Coalition for Clean Air: Filing an NOE Before Project Approval Does Not Trigger CEQA's 35-Day Statute of Limitations

by Allen Matkins
Contact

On September 14, 2012, the Fifth District Court of Appeal decided in Coalition for Clean Air v. City of Visalia that a Notice of Exemption (NOE) filed before the final approval of a proposed project is invalid and does not trigger the 35-day statute of limitations set forth in CEQA.  This opinion distinguishes two important 2010 California Supreme Court decisions  – Committee for Green Foothills [i] and Stockton Citizens [ii] – that emphasized that the filing of an NOE or a Notice of Determination (NOD)  triggered CEQA's short statute of limitations, regardless of the nature of the alleged violation.

In Coalition for Clean Air, the plaintiffs challenged the City's approval of a large distribution facility, alleging, in part, that the approval violated CEQA.  Real party in interest developer filed a demurrer, arguing that the CEQA claims were barred by the 35-day statute of limitations provided in Public Resources Code section 21167(d).  The trial court, citing Stockton Citizens, agreed that the CEQA cause of action was time-barred because it was filed 55 days after the NOE was filed. 

The Fifth District reversed and remanded the trial court's ruling on the demurrer.  The lawsuit alleged that the NOE was filed five days before the City's approval of the project (although this was a factually-contested issue, the appellate court recognized that in demurrer proceedings, the complaint's factual allegations must be accepted as true), thus, the only issue at this stage was whether an NOE filed before project approval triggered the 35-day statute of limitations.  More particularly, the issue was whether the NOE complied with the requirements set forth in CEQA Guidelines section 15062, which is a prerequisite to triggering the 35-day limitations period set forth in Section 21167(d).[iii]

After analyzing Section 15062, which contains references to filing NOEs after project approval, the appellate court held: "This mandatory language plainly means that a notice of exemption filed before project approval does not comply with Guidelines section 15062.  It follows that filing a notice of exemption before project approval does not begin the running of the 35-day limitations period set forth in section 21167, subdivision (d)."

The appellate court rejected the developer's argument that Stockton Citizens overruled County of Amador,[iv] a 1990 decision that also held that an NOE cannot be filed before project approval.  The court explained that references in Stockton Citizens to the requirement that the NOE be "facially valid and properly filed" before triggering the statute of limitations indicated the Court's belief that an NOE filed before project approval cannot satisfy this requirement.  The appellate court also cited dicta from Stockton Citizens regarding the impropriety of filing an NOE in advance of project approval.

It is worth noting that although Coalition for Clean Air addresses NOEs, it cites with approval a widely-used CEQA treatise that applies the same "file after project approval" rule to NODs.  Moreover, CEQA Guideline section 15062's provisions regarding filing an NOE after project approval are similar to CEQA Guideline section 15075 that describes the requirements for NODs.


[i] Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010)48 Cal.4th 32.

[ii] Stockton Citizens for Sensible Planning v. City of Stockton (2010)48 Cal.4th 481.

[iii] CEQA Guidelines, § 15112(c).

[iv] County of Amador v. El Dorado County Water Agency (1990) 76 Cal.App.4th 931.

Blackwell David H

David H. Blackwell
Partner
Land Use | Litigation | Real Estate | Environmental & Natural Resources
San Francisco
(415) 273-7463
(925) 943-5553 (fax)

E-mail me

 

Written by:

Allen Matkins
Contact
more
less

Allen Matkins on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!