Fifth Appellate District Court of Appeal Holds that a Notice of Exemption Filed Prior to Project Approval Was Not Properly Filed and Did Not Trigger 35-Day Limitation Period

Coalition for Clean Air v. City of Visalia (2012) ___ Cal.App.4th ___ (Case No. F062983, Sept. 14, 2012)

Defendant and real party in interest VWR International proposed building a 500,000-to-750,000-square-foot distribution and supply facility on 32 acres of land located in Visalia, California. The proposed site was undeveloped land that had been farmed and was in a planned heavy industrial zone.

 On November 3, 2010, the City filed a notice of exemption (NOE) and stated that the project was exempt from CEQA review as a ministerial action. Fifty-five days later, in December 2010, plaintiffs filed a petition and complaint alleging that the City violated CEQA by failing to conduct any environmental review of the project. Plaintiffs in the litigation alleged that the NOE was filed five days prior to the approval of the project, and therefore, the 35-day statute of limitations ordinarily triggered by the filing of a NOE did not apply.

Plaintiffs argued that a letter from the City’s community development director, dated November 8, 2010, constituted the first approval of the proposed project issued by the City. The letter stated: “The revised site plan was submitted for off-agenda review by the committee on October 14, 2010. The Site plan review number 10-113 is approved as a Revise and Proceed to building permits and off-site civil improvement design drawings.”

 VWR International filed a demurrer to the petition, contending the CEQA claims were barred by the statute of limitations. The trial court concluded that the CEQA cause of action was time-barred and dismissed the petition. Plaintiffs appealed.

The appellate court held that the demurrer should have been ovverruled. The court noted that, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed. VWR International argued that flaws in the decisionmaking process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day limitations period. Plaintiffs argued that an NOE filed prior to project approval is noncompliant with CEQA Guidelines section 15062 and cannot trigger the limitation period. The appellate court agreed with the plaintiffs and found that section 15062 “unambiguously requires notices of exemption to be filed after the project has been approved.” Subdivision (a) of section 15062 states: “The notice shall be filed, if at all, after approval of the project,” and subdivision (b) states: “The notice shall not be filed with the county clerk…until the project has been approved.”

The appellate court applied the standard of review for demurrers, and assumed Plaintiffs’ allegations regarding the timing of the project approval were true. Based on the allegations in the petition, the appellate court found the NOE was not properly filed and therefore did not comply with Guidelines section 15062. The City’s noncompliant NOE did not trigger the 35-day limitations period, and the appellate court remanded the question regarding when the approval of the project occurred back to the trial court. The appellate court noted that the issue of project approval could involve factual disputes based on the definition of “approval” in Guidelines section 15352 and the Supreme Court’s discussion of that definition in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481.

 The court also determined that Plaintiff’s allegations that no building permits could be issued for the project without a planned development permit identified a ministerial duty that may be enforced pursuant to a writ of mandate and that Plaintiffs had standing to enforce that duty.