Appellate Court Upholds CEQA Exemption for New Fiber-Optic Cable Utility Boxes in San Francisco
In an unpublished decision in San Francisco Beautiful v. City and County of San Francisco, 2014 Cal. App. Unpub. LEXIS 3108, the First District Court of Appeal affirmed the denial of a writ of mandate challenging the City and County of San Francisco’s decision to approve AT&T’s installation of 726 metal utility boxes without requiring an Environmental Impact Report (EIR).
The utility boxes would be used to expand AT&T’s fiber-optic cable network in the city. The utility boxes would be approximately two feet tall and two feet wide and one foot deep, and be placed on public sidewalks throughout the city. The San Francisco Planning Commission found that the project could rely on CEQA’s Class 3 categorical exemption for “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures . . . .” Neighborhood groups San Francisco Beautiful and the Planning Association for the Richmond challenged the Planning Commission determination, arguing that the utility boxes presented “unusual circumstances” and would have cumulative significant effects on the environment that required preparation of an EIR.
San Francisco Beautiful first argued that the Class 3 exemption only applied to “previously existing” small structures. The court rejected this argument, stating that it did not matter whether the structures were previously built and that if the Legislature had intended that, it would have said so.
San Francisco Beautiful further argued that, even if the Class 3 exemption applied, the project fell within an exception. First, San Francisco Beautiful argued that the “unusual circumstances” exception in CEQA Guidelines section 15300.2, subdivision (c) applied, which states that no CEQA exemption applies where there is a reasonable possibility the activity will have a significant environmental effect due to unusual circumstances. The court disagreed, holding that the utility boxes: 1) did not present unusual circumstances because they did not differ from the general circumstances of other sidewalk structures, and 2) the circumstances did not create an environmental risk that did not exist for all other sidewalk structures.
San Francisco Beautiful also argued that the cumulative impacts of the project took it out of the Class 3 exemption. CEQA Guidelines section 15300.2, subdivision (b) provides that an exemption does not apply “when the cumulative impact of successive projects for the same type in the same place, over time is significant.” The court found this exception inapplicable because the utility boxes were not in the “same place” as required by the express language of the exception. Cumulative effects are limited to the effects of each utility box, not the net effect of all boxes throughout the city. The court stated that the exception would swallow the rule if the court found otherwise as agencies would always be required to consider the impacts of successive similar projects, which would almost always result in significant impacts over time.
San Francisco Beautiful finally argued that the city imposed mitigation measures and, as a result, the project could not qualify for an exemption. San Francisco Beautiful pointed to a memorandum of understanding between the city and AT&T in which AT&T agreed to, among other things, pay the cost of graffiti removal, provide for additional notice for each cabinet site, and consider non-sidewalk locations for the cabinets. The court found that this agreement was not the basis of the city’s approval of the project. As a result, the memorandum of understanding did not constitute a mitigation measure and the plaintiffs’ writ of mandate was denied.
Key Point: The court acknowledges a continuing split in authority regarding the proper standard of review for determining whether the “unusual circumstances” exception applies to use of a categorical exception. The court dodges the issue, however, finding that it would reach the same result whether it reviewed the record for substantial evidence to support the city’s determination or for evidence to support a fair argument of a significant impact.