CALIFORNIA SUPREME COURT UPDATE: Facially Valid Notice of Exemption Triggers 35-Day Statute Of Limitations, Even If Challenger Contests Underlying Process to Approve Project

In Stockton Citizens for Sensible Planning v. City of Stockton, (— Cal.Rptr.3d —-, Cal., April 1, 2010), the State Supreme Court considered whether a facially valid notice of exemption that states a public agency has approved a project under a California Environmental Quality Act (“CEQA”) exemption automatically triggers the 35-day statute of limitations provided for by CEQA for challenges to the approval process. The Supreme Court found that flaws in the approval process do not negate a notice of exemption and a properly filed notice of exemption triggers the 35-day statute of limitations.


In 1989, the City of Stockton (“City”) approved a plan for development of A.G. Spanos Park, which consisted of Spanos Park East (586 acres) and Spanos Park West (653 acres). An environmental impact report (“EIR”) was prepared prior to City’s approval of the plan. The development plan called for a mix of open space, recreational, commercial, and residential uses. The original plan featured a total of 7,460 residential units, with 2,983 units to be located in Spanos Park West.

In 2001, due to changed market conditions, A.G. Spanos Construction Company (“Spanos”) proposed revisions to the plan. The revisions provided for a portion of Spanos Park West to be designated as the A.G. Spanos Business Park (“Business Park”). A master development plan (“MDP”) was prepared for the Business Park. The MDP “was intended to serve as ‘the primary land use regulatory document that establishes the standards and strategies used to guide the course of development for a flexible plan mixed use project.'” The MDP was designed to ensure the ability to respond to change in economic circumstances.

In 2003, Doucet & Associates (“Doucet”), acting on behalf of Wal-Mart Stores, Inc. submitted a proposal for a 207,000 square foot store in Business Park. Business Park’s Design Review Board found the project was consistent with the MDP and told the Director of City’s Community Development Department (“Director”).

On February 17, 2004, acting on City’s behalf, Director filed with the county clerk a notice of exemption (“NOE”). The NOE listed the title of the project as “Site Plan, Grading Plan, Landscape Plan, Building Evaluations and Design Approval under the Spanos Park West Master Development Plan.” The NOE listed Spanos as the property owner and described the property’s locations as “the A.G. Spanos Business Park . . . ‘a fully entitled master planned development governed by’ an MDP adopted in January 2002.” The NOE stated “the primary goal of the [MDP] is to create a mix of [high quality] compatible commercial businesses and office space.” The NOE’s specific subject was described as retail use that would be constructed in two phases, the first of which was to be 138,722 square feet and the second was to be 68,888. Wal-Mart was not named and the project was not identified as a supercenter. The NOE stated that the project was consistent with the development standards contained in the MDP and City’s general plan and zoning regulations. The NOE also stated Director had determined the project conformed to the MDP and that such determination was a ministerial action not subject to CEQA review.

The Stockton Citizens for Sensible Planning and other plaintiffs collectively, “Citizens”) waited nearly six months after City filed the NOE to bring a lawsuit to challenge the approval of the Wal-Mart store. Citizens claimed that City, the City Council, Doucet, Spanos, and Wal-Mart (collectively, “City”) had violated CEQA by proceeding with the Wal-Mart project without first preparing an EIR.

City asserted Citizens’ lawsuit was untimely because it was not filed within 35 days of the filing of the NOE. Citizens claimed the 35-day statute of limitations was inapplicable. Both the trial court and the court of appeal agreed with Citizens that the NOE filed by City did not trigger the 35-day statute of limitations.


Citizens claimed Director’s act in approving the project was procedurally flawed and substantively mistaken and therefore did not trigger the 35-day statute of limitations. The Supreme Court disagreed finding that Citizens had to commence their lawsuit claiming that the underlying approval process failed to comply with CEQA within 35 days from City’s filing of the NOE.

“Ministerial project” are projects “whose approval involves little or no exercise of discretion or judgment by the public agency.” Ministerial projects are statutorily exempt from CEQA. If a local agency determines a project is exempt, it may file an NOE. If a challenger wants to bring an action or proceeding to challenge a public agency’s determination that a project is not subject to CEQA, CEQA provides that the action or proceeding must be commenced within 35 days from the filing of the NOE.

Pursuant to section 21167(d), “[a]n action or proceeding alleging that a public agency has improperly determined that a project is not subject to this division . . . shall be commenced within 35 days from the date of the filing by the public agency . . . of the notice authorized by . . . subdivision (b) of [s]ection 21152.” The Court found that section 21167(d)’s express language “strongly confirms that litigation challenging the validity of an agency’s determination to allow a project to proceed under a CEQA exemption must be timely, and that the shortest applicable period of timeliness is measured from the date on which an NOE setting forth that determination is filed.” The Court opined that “under the explicit statutory terms, claims of impropriety in the agency’s exemption determination may only be addressed in lawsuits commenced within 35 days after the agency properly files a notification of that determination, i.e., an NOE.”

The Court stated, “The shortest of all CEQA statutes of limitations apply to cases in which agencies have given valid public notice, under CEQA, of their CEQA-relevant actions or decisions.” The public is alerted upon the filing and posting of such notice “that any lawsuit to attack the noticed action or decision on grounds that it did not comply with CEQA must be mounted immediately.” However, where “constructive notice of the agency’s exemption determination is not provided by means of a filed NOE,” section 21167(d) provides for a 180 day limitations period.

The Court opined, “Whatever the actual defects or flaws in its process of approving the Wal-Mart project under a CEQA exemption, City attempted, by filing an NOE for the project, to comply with CEQA.” Pursuant to section 21167(d) it is “clear that suits claiming a project was ‘improperly’ approved as exempt from CEQA must be brought within the 35-day period after an NOE is filed and posted.” The Court concluded that “[t]his short limitations period, based on the fact the agency formally notified the public of its CEQA action, may not be avoided on grounds that the flaws in the approval process invalidated and nullified the NOE.”

The court stated, “[W]e are persuaded that when a properly filed NOE complies in form and content with CEQA requirements and declares the agency has taken an action that would constitute final approval of a project under a CEQA exemption, the 35-day period for challenging the validity of this asserted approval under CEQA begins to run.”


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