APPEAL from a judgment of the Superior Court of Tulare County. Paul Anthony Vortmann, Judge. (Super. Ct. No. VCU240546)
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
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)*fn2 and provisions of the Visalia Municipal Code regarding permits. They also contend that City's agreement to reimburse VWR International for street improvements associated with the new facility constituted an illegal expenditure of public funds because it violated a section of the Visalia Municipal Code prohibiting payments to developers. In addition, plaintiffs sought a writ of mandate against VWR International to compel its compliance with the San Joaquin Valley Air Pollution Control District (SJVAPCD) rules concerning air pollution from indirect sources.
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."*fn3 In connection with the construction of the facility, improvements will be made to adjacent streets. (The facility and street improvements are collectively referred to as the "project.") Plaintiffs allege that when the new facility is open, VWR International plans to close older regional facilities in Brisbane, California; Aurora, Colorado; and San Dimas, California
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, being exposed to significant risks from the handling, transportation and storage of highly toxic chemicals without proper safeguards."*fn4
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. It alleges that it has supporters that live near the proposed project and that these supporters will suffer injury as a result of violations of law related to the proposed project.
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 dozen 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.*fn5
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.*fn6
The Petitions and Complaints
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,*fn7 and illegal government expenditures.*fn8 The Coalition for Clean Air, Center for Environmental Health, and Association of Irritated Residents were added as plaintiffs.
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.
In October 2010, the County of Tulare Resource Management Agency wrote to City urging it to conduct a CEQA review and determine whether the project complied with SJVAPCD Rule 9510 for indirect source review.
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 the California 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 part V.A. of this opinion, which discusses the sixth cause of action.
VWR International's Demurrer
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 claims, and (3) the allegations of illegal government expenditures were insufficient to state a cause of action. City joined in this demurrer.
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.
Hearing and Order on the Demurrer
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.*fn9
I. MATTERS CONCERNING THE APPELLATE RECORD*fn10
A. Motion to Consider Declaration of Tom Franz
Shortly after the notice of appeal was filed, plaintiffs filed a motion with this court to consider additional evidence pursuant to Code of Civil Procedure 909. The additional evidence was the declaration of Tom Franz, the president of plaintiff Association of Irritated Residents, which addressed the manner in which the Tulare County Clerk's Office maintained CEQA notices for public review. This court deferred ruling on plaintiffs' motion pending consideration of the appeal on its merits.
Since we do not reach any issue involving the manner in which the notice of exemption was posted for public review or how long it was posted, the statements in Franz's declaration are not relevant to the matters decided in this opinion. Moreover, the question whether the notice was posted for the full 30-day notice period required by section 21152, subdivision (c) or removed before the end of the 30th day is a question of historical fact that should not be decided in the first instance by a court of review. Consequently, we deny plaintiffs' motion to consider additional evidence.
B. Request for Judicial Notice of Superior Court Local Rule
On March 14, 2012, City filed a request for judicial notice concerning Tulare County Superior Court Local Rule 100, which concerns hours of operations and filing of documents with the court. This court deferred ruling on City's request for judicial notice pending consideration of the appeal on its merits.
City's appellate brief referred to the local rule in discussing whether the notice of exemption was posted for the entire 30-day period. Because we do not reach that issue, we deny City's March 14, 2012, request for judicial notice.
C. Judicial Notice of Visalia Municipal Code Provisions
On May 11, 2012, plaintiffs filed a request for judicial notice of five chapters of the Visalia Municipal Code--specifically, chapters 16.44, 17.04, 17.22, 17.28 and 17.46. Plaintiffs contend these chapters are relevant because they set forth the requirements and procedures to obtain a planned development permit for development in a planned heavy industrial zone.
It is well settled law that a reviewing court may consider matters subject to judicial notice in addition to the factual allegations of a pleading when evaluating an order sustaining a general demurrer. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 (Committee for Green Foothills).) Pursuant to Evidence Code section 459, appellate courts have the authority to take judicial notice of matters specified in Evidence Code section 452. Subdivision (b) Evidence Code section 452 authorizes judicial notice of "[r]egulations and legislative enactments issued by or under the authority of ... any public entity in the United States." Therefore, this court has the authority to take judicial notice of the provisions of Visalia Municipal Code. (See Madain v. City of Stanton (2010) 185 Cal.App.4th 1277, 1280, fn. 1 [court granted city's request that it take judicial notice of portions of municipal code].) Pursuant to this authority, we grant plaintiffs' request for judicial notice of the provisions in chapters 16.44, 17.04, 17.22, 17.28 and 17.46 of the Visalia Municipal Code.
II. STATUTE OF LIMITATIONS APPLICABLE TO CEQA CLAIM A. Background Facts
On November 3, 2010, City filed a notice of exemption that referenced Guidelines section 15268*fn11 and stated the project was exempt from CEQA review as a ministerial action. The notice of exemption was in the format for notices of exemption set forth in appendix E of the Guidelines.
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.*fn12 Plaintiffs claimed the project was not exempt from CEQA and City was required to prepare an EIR.
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: "The official City of Visalia Agenda Item Transmittal for the ...