A labor union, three public interest organizations, and an individual filed a lawsuit challenging the City of Visalia's (City) handling of VWR International, LLC's proposal to build a large distribution facility in Visalia. Plaintiffs alleged that the City's approval of the project violated the California Environmental Quality Act (CEQA)
The trial court sustained, without leave to amend, the demurrer of VWR International on the grounds that (1) the CEQA claim was time-barred by the applicable 35-day limitations period, (2) plaintiffs lacked standing to obtain a writ of mandate to compel City or VWR International to comply with permitting requirements of the Visalia Municipal Code or SJVAPCD, and (3) plaintiffs' claim that City authorized the illegal expenditure of public funds was an improper challenge to a discretionary funding decision. On appeal, plaintiffs contend the trial court erred in sustaining the demurrer.
We conclude that a notice of exemption filed before the final approval of a proposed project is invalid and does not trigger the 35-day statute of limitations set forth in section 21167, subdivision (d). Because plaintiffs have alleged that City approved the project after it filed the notice of exemption, and a demurrer admits the truth of the allegations pled, we cannot conclude at this stage of the proceedings that the 35-day limitations period applies and thus bars the CEQA claim. Therefore, the demurrer to the CEQA cause of action should have been overruled.
Also, we conclude plaintiffs' allegations that no building permits may be issued for the project without a planned development permit identifies a ministerial duty that City owes the public and that may be enforced by writ of mandate. Furthermore, plaintiffs have standing to enforce this ministerial duty.
Finally, as to plaintiffs' claim that City's reimbursement of VWR International for certain street improvements will be an illegal expenditure of government funds, we will grant plaintiffs leave to amend (1) to identify the specific mandatory provision of the Visalia Municipal Code that the reimbursements allegedly will violate and (2) to allege facts showing how the reimbursements will violate that provision.
We therefore reverse the judgment.
VWR International, a defendant and real party in interest in this litigation, is a global laboratory supply and distribution company, headquartered in Pennsylvania. VWR International proposed building a 500,000- to 750,000-square-foot supply and distribution facility on 32 acres of land located on West Riggin Avenue in Visalia, California. Plaintiffs allege the facility will supply a wide range of laboratory equipment and chemicals, "including solvents, salts, acids, and other highly toxic compounds."
The plaintiffs in this lawsuit are (1) Coalition for Clean Air, (2) Center for Environmental Health, (3) Association of Irritated Residents, (4) Kevin Long, and (5) Teamsters Joint Council 7 (collectively plaintiffs).
Coalition for Clean Air is a California nonprofit corporation with over 300 members throughout the state. Coalition for Clean Air alleges it has seven members and one staff person who regularly breathe the air of Tulare County and surrounding areas and some of its members "will suffer injury in fact and economic harm as a result of the violations of law related to the VWR Project at issue in this action, including, but not limited to, diminution of property value due to excess air pollution and truck traffic, being forced to breathe heavily polluted air and suffer excess traffic congestion, [and] being exposed to significant risks from the handling, transportation and storage of highly toxic chemicals without proper safeguards."
Center for Environmental Health is an Oakland-based California nonprofit corporation. Center for Environmental Health alleges that it is dedicated to protecting the public from environmental health hazards and toxic exposures.
Association of Irritated Residents alleges that it is an unincorporated association that advocates for air quality and environmental health in the San Joaquin Valley. It further alleges that some of its members reside in Tulare County near the proposed project and they will suffer injury as a result of violations of law related to the proposed project.
Kevin Long alleges that he is a resident of Visalia, pays taxes in Visalia, lives in the vicinity of the proposed project, and will be directly and adversely affected by City's approval of the project. He also alleges he will suffer injury as a result of violations of law related to the proposed project.
Teamsters Joint Council 7 is a labor organization based in Oakland that alleges it has over 700 members who live, work and recreate in Visalia. It also alleges it has members who live near the proposed project and will be injured as a result of violations of law related to the proposed project. Teamsters Joint Council 7 alleges dozens of its members will lose their jobs at the facility in Brisbane when VWR International moves its operations to the unlawful proposed facility in Visalia.
Besides VWR International, the other defendants in this lawsuit are SJVAPCD, City, its city council, site plan review committee, and a community development director.
SJVAPCD is an air quality control agency charged with promulgating rules and regulations to reduce air pollution in the San Joaquin Valley. Its jurisdiction covers eight counties, including Tulare County. SJVAPCD promulgated Rule 9510, which sets forth its indirect source review program.
On December 28, 2010, Kevin Long and Teamsters Joint Council 7 filed a verified petition and complaint against City and VWR International. They also notified the Attorney General that the petition had been filed.
On February 1, 2011, a verified first amended petition for peremptory writ of mandate and complaint for declaratory and injunctive relief (FAP) was filed, containing eight causes of action, which included alleged violations of CEQA, the land use process of the Visalia Municipal Code, and SJVAPCD's Rule 9510,
In August 2010, VWR International announced that it intended to build its new distribution facility in Visalia. The proposed site was undeveloped land that had been farmed and was in a planned heavy industrial zone.
In September 2010, City's site plan review committee met to discuss the proposed project and determined that improvements to Riggin Avenue and the preparation of plans for grading and drainage, dust control, and landscaping were needed. At the meeting, the committee directed applicant VWR International to make at least 50 modifications to the proposed project.
Plaintiffs allege that because the project required modifications, the site plan review committee did not approve the proposed project or issue a planned development permit at the September 2010 meeting. Instead, the site plan review committee concluded that a revised plan addressing its comments and revisions must be submitted for off agenda review and approval before submissions for building permits or discretionary actions. As a result, the site plan review committee and City staff processed all further permits and actions concerning the proposed project off agenda and there were no public notices or hearings for any further permitting actions.
On November 3, 2010, City filed a notice of exemption that described the project as the "construction of a new 500,499 sq. ft. building on 31.9 acres in the IH (Heavy Industrial) zone" and stated the project was a ministerial action statutorily exempt from CEQA. Plaintiffs allege that City's notice of exemption was filed "five days prior to the November 8, 2010 approval of the VWR Project." The topic of project approval is also addressed by plaintiffs' allegation that a letter from City's community development director, dated November 8, 2010, appears to be the first approval of the proposed project of any kind issued by City. That 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."
Later in November, district 6 of California's Department of Transportation sent City a letter stating (1) the project would have significant adverse impacts on traffic, (2) a traffic impact study would be required to determine the extent of the impacts and the mitigation needed to reduce the impacts to less than significant, and (3) the project would significantly impact three interchanges on State Route 99.
On December 10, 2010, City's city council exercised its discretion to approve reimbursing VWR International up to $1.5 million for the cost of street improvements associated with the proposed project. The city council authorized the city manager to approve and execute improvement and reimbursement agreements with VWR International. Those agreements are the basis for plaintiffs' sixth cause of action, which alleges City authorized the illegal expenditure of public funds. The improvements and expenditures are described in greater detail in an unpublished portion of this opinion, which discusses the sixth cause of action.
On February 10, 2011, VWR International filed a demurrer to plaintiffs' FAP, contending (1) the CEQA claims were barred by the statute of limitations, (2) plaintiffs lacked standing to obtain a writ of mandate on the other
SJVAPCD did not join in the demurrer. Instead, SJVAPCD and plaintiffs entered a stipulated judgment, described in part IV. of this opinion, which effectively resolved the claim against SJVAPCD in the third cause of action.
On April 20, 2011, plaintiffs filed a request for dismissal without prejudice of their fourth, fifth, seventh and eighth causes of action. Thus, the April 26, 2011, hearing on the demurrer proceeded on the four remaining causes of action: the CEQA violations, the permit requirements in the Visalia Municipal Code, SJVAPCD Rule 9510, and illegal government expenditures. At the end of the hearing, the court took the matter under submission.
On May 2, 2011, the trial court filed its written order, sustaining the demurrer on plaintiffs' remaining causes of action. The court concluded that (1) the CEQA cause of action was time-barred, (2) plaintiffs lacked standing to pursue the second cause of action concerning violations of permit requirements contained in the Visalia Municipal Code, (3) plaintiffs lacked standing to bring the third cause of action concerning VWR International's alleged violation of SJVAPCD's Rule 9510, and (4) the illegal expenditure of government funds alleged in the sixth cause of action was a discretionary funding decision that could not be challenged in a taxpayer suit.
Later in May 2011, a judgment of dismissal with prejudice was entered in favor of City and VWR International against plaintiffs.
Plaintiffs filed a timely notice of appeal in July 2011. In August 2011, plaintiffs filed a petition for writ of supersedeas and an immediate stay with this court. The petition asserted that VWR International began construction of the proposed project after entry of the trial court's judgment and requested a stay of all construction activities pending resolution of the appeal. The Attorney General's Office filed an amicus curiae brief in support of the petition for writ of supersedeas.
Shortly after its filing, this court denied the petition for writ of supersedeas.
On November 3, 2010, City filed a notice of exemption that referenced Guidelines section 15268
On December 28, 2010, (i.e., 55 days later) plaintiffs filed a verified petition and complaint that alleged as its first cause of action that City violated CEQA by failing to conduct any environmental review of the project.
Plaintiffs then filed the FAP, which contained more extensive allegations concerning the timeliness of the lawsuit and the applicable statute of limitations. The FAP contended that the 35-day statute of limitations ordinarily triggered by the filing of a notice of exemption did not apply to the CEQA cause of action because City filed its notice of exemption on November 3, 2010, prior to approving the project on November 8, 2010. Under plaintiffs' view of the law, a premature notice of exemption has no legal effect and, thus, fails to trigger the 35-day statute of limitations. Plaintiffs supported their position that City approved the project on November 8, 2010, by alleging:
VWR International's demurrer asserted the CEQA cause of action was time-barred pursuant to section 21167 because it was filed more than 35 days after City filed the notice of exemption. VWR International supported its demurrer by filing a request for judicial notice of six documents, including the notice of exemption.
Plaintiffs opposed the demurrer, arguing that the notice of exemption must be filed after project approval or it is void ab initio. Plaintiffs also argued that their CEQA claim was timely under the 180-day limitations period that applies when a valid notice of exemption is not filed.
The trial court sustained the demurrer to the CEQA cause of action without leave to amend, concluding the CEQA claim was time-barred because it was not filed within 35 days of the filing of the notice exemption. The trial court cited Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 [106 Cal.Rptr.3d 858, 227 P.3d 416] (Stockton Citizens) for the principle that a petitioner has 35 days in which to challenge a notice of exemption that is valid on its face. In the trial court's view, this principle applied to challenges alleging that the project had not yet been approved when the notice of exemption was issued. Based on this view of the law, the trial court determined that plaintiff's CEQA claim was barred by the 35-day limitations period.
Sometimes, it is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properly pleaded
The benefit that a public agency and project proponent receive from filing a notice of exemption is a shorter statute of limitations. Section 21167, subdivision (d)
The 35-day limitations period triggered by filing a notice of exemption is also addressed in Guidelines section 15112, subdivision (c), which provides: "The statute of limitations periods under CEQA are as follows: [¶] ... [¶] (2) Where the public agency filed a notice of exemption in compliance with Section 15062, 35 days after the filing of the notice and the posting on a list of such notices." (Italics added.)
Based on the plain, unambiguous language of Guidelines section 15112, subdivision (c), the parties agree that the 35-day limitations period is triggered only if the notice of exemption complies with Guidelines section 15062.
At oral argument, counsel for VWR International contended that a notice of exemption complies with Guidelines section 15062 if it is "facially valid." This contention is based on the California Supreme Court's use of the term "facially valid" in adopting the principle "that flaws in the decisionmaking process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency's determination that it has approved a CEQA-exempt project." (Stockton Citizens, supra, 48 Cal.4th at p. 489, italics added.) Counsel for VWR International also argued that a notice of exemption is facially valid if it contains the information required by Guidelines section 15062, subdivision (a)(1) through (5).
In contrast, counsel for plaintiff argued that plain language set forth in subdivisions (a) and (b) of Guidelines section 15062 requires the notice of
The parties' dispute requires this court to interpret and apply Guidelines section 15062, which provides in relevant part:
Our literal interpretation of Guidelines sections 15062 and 15112 is not new. It was adopted by the court in County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931 at pages 962 through 965 [91 Cal.Rptr.2d 66] (County of Amador). In that case, the court analyzed those provisions of the Guidelines and concluded that "a notice of exemption cannot be filed until after the project is approved." (County of Amador, at p. 963.) The court also concluded that the agency had not approved the project before filing its notice of exemption and, thus, the notice was invalid and the 35-day limitations period did not bar the plaintiff's CEQA lawsuit. (County of Amador, at p. 963.)
At oral argument, counsel for VWR International contended that the holding in County of Amador was rejected by the California Supreme Court in Stockton Citizens, supra, 48 Cal.4th 481. In VWR International's view, a facially valid notice of exemption triggers the 35-day limitations period and a
Our examination of the Stockton Citizens opinion revealed that the Supreme Court used the term "facially valid" twice. (Stockton Citizens, supra, 48 Cal.4th at pp. 489, 501.) Both times it was in the phrase "a facially valid and properly filed NOE ...." (Ibid.) For example, the court adopted the principle "that flaws in the decisionmaking process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency's determination that it has approved a CEQA-exempt project." (Id. at p. 489.)
In addition, we believe that the following dicta in Stockton Citizens addressing when the notice of exemption should be filed supports our interpretation of the Guidelines, rather than VWR International's position: "[P]ersons seeking to challenge an agency decision on CEQA grounds may not, for purposes of the statute of limitations, go behind the agency's declaration in an NOE that it has approved a project. Instead, they must bring their action within 35 days after the NOE is filed and posted. Nor does this mean that the agency may therefore file an NOE in advance of an actual project approval, then proceed unmolested to approve the project at its leisure, free of environmental challenges." (Stockton Citizens, at p. 501, fn. 10.)
Furthermore, if the Supreme Court had intended to impliedly overrule County of Amador, it is unlikely its decision in Committee for Green Foothills, supra, 48 Cal.4th 32, which was filed a month and a half before Stockton Citizens, would have included the following citation: "see also County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 962-963 [91 Cal.Rptr.2d 66] [notice of exemption was not valid, and did not trigger 35-day limitations period, because it was filed before the project was approved] ...." (Committee for Green Foothills, supra, at p. 53.)
For purposes of the demurrer, we assume these allegations are true (Committee for Green Foothills, supra, 48 Cal.4th at p. 42) and, therefore, regard the project as being approved after the notice of exemption was filed. It follows that City's notice of exemption did not comply with Guidelines section 15062's requirement that notices of exemption shall be filed after the approval of the project. As a result, City's noncompliant notice of exemption did not trigger the 35-day limitations period and the demurrer to the CEQA cause of action should have been overruled.
Our decision to overrule the demurrer is not a final determination that the CEQA cause of action was, in fact, timely filed. Instead, it is merely a determination that the dispute over whether the project received actual final approval before the notice of exemption was filed cannot be resolved against plaintiffs at the pleading stage of the proceedings. Because the statute of limitations defense might be established subsequently in this litigation, we will remand for further proceedings in which the parties' dispute regarding when the project actually was approved can be resolved.
On remand, the question regarding when the "approval of the project" occurred for purposes of subdivision (a) of Guidelines section 15062 will require application of the definition of "approval" contained in Guidelines section 15352:
Based on the definition of "approval" in Guidelines section 15352 and the Supreme Court's discussion of that definition, it appears that factual disputes might need to be resolved before the definition can be applied in this case and the date of approval determined.
As an alternate ground for their position that the CEQA claim is not time-barred, plaintiffs contend that City took subsequent discretionary actions that required CEQA review. Specifically, plaintiffs contend that on November 8, 2010, City decided to grant VWR International relief from the minimum parking requirements and on December 10, 2010, the City Council voted to approve the improvement and reimbursement agreements for roadwork related to the new distribution facility. Plaintiffs cite Orinda Assn. v. Board of Supervisors (1986) 182 Cal.App.3d 1145 [227 Cal.Rptr. 688] for the proposition that if a CEQA project involves both ministerial and discretionary approvals, the exemption available for the approval of the ministerial activity does not apply to the entire project and the later discretionary approval
Plaintiffs' alternate argument and the responses of City and VWR International to that argument cannot be definitively resolved at the pleading stage of this lawsuit. Questions regarding the "approval" of those allegedly discretionary actions entail underlying factual issues of who did what, when the acts occurred, and what the acts meant.
Plaintiffs' third cause of action alleges that VWR International has a duty to submit an application and obtain an indirect source permit from SJVAPCD pursuant to Rule 9510 and that SJVAPCD has an ongoing duty to enforce Rule 9510. Under the third cause of action, plaintiffs seek to compel SJVAPCD to enforce Rule 9510 and to enjoin VWR International from proceeding with the project until it has obtained an indirect source permit in compliance with Rule 9510.
In March 2011, plaintiffs and SJVAPCD entered a stipulated judgment, which the trial court approved and filed. Among other things, the stipulated
The stipulated judgment also provided that the trial court would retain jurisdiction to enforce its terms.
The stipulated judgment effectively resolved the claims the third cause of action asserted against SJVAPCD. As a result, the remaining issue regarding the third cause of action is whether plaintiffs can pursue a writ of mandate under Code of Civil Procedure section 1085 against VWR International, a private entity, based on its failure to apply for an indirect source permit under Rule 9510.
The trial court sustained the demurrer as to the third cause of action on the ground that plaintiffs lack standing. The trial court's order stated that none of the cases cited by plaintiffs analyzed the issue of the standing of a third party under Code of Civil Procedure section 1085 to compel a private entity to obtain a permit or comply with a rule of a governmental agency. On appeal, plaintiffs have made no effort to demonstrate that a writ of mandate under Code of Civil Procedure section 1085 can be issued against a private entity. They simply assert that the FAP alleges sufficient facts to establish public interest standing for enforcing Rule 9510.
We agree with the trial court's determination that plaintiffs have not established that VWR International, a private party, has any public duty that can be enforced by a writ of mandate. Phrased in terms of the mandamus statute, plaintiffs have failed to show that VWR International has "a duty resulting from an office, trust or station" to perform an act. (Code Civ. Proc., § 1085, subd. (a).) Therefore, we conclude mandamus does not lie against VWR International. As a result, we will uphold the trial court's order insofar as it sustained the VWR International's demurrer to the third cause of action.
The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the demurrer and to enter a new order (1) overruling the demurrer as to the first cause of action, (2) overruling the demurrer as to the claim against City in the second cause, (3) sustaining the demurrer without leave to amend as to the claim against VWR International in the second cause of action, (4) sustaining the demurrer without leave to amend as to the claim against VWR International in the third cause of action, and (5) sustaining the demurrer with leave to amend as to the sixth cause of action.
Appellants shall recover their costs on appeal.
Cornell, Acting P.J., and Gomes, J., concurred.
The Attorney General's Office also agrees with this position. It filed an amicus curiae brief that argued County of Amador remains good law and premature notices of exemption are invalid.
Another factual dispute that might need to be addressed at any such hearing concerns whether the notice of exemption was posted for the entire 30-day period.
