"One Bite At The Apple" - CEQA Statute Of Limitations Runs From First Discretionary Approval

Does a second discretionary approval for a project "revive" the project opponents’ ability to sue under the California Environmental Quality Act (CEQA), even after the CEQA statute of limitations has run on the first discretionary approval? This is an issue that has been debated for years. A recent California appellate court decision, Citizens for a Megaplex-Free Alameda v. City of Alameda, is helpful in removing some of this uncertainty.

The court’s decision clarifies when a project is "approved" for purposes of applying the statute of limitations for challenges based on CEQA: it is at the time of "the earliest commitment" by a public agency to issuance of a discretionary approval for the project. The court also held that the filing of a precautionary notice of determination after the approval of subsequent discretionary approvals implementing a project already analyzed under CEQA does not trigger a new statute of limitations period.