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Categorical Exemption Applies to Single Family Residence Project on Demolished Historical Resource Site

Tuesday, September 18th, 2018

Windemere Cottage as it existed in La Jolla, CA. (La Jolla Historical Society)

In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, the Fourth District Court of Appeal held that the City of San Diego (City) violated CEQA where it refused to rely on a categorical exemption and instead required that an EIR be prepared for a single family residence project (Project) on a vacant lot. Invoking the unusual circumstances exception, the City rejected the categorical exemption based on adverse impacts to a historical resource.  Earlier, the project applicant/property owner had lawfully demolished the Victorian-era cottage on the Project site. The Court concluded it was improper for the City to conduct retroactive environmental review premised on the cottage’s existence, and established that the baseline was the Project site without the cottage.

In 2011, the Bottini family bought the Project lot, the cottage on the site, and acquired the rights to a pending historical resource nomination in front of the City’s Historical Resources Board (Board). The Bottinis withdrew the nomination and asked the Board to issue a determination on the cottage’s eligibility for a historic designation. The Board initially found that the cottage ineligible for listing because the cottage had undergone too many alterations to meet applicable criteria. Following a public hearing and receipt of public comments, the Board declined to grant the cottage historical status. Local groups appealed this decision but those appeals were dismissed as untimely.

Later that year, the Bottinis requested that the City’s Neighborhood Code Compliance Division determine that the cottage was a nuisance under the City municipal code. The Division determined the cottage was uninhabitable to the point that no one should be allowed to occupy it and found it was a public nuisance in accordance with criteria set out in the City’s municipal code. As such, it was required to be demolished. The Bottinis bulldozed the cottage leaving an empty lot in its place.

In 2012, the Bottinis applied for a coastal development permit (CDP) to build a single-family home. City environmental staff determined the Project was categorically exempt from CEQA review as a new residential construction on a vacant lot. The La Jolla Community Planning Association and La Jolla Historical Society appealed the decision. The City Council, despite being informed by staff and the City Attorney that the Bottinis had followed the municipal code, remanded the project to the Planning Department to evaluate the Project with a January 2010 baseline—before the Bottinis owned the property and the cottage was demolished. The City Council further concluded that the Project was not categorically exempt from environmental analysis because, with the new baseline, the Project would have a significant effect on the environment due to unusual circumstances and adverse changes to a historical resource. The Bottinis filed suit alleging, among other things, that the City violated CEQA in this determination.

The trial court held that the Project was the construction of a single family home, not the demolition of the cottage. The trial court further determined that the baseline should have been set at the point when the application was submitted and the lot was vacant. On that basis, the trial court found the City abused its discretion in concluding the Project was not categorically exempt from CEQA review. The City appealed this decision.

The Appellate Court first addressed baseline standards as they apply to CEQA; “the baseline ‘normally’ consists of the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental analysis is commenced.” Here, the already-demolished and non-existent cottage was not part of the existing conditions that would be affected by the Project. The Court also concluded that the Bottinis’ demolition of the cottage was permitted by the City’s municipal code.

The Court then held that a “project” for the purposes of CEQA is the “whole of an action” and may not be segmented to avoid review. With this in mind, the demolition permit was still a separate project because it served a separate purpose than the Project—to preserve the health and safety of the City by removing a nuisance. Neither the demolition permit nor the Project application referred to or relied on one another.

The Court highlighted that all parties conceded that the City’s issuance of the demolition permit is a ministerial action not subject to CEQA. CEQA specifically provides that it only applies to discretionary projects—projects over which the lead agency may influence the plans and environmental impacts. The demolition permit was therefore outside the scope of the City Council’s CEQA review.

Finally, the Court established that no exception to the categorical exemption applied here. With properly defined Project parameters and a properly considered Project baseline, it was clear that substantial evidence did not support the City Council’s conclusion. There was no historical resource to be affected and no unusual circumstances making the categorical exemption improper.

Considering the above, the Court affirmed the trial court’s holding.

Key Point:

A categorical exception is properly applied to a single family home construction project where a historical resource on the site has been demolished prior to project application.

Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

Thursday, June 28th, 2018

An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal. App. 5th 666, the Second District Court of Appeal held that the approval of groundwater well permits was a ministerial act and not subject to CEQA environmental review because no discretion was exercised when such permits were issued.

County of San Luis Obispo (County) staff, after finding that four groundwater well permit applications were complete and complied with County and state standards, approved each well permit without conducting CEQA review. Specifically, staff alleged the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources.

California Water Impact Network (Network) filed suit claiming that the County improperly failed to conduct CEQA review and, in doing so, “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County that no CEQA review was necessary for ministerial actions and granted the County’s demurrer.

The Appellate Court agreed with the trial court and the County that no CEQA review was required where such permit approvals were exempt as “ministerial projects” under Public Resources Code section 21080(b)(1). The Court described where a ministerial project does and does not exist and rejected Petitioners’ argument that the recently enacted Sustainable Groundwater Management Act altered the County Code.

The Court clarified that a ministerial act is where “little or no personal judgement” is used by the public official; the law is applied to the facts and no individualized or special consideration is required. The Court noted that well permits are a type of building permit which are “presumed to be [a] ministerial [act].” In contrast, a discretionary act involves judgement or deliberation. The Court reviewed the legislative intent, stated that agencies conducting ministerial acts have no ability to influence the project, and concluded that such acts are excluded from CEQA review.

Citing rules on judicial statutory interpretation, the Court rejected appellant’s argument that the County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear: a well permit “shall be issued” so long as the listed conditions are met. The Court affirmed the trial court’s decision to uphold the permits.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.

Second Appellate District Upholds PG&E Lease Extension as Categorically Exempt from CEQA, Finds Unusual Circumstance Exception Inapplicable to Extension of Nuclear Power Plant Lease

Wednesday, June 13th, 2018

Ocean intake water flow can be seen at the Diablo Canyon Power Plant. (PG&E)

In World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476, the Second Appellate District determined that renewing a lease for an existing power plant constituted a categorically exempt “existing structure” project under CEQA and the record did not support an “unusual circumstances” exception to the exemption.

Diablo Canyon Power Plant is a nuclear power plant that has been in operation since 1985 but is set to close by 2025. Owned and operated by PG&E in San Luis Obispo County, the plant’s cooling system draws in seawater as well as incidental aquatic plants and animals from state-owned tidal and submerged lands then expels heated water back into the sea. The leases for the water intake and discharge systems were to expire in 2018 and 2019.

PG&E submitted a single lease renewal application to the California State Lands Commission (Commission) to replace the expiring leases (Project). A staff report confirmed the Project would not require additional environmental review under the existing facilities exemption (CEQA Guidelines, § 15301) unless it was found to be an unusual circumstance meriting exception (CEQA Guidelines, § 15300.2(c)). After weighing the potential seismic and environmental impacts, the Commission found that the Project would not have a new significant effect on the environment due to unusual circumstances, moved to support the staff report, and issued a notice of exemption for the lease renewal.

World Business Academy filed suit alleging that the Commission’s actions violated CEQA where the lease approval would irreparably injure and deplete the marine ecosystem surrounding the plant. The trial court held the lease replacement fell squarely within the existing facilities exemption to CEQA and the unusual circumstances exception did not apply. World Business Academy timely appealed.

The Appellate Court affirmed the Commission’s lease approval under the existing facilities exemption.

The Court determined the Project was exempt from CEQA review as an existing facility, per CEQA Guidelines section 15301. Appellants argued that unlike other existing utility structures, nuclear power plant projects cannot be categorically exempt from CEQA because of the significant environmental impacts they have by their de facto operation. Further, the legislative history of the exemption indicated the meaning of “provide electric power” implicated structures which disseminate power, not power generating facilities themselves. The Court disagreed. Under the plain meaning of the statute, “provide electric power” reasonably included a power plant.

The Court rejected a related argument that the Commission lacked the authority to consider nuclear power plants under the exemption due to their operational environmental impacts. The Court found that minor alterations to, continued operation of, and leasing pre-CEQA facilities resulting in negligible or no expansion of use are unlikely to cause a new, significant adverse change in environmental conditions. Further, the class of projects at issue in the existing facilities exemption are not only nuclear power plants—rather, the exemption is applied to existing facilities of all types. The Court concluded that the Commission’s evaluation of the lease extension, while brief, was sufficient to demonstrate that the lease extension would maintain the status quo at the existing facility and not expand its operations.

The Court then looked at the unusual circumstances exception to the exemption under CEQA Guidelines section 15300.2(c). The Court found that the Commission incorrectly applied the Berkeley Hillside two-pronged test (described above in Don’t Cell Our Parks) but this was not fatal to the Commission’s determination.

Turning to the substance of the unusual circumstance analysis, the Court found that the Project was not an unusual circumstance based on its size and location. The Commission acted properly by considering the existing baseline for the Project and World Business Academy failed to point to specific evidence supporting the claim that impacts to aquatic life would be significantly increased past the existing operational level of the plant or certain risks – seismic activity, terrorist threats, “embrittleing” and others—would now occur. World Business Academy’s claim that the plant constituted a significant environmental effect because it was the last one of its kind in the state was irrelevant. The Court dismissed this and dismissed World Business Academy’s ad hominem attack against PG&E which alleged criminal conduct outside of the established record.

Accordingly, the Court affirmed the judgement of the trial court.

Key Point:

The existing facilities exemption allows pre-CEQA power plants (regardless of power source) undergoing non-significant changes to avoid additional environmental review. The proper baseline to determine if a change is significant is not established by present-day or forecasted analysis, rather, by the environmental impact the facility had when it began operations.

Fourth District Court of Appeal Finds Minor Telecommunications Facility on Dedicated Park Land Is Not An “Unusual Circumstance” Exception to CEQA Small Facility Exemption

Thursday, March 15th, 2018

A faux eucalyptus tree cell tower stands next to a live evergreen  (Annette LeMay Burke)

In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, the Fourth District Court of Appeal found that the San Diego City Charter (Charter 55) did not prohibit the City of San Diego (City) from approving a telecommunications project within real property held in perpetuity by the City for “park purposes.” The project did not create a “change in use or purpose” of the property, which would require a vote of two-thirds of City voters. Further, a dedicated park is not a “sensitive and protected resource area” for the purposes of CEQA Guidelines section 15300.2(a) unless explicitly designated as such.

Rancho Peñasquitos is an 8.5-acre park dedicated to the City in perpetuity for recreational purposes in accordance with Charter 55. Verizon filed a project application to build a wireless telecommunications facility in a corner of the park (Project), including a 35-foot tall cell tower disguised as a faux eucalyptus tree and a 250-square-foot landscaped equipment enclosure with a trellis roof. The San Diego Planning Board determined the Project was exempt from CEQA as being a small structure (CEQA Guidelines, § 15303) and approved the Project. Don’t Cell Our Parks (DCOP) filed suit against the City.

DCOP alleged that placing the facility within the park was not a permissible “park or recreational purpose” under the plain language of Charter 55. The trial court disagreed and held the Project was properly approved, exempt from CEQA as a small facility, and no unusual circumstances established an exception to the CEQA exemption. DCOP timely appealed.

The Appellate Court first turned to the language and context of Charter 55 wherein real property dedicated to the City without an ordinance or statute explicitly guiding its management may be used for any public purpose deemed necessary by the City. Voter approval is only required where a project would “change the use or purpose” of a dedicated park. After reviewing the record, the Court held the Project did not change the use or nature of the park –the facility’s faux-tree would be installed in an existing stand of trees and the structure would be shrouded by native plants. The Court also found that the construction of the wireless facility would “clearly benefit park visitors” by providing greater access to 911 services. In sum, the Court deferred to the City’s interpretation of its Charter.

The Court rejected all of DCOP’s arguments that the project was erroneously approved as a Class 3 categorical exemption from CEQA.

The Court found that the Project qualified for the Class 3 exemption (CEQA Guidelines, § 15303), rejecting Petitioners’ claims that telecommunications are not explicitly listed in the statute. The Court noted that exemption categories are not exclusive and that the exemption is meant to apply to multiple types of small facilities. Here, the Project is roughly 523 square feet, most of which are faux tree branches. Substantial evidence supported the City’s conclusion that the Project was smaller than the examples listed in Section 15303 such as a store, motel, or family residence. Thus, the Project was properly a Class 3 exemption.

Second, the Court addressed DCOP’s claim that an unusual circumstances exception applied per CEQA Guidelines section 15300.2(c). The two-pronged test in Berkeley Hillside Preservation v. City of Berkeley, (2015) 60 Cal.4th 1086, provided that determining an unusual circumstance exists is a factual inquiry and the Court reviews this claim under the deferential substantial evidence standard of review. If there is evidence of an unusual circumstance, and no substantial evidence to the contrary, then the Court examines the record for evidence whether the unusual circumstance results in a potentially significant impact to the environment. In this second part of the Court’s review, the Court applies the fair argument standard of review. Here, DCOP failed to satisfy either of these standards.

The Court held that the Project’s location in a dedicated park was not an unusual circumstance as 37 other similar facilities existed in other dedicated parks in the City. In the State, many similar cell towers and reception boxes have been unsuccessfully challenged for being placed in parks and subsequently permitted. The record included sufficient evidence to show that the Project location was not an unusual circumstance.

Next, the Court rejected DCOP’s claim that the park was environmentally sensitive land. An exception exists where a project “may impact [] an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (CEQA Guidelines, § 15300.2(a).) DCOP presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical concern” by any federal, state, or local agency. The City’s general plan designation and zoning of the Project site as a park was insufficient to support such a finding. In fact, the record included a biological resource report created by the City for the project approval, which showed that the area where the Project was proposed for construction was mostly disturbed habitat.

The Court affirmed the trial court judgement.

Key Point:

The list of project types set forth in the Class 3 exemption is not exhaustive.  In evaluating whether a project is covered by the exemption, a court may consider whether the project is similar in size or scope to other project types listed in the exemption.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, February 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (Project) near the Covina Metrolink commuter rail station. The Project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

First District Court of Appeal Strikes Down Challenge to Categorically Exempt Project, Rejects Argument that Conditions of Approval Signal Significant Impacts

Thursday, February 8th, 2018

The iconic Coit Tower sits atop Telegraph Hill in San Francisco, viewed from the southwest (Ed Villanueva)

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal affirmed the trial court and upheld the City and County of San Francisco’s (“City”) approval of the construction of a three-story-over-basement, three-unit condominium and the restoration of an existing cottage on a 7,517-square-foot lot on the south side of Telegraph Hill (“Project”).

In September 2014, the San Francisco Planning Department (“Department”) determined that the Project was categorically exempt from CEQA. Subsequently, the Planning Commission approved a conditional use authorization for the Project. The plaintiffs appealed the Department’s decision exempting the Project from environmental review and the Planning Commission’s conditional use authorization to the San Francisco Board of Supervisors (“Board”). Both the Planning Commission and the Board imposed conditions related to pedestrian safety and possible disruption of traffic on Telegraph Hill during construction. After the Board affirmed the Planning Commission’s decisions, the plaintiffs sued the City. The trial court ruled for the City.

On appeal, calling the plaintiffs’ argument an ipse dixit, the court rejected the plaintiffs’ argument that the fact that conditions of approval were imposed on the Project meant the Project would have a significant impact. The court explained that the conditions were intended to address the ordinarily anticipated inconvenience and danger associated with significant construction activity in a congested urban environment. The court found that the conditions were not adopted out of concern that the Project would have a significant environmental effect, given that the Department approved the categorical exemptions without qualifications.

Second, the court rejected the plaintiffs’ contention that the project description was inadequate. The court found that County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, the only authority on which the plaintiffs relied to support their argument, was inapposite because Inyo considered the adequacy of a project description for an EIR, and not a CEQA exemption. The court held that the project description was adequate because it met the requirements in the City’s Administrative Code, though it did not meet the specifications for a project description in an EIR set forth in the CEQA Guidelines section 15124.

Third, the court rejected the plaintiffs’ argument that the unusual circumstances exception applied in this case because the Project’s location and site constraints were “unequivocally rare.” The court found that substantial evidence in the record supported the City’s determination that the Project presented no unusual circumstances with respect to the nearby intersection, views, and the site topography.

Finally, the court rejected the plaintiffs’ argument that the City impermissibly approved the conditional use authorization because the Project was inconsistent with the general plan. The plaintiffs argued that the Project conflicted with one of the policies in the general plan, which protects access to vistas, because the Project would obscure the views from the stairway leading to Pioneer Park. The court explained that the policy directives contained in the San Francisco general plan are not strictly construed because the agency has discretion to interpret its own plans, citing San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498.

Key Point:

When challenging the approval of categorically exempt projects on the basis of deficient project descriptions, it is imperative to cite to precedent which specifically governs categorical exemptions. Also, it is important to note that conditions of approval on a project from a lead agency do not indicate that the project has a significant impact per se.

Sixth District Court of Appeal Upholds Application of CEQA Exemption for Small Facility —Utility Extension In the Absence of Petitioner Carrying Its Burden to Demonstrate the Location, Cumulative Impact, or Unusual Circumstances Exceptions Applied

Monday, February 5th, 2018

A distributed antenna system for mobile data communications is secured to a tower. (CBS)

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth District Court of Appeal found a Class 3 categorical exemption for “small structures” applied to multiple small projects considered as a group. The Court held the County of Santa Cruz (County) acted properly in reviewing a series of CEQA-exempt utility pole installations individually and as an aggregate project.

Real Party in Interest Crown Castle Inc.’s (Crown) project application proposed installation of multiple microcell distributed antenna systems (DAS) in rural County areas (Project). These installations are two-foot by one-foot antennas attached to existing utility poles operated by a single wireless carrier. Crown submitted each microcell system proposal in a separate permit application. However, Crown presented, and the County considered, the installations together as a single project. The County approved the Project, finding the DAS systems exempt from CEQA as categorically exempt “small facilities.” Aptos Resident Association (ARA) filed suit against the County.

ARA contended that the Project was not exempt from CEQA because the County improperly segmented the Project and the Project fell within multiple exceptions to the exemption based on its location (CEQA Guidelines, § 15300.2(a)), cumulative impact (CEQA Guidelines, § 15300.2 (b)), and unusual circumstances (CEQA Guidelines, § 15300.2(c)). The trial court disagreed and upheld the County’s approval of the Project. ARA timely appealed the decision.

The Appellate Court held the County properly found the project to be categorically exempt from CEQA as a Class 3 exemption (CEQA Guidelines, § 15303) and thus, no environmental review was required. Class 3 exemptions include projects that propose the construction of limited small facilities or structures, as well as the installation of small equipment and facilities in small structures, incorporating electrical, gas, and utility extensions. Relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the Court found that substantial evidence supported the County’s Class 3 exemption because the Project constituted “the installation of small new equipment on numerous existing small structures in scattered locations.”

The Court then found ARA’s segmenting claim lacked merit where the County “considered the entire group of microcell units to be the Project.” Although Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for each unit, the Project was considered as a group. Rejecting the segmentation argument, the Court noted that “[t]he nature of the paperwork required for approval of the project is immaterial.”

The Court also denied ARA’s claim that the Project would fall within a cumulative impact exception (CEQA Guidelines, § 15300.2(b)) because other cell carriers would mirror Crown’s microcell project’s approval within the County, thus increasing the visual impact. The court found ARA’s argument baseless and speculative where evidence in the record suggested to the contrary. The Northern California Joint Pole Association controlled access to the utility poles; access was only available if all of those using the pole agreed and the pole would not be overloaded by additional equipment. Thus, the possibility of additional installations on the same poles was remote.

The Court then found the location exception (CEQA Guidelines, § 15300.2(a)) to the Class 3 exemption did not apply. The location exception is restricted to projects that “may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” The County Code designating the area as “rural” and “residential agricultural” did not have any language in the statement of purpose designating the area as an environmental resource of hazardous or critical concern. ARA presented no evidence that Project site qualified.

Finally, the Court found that the County did not abuse its discretion by finding no exception based on unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court held ARA did not meet the burden of showing a reasonable possibility the activity would have a significant effect on the environment due to unusual circumstances. ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, or in areas zoned residential agricultural.

Having dismissed each of ARA’s contentions on appeal, the Court affirmed the trial court and found the DAS installations were properly exempt from CEQA.

Key Point:

When challenging CEQA exemptions, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper; speculation and hearsay are insufficient.

Further, CEQA allows the exemption for small facilities to apply to multiple small facilities at once within a project. Agriculture zoning is inadequate to successfully claim the location exception, facts must show that the project site is actually “an environmental resource of hazardous or critical concern.”

FIRST APPELLATE DISTRICT UPHOLDS CITY’S RELIANCE ON CATEGORICAL EXEMPTIONS, PAVING THE WAY FOR PROPOSED ASPHALT PLANT IMPROVEMENTS

Friday, August 26th, 2016

BoDean Company, Inc. (“BoDean”) operates an asphalt plant in the City of Santa Rosa. The plant is a vested and legal nonconforming use that has been in continuous operation since approximately 1953. In November 2011, BoDean proposed to install three new storage silos, ancillary conveyors, three batchers, and an air filtration system. The upgrade would have no effect on the plant’s production or production capacity due to physical limitations and a condition contained in a permit issued by the Bay Area Air Quality Management District. Although proposed upgrades would not increase the plant’s production capacity, the new silos would increase the plant’s capacity to store asphalt.

The City of Santa Rosa approved a minor conditional use permit for the improvements to the asphalt plant and filed a notice of exemption reflecting its findings that the project is exempt from CEQA under the Class 1 (existing facilities) and Class 2 (replacement or reconstruction) categorical exemptions. Petitioner Citizens for Safe Neighbors (“Citizens”) sought a writ of mandate directing the City to set aside its approval of the project for failure to comply with CEQA. In Citizens for Safe Neighborhoods v. City of Santa Rosa, 2016 Cal. App. Unpub. LEXIS 6100, an unpublished opinion, Division Three of the First Appellate District upheld the trial court’s denial of Citizens’ petition for writ of mandate.

The court first reviewed the applicability of the Class 1 categorical exemption and found that there was substantial evidence in the record that the new silos constituted a negligible expansion of the plant’s facilities. In light of its conclusion that the project falls within the scope of the Class 1 exemption for existing facilities, the court indicated it was unnecessary to consider whether the project also qualified for a Class 2 exemption.

The court then turned to Citizens’ contention that the unusual circumstances exception precluded the use of a categorical exemption. The court applied last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside), which articulated the two-step analysis for determining whether the unusual circumstances exception to a categorical exemption applies to a project. The first step is to determine whether the project exhibits any unusual circumstances; an inquiry reviewed under the substantial evidence standard of review. The second step is to consider whether an unusual circumstance, if present, gives rise to a potentially significant environmental impact; an inquiry reviewed under the fair argument standard of review.

Assuming that the plant improvements presented an unusual circumstance due to its location in close proximity to residences, the court focused its analysis on the second step – whether unusual circumstances give rise to a potentially significant impact. The court concluded that the record did not contain substantial evidence to support a fair argument that the plant upgrades would increase production. Accordingly, the court rejected Citizens’ arguments that plant improvements would result in significant environmental impact on aesthetics, air quality, health & safety, noise, odor, and traffic. The court found Citizens had not met its burden to establish the applicability of the unusual circumstances exception and the project was categorically exempt from CEQA as a minor alteration to existing facilities.

SUPREME COURT DEPUBLISHES PEOPLE FOR PROPER PLANNING V. CITY OF PALM SPRINGS

Monday, August 22nd, 2016

On August 17, 2016, the Supreme Court ordered People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640 depublished.

Since the Supreme Court issued Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, five decisions have been published concerning application of the “unusual circumstances” exception set forth in CEQA Guidelines section 15300.2, subdivision (c).

In three of the decisions, the courts upheld the lead agency’s use of the categorical exemptions at issue: (1) Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, (2) Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, and (3) Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

In the other two decisions, the courts determined that the lead agency failed to comply with CEQA in relying on the categorical exemptions at issue: (1) Paulek v. Western Riverside County Regional Conservation Authority (2015) 238 Cal. App. 4th 583, and (2) People for Proper Planning.  The Supreme Court has now depublished both of these decisions.  Therefore, petitioners have not prevailed in any published opinion concerning application of the unusual circumstances exception to CEQA’s categorical exemptions since publication of Berkeley Hillside. (But see Save Our Schools v. Barstow Unified School Dist. Bd. of Education (2015) 240 Cal.App.4th 128 [holding that a proposed school project failed to meet the factual requirements to qualify for the Class 14 categorical exemption].)

Our law firm previously posted two blog entries on the People for Proper Planning.  For a discussion of the original People for Proper Planning opinion, please see http://www.thomaslaw.com/blog/fourth-district-holds-that-palm-springs-general-plan-amendment-is-not-categorically-exempt-in-published-opinion/. The Fourth District later modified its opinion, as discussed at http://www.thomaslaw.com/blog/fourth-appellate-district-modifies-published-opinion-on-the-unusual-circumstances-exception-to-categorical-exemptions/.

COURT OF APPEAL UPHOLDS USE OF CLASS 3 CAT EX FOR CAR WASH/COFFEE SHOP PROJECT IN REDONDO BEACH

Tuesday, August 2nd, 2016

The City of Redondo Beach approved a conditional use permit (“CUP”) for the construction of a 4,080 square foot combination car wash and coffee shop in a commercial zone that borders a residential area (“Project”). The City found the Project exempt from CEQA under the Class 3 categorical exemption for up to four “new, small facilities or structures” that are under 10,000 square feet in an urbanized area. (CEQA Guidelines, § 15303.) Petitioners, who own homes adjacent to the proposed development, filed a petition for writ of mandate challenging the City’s use of a CEQA exemption and issuance of the CUP. In Walters v. City of Redondo Beach, 2016 Cal. App. LEXIS 605, the Court of Appeal upheld the trial court’s denial of Petitioners’ petition for writ of mandate.

Petitioners argued that a car wash did not fit within the definition of commercial buildings because it involved the installation of industrial equipment. The court noted that the definition of commercial buildings is not limited to the listed examples of a store, motel, office, or restaurant because it also includes “similar structures.” The court held that the type of business and the equipment that would be used for the Project was not substantially different from the listed examples.

The court similarly rejected Petitioners argument that the Project’s square footage was too large for the exemption. Citing Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, the court held that the exemption covers one to four commercial buildings on the parcel as long as the total floor area of the building(s) does not exceed 10,000 square feet.

A Class 3 exemption can only be used if the project does not involve the use of significant amounts of hazardous substances and the surrounding area is not environmentally sensitive. Because Petitioners could not show that the surrounding area was considered environmentally sensitive or that the business used hazardous chemicals, the court determined that the Project fell within the Class 3 categorical exemption.

Next, the court considered whether the unusual circumstance exception precluded the use of a categorical exemption. As stated by the Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, there are two alternative ways to determine whether the unusual circumstances exception to a categorical exemption applies to a project: (1) by proving both unusual circumstances and a reasonable probability of a significant environmental effect that is due to those circumstances; or (2) by proving that the project will have a significant environmental effect.

Applying the first alternative, the court found that there was nothing particularly unusual about the Project and noted the parcel’s past use as a car wash from 1965 until 2001. While Petitioners pointed to the loud air blowers and extensive activities that are conducted outside of the business’ structures, the court held that the general effects of operating a business cannot serve as unusual circumstances. Nor did the court find it unusual that the business was located near a residential neighborhood.

Under the second Berkeley Hillside alternative, the court considered whether Petitioners had put forward sufficient evidence that the project will have a significant environmental effect due to noise and traffic effects. The court concluded that Petitioners had not, pointing to the fact that the City had conditioned the project on compliance with the applicable noise standards  and that the City’s traffic expert had concluded that the nearby intersection currently operates as LOS A and would continue to do so after the Project.  The court noted that Petitioners had erred by focusing on whether the Project may have a significant effect, which was not enough to establish that the Project will have a significant effect. Accordingly, the court concluded that the exception did not apply and that the City properly determined that the Project is categorically exempt.

Key Point: A Class 3 categorical exemption may apply to a commercial project when the commercial business is similar to a store, motel, office, or restaurant.