By James Pugh
The partially published opinion in Coalition for Clean Air v. City of Visalia brightened the line regarding when a California Environmental Quality Act Notice of Exemption (NOE) is valid. In a nutshell, the Fifth District Court of Appeal concluded that an 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 is not new law. However, it confirms the principle set forth in the recent California Supreme Court’s Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 decision, which is that a petitioner has 35 days to challenge an NOE that is valid on its face.
Here, the City of Visalia was considering a project to build a large distribution facility (the Project). The City filed an NOE on November 3, 2010, but did not approve the Project until November 8, 2010. On December 28, 2010, (which was 55-days after the City filed its NOE) the Coalition for Clean Air filed a petition alleging that the City violated CEQA by failing to conduct any environmental review of the Project. The City asserted, of course, that the claim was barred by the 35-day statute of limitations (triggered by the NOE) set forth in Section 15062 of the CEQA Guidelines. As a side note, the statute of limitations for a CEQA challenge of the City’s action would have been 180 days without a valid NOE. Ultimately, the court concluded that the City’s NOE was invalid because the language of Section 15062 unambiguously states that an NOE shall be filed after project approval.
The court pointed to the logical reasoning of the California Supreme Court, which is that an NOE must satisfy two general requirements to be compliant and thus trigger the 35-day limitation period. First, the NOE must be “facially valid,” which means it must contain the information required by Section 15062(a)(1) through (5) of the CEQA Guidelines. Second the NOE must be properly filed, which means it must comply with the filing requirements specified in Section 15062(a) through (c). Most importantly for this case, Section 15062(a) requires the NOE be filed after project approval. Simply put, the City process was chronologically backwards. Therefore, it was easy for the court to find that the NOE was void and did not preclude Coalition for Clean Air from filing suit past the 35-day statute of limitations that would otherwise apply with a valid NOE.
The message from this case is clear: only a facially valid NOE filed after project approval triggers the shortened 35-day statute of limitations.