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

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.