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


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.

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dateMarch 15th, 2018byby


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