A court of appeal recently concluded that a notice of exemption filed before a project is actually approved is invalid and does not trigger the 35-day limitations period in which to bring a California Environmental Quality Act (“CEQA”) action. (Coalition for Clean Air v. City of Visalia (--- Cal.Rptr.3d ----, Cal.App. 5 Dist., September 14, 2012).
VWR International, LLC (“VWR”), is a global laboratory supply company that is headquartered in Pennsylvania. VWR proposed building a supply and distribution facility in Visalia, California. Coalition for Clean Air, Center for Environmental Health, Association of Irritated Residents, Kevin Long, and Teamsters Joint Council 7 (collectively, “Coalition”) allege that when the new facility opens, VWR plans to close its facilities in Brisbane California, San Dimas, California, and Aurora, Colorado.
In August 2010, VWR announced its intention to build the distribution facility in Visalia. The site plan review committee of the City of Visalia (“City”) met in September 2010 and directed VWR to make at least 50 modifications to the proposed project. Coalition alleges that, because VWR’s project required modification, the site plan review committee did not approve the proposed project or issue a planned development permit at its September 2010 meeting. The site plan review committee instead concluded that a revised plan that addressed the committee’s comments must be submitted for off-agenda review and approval before the matter could be submitted for building permits or discretionary actions. The committee and City staff processed all further permits and actions for VWR’s proposed project. There were no public notices or hearings for any further permitting actions.
The County of Tulare Resource Management Agency wrote to City in October 2010 and urged City to conduct a CEQA review and to determine whether VWR’s project complied with Rule 9510 for indirect source review of the San Joaquin Valley Air Pollution Control District (“District”). However, on November 3, 2010, City filed a noticed of exemption for VWR’s project, which was described in the notice as “construction of a new 500,499 sq. ft. building on 31.9 acres in the [Heavy Industrial] zone.” The notice proclaimed “the project was a ministerial action statutorily exempt from CEQA.”
On November 8, 2010 the City’s community development director sent VWR a letter stating, “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.” Coalition alleges this letter constitutes the project approval and thus, City filed the notice of exemption five days before the project approval.
On December 10, 2010, City’s city council approved a reimbursement of up to $1.5 million to VWR for street improvements associated with the proposed projects.
Coalition filed a lawsuit alleging that City’s approval of VWR’s proposed project violated CEQA. Coalition also sought a writ of mandate against VWR to compel its compliance with District’s rule concerning air pollution from indirect sources. In the published portion of the opinion, the trial court found that Coalition’s CEQA claim was time-barred because it was not filed within 35 days of the notice of exemption and that it lacked standing to compel VWR to comply with permitting requirements.
Public Resources Code section 21080, subdivision (b), sets forth certain exemptions from CEQA, including an exemption for ministerial projects. If a local agency concludes that a project is exempt from CEQA as a ministerial project, after the local agency approves the project, it “may file a notice of determination with the county clerk of each county in which the project will be located.” Although the statute refers to a “notice of determination” CEQA Guidelines refer to this document as a “notice of exemption.” Public Resources Code section 21167, subdivision (d), provides that when a notice of exemption is filed, there is a 35-day limitations period in which a lawsuit may be filed. If no notice of exemption is filed, the limitations period extends to 180 days,
Guidelines section 15112, subdivision (c), provides that the limitations period of a CEQA action “[w]here the public agency filed a notice of exemption in compliance with Section 15062, [is] 35 days after the filing of the notice and the posting on a list of such notices.” Section 15062 provides that a notice of exemption must “be filed, if at all, after approval of the project.” It further provides, “The notice shall not be filed with the county clerk or OPR until the project has been approved.” The court concluded that “section 15062 unambiguously requires notices of exemption to be filed after the project has been approved.” A notice of exemption filed before a project is approved does not comply with section 15062.
If City filed the notice of exemption before it approved the project, it did not comply with section 15062’s requirement that a notice of exemption must be filed after approval of the project. A filing of a noncompliant notice does not trigger the 35-day limitations period. The court of appeal concluded, however, that facts remain in dispute about when City approved the project. The appellate court remanded the case so that the trial court could determine when the project was actually approved. The trial court may also need to determine whether the granting of a parking variance and the approval of the expenditure of $1.5 million for roadwork reimbursement to VWR would trigger CEQA review.
The court of appeal also considered whether Coalition can pursue a writ of mandate under Code of Civil Procedure section 1085 against VWR, which is a private entity, for its failure to apply for an indirect source permit under District Rule 9520. The appellate court agreed with the trial court that Coalition failed to establish that, as a private entity, VWR “has any public duty that can be enforced by a writ of mandate.” The court of appeal concluded that mandamus does not lie against VWR.
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