On April 6, 2020, the state of California Judicial Council adopted emergency rules due to disruptions and delays in the operations of the superior courts related to the COVID-19 pandemic. Emergency Rule 9 tolls the statutes of limitation for all civil causes of action from April 6, 2020 to 90 days after the Governor lifts the state of emergency related to the COVID-19 pandemic. Though challenges to California Environmental Quality Act (CEQA) must typically be filed on an expedited basis, the new rules effectively extends the time in which project opponents may file a civil lawsuit by 90 days plus the time it takes for the Governor to lift the state of emergency. With no way to know when the Governor will lift the state of emergency, this adds another layer of uncertainty to project timelines.
Under regulations prior to the emergency rules, CEQA actions must be filed within 30 days of the filing of a notice of determination for negative declarations, environmental impact reports and sustainable communities environmental assessments, and 35 days of filing a notice of exemption for categorical or statutory exemptions; other land use actions, including actions under the Subdivision Map Act, must be filed within 90 days of the agency’s determination to approve the entitlement. Emergency Rules 9 provides that the statute of limitations will not begin to run until 90 days after the Governor lifts the state of emergency. If a project has already been approved and is within its statute of limitations period, the period would be paused as of April 6, 2020, and would not resume again until 90 days after the Governor lifts the state of emergency.
Emergency Rule 9 extends these statute of limitations periods considerably, and on its face, it antithetical to the short statutes of limitation enshrined in CEQA and the Planning and Zoning laws and with the State’s push to expedite housing production. Therefore, a number of organizations including the Building Industry Association are seeking clarification as to whether the new statutes of limitation impact CEQA and land use actions.
We will continue to monitor this issue and other COVID-19 related matters that could affect development projects. Please do not hesitate to contact any member of our Government & Regulatory Group with questions.