Hands Waiver (CHW) for the project expires on February 4, 2022[,]” and Real Party has yet to file an application for a further extension.  (Notice of Errata, Exs. B-C.)  Further, when Petitioner, once again, inquired as to the status of a further extension nearly seven months later on September 21, 2022, Respondent did not mislead Petitioner, but truthfully stated “[t]he clean hands waiver for Bungee America was extended to 2/3/23.”  (Id., Ex. D.)

Petitioner contends Respondent misled Petitioner through silence—by failing to inform Petitioner of the extension granted on February 8, 2022.  The court is not persuaded. Particularly, the court is not convinced Respondent had a standing duty to inform Petitioner of the extension.  Petitioner cites to Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260 (Spray, Gould & Bowers) for the proposition that Respondent’s silence may serve as a basis for the application of equitable estoppel.  (Supp. Brief, at 6:11-14.)  However, Spray, Gould & Bowers concerned an insurance company which was legally obligated to inform an insured of the applicable claim time limits, as mandated within Insurance Code 790.10, and failed to do so, warranting application of the doctrine of estoppel.  (Spray, Gould & Bowers, supra, 71 Cal.App.4th at 1269.)  Presently, Petitioner provides this court with no legal authority demonstrating Respondent was under a legal duty to provide Petitioner with individualized notice of the Project’s clean hands extension.  Accordingly, the court concludes Petitioner has failed to demonstrate the applicability of the doctrine of equitable estoppel in this case.

            Based on the foregoing, the entire petition is barred by the statute of limitations. 

Conclusion

The petition for writ of mandate is DENIED.

Petitioner’s claims for declaratory and injunctive relief are derivative of the CEQA petition.  Accordingly, for the same reasons discussed above, the claims for declaratory and injunctive relief are also denied.