May v. City of Milpitas, H038338

Decision Date16 July 2013
Docket NumberH038338
Citation217 Cal.App.4th 1307,159 Cal.Rptr.3d 310
CourtCalifornia Court of Appeals Court of Appeals
PartiesMichael MAY, et al., Plaintiffs and Appellants, v. CITY OF MILPITAS, et al., Defendants and Respondents; SCS Development Co., et al., Real Parties in Interest and Respondents.

217 Cal.App.4th 1307
159 Cal.Rptr.3d 310

Michael MAY, et al., Plaintiffs and Appellants,
v.
CITY OF MILPITAS, et al., Defendants and Respondents;
SCS Development Co., et al., Real Parties in Interest and Respondents.

H038338

Court of Appeal,
Sixth District, California.

Filed July 16, 2013



See 12 Witkin, Summary of Cal.
Law (10th ed. 2005) Real Property, § 836.

Trial Court: Santa Clara County Superior Court, Trial Judge: Hon. Joseph Huber. (Santa Clara County Super. Ct. No. 111CV214518)

Attorneys for Appellants: Lozeau Drury and Richard T. Drury and Michael R. Lozeau, San Francisco.

Attorneys for Respondents and Real Parties in Interest: Sheppard, Mullin, Richter & Hampton and David P. Lanferman, Arthur J. Friedman and Alexander L. Merritt, San Francisco, Rutan & Tucker and David P. Lanferman.

ELIA, J.

[217 Cal.App.4th 1316]

This case concerns Resolution No. 8132 (Resolution) adopted by respondent City Council of the City of Milpitas (City Council). The Resolution approved amendments to a site development permit, a tentative map, and a conditional use permit for the Citation Residential Project to allow the development of 732 condominium units. After the adoption of the Resolution, respondent City of Milpitas (City) filed a notice of exemption (NOE). Appellants Michael May and Carpenters' Local Union No. 405 sought to challenge the approvals on the ground that an environmental impact report (EIR) was not prepared in compliance with the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq.).1 Respondents demurred on the ground that the statute of limitations established by Government Code section 65457 had expired. The trial court sustained the demurrer without leave to amend. On appeal, appellants challenge that order.

We conclude that the trial court's order sustaining the demurrer was proper since appellants' allegations and judicially noticed documents show that the CEQA challenge is necessarily time-barred under Government Code section 65457. Accordingly, we affirm the judgment.

I
Procedural History

On December 7, 2011, appellants filed a verified petition for a peremptory writ of mandate and complaint for declaratory and injunctive relief (petition) against the City and its City Council. The petition seeks to set aside the City Council's November 1, 2011 Resolution approving Site Development Permit Amendment SA11–0005, Major Tentative Map Amendment No. TM11–0001, and Conditional Use Permit Amendment No. UA11–0008 for the Citation Residential Project (“Project”). The petition challenges the determination that the changes to the Project were exempt from CEQA review.

The petition includes the following allegations. On June 3, 2008, the City certified a programmatic EIR for the Transit Area Specific Plan (“TASP”). “The

[217 Cal.App.4th 1317]

TASP EIR expressly references the contamination at both the North American Transformer site and the Jones Chemical site, and noted the need for future analysis and mitigation.” “The TASP EIR does not discuss or analyze shallow soil vapor data collected at the 1200 Piper site” or “discuss or evaluate any impacts associated with the presence of TCE [toxic chemicals tricloroethylene] or PCE [perchloroethylene]” at the site. The TASP EIR does not apply any of the Bay Area Air Quality Management District's screening criteria or significance thresholds for greenhouse gases. “The TASP EIR does not discuss or analyze the extent of the Specific Plan's or any particular development project's ROG [reactive organic gases] emissions as compared to [the district's] new screening criteria and thresholds for ROGs adopted in 2010” or “discuss or analyze the Project's emission of ROGs and the availability of mitigations to address those project specific impacts.” “The TASP EIR does not discuss or analyze the potential impacts of toxic air contaminants on workers and future residents of the Project site.” “The TASP EIR requires each new project applicant to conduct a vibration impact analysis for sites adjacent to or within 300 feet of active rail line or BART alignments [and] anticipates that the City would require mitigation measures to reduce vibration to acceptable levels.”

The petition states that new information of substantial importance on these matters has “come to light since the City's adoption of the TASP EIR.” It alleges that City erred in relying on CEQA Guidelines section 15168, subdivision (c)(2), to exempt the project from CEQA. It also asserts that the City may not invoke the exemption from CEQA described by CEQA Guidelines section 15061, subdivision (b)(3).

The petition avers: “Where, as here, a specific plan EIR has admitted significant unmitigated environmental impacts, then later phases of the project require supplemental environmental impact reports to determine if any feasible mitigation measures can be imposed to reduce the impact.” It charges that the City was claiming, based on CEQA Guidelines section 15168, subdivision (c)(2), that “the Project is ‘exempt’ entirely from CEQA based on a conclusion that the Project was previously analyzed under the TASP EIR” and was “ignoring the fact that Project-specific hazardous contamination, air quality issues and traffic issues were not analyzed in the 2008 TASP EIR and new significant information ... has arisen since the certification of that EIR, factors which require preparation of an Initial Study and [a] supplemental CEQA document....”

Appellants' petition requests, among other relief, a peremptory writ of mandate directing respondents to set aside the project approval, the notice of exemption, and other approvals or grants related to the project “unless and

[217 Cal.App.4th 1318]

until” they have “prepared, circulated, and considered a legally adequate CEQA document” and to prepare and circulate an EIR for the project.

Respondents City and City Council and the real parties in interest 2 demurred on the ground that the action was time-barred under Government Code section 65457, subdivision (b), and CEQA Guidelines section 15182. In their supporting memorandum, they argued that the CEQA challenge was subject to the 30–day statute of limitations that commenced from the date of approval under Government Code section 65457, subdivision (b).

Appellants opposed the demurrer, arguing that the action was not untimely. They maintained that, since the City's NOE relied upon CEQA Guidelines sections 15168, subdivision (c)(2), and 15061, subdivision (b)(3), their petition was subjection to a 35–day statute of limitation under section 21167, subdivision (d), and CEQA Guidelines sections 15112, subdivision (c)(2), and 15062.

Appellants asked the trial court to take judicial notice of certain documents, including but not limited to the City Council's Resolution adopted on November 1, 2011 and the City's NOE, dated November 3, 2011.

The City Council's Resolution expressly stated that the approvals were for the Citation Residential Project to allow development of 732 condominium units located at 1200 Piper Drive. The Resolution determined that the project was exempt pursuant to CEQA Guidelines section 15168, subdivision (c)(2), because “the project is consistent with the certified EIR for Transit Area Specific Plan adopted on June 3, 2008 by the City Council.” The City Council's Resolution additionally determined that the project was exempt pursuant 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's NOE described the project as follows: “A request to amend the previously approved project to allow a fifth story and to replace a ‘wrap’ condominium unit building with townhomes.” It stated that the project was located at 1200 Piper Drive. The preprinted NOE form specified a number exempt statuses and contained the direction to “check one” of the boxes. On the City's NOE, the box for categorical exemptions was checked and

[217 Cal.App.4th 1319]

CEQA Guidelines sections 15168, subdivision (c)(2),3 and 15061, subdivision (b)(3),4 were typed in the space provided. The box for “Statutory Exemptions” was not checked.5

As to the “[r]easons why project is exempt,” the City's NOE explained: “The project is consistent with the certified EIR for the Transit Area Specific Plan adopted on 6/3/08. 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.” This description corresponds with the CEQA Guidelines sections specified on the form.

The trial court granted the appellants' request for judicial notice but sustained the demurrer. It concluded that Government Code section 65457 governed and the 30–day limitation period ran from the date of project approval on November 1, 2011. It rejected the argument that respondents had waived, or were estopped from relying upon, the provisions of Government Code section 65457. The court denied leave to amend as futile.

On March 29, 2012, judgment was entered in favor of respondents.

II
CEQA Background

A. Applicability of CEQA

“When it enacted CEQA, the Legislature imposed certain limitations on its scope. CEQA applies only to activities that meet the definition of a

[217 Cal.App.4th 1320]

‘project’ under the statute and its implementing administrative regulations. [Citation.]” (Sunset Sky Ranch Pilots Ass'n v. County of Sacramento (2009) 47 Cal.4th 902, 907, 102 Cal.Rptr.3d 894, 220 P.3d 905, fn. omitted.)

“A CEQA ‘project’ falls into one of three categories of ‘activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment....’ (§ 21065.)” (Sunset Sky Ranch Pilots Ass'n v. County of Sacramento, supra, 47 Cal.4th at p.908, 102 Cal.Rptr.3d 894, 220 P.3d 905.) “Under CEQA, a project is any activity undertaken, assisted, or authorized by a public...

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