Lee v. Lost Hills Water Dist.

• Decision Date: 14 March 1978
• Citation: 78 Cal.App.3d 630,144 Cal.Rptr. 510
• Court: California Court of Appeals Court of Appeals
• Parties: TSUN HAI LEE et al., Cross-Complainants and Appellants, v. LOST HILLS WATER DISTRICT, Cross-Defendant and Respondent. Civ. 3504.

Page 510

144 Cal.Rptr. 510

78 Cal.App.3d 630

TSUN HAI LEE et al., Cross-Complainants and Appellants, v. LOST HILLS WATER DISTRICT, Cross-Defendant and Respondent.

Civ. 3504.

Court of Appeal, Fifth District, California.

March 14, 1978.

King, Eyherabide, Anspach, Friedman & Robinson and Stephen Eyherabide, Bakersfield, for cross-complainants and appellants.

Owen F. Goodman, Bakersfield, for cross-defendant and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Lost Hills Water District, respondent herein (hereinafter District), is a California Water District in Kern County organized under division 13 of the Water Code. It has contracted with the California Department of Water Resources to receive certain quantities of water from the California Aqueduct for the purpose of providing irrigation water to the lands located within its boundaries. The area within the District boundary east of the California Aqueduct is divided into Eastside 1 Service Area, lying easterly of Interstate Highway 5, and Eastside 2 Service Area, lying westerly of Interstate Highway 5. (See Appendix 1.)

The District undertook to develop a system of irrigation works for Eastside 1 Service Area. In order to transport water to that district from the California Aqueduct it was necessary to condemn easements and fee estates over and through Eastside 2 Service Area from turnout No. 5 on the aqueduct to Eastside 1 Service Area for a pipeline and appurtenant facilities. (See Appendix 1.) Accordingly, on September 16, 1976, the District filed its complaint in eminent domain against the owners of the property in Eastside 2 Service Area over and through which the pipeline passed (point A to point B on Appendix 1). Some of these owners, appellants herein, filed a cross-complaint against the District, asking that the District be enjoined and restrained from proceeding with the Eastside 1 Service Area project. The thrust of the cross-complaint is that the District cannot proceed because the project will have a significant effect upon the environment and the District has not complied with the California Environmental Quality Act (CEQA) (Pub.Resources Code, § 21000 et seq.).

The District's motion for summary judgment on the cross-complaint was granted. The owners have appealed.

The salient facts are not in dispute. In September 1974 the District adopted a plan of works for Eastside 1 Service Area which described the entire project, including the facilities to be acquired and used in Eastside 2 Service Area as part of the project. Thereafter, pursuant to section 15080 of the state guidelines (Cal.Admin.Code, tit. 14, § 15000 et seq.) and section 4.01 of the District's procedures for environmental evaluations and preparation of environmental impact reports (EIR), ¹ the District made an extensive initial study entitled "Lost Hills Water District Environmental Investigation Re Proposed Eastside 1 Project." The study, which was approved by the District on November 14, 1974, concluded that the proposed project would have no significant effect upon the environment and recommended that the board execute and file a negative declaration in accordance with the provisions of Public Resources Code section 21080, California Administrative Code, title 14, section 15083, and section 4.04 of the District's own procedures. ² On November 14 the District's board adopted these recommendations.

Pursuant to the District's action, the negative declaration dated November 14, 1974, stating among other things that "the proposed project will have no significant adverse impact or effect on the environment," was filed with the County Clerk of Kern County on November 15, 1974. Notice of that filing, which repeated the negative declaration verbatim, was published in the Bakersfield Californian on November 20, 1974. ³ The notice also fixed December 12, 1974, as the date and stated the time and place where members of the public might appear before the District's board to present their views prior to the board's determining to approve or disapprove the project.

On December 12, 1974, no one appeared before the board. The board voted to approve the project and pursuant to Public Resources Code section 21152 ⁴ executed and filed a notice of determination with the County Clerk of Kern County on December 12, 1974.

Discussion

Determinative of this appeal is subdivision [b] of section 21167 of the Public Resources Code which provides:

"Any action or proceeding to attack, review, set aside, void, or annul the following acts or decisions of a public agency on the grounds of noncompliance with this division shall be commenced as follows:

". . . tio

"(b) Any action or proceeding alleging that a public agency has improperly determined whether a project may have a significant effect on the environment shall be commenced within 30 days after the filing of the notice required by . . . subdivision (a) of Section 21152."

This provision operates as a special statute of limitations as to actions and proceedings founded on alleged violations of CEQA. (Walters v. County of Plumas (1976) 61 Cal.App.3d 460, 469, 132 Cal.Rptr. 174.)

In the present case the notice of determination pursuant to Public Resources Code section 21152 was filed in the office of the county clerk on December 12, 1974. By the express terms of Public Resources Code section 21167, subdivision (b), the filing of the notice of determination triggered the commencement of the 30-day period of limitations. The cross-complaint was filed on March 18, 1977. It follows the statute of limitations had clearly run on the cause of action of the cross-complaint predicated upon the alleged invalidity of the District's determination that the project would have no significant impact on the environment.

No contention is made herein that all statutory requirements of notice were not complied with by the District. Appellants argue, however, that due process requires...