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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from September, 2014

City Violated its Municipal Code by Delegating CEQA Approval to its Preservation Commission

Thursday, September 11th, 2014

In Citizens for the Restoration of L Street v. City of Fresno, 2014 Cal. App. LEXIS 786,the Fifth Appellate District affirmed a judgment granting a writ of mandate challenging the City of Fresno’s (City) approval of an infill development project. The court upheld the trial court’s ruling that the City violated the California Environmental Quality Act (CEQA) by improperly delegating its approval authority to the City’s Historical Preservation Commission (Commission).

Developers sought to build 28 two-story townhouses on a vacant lot in downtown Fresno. The project site included two homes built in the early 20th century, which petitioners contended were historical resources under CEQA.

After the City conducted an initial study and filed a “Notice of Intent to Adopt a Mitigated Negative Declaration,” the Commission held a public hearing and determined that the buildings were not historical resources. The Commission also approved demolition permits for the buildings and adopted a motion approving the mitigated negative declaration. The City then unanimously adopted the findings of the Commission.

The court first affirmed the trial court’s finding that the Commission was not authorized to act as the City’s decisionmaking body by approving the mitigated negative declaration. The court explained that CEQA Guidelines section 21151, subdivision (c) allows the lead agency to delegate the authority to approve the project and the relevant CEQA review document. However, the Commission’s authority was limited by the City’s Municipal Code, which only provided the Commission the authority to “participate in environmental review procedures” and “provide review and comments on permit actions.” The court held these clauses suggested a secondary role and were too vague to grant the authority to conduct an environmental review and approve a final CEQA document.

Second, the court found the City’s subsequent project approval and adoption of the Commission’s findings did not cure the defects in the proceedings before the Commission. The City did not provide the proper notice nor show that it used its own independent judgment and analysis to determine that the project would not have a significant effect on the environment.  

Finally, the court denied petitioner’s appeal challenging the application of the substantial evidence test to the determination that no historical resources were impacted by the project. Citing Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, the court affirmed that the substantial evidence test, not the fair argument standard, applies to a lead agency’s discretionary determination of whether a building or district is a historical resource for purposes of CEQA.


CEQA allows lead agencies to delegate their authority to approve environmental review documents such as the Mitigated Negative Declaration, subject to an appeal to the elected decisionmaking body. However, this authority must be expressly authorized and will not be implied. Additionally, the court reiterated that a lead agency’s determination of whether a resource is historic under CEQA is governed by the substantial evidence standard of review. 

Court Publishes General Plan Consistency Discussion in Case Upholding San Francisco Redevelopment Project

Tuesday, September 9th, 2014

On September 4, 2014, the Court of Appeal for the Fifth District granted a request to publish an additional portion of the recent case San Francisco Tomorrow v. City & County of San Francisco, 2014 Cal. App. LEXIS 800. The previously published opinion affirmed the City and County of San Francisco’s approval of a redevelopment project near Lake Merced in southwest San Francisco. The court held the San Francisco General Plan contained adequate information regarding population density and building intensity for the project and the project was approved with adequate notice. The court also held that the trial court did not err by including transcripts of hearings in the administrative record that were not considered by the Board of Supervisors prior to certification of the EIR.  

In the newly published portion of the opinion, the court addressed Petitioners’ argument that the project was not consistent with the priority policies in the General Plan. Petitioners contended that the City was required to make detailed findings of consistency with the General Plan, rather than the general compatibility findings relied on by the City. The court rejected Petitioners’ argument and held that such specificity was not required.  According to the court, the City’s municipal code allowed the City to weigh and balance priority policies and the City did not abuse its discretion in determining the project was consistent with the General Plan. 

A complete summary of the case is available here:

Ninth Circuit Makes Key Permit Streamlining Act Ruling for Conditional Use Permit Applicants

Friday, September 5th, 2014

In American Tower Corporation v. City of San Diego, 2014 U.S. App. LEXIS 15641, the Ninth Circuit Court of Appeals upheld the City of San Diego’s (City) denial of three conditional use permits (CUP) for three cell tower facilities owned and operated by American Tower Corporation. The court reversed in part and affirmed in part the district court’s rulings.

After expiration of ten-year leases for three American Tower cell tower facilities, the City issued a letter with several conditions for renewal related to the size and visual impacts of the facilities. Each lease renewal required a CUP, which the City determined was exempt from the requirement of the California Environmental Quality Act (CEQA).  Following an extended period of negotiations, the City ultimately denied the lease renewals after holding a public hearing on each permit.

The court first reversed the district court’s decision that the City violated the time limits of the California Permit Streamlining Act (PSA). Under the PSA, a permit is deemed approved sixty days after the lead agency determines the permits are exempt from CEQA, but only if the lead agency provides “the public notice required by law.” American Tower claimed that because the City delayed more than sixty days in acting on the permit applications following its exemption determination, the CUP applications should be deemed approved as a matter of law.

The court looked to the meaning of the phrase “public notice required by law” and first found that the City had complied with the noticing requirements under its municipal code for issuance of a CUP.  The court also applied constitutional principles requiring affected property owners receive notice and an opportunity to be heard when adjudicatory land use decisions constitute a substantial deprivation of property rights.  Under these principles, the CUP applications could not be deemed approved because the due process component of “the public notice required by law” protects affected landowner’s right to meaningful participation at a public hearing, meaning that such notice cannot be complete before the hearing itself.  As a result, only public notice that specified the leases would be automatically approved if no action was taken would satisfy the constitutional requirements of “public notice required by law.” Because this was not stated in the hearing notice, the court found the district court erred in determining that the CUPs had been approved as a matter of law.

Next, the court considered arguments raised under the Federal Telecommunications Act. American Tower first claimed that the City’s decision to deny the CUP applications was not supported by substantial evidence because the City misapplied its own municipal code.  American Tower next claimed that denial of the applications constituted unreasonable discrimination among providers of functionally equivalent services. Finally, American Tower claimed that denial of the applications constituted an effective prohibition on wireless services.  The court found no merit to the claims and affirmed the district court’s grant of summary judgment in favor of the City.

Finally, the court rejected American Tower’s claims pursuant to California Code of Civil Procedure section 1094.5 and the Equal Protection Clause. American Tower did not have a fundamental vested right to continued operation of the cell tower facilities and the City’s decision to deny the permits was only subject to rational basis review. 


Applicants for conditional use permits seeking to trigger the automatic approval clause in section 65956 subdivision (b) of the Permit Streamlining Act have the burden of showing both a statutory and constitutional component of “public notice required by law.” Applicants must show (1) local requirements for notice were followed; and (2) if the approval would constitute a substantial deprivation of property rights of others, the applicant must show the other landowners were given reasonable notice and an opportunity to be heard.