A challenge to a city’s approval of a residential development project was filed more than 30 days after the city approved the project. The trial court held that the California Environmental Quality Act (“CEQA”) challenge was time-barred under the exemption relied upon by the city. The court of appeal affirmed that decision finding that the 30-day limitations period ran from the date of project approval even though the city filed a notice of exemption. (May v. City of Milpitas (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., July 16, 2013).
On November 1, 2011, the City Council of the City of Milpitas (“City Council”) passed a Resolution approving a site development permit amendment, a major tentative map amendment, and a conditional use permit for the Citation Residential Project (“Project”). The Project would allow the development of 732 condominium units. The Resolution found that the Project was exempt from CEQA pursuant to “CEQA Guidelines section 15168, subdivision (c)(2), because ‘the project [was] consistent with the certified EIR for the Transit Area Specific Plan (“TASP”) adopted on June 3, 2008 by the City Council.’” The Resolution further found that Project was exempt under CEQA Guidelines section 15061, subdivision (b)(3), ‘because there was no possibility that the activity in question may have a significant effect on the environment.’”
The City of Milpitas (“City”) filed a Notice of Exemption (“NOE”) on November 3, 2011. The NOE described the Project as “[a] request to amend the previously approved project to allow a fifth story and to replace a ‘wrap’ condominium unit building with townhomes.” The NOE was a preprinted form that listed a number of exempt statuses and instructions to “check one” of the boxes. On City’s NOE, the categorical exemptions box was checked and typed in the space provided was “CEQA Guidelines sections 15168, subdivision (c)(2), and 15061, subdivision (b)(3).” However, the “Statutory Exemptions” box was not checked. City explained that the reason the project was exempt was because the “project [was] consistent with the certified EIR for the [TASP] adopted on 6/3/08.” The NOE also stated, “The project can also be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”
On December 7, 2011, Michael May and Carpenter’s Local Union No. 405 (collectively, “May”) filed a verified petition for peremptory writ of mandate and complaint for declaratory relief against City and City Council. May challenged the Resolution and approval of the amendments on the ground that an environmental impact report (“EIR”) was not prepared for Project. The trial court sustained the demurrer in favor of City and City Council finding that Government Code section 65457 establishes the applicable statute of limitations and the 30-day limitation period provided for under that section ran from the date of project approval, which was November 1, 2011. Because May did not file his petition until December 7, 2011, more than 30 days after approval of the Project, the court determined that his action was time-barred.
The court of appeal affirmed the decision of the trial court. CEQA only applies to activities that fall within the definition of a “project.” A project within the meaning of CEQA “is any activity undertaken, assisted, or authorized by a public agency that may have a significant effect on the environment.” An activity is not a project within the meaning of CEQA “if it has absolutely no potential to ‘cause either direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.’”
If a local agency determines that a project is not subject to CEQA, “it may file a notice of this determination, which is referred to as a notice of exemption.” Pursuant to Public Resources Code section 21167, “CEQA review must generally be sought within 35 days of the filing of a facially valid NOE.” However, Government Code section 65457, subdivision (b), provides that an action that alleges “a public agency has approved a project pursuant to a specific plan without having previously certified a supplemental environmental impact report for the specific plan . . . shall be commenced within 30 days of the public agency’s decision to carry out or approve the project.” Government Code section 65457 and the implementing CEQA Guidelines, section 15182, subdivision (e), state that a court action brought to challenge approval of a residential project subject to these exemptions and alleging the failure to file a supplemental EIR must be commenced within 30 days from the time the lead agency decides to approve the project.
May asserts that a supplemental EIR was required because of substantial changes regarding the circumstances under which the Project was being undertaken and that new information had come to light that was unavailable when the TASP was certified. City, however, determined that the Project was consistent with the 2008 EIR for the TASP and that the Project did not present any possibility of significant environmental effect.
The court found that City Council’s Resolution factually invoked Government Code section 65457’s exemption for residential development projects. The 30-day statute of limitations found in section 65457 “is not made contingent upon the filing, or the omission to file, an NOE.” The 30-day period begins to run upon the local agency’s decision to approve the project. The court found that when May filed the petition “on December 7, 2011, it was already time barred because the 30-day statute of limitation had run.” The court stated, “It affirmatively appears from the face of the petition together with the judicially noticed documents that this CEQA challenge is necessarily time-barred by Government Code section 65457’s 30-day statute of limitations.” The trial court properly sustained the demurrer.
The court found that the mere filing of the NOE did not render section 65457 inapplicable. Also, the filing of the NOE did not necessarily trigger the 35-day statute of limitation. The court found that “[w]hen read in context, it is apparent that CEQA Guidelines section 15062, subdivision (d), specifying a 35-day limitations period, is inapplicable to Government Code section 65457’s exemption.” Also, the court noted that Government Code section 65457 “is addressed to a narrow and specific circumstance.” It concluded that “[g]iven the Legislative intent underlying its enactment and the cardinal principles of statutory interpretation, the later enacted and more specific Government Code section 65457, subdivision (b), prevails over section 21167, subdivision (d), in the present case if there is a conflict.”