Trees v. E. Bay Reg'l Park Dist.

66 Cal.App.5th 21

280 Cal.Rptr.3d 679

SAVE LAFAYETTE TREES et al., Plaintiffs and Appellants,

v.EAST BAY REGIONAL PARK DISTRICT, Defendant and Respondent;

Pacific Gas and Electric Company, Real Party in Interest and Respondent.

A156150

Court of Appeal, First District, Division 3, California.

Filed June 30, 2021

Law Offices of Stephen C. Volker, Stephan C. Volker, Alexis E. Krieg, Stephanie L. Clarke, and Jamey M.B. Volker, Berkeley, for Petitioners and Appellants.

F. Brown ; East Bay Regional Park District, Carol R. Victor, Oakland, and Rachel B. Sater, San Francisco, for Defendant and Respondent.

SF North Bay Law, Sheryl L. Schaffner as Amicus Curiae on behalf of Defendant and Respondent.

Miller Starr Regalia, Arthur F. Coon and George B. Speir, Walnut Creek, for Real Part in Interest and Respondent.

Petrou, Acting P.J. Appellants Save Lafayette Trees, Michael Dawson and David Kosters filed an amended petition/complaint seeking to vacate respondent East Bay Regional Park District (EBRPD)’s approval of a memorandum of understanding with respondent Pacific Gas and Electric Company (PG&E) that allows for the removal of 245 trees from EBRPD land. The trial court sustained respondents’ demurrers without leave to amend and dismissed the lawsuit.

We affirm as the first cause of action seeking relief under the California Environmental Quality Act (CEQA; Pub. Res. Code, §§ 2100 et seq.¹ ) is time-barred and the non-CEQA causes of actions cannot be amended to allege claims for which relief can be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On review of the order sustaining demurrers, we accept as true all properly pleaded material factual allegations and all materials subject to judicial notice. ( Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083.)²

A. Background

On March 21, 2017, following a public hearing, EBRPD's Board of Directors committed to accept PG&E funding for "[e]nvironmental [r]estoration and [m]aintenance at Briones Regional Park and Lafayette-Moraga Regional Trail." The staff report prepared in connection with the approved funding explained: "PG&E's Community Pipeline Safety Initiative helps to ensure that PG&E pipelines are operating safely by looking at the area above and around the natural gas transmission lines to be certain that first responders and PG&E emergency response crews have critical access to the pipelines in the event of an emergency or natural disaster. As part of this initiative, PG&E conducted an in-depth review of trees located up to 14 feet from the gas transmission pipeline on District property in Contra Costa County. The results of the review were shared with the District and it was determined that a total of 245 trees are located too close to the pipeline and will be removed for safety reasons. [¶] ... [¶] In consideration of the trees that will be removed for safety reasons, PG&E will provide the District with a payment of $1,000 for each tree that is being removed, for a total payment of $245,000. PG&E will also provide one replacement tree for each of the 31 District-owned trees within the City of Lafayette, per the City's ordinance. PG&E will work with the District on appropriate community outreach in advance of the planned safety work. In addition, PG&E will provide the District with $10,000 to be used on two years of maintenance related to maintaining pipeline safety at Briones Regional Park."

Following the public hearing on March 21, the Board issued Resolution No. 2017-03-065, passed by motion, authorizing the acceptance of "funding from PG&E's Community Pipeline Safety Initiative for Environmental Restoration and Maintenance at Briones Regional Park and Lafayette-Moraga Regional Trail," as follows:

EAST BAY REGIONAL PARK DISTRICT

RESOLUTION NO.: 2017-03-065

March 21, 2017

AUTHORIZATION TO ACCEPT FUNDING FROM PG&E'S COMMUNITY PIPELINE SAFETY INITIATIVE FOR ENVIRONMENTAL RESTORATION AND MAINTENANCE AT BRIONES REGIONAL PARK AND LAFAYETTE-MORAGA REGIONAL TRAIL

"WHEREAS, PG&E's Community Pipeline Safety Initiative helps to ensure that PG&E[’s] pipeline is operating safely by looking at the area above and around the natural gas transmission lines to be certain that first responders and PG&E emergency response crews have critical access to the pipelines in the event of an emergency or natural disaster; and "WHEREAS, PG&E conducted an in-depth safety review of the pipeline on EBRPD property in Contra Costa County and has identified 245 trees that need to be removed for gas pipeline safety; and

"WHEREAS, the Community Pipeline Safety Initiative will provide funding for tree replacement and maintenance; and

"WHEREAS, District procedures require Board Approval to accept funding; and

"NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of the East Bay Regional Park District hereby:

"1. Approves the acceptance of funding from PG&E's Community Pipeline Safety Initiative; and

"2. Authorizes and directs the General Manager or Assistant General Manager of Finance and Management Services/CFO, on behalf of the District and in its name, to accept grant funds and execute and deliver such documents including, but not limited to applications, agreements, payment requests and amendments and to do such acts as may be deemed or appropriate to accomplish the intentions of this resolution; and

"BE IT FURTHER RESOLVED, that the Assistant General Manager of Finance and Management Services/CFO or Budget Manager is hereby authorized to amend the current year's budget, without further Board action, upon receipt of the executed contract from the Grants Manager. The budget amendment will include an increase in budgeted revenue and a corresponding increase in appropriation for the amount stipulated in the contract, including any interest."

Thereafter, on March 22 and 23, 2017, representatives of EBRPD and PG&E signed a memorandum of understanding (MOU) "regarding implementation of the Community Pipeline Safety Initiative on EBRPD property in Contra Costa County." The MOU stated, in pertinent part:

"Purpose

The purpose of this MOU is to establish an agreement between PG&E and EBRPD to guide implementation of the Community Pipeline Safety Initiative, as well as ongoing maintenance and monitoring of the area above the natural gas transmission pipeline, on EBRPD property.

Proposed Work and Mitigation

• As part of the Community Pipeline Safety Initiative, PG&E conducted an in-depth review of trees located up to 14 feet from the gas transmission pipeline on EBRPD property. The results of the review were shared with EBRPD and it was determined that a total of 245 trees are located too close to the pipeline and will be removed for safety reasons.

• PG&E will provide EBRPD with a payment of $1,000 for each tree that is being removed for safety reasons, for a total payment of $245,000.

• G&E will provide one replacement tree for each of the 31 EBRPD-owned trees within the City of Lafayette, per the City's ordinance.

• PG&E will work with EBRPD on appropriate community outreach in advance of the planned safety work.

• PG&E will provide $10,000 to EBRPD to use towards two years of trail maintenance.

• PG&E will provide gas standby personnel to be onsite for all trail maintenance work performed by EBRPD adjacent to the pipeline that involves soil adjustment....

Ongoing Monitoring and Maintenance

• PG&E will monitor any trees left in place near the pipeline as part of PG&E's ongoing pipeline inspections and patrols. This will include annual foot patrol surveys as well as regular aerial patrols.

• PG&E will notify and coordinate with the Park Supervisor for access to park land for pipeline monitoring and maintenance work in non-emergency situations.

• Should any tree develop into a safety concern or require removal for a critical maintenance project in the future, PG&E will work with EBRPD to address it at that time."³

On June 27, 2017, EBRPD filed a Notice of Exemption ("NOE") under CEQA in the county clerk's office, announcing that the Board of Directors had reviewed and determined the MOU was not an activity subject to CEQA. It was further determined that "any activity related to the MOU would be categorically exempt" under CEQA, citing to section 21080.23 (Work on Existing Pipelines), and Guidelines sections 15301(b) (Existing Facilities), 15302 (Replacement or Reconstruction), and 15304 (Minor Alterations to Land).

B. Trial Court Proceeding

On July 31, 2017, appellants and EBRPD entered into an agreement by which they agreed to "toll all applicable statutes of limitations for 60 days" (hereafter tolling agreement). PG&E did not consent to the tolling agreement.

Within the 60-day tolling period, on September 29, appellants commenced this action by filing a petition/complaint challenging EBRPD's approval of the MOU against EBRPD as respondent/defendant and PG&E as real party in interest. Appellants also filed a proof of service that they had given EBRPD the required mail notice (§ 21167.5⁴ ) of their intent to file a CEQA action on September 28. The petition/complaint was personally served on EBRPD on September 29, and personally served on PG&E's representative on October 2, within 20 days of service on EBRPD.

The first amended petition/complaint, filed March 28, 2018, is the pleading under review on this appeal. The first cause of action alleges EBRPD failed to undertake a CEQA analysis of the potential environmental impact of the removal of trees before approving the MOU (CEQA cause of action). The second cause of action alleges, in pertinent part, that EBRPD's approval of the MOU violated the procedural and substantive requirements of the City of Lafayette Tree Protection Ordinance and EBRPD Ordinance 38. The third cause of action alleges EBRPD violated appellants’ state constitutional due process rights by approving the MOU without providing public notice "reasonably calculated to apprise [appellants] and other directly affected persons that hundreds of trees near their properties and along many...