Decision Published In Favor Of Rutan & Tucker, LLP Clients
PALO ALTO, Calif., July 29, 2013 – The California Court of Appeal, Sixth Appellate District, published a decision on July 16, affirming the dismissal of a California Environmental Quality Act (CEQA) challenge to the City of Milpitas, California’s approval of a multi-family residential development in the City’s Transit Area Specific Plan community.
Led by Partner Dave Lanferman, attorneys at Rutan & Tucker, LLP, one of California’s largest full-service law firms, represented the City and the developer, SCS Development and Citation Homes, in the defense of the City’s CEQA determination and approval for an amendment to a 732-unit residential condominium project in the May v. City of Milpitas and SCS Development case.
The City had determined that the project was exempt from further CEQA review because it was a residential development that conformed with a recently approved specific plan for which an Environmental Impact Report (EIR) had previously been prepared and certified. The Court held that the petitioners, including a local chapter of the Carpenters’ Union, had failed to bring their challenge to the City’s approvals within the 30-day period specified by Government Code section 65457, and is the first published decision involving application of that statute’s limitations on challenges to CEQA exemptions.
Government Code section 65457 expressly provides for an exemption from CEQA in such situations, unless there has been a change in circumstances or significant new environmental information since the specific plan EIR was certified. The code also provides that any lawsuit challenging a city’s exemption decision on this basis must be filed within 30 days of the project approval. The appellants in the case, who had not challenged either the Specific Plan EIR or the initial project approvals, failed to file their writ petition to challenge the most recent City approvals for the project amendment, including the City’s determination that the amendment was exempt from further CEQA review, within 30 days of the City’s action. Rutan attorneys objected to the CEQA writ petition on the grounds that it was not timely filed, and consequently was barred by the 30-day statute of limitations.
“The Court’s decision is significant as it is one of the few published decisions involving the application of GC 65457,” said Lanferman. “The Court of Appeals agreed with us that the exemption of GC 65457 was applicable to the facts as alleged in the Petition, and therefore the challenge to that decision needed to be filed within the time specified by that statute.” Lanferman said that the decision has several aspects that will be important in the evaluation of future residential projects under CEQA and in implementing the Legislature’s efforts to facilitate or streamline environmental review for conforming residential projects and to limit unnecessary and redundant CEQA reviews. He noted that the Court’s decision detailed the history and legislative intent in creating an exemption from CEQA review for residential projects that are in conformity with a CEQA-certified specific plan. The Court said, “The very purpose of GC 65457’s exemption is to generally excuse a residential development project within its scope from further environmental review, except where an event specified in PRC section 21166 occurs, such as new information or significantly changed circumstances.”
Lanferman’s practice emphasizes real estate development, land use approvals, entitlements, housing development, and a wide range of real estate-related litigation. His land use expertise includes CEQA compliance and litigation, environmental mitigation and development impact fees and conditions of approval, zoning and subdivision approvals and regulatory compliance. His extensive real estate litigation experience includes CEQA challenges, development fees, special taxes, assessments, air quality regulations, storm water fees, eminent domain and inverse condemnation, administrative hearings and appeals, and a wide range of land use writs and appeals.
About Rutan & Tucker LLP
Rutan & Tucker is California’s largest full-service law firm headquartered in Orange County, California with offices in Costa Mesa and Palo Alto. Primary practice areas include business and real estate litigation, corporate and securities law, labor and employment law, intellectual property, real estate, municipal and government agency law, land use law, bankruptcy, condemnation and property valuation, environmental law, and taxation and estate planning. Detailed information about the firm is available at www.rutan.com.