Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. N09-0235
Jenkins, J.
This is an appeal from the Order Directing Issuance of Writ of Mandate (order) and Writ of Mandate (writ) entered by the trial court on April 26, 2010. Pursuant to the writ, appellant Town of Moraga was ordered to set aside and rescind amendments made to sections 7.12.020 and 7.12.135 of the Moraga Municipal Code and a related amendment to the General Plan Policy OS6.2 (collectively, amendments) unless or until the Town complied with the California Environmental Quality Act, Public Resources Code section 21000, et seq. (CEQA) and its implementing regulations. These amendments, adopted by the Town of Moraga in 2009, exempted certain Town-authorized or sponsored community events from otherwise applicable noise restrictions contained in the Moraga Municipal Code.
Unless otherwise stated, all statutory references herein are to the Public Resources Code. The administrative guidelines promulgated by the Office of Planning and Research for adoption by the Secretary for Resources to implement CEQA are found in the California Code of Regulations, title 14, section 15000 et seq. and are referred to herein as the CEQA Guidelines. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2.)
On appeal, the Town of Moraga first challenges the trial court’s denial of its motion for mandatory dismissal pursuant to section 21167.4, subdivision (a), which was based upon plaintiff’s failure to request a hearing on the merits of her petition for writ of mandate (petition) in writing within 90 days of its filing. Second, the Town of Moraga challenges the trial court’s subsequent grant of the petition and, in particular, the trial court’s finding that its adoption of the amendments constituted a “project” for purposes of CEQA, requiring a full environmental review. Having considered the Town of Moraga’s arguments, we affirm the judgment for reasons set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2009, plaintiff filed a petition for writ of mandate alleging that the Town of Moraga violated CEQA by preparing a negative declaration in lieu of a more comprehensive Environmental Impact Report (EIR) when adopting amendments to the Moraga Municipal Code and General Plan that, among other things, exempted Town-authorized or sponsored community events from otherwise applicable noise restrictions. Plaintiff’s petition was based upon the following facts.
Plaintiff and her family lived in a residence located about one mile from the Moraga Commons, an outdoor civic space where the Town of Moraga hosts community events several times per year. In October 2005, plaintiff sued the Town of Moraga for public nuisance and inverse condemnation, alleging that the level of noise emanating from the Moraga Commons during these events was at times so high that it interfered with her family’s use and enjoyment of their residence. This lawsuit was later dismissed with prejudice. According to plaintiff, she voluntarily dismissed the lawsuit after the Town of Moraga assured her it would implement sound mitigation measures to limit the adverse effects of amplified music on plaintiff and her neighbors.
However, according to plaintiff, the Town of Moraga failed to implement these mitigation measures. Instead, on January 14, 2009, over the objections of plaintiff and some of her neighbors, the Town of Moraga adopted the aforementioned amendments, which included the following new section of the municipal general noise regulations: “7.12.135 Town-Authorized Community Events. None of the restrictions set forth in this Chapter apply to Town-authorized community events. The Town encourages such events and finds and declares them to be extremely valuable to this community. Such events are expressly authorized by this Section and pursuant to Civil Code section 3482 cannot be deemed a nuisance. The sound from such events may exceed 60 [decibels] at any listening point on any other property.” Thus, as this language reflects, the amendments effectively immunized the Town of Moraga from nuisance actions by private individuals challenging noise levels at community-sponsored events, such as the action brought by plaintiff in 2005.
The amendments also included a new ordinance defining “Town-authorized community event” as “an event, gathering, meeting, or assembly that is open to the public and explicitly authorized and sponsored by the Town. The term includes, but is not limited to, outdoor concerts and community-wide special events.” Further, language was added to the Town of Moraga’s General Plan authorizing the adoption of these amendments to the Municipal Code.
In the months leading up to the adoption of these amendments, the Town of Moraga, acting as lead agency, performed an initial study, as required by CEQA, to determine whether there existed any potentially significant environmental impacts from the proposed changes to its noise policy. In connection with this initial study, the Town hired an independent sound expert to conduct a noise study during a music concert at the Moraga Commons. After conducting this study, the Town’s expert concluded the amendments would result in a less than significant effect on the environment. Accordingly, the Town determined that a more comprehensive EIR was unnecessary and instead prepared a negative declaration pursuant to section 21080, subdivision (c). In doing so, the Town rejected certain recommendations of plaintiff’s own sound expert, which included using sound limiters and making structural changes to the proposed location of speakers to reduce the effects of amplified noise.
After the Town of Moraga submitted the negative declaration in lieu of preparing an EIR, plaintiff filed the present CEQA action on February 13, 2009, challenging the Town’s adoption of the amendments and seeking to compel a complete review of their likely environmental impacts. Shortly after doing so, however, plaintiff’s counsel approached the Town to discuss possible measures to mitigate the noise-related environmental effects of the amendments, with the aim of settling the action without prolonged and expensive litigation. A mandatory settlement conference was scheduled for April 14, 2009. Following this hearing, on or about April 29, 2009, the parties executed and filed a stipulation extending the time period for filing the administrative record. Settlement discussions continued and, on June 4, 2009, a proposed settlement agreement was forwarded to plaintiff by the Town’s counsel for her consideration. In doing so, the Town’s counsel advised plaintiff that, if she failed to respond quickly to the proposed settlement, it would be forced to proceed with litigation, including preparation of the record, a point reiterated in a letter from the Town’s counsel to plaintiff dated June 26, 2009.
However, despite continued discussions, the parties remained at odds regarding the necessity of certain mitigation measures proposed by plaintiff’s expert. Ultimately, on July 2, 2009, the Town’s counsel emailed plaintiff’s counsel, advising that, if she failed to respond to the Town’s latest settlement offer by the close of the business day, it would begin to “aggressively defend[] this action.” Thereafter, on July 6, 2009, the Town lodged the administrative record in compliance with the parties’ stipulation filed May 12, 2009, and provided notice to plaintiff that it had done so. On July 8, 2009, the Town notified plaintiff that settlement could not be achieved and, the next day, July 9, filed the motion for mandatory dismissal based upon plaintiff’s failure to request a hearing on the merits of the petition within 90 days of its filing, as required by section 21167.4, subdivision (a).
On September 2, 2009, following a hearing, the trial court denied the Town of Moraga’s motion for mandatory dismissal. Thus, the litigation continued and, on January 8, 2010, the trial court conducted a hearing on the merits of plaintiff’s petition. Ultimately, the trial court concluded the Town had failed to conduct an adequate environmental review for purposes of CEQA when adopting the amendments. The trial court thus granted plaintiff’s petition and issued a writ ordering the Town to rescind the amendments and to not readopt them unless or until it complied with CEQA and its implementing guidelines. This timely appeal followed.
DISCUSSION
The Town of Moraga raises two issues for our review in seeking reversal of the writ and order requiring rescission of the amendments pending full compliance with CEQA. First, the Town of Moraga contends the trial court erred by denying its motion for mandatory dismissal pursuant to section 21167.4, subdivision (a), based upon plaintiff’s failure to request a hearing on the merits of her petition in writing within 90 days of its filing. Second, the Town contends the trial court erred in granting plaintiff’s petition after finding that adoption of the amendments constituted a “project” for purposes of CEQA, requiring preparation of an EIR. We address each contention in turn.
I. Did the trial court err by denying the Town’s motion for dismissal?
A. Section 21167.4, subdivision (a).
As set forth above, plaintiff’s petition for writ of mandate challenging the Town of Moraga’s adoption of the amendments as a violation of CEQA was filed February 13, 2009. One hundred and forty six days later, on July 9, 2009, the Town of Moraga filed its motion for mandatory dismissal pursuant to section 21167.4, subdivision (a), on the ground that plaintiff failed to request a hearing on her CEQA claims within the 90-day statutory time period. (§ 21167.4, subds. (a), (b).) In seeking dismissal of plaintiff’s petition, the Town pointed out that she had failed to meet other mandatory CEQA requirements, such as failing to personally serve the Town with a request to prepare the administrative record (§ 21167.6, subd. (a)), and failing to file and serve a statement of issues within 30 days of the Town’s filing of the notice of certification of the administrative record (§ 21167.8, subd. (f)).
Following a hearing on September 2, 2009, the trial court denied the Town of Moraga’s motion for mandatory dismissal, finding the request for hearing required under section 21167.4 was “implied” in a stipulation to extend time for lodging the administrative record executed by the parties on April 29, 2009. This stipulation provided that, under the authority of section 21167.6, subdivision (c), the parties “hereby stipulate to extend the deadline for lodging the administrative record. The Town of Moraga will lodge the administrative record on or before July 6, 2009.” Even though the stipulation does not specifically mention section 21167.4 or its imposition of a duty on plaintiff to request a hearing on the merits of her CEQA claims, the trial court denied the Town’s motion as follows:
Section 21167.6 provides in relevant part:
“The motion is denied. While Public Resources Code section 21167.4 requires that a Petitioner ‘request a hearing’ within 90 days from the date of filing of the petition, nothing in the statute bars the parties from agreeing to an extension or waiver of that agreement.
“Here, the parties reached a written stipulation for a postponement of the time to prepare a record of the administrative proceedings, and admittedly that stipulation did not address the 90 day requirement.
“In the view of the Court it is implied in such a stipulation, however, that a hearing is requested and that a formal notification of the request is at least postponed. There is no dispute that the parties were agreeing to attempt to negotiate a resolution without the expense of a record being prepared and no hearing would proceed without a record. The inclusion of such an implication certainly does not in any manner prejudice the Town which would simply gain a windfall with a dismissal.
“Even if the Court were to conclude that such an implication could not be drawn, the Court would have to grant relief from the dismissal requirement pursuant to [Code of Civil Procedure] section 473(b).
“In such event relying upon the existence of the stipulation as a reason not to file the request for hearing would surely qualify, at the least, as inadvertence or excusable neglect.”
On appeal, the Town of Moraga contends the trial court committed legal error in denying its motion for mandatory dismissal on this basis. We independently review the trial court’s decision. (Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 434 [independently reviewing a trial court’s decision to grant a motion to dismiss under section 21167.4]; Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 748 [same].)
Whether the Town of Moraga’s contention has merit hinges on the proper interpretation of section 21167.4. Of course, the rules of statutory interpretation are well-established. We must strive to ascertain the Legislature’s intent while giving the words of the statute their usual and ordinary meaning. (People v. Loeun (1997) 17 Cal.4th 1, 9.) Moreover, we must keep in mind that “the literal, i.e., explicit, approach to statutory construction is mandatory under CEQA. Specifically, section 21083.1, which was adopted by the Legislature in 1993, provides: ‘It is the intent of the Legislature that courts, consistent with generally accepted rules of statutory interpretation, shall not interpret this division [, i.e., CEQA, ] or the state guidelines adopted pursuant to Section 21083 in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines.’ ” (Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1515, fn. omitted.)
Thus, if there is no ambiguity in the statutory language of CEQA, “ ‘the Legislature is presumed to have meant what it said, and the plain meaning of the language governs. [Citation.] “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.’ [Citation.]” ’ (People v. Loeun, supra, at p. 9.)” (Torrey Hills Community Coalition v. City of San Diego, supra, 186 Cal.App.4th at p. 440.)
Thus, relevant to our inquiry, section 21167.4 provides as follows:
“(a) In any action or proceeding alleging noncompliance with this division, the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding.
“(b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.
“(c) Upon the filing of a request by the petitioner for a hearing and upon application by any party, the court shall establish a briefing schedule and a hearing date. In the absence of good cause, briefing shall be completed within 90 days from the date that the request for a hearing is filed, and the hearing, to the extent feasible, shall be held within 30 days thereafter. Good cause may include, but shall not be limited to, the conduct of discovery, determination of the completeness of the record of proceedings, the complexity of the issues, and the length of the record of proceedings and the timeliness of its production. The parties may stipulate to a briefing schedule or hearing date that differs from the schedule set forth in this subdivision if the stipulation is approved by the court.
“(d) In an action or proceeding alleging noncompliance with this division, the Attorney General may file a motion with the court seeking an expedited schedule for resolution of the case upon the grounds that it would be in the public interest to do so. This subdivision does not affect the rights of any party under existing law to seek an expedited schedule for resolution of the case....” (§ 21167.4, subds. (a)-(d).)
Similarly, CEQA Guidelines section 15232 provides: “In a writ of mandate proceeding challenging approval of a project under CEQA, the petitioner shall, within 90 days of filing the petition, request a hearing or otherwise be subject to dismissal on the court’s own motion or on the motion of any party to the suit.”
Taking the requisite literal approach to the statutory language (§ 21083.1), section 21167.4 involves “a three-step procedure for the establishment of the date when a CEQA petition will be heard on its merits. First, a document asking for a hearing is filed and served by the petitioner. Second, an application, i.e., a formal request, asking the court to establish a briefing schedule and a hearing date is filed by any party. Third, the court considers the request for a hearing and the application and then issues an order establishing the briefing schedule and the hearing date. In other words, two conditions must occur before the court institutes the briefing schedule and sets a hearing date — the petitioner files a request for hearing and an application is filed by any party.” (Leavitt v. County of Madera, supra, 123 Cal.App.4th at p. 1517, fn. omitted.)
Moreover, appellate courts in this state have uniformly recognized that “the dismissal of a CEQA claim under Public Resources Code section 21167.4 is mandatory when a petitioner has failed to request a hearing on the writ within 90 days and a party or the court, sua sponte, moves to dismiss.” (San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 504. See also Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 966 (Nacimiento); Guardians of Elk Creek Old Growth v. Dep’t of Forestry & Fire Protection (2001) 89 Cal.App.4th 1431, 1435.)
In doing so, these courts have reasoned, first, that there is simply no ambiguity in the statutory language of section 21167.4 requiring mandatory dismissal when the 90-day deadline is not met by the petitioner. (Leavitt v. County of Madera, supra, 123 Cal.App.4th at p. 1522; Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 605 [holding that a one-day delay in requesting a hearing was sufficient to trigger mandatory dismissal under section 21167.4]; Torrey Hills Community Coalition v. City of San Diego, supra, 186 Cal.App.4th at pp. 440-441 [rejecting the argument that there is a “lack of clarity in the statute”].)
Second, courts have also recognized that strictly construing the statutory language of section 21167.4 is consistent with the CEQA statutory scheme as a whole. As one such court explained, “CEQA actions have short statute of limitations periods and are entitled to preference at trial and on appeal. (Pub. Resources Code, §§ 21167, 21167.1.) Obviously, the rationale of the statutory scheme is to avoid delay and achieve prompt resolution of CEQA claims. Only a petitioner has a duty under the section. He or she must, within 90 days of filing his or her claim, request a hearing.” (San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, 189 Cal.App.3d at p. 504. See also Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1135 [“[T]he statutory scheme, which is designed to promote prompt resolution of CEQA matters, can only be served if a request for a hearing or trial on the ultimate merits of the petition for writ of mandate is made within 90 days of filing of the petition”].)
We note that, while the petitioner indeed has the burden to request a hearing within 90 days of filing the petition, the petitioner is not required to actually schedule the hearing. As the Leavitt v. County of Madera court explained: “By providing for a request for a hearing that is separate from an application [to set a hearing date], the Legislature has not only protected project proponents from delays but also provided procedural flexibility to reduce the situations where a court is asked prematurely to establish a briefing schedule and a hearing date. In circumstances where all parties recognize that uncertainties concerning the [administrative record of proceedings] or other matters must be resolved before a realistic briefing schedule and hearing date can be established, an application will not be filed until those uncertainties are resolved. As soon as one party believes there is enough certainty for establishing a briefing schedule and a hearing date, that party can file an application. After the application is filed, the court can determine whether a scheduling order is appropriate and, if so, when the briefs will be due and the hearing held.” (Leavitt v. County of Madera, supra, 123 Cal.App.4th at p. 1522. See also County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 951-952.)
As our colleagues in the Fifth District have put quite simply, “a literal construction of section 21167.4 results in procedures that are simple and efficient, and promote the purpose of the statute... [On the other hand, ] a nonliteral reading of the statute results in unnecessary complexity.” (Leavitt v. County of Madera, supra, 123 Cal.App.4th at p. 1521. See also Torrey Hills Community Coalition v. City of San Diego, supra, 186 Cal.App.4th at pp. 440-442 [affirming an order dismissing a CEQA petition under section 21167.4 where the petitioner made an oral request for a hearing within the applicable time period but did not make such request in writing, as a clear reading of the statute requires].)
Significant here, one appellate decision interpreting the mandatory dismissal provision of section 21167.4 was faced with circumstances nearly identical to ours. In County of Sacramento v. Superior Court, supra, 180 Cal.App.4th 943, as in this case, the plaintiff opposing mandatory dismissal under section 21167.4, subdivision (a), attempted to rely on a stipulation to extend the statutory time period for preparing the record (as well as another stipulation) as evidence that the parties likewise intended to extend the time period for requesting a hearing on the merits. (County of Sacramento v. Superior Court, supra, 180 Cal.App.4th at p. 952.) The appellate court, however, rejected the plaintiff’s challenge: “[Plaintiff’s] argument is a non sequitur. The first stipulation the parties entered into here did not relate to a briefing schedule or hearing date, but solely to the deadline for preparing and certifying the administrative record. And while the second stipulation did cover a hearing date, a stipulation regarding a hearing date (or a briefing schedule for that matter) does not ‘supplant’ the statutory requirement that the petitioner request a hearing date and serve notice of that request at the time the request is filed.... [¶]... Accordingly, [plaintiff’s] CEQA claims are subject to dismissal... because [plaintiff] failed to properly request a hearing by filing a written request with the court within the time period allowed by subdivision (a).” (Id. at p. 952.)
We find the holding of County of Sacramento v. Superior Court, supra, 180 Cal.App.4th 943 to be directly on point. Nonetheless, the trial court in our case appears to have denied the Town of Moraga’s motion for mandatory dismissal without regard for the clear statutory language of section 21167.4, subdivision (a), the underlying legislative intent that CEQA matters resolve themselves promptly and efficiently, or the wealth of case law addressing these issues. The trial court purports to have done so in the name of fairness, reasoning that “[t]he cases that hold that there’s to be strict compliance with CEQA are, for the most part, if not all parts, designed to protect our environment, not to game the system.” However, whatever equitable intentions the trial court may have had, it simply was not empowered to ignore unambiguous statutory and appellate authority. “[I]f a statute is clear on its face and operates fairly, its unambiguous terms must prevail even if the result is to bar a CEQA challenge.” (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 839.)
Accordingly, we follow the numerous decisions of our appellate colleagues in strictly interpreting the statutory deadlines provided for by CEQA, with the result that plaintiff’s CEQA claims should indeed have been subject to mandatory dismissal under section 21167.4, subdivision (a).
B. Code of Civil Procedure section 473(b).
However, our inquiry with respect to the Town of Moraga’s motion for mandatory dismissal is not yet complete, given that the trial court offered Code of Civil Procedure section 473, subdivision (b) (section 473(b)) as an alternative basis for denying the motion. Specifically, the trial court found that “[plaintiff’s] rel[iance] upon the existence of the stipulation as a reason not to file the request for hearing would surely qualify, at the least, as inadvertence or excusable neglect, ” such that “the Court would have to grant relief from the dismissal requirement pursuant to C.C.P. § 473(b).”
Section 473(b) provides in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” Thus, as this statutory language reflects, section 473(b) includes a provision for discretionary relief from certain attorney-caused default judgments and dismissals, as well as a provision for mandatory relief from such dismissals, under certain circumstances. (Miller v. City of Hermosa Beach, supra, 13 Cal.App.4th at pp. 1135–1138; McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359; Nacimiento, supra, 122 Cal.App.4th at pp. 967-968.)
Relevant here, under section 473(b)’s discretionary relief provision, a trial court may grant relief from dismissal in certain cases involving the mistake, inadvertence or neglect of the plaintiff or his or her attorney. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-255 (Zamora).) The attorney’s error may be one of law or of fact; however, in all events, the attorney’s act or omission must be excusable. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.) “The controlling factors in determining whether an attorney’s mistake was excusable are (1) the reasonableness of the misconception and (2) the justifiability of the failure to determine the correct law.” (McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 360 [noting that “ ‘[a]n honest mistake of law is a valid ground for relief [from dismissal under section 21167.4] where a problem is complex and debatable’ ”].) Similarly, an attorney’s neglect is excusable when a reasonably prudent person would have made the same error under the same circumstances. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 657 [noting that discretionary relief under section 473(b) is generally unavailable in cases involving gross negligence].)
The party seeking relief under the statute has the burden of demonstrating the mistake, inadvertence or neglect was excusable. (Zamora, supra, 28 Cal.4th at p. 258.) Further, the discretionary relief provision of section 473(b) must be “ ‘applied liberally where the party... moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default [or dismissal].” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief... [Citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ ” (McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at pp. 359-360.)
On appeal, “[a] ruling on a motion for discretionary relief under section 473 will not be disturbed... absent a clear showing of abuse. [Citations.] As the Supreme Court explained in In re Marriage of Connolly (1979) 23 Cal.3d 590, 598 [153 Cal.Rptr. 423, 591 P.2d 911]: ‘Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]’ ” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
Applying these legal principles to the case at hand, we must determine whether the trial court was authorized to grant plaintiff relief from dismissal based upon her attorney’s excusable mistake, inadvertence or neglect. (State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 610.) The excuse offered by plaintiff for failing to request a hearing on the merits is that her attorney “reasonably believed” all applicable deadlines were extended by the parties’ joint stipulation for an extension of time to prepare the administrative record. In support of this excuse, plaintiff’s attorney filed a declaration stating that the Town’s counsel “agreed to delay all applicable deadlines so we could focus on seeking a resolution” and “specifically requested that we delay the preparation of the administrative record because that both [sic] costly and, potentially, unnecessary.” The attorney declaration also noted the court had called on the parties to calendar a hearing for the purpose of setting a briefing schedule and that, in discussing the court’s request, the parties had agreed there was no urgency to briefing the issues raised by the petition. Accordingly, as the Town’s counsel also acknowledged, the parties agreed to continue this hearing for a few weeks in hopes of reaching a settlement.
Specifically, the declaration by plaintiff’s counsel states: “Mr. Winig [the Town’s counsel] agreed that we should focus all of our efforts on a settlement and agreed to delay all applicable deadlines so that we could focus on seeking a resolution. He specifically requested that we delay the preparation of the administrative record because that both [sic] costly and, potentially, unnecessary. The following week, we both executed a stipulation extending time for the filing of the administrative record. At the time, I believed that all deadlines, including the deadline that is the subject of the instant motion were extended, but neglected to request that the blanket extension be included in the stipulation.”
Having considered this record in a light most favorable to plaintiff, the party seeking relief, we conclude the trial court acted within the bounds of reason in finding that she satisfactorily met her burden to prove excusable mistake, inadvertence or neglect. (See McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at pp. 359-360.) Specifically, we find in the declaration of plaintiff’s attorney a minimally reasonable basis for the trial court’s finding that “[plaintiff’s] rel[iance] upon the existence of the stipulation as a reason not to file the request for a hearing would surely qualify, at the least as inadvertence or excusable neglect.” In other words, a “reasonably prudent person” under similar circumstances could have mistakenly assumed the stipulation executed by the parties in this case operated to extend all statutory deadlines under CEQA, consistent with the parties’ shared intention to put all their efforts toward settlement rather than costly and contentious litigation. (See Hodge Sheet Metal Products, supra, 189 Cal.App.2d at p. 657; see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 683-684.)
In reaching this conclusion, we acknowledge the unique nature of CEQA litigation, which requires adherence to a special set of rules that can trip up even a seasoned practitioner with little direct CEQA experience. As such, while we also acknowledge the legislature’s intent that CEQA actions should proceed in an expedited and efficient manner, we do not believe this intent should prevail in a case like this, where the attorney makes an excusable mistake based on communications with opposing counsel indicating a shared preference to seek resolution of the conflict rather than proceed to litigation. (See Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644, 652-653 [affirming the denial of defendant’s motion for mandatory dismissal under section 21167.4 based upon excusable mistake of law where plaintiff failed to receive notice that the action had been transferred to a new jurisdiction, affecting the date of filing of the CEQA petition]; Miller v. City of Hermosa Beach, supra, 13 Cal.App.4th at pp. 1136-1137 [affirming the grant of relief from dismissal based on excusable mistake of law where the plaintiff reasonably believed her written requests for a hearing on injunctive relief satisfied the requirements of section 21167.4].) This is particularly true where, as here, the opposing party would suffer little if any prejudice from granting the plaintiff relief from dismissal pursuant to section 473(b). (See Board of Supervisors v. Superior Court, supra, 23 Cal.App.4th at p. 848; McCormick v. Board of Supervisors, supra, 198 Cal.App.3d at p. 361.) Indeed, in this case, a decision on the merits has already been reached by the trial court following extensive briefing by the parties based upon a stipulated briefing schedule.
Accordingly, for the reasons stated, we affirm the trial court’s order denying the Town’s motion for mandatory dismissal.
II. Did the trial court err by finding that adoption of the amendments constituted a “project” under CEQA?
The Town’s final argument is that the trial court erred in finding that its adoption of the amendments constituted a “project” for purposes of CEQA.
As the Town notes, “[i]t is black-letter law that CEQA applies only if a public agency proposes to approve a ‘project.’ (CEQA Guidelines, § 15061(b)(3); CEQA Guidelines, § 15378(b).” CEQA defines a “project” as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (§ 21065. See also Muzzy Ranch Co. v. Solano County Airport Land Use Com’n (2007) 41 Cal.4th 372, 381-382.) ‘ “ ‘Project’ is given a broad interpretation in order to maximize protection of the environment.’ [Citation.]” (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1179-1180.)
Section 21060.5 defines “environment” as “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.” (Emphasis added.)
“That the enactment or amendment of a general plan is subject to environmental review under CEQA is well established. [Citations.] ‘Although [they are] not explicitly mentioned in the CEQA statutes, general plans “embody fundamental land use decisions that guide the future growth and development of cities and counties, ” and amendments of these plans “have a potential for resulting in ultimate physical changes in the environment.” [Citation.]’ ” (Muzzy Ranch Co. v. Solano County Airport Land Use Com’n, supra, 41 Cal.4th at p. 385. See also CEQA Guidelines, § 15378, subd. (a)(1).)
In this case, the trial court found the Town’s adoption of the amendments was a project for purposes of CEQA, noting that it involved issuance of “permits, license[s] or other entitlement[s].” (§ 21065, subd. (c).) The Town disputes the trial court’s finding on the ground that adoption of the amendments did not have the potential for resulting in either a direct physical environmental change or a reasonably foreseeable indirect physical environmental change. We reject the Town’s argument.
As set forth above, the amendments, among other things, exempted the Town from compliance with otherwise applicable noise limitations during certain events. Specifically, before adoption of the amendments, the Town’s General Plan contained Policy OS6.2, which read: “Noise Levels. Ensure that noise from all sources is maintained at levels that will not adversely affect adjacent properties or the community, especially during evening and early morning hours. Reasonable exceptions may be made in the interest of public safety.” The amendments, however, added a new section to the general noise regulations in the Moraga Municipal Code, stating as follows: “None of the restrictions set forth in this Chapter apply to Town-authorized community events. The Town encourages such events and finds and declares them to be extremely valuable to this community. Such events are expressly authorized by the Section and pursuant to Civil Code Section 3482 cannot be deemed a nuisance. Without limitation, the sounds from such events may exceed 60 [decibels] at any listening point on any other property.” (Emphasis added.) As acknowledged in the Town’s Initial Study/Negative Declaration prepared pursuant to CEQA, “at levels above 60 decibels background noise levels from music or other noises associated with the event would begin to interfere with normal conversations in private rear yard areas or nearby residences. Exterior noise levels greater than 60 decibels may also interfere with residential activities indoors such as reading or watching television even when windows are closed.”
As this record reflects, the amendments indeed create new noise policies that cause an indirect physical change in the environment. Specifically, by exempting Town-authorized community events from the Town’s otherwise applicable noise policies under the General Plan and Municipal Code, the amendments carry a reasonable potential of causing residents in the area to be exposed to noise at levels sufficiently high to interfere with their normal indoor and outdoor activities. Under these circumstances, we conclude the trial court’s finding that the Town’s adoption of the amendments constituted a “project” under CEQA is supported by substantial evidence and must be affirmed. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com’n, supra, 41 Cal.4th at p. 385; § 21080, subds. (c)-(e).)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to plaintiff.
We concur: McGuiness, P. J., Pollak, J.
“(a) At the time that the action or proceeding is filed, the plaintiff or petitioner shall file a request that the respondent public agency prepare the record of proceedings relating to the subject of the action or proceeding. The request, together with the complaint or petition, shall be served personally upon the public agency not later than 10 business days from the date that the action or proceeding was filed.
“(b)(1) The public agency shall prepare and certify the record of proceedings not later than 60 days from the date that the request specified in subdivision (a) was served upon the public agency. Upon certification, the public agency shall lodge a copy of the record of proceedings with the court and shall serve on the parties notice that the record of proceedings has been certified and lodged with the court. The parties shall pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court. [¶]... [¶]
“(c) The time limit established by subdivision (b) may be extended only upon the stipulation of all parties who have been properly served in the action or proceeding or upon order of the court....”