A recent Sixth District Court of Appeal decision serves as a pointed reminder to practitioners that CEQA exemptions and limitations periods are not always neatly grouped within those statutory provisions of the Public Resources Code known as the “California Environmental Quality Act” (“CEQA”; Pub. Resources Code, § 21000 et seq.).  Statutes other than CEQA, including provisions codified in the Education Code, Government Code, Health & Safety Code, Water Code, and non-CEQA portions of the Public Resources Code also provide statutory exemptions to CEQA’s requirements.  In May v. City of Milpitas (6th Dist., 7/16/13) 217 Cal.App.4th 1307, the Court applied one such “outlier” statute — Government Code § 65457 — to affirm a judgment dismissing a carpenters’ local union’s CEQA challenge to a residential development project as time-barred.

The relevant facts are straightforward.  By Resolution adopted on November 1, 2011, the City ofMilpitasapproved amendments to a site development permit, tentative subdivision map, and conditional use permit for a 732-unit condominium project in an area covered by its Transit Area Specific Plan (“TASP”).  On November 3, 2011, the City filed a Notice of Exemption (“NOE”) form referencing CEQA Guidelines §§ 15168(c)(2) (project with no new effects or mitigation needed within scope of program EIR) and 15061(b)(3) (“common sense” exemption).  On December 7, 2011, Petitioners May and Carpenters’ Local Union No. 405 (“Petitioners”) filed a petition for writ of mandate challenging the City’s determination that the project changes were exempt from CEQA review, alleging that the programmatic TASP EIR failed to analyze on-site contamination and other potential impacts, and asserting new significant information had arisen since the TASP EIR’s certification, requiring a supplemental EIR.

City demurred to the petition on the grounds that it was subject to and barred by the 30-day statute of limitations of Government Code § 65457(b).  The trial court sustained the demurrer without leave to amend and the Court of Appeal affirmed.

Rejecting Petitioners’ argument that a 35-day limitations period applied due to the City’s filing of the NOE – as would ordinarily be the case – the Court of Appeal noted that Government Code § 65457, which is part of the Planning and Zoning Law, “sets forth an exemption from CEQA for residential development projects that are undertaken to implement and consistent with a specific plan for which an EIR has been certified.”  Further, this section “provides an attendant, special statute of limitations” which states:  “An action or proceeding alleging that a public agency has approved a project pursuant to a specific plan without having previously certified a supplemental [EIR] for the specific plan, where required by subdivision (a), shall be commenced within 30 days of the public agency’s decision to carry out or approve the project.”  (Gov. Code, § 65457(b); see 14Cal. Code Regs., § 15182(e) [implementing CEQA Guidelines section providing that “court action challenging the approval of a [residential] project under this section for failure to prepare a supplemental EIR shall be commenced within 30 days after the lead agency’s decision to carry out or approve the project in accordance with the specific plan.”].)

The City’s further approvals of the condominium project “in essence factually invoked Government Code section 65457’s exemption for residential development projects ‘undertaken to implement and…consistent with a specific plan for which an environmental impact report has been certified after January 1, 1980.’”  Its Resolution stated the project was exempt and “consistent with the certified EIR for the [TASP] adopted on June 3, 2008.”  Moreover, “[t]he petition, the Resolution, and the NOE reflect that the City Council had previously approved the residential development and, in approving the proposed amendments, the City Council found that the project was consistent with the TASP for which an EIR had been certified.”  Section 65457’s legislative history “discloses that the very purpose of [its] exemption is to generally excuse a residential development project within its scope from further environmental review except where an event specified in [Public Resources Code] section 21166 occurs.”

Comparing and contrasting this statutory exemption and its unique limitations period with other exemptions under CEQA, the Court of Appeal observed:  “Government Code section 65457’s 30-day statute of limitations is not made contingent upon the filing, or the omission to file, an NOE.  (Gov. Code, § 65457, subd. (b); cf.  [Pub. Resources Code,] § 21167. subd. (d).)  Moreover, it begins to run upon the agency’s decision to approve the project.”  While Public Resources Code § 21167(d) sets forth, inter alia, a 35-day limitations period where a NOE is filed, and which is triggered by the NOE’s proper filing and posting, that period applies only to actions alleging an agency has improperly determined a project is exempt “pursuant to…Section 21080[(b)] or [now former] Section 21172… .”  The latter section didn’t apply in this case, and, crucially, Public Resources Code § 21080(b) sets forth a list of statutory exemptions and activities not subject to CEQA that does not encompass Government Code § 65457.  Thus, unlike the case with CEQA’s categorical exemptions promulgated by the Secretary for Resources pursuant to Public Resources Code § 21084, which are found in Article 19 of the CEQA Guidelines (14 Cal. Code Regs., §§ 15301-15333 [listing 33 categorically exempt classes of projects]), the filing of the NOE here did not serve to trigger a 35-day limitations period to challenge the approval.

Finally, the Court found that even if the City’s filing of a NOE citing an inapposite Guidelines section (14 Cal.Code Regs., § 15061(b)(3)), and failing to cite the applicable section (§ 15182(e)), created a conflict between Public Resources Code § 21167(d)’s 35-day limitations period and the 30-day period of Government Code § 65457, the latter statute as “the later enacted and more specific” provision would prevail.  Moreover, no theory of estoppel based on the City’s NOE would justify granting Petitioners leave to amend their time-barred petition because there could be no reasonable detrimental reliance on the inaccurate NOE.  According to the Court:  (1) “a party’s inaccurate statement of the law or failure to remind the other party about a statute of limitations cannot give rise to an estoppel”  and (2) “[f]or purposes of analyzing estoppel claims, attorneys are ‘charged with knowledge of the law in California’” and “appellants were represented by counsel, who filed the petition.”

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit www.msrlegal.com.