In Citizens for Environmental Responsibility v. State ex rel., the Third Appellate District affirmed the denial of a CEQA petition relating to the 14th District Agricultural Association’s and its Board of Directors’ (collectively District) use of the Class 23 categorical exemption in approving a small-scale two-day rodeo at an existing Fairground. The case was originally decided by the Third Appellate District in March 2014 and a petition for review to the Supreme Court was filed in June 2014. The Supreme Court granted petition for review in July 2014; however further action by the court in this matter was deferred pending consideration and disposition of a related issue in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside). In August 2015, review of the matter was transferred back to the Third District Court of Appeal for reconsideration in light of the decision in Berkeley Hillside.
Appellants Citizen for Environmental Responsibility, et al. argued that the exemption employed by the District was inapplicable because: (1) the rodeo project expressly included mitigation measures in the form of a Manure Management Plan, in effect acknowledging potential environmental effects; and (2) the unusual circumstances exception to categorical exemptions applies because of alleged stormwater runoff impacts.
The notice of exemption (NOE) stated that the rodeo was categorically exempt under the Class 23 exemption for “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose.” The NOE identified the Fairground as an existing facility designed for public gatherings, primarily the county fair, as well as other public events throughout the year, including equestrian and livestock events. In addition, the NOE laid out the historical operations of the fair, which have occurred annually for over a century. The NOE also recognized that the existing equestrian facilities have been in existence for at least fifty years, and equestrian and livestock activities have always been accommodated at the fair ground. The NOE concluded that there were no exceptions to the categorical exemption due to the fact that no facilities would be altered, and the project would not result in impacts on a resource of critical concern with implementation of the District’s ongoing Manure Management Plan.
With regards to the Manure Management Plan (Plan), the court applied Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, and recognized that the Plan was not a new measure proposed for or necessitated by the rodeo project. Rather, the Plan was a preexisting measure previously implemented to address a preexisting concern, which was formalized in writing before the rodeo project was proposed. Accordingly, the Manure Management Plan was considered part of the ongoing “normal operations” of the Fairground and use of the Plan would not disqualify the rodeo project from utilizing the Class 23 exemption. Further, the court recognized that the Plan was not proposed as a mitigation measure for this particular rodeo. Rather, the Plan was in place for decades to address ongoing manure management concerns at the Fairgrounds.
Turning to appellant’s argument that the unusual circumstances exception to categorical exemptions applies, the court applied the Supreme Court’s recent decision, Berkeley Hillside, supra, 60 Cal.4th at p. 1086, which outlines additional clarification regarding two alternative ways to establish unusual circumstances: (1) a challenger may prove an unusual circumstance distinguishes the project from others in the exempt class; or (2) a challenger may establish that the project will have a significant effect on the environment, thus presenting unusual circumstances.
The court indicated that with regards to the first alternative, the rodeo project had no unusual circumstances to distinguish it from others in the exempt class (e.g., other “normal operations” of the Fairground). The normal operations of the Fairground included at least two dozen equestrian and/or livestock events each year for at least the last three years leading up to the rodeo. The proposed rodeo did not involve more horses or livestock than were used for other events, and no changes to the facility or the operations were necessary. Moreover, the rodeo was consistent with the existing zoning and presented no unusual circumstances compared to the activities in the surrounding area. The court found that the appellants had not produced substantial evidence supporting a finding of unusual circumstances based on features related to the rodeo project, and concluded that the agency’s determination of the absence of unusual circumstances was supported by substantial evidence.
Applying the second alternative, the court recognized that the appellants made no attempt before the District’s Board or in the trial court to prove the project will actually have a significant effect on the environment. The appellants effectively argued that the rodeo project creates an environmental risk to a neighboring creek because they believed there was a reasonable possibility that the project may have a significant environmental effect on the creek. Appellants were not able to supply evidence regarding the Fairground’s operations or the neighboring creek to establish a significant effect would occur. In fact, Fairground sampling by the District demonstrated that water leaves the Fairground in a cleaner state than when it enters. The court concluded that the appellants failed to establish unusual circumstances based on substantial evidence that the project will have a significant effect on the neighboring creek.
Site management activities will not be considered “mitigation” where they have been place prior to a proposed action to address an ongoing concern. This case also provides a helpful example of how to apply the Berkley Hillside analysis in determining whether the unusual circumstance exception applies to a categorical exemption.