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


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 LEXIS 6100, an unpublished opinion, Division Three of the First Appellate District upheld the trial court’s denial of Citizens’ petition for writ of mandate.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.



dateAugust 26th, 2016byby


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