Fourth District Court of Appeal finds Class 32 Exemption’s Massing Criterion Based on Project Size, not Site Size; Rejects Applicability of the Unusual Circumstances Exception

December 15th, 2021

By: Thomas Law Group



In Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, the Fourth District Court of Appeal affirmed the trial court’s determination that the Class 32 infill categorical exemption was properly applied to a project which would redevelop a portion of a shopping center in the City of Tustin (City) and rejected the application of the unusual circumstances exception to the project.

Costco, a big-box retailer, proposed the development of a 16-pump gas station and canopy adjacent to its existing warehouse in the City (Project). The Project also involved demolishing an existing vehicle service center adjacent to the existing warehouse to create 56 new surface parking stalls. These Project activities were proposed on 2.38 acres within a larger 11.97-acre shopping mall located along a major commercial thoroughfare. Costco applied to the City for a conditional use permit and design review approval. The application and original environmental assessment form listed the “lot size” and “site size” as 11.97 acres, but did not specify in those documents that Project activities would be confined to 2.38 acres. City staff reviewed the Project under the categorical infill exemption, which requires a showing that a project meets the following requirements of CEQA Guidelines section 15332:

1. The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations;

2. The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses;

3. The project site has no value as habitat for endangered, rare or threatened species;

4. Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality; and

The City concluded that the Project met each of these criteria. The Planning Commission approved the Project and adopted a resolution finding it categorically exempt from environmental review under CEQA Guidelines section 15332. Members of the public appealed the Planning Commission’s decision to the City Council. The City Council received a more detailed analysis supporting the use of the categorical exemption, clarifying that Project activities would be confined to 2.38 acres, and approved the Project. In doing so, City Council expressly found the Project did not present any unusual circumstances as compared to other projects that would qualify for the infill exemption.

Protect Tustin Ranch (Petitioners) filed suit, challenging the City’s finding that the Project was exempt from CEQA, arguing that the criterion requiring the Project be less than five acres in size was not met because the initial application and environmental materials listed the “lot” and “site” sizes as 11.97 acres. Petitioners also argued that the City erroneously relied on the exemption because the Project fell within the scope of the “unusual circumstances” exception to the Class 32 exemption. Petitioners argued that the Project would pose a reasonable possibility of a significant effect on the environment due to the unusual circumstances of (1) demolition of the vehicle service center (which involved oil and other fluid changes), (2) the unusually large configuration of the fueling station, and (3) the use of retractable bollards and additional employees to re-route traffic during peak usage.

The trial court rejected all of Petitioners’ arguments and denied the writ petition. On appeal, Petitioners again argued that the Project did not qualify for the infill exemption because it exceeded five acres in size and because the unusual circumstances exception barred Class 32’s applicability.

Infill Exemption

The Fourth District Court of Appeal found that substantial evidence supported the City’s finding that the Project was less than five acres in size. While the initial application materials specified the “lot” and “site” sizes as 11.97 acres, the Court found that revised applications, technical documents, and maps consistently described all Project activities as occurring within a 2.38-acre portion of the larger 11.97-acre site. Because the Court determined that the Petitioner’s sole challenge to the applicability of section 15332 was unsupported by the record, the Court did not consider whether the Project met the remaining section 15332 prongs.

Unusual Circumstances Exception

Turning to the unusual circumstances argument, the Court held that Petitioners failed to meet their burden to demonstrate that the exception to the exemption applied. The unusual circumstances exception provides that a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. To aid in its analysis, the Court summarized the two tests articulated in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside) establishing how to challenge the application of a categorical exemption through use of the unusual circumstances exception. Under the first Berkeley Hillside test, the exception applies if a party can establish: (1) an unusual circumstance by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location; and (2) there is a reasonable possibility of a significant effect due to that unusual circumstance. Under the second, alternative Berkeley Hillside test, a party can establish an unusual circumstance by presenting evidence that the project will have a significant effect on the environment. The presented evidence, if convincing, necessarily establishes a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.

Here, because Petitioners had not argued the certainty of any significant effect, the Court applied the first, two-prong Berkeley Hillside test. As discussed, Petitioners argued that unusual circumstances existed due to the former operations of the vehicle service station, the size of the proposed gas station, and the planned use of bollards and additional personnel to redirect peak traffic. The Court found that Petitioners failed to explain why these features distinguished the Project from others that would qualify for the infill exemption under the first prong, and did not consider whether the second prong applied. The Court held that as the party challenging the City’s reliance on the infill exemption, Petitioners bore the burden of producing evidence to support the claimed exception; and, as an appellant, were tasked with providing reasoned argument supported by law and facts demonstrating judicial error. The Court concluded that Petitioners failed to meet these standards. Assuming that Petitioners had sufficiently supported their argument, the Court further concluded that the Project was not unusual in relation to other infill developments which would qualify for the exemption.

Lastly, the Court noted that Petitioner’s ultimate concern appeared to be what might be discovered – such as site contamination – if the City engaged in further environmental review. The Court noted that this conjecture was not enough to force the City to compel further CEQA analysis. A categorically exempt project is deemed by law to not have a potentially significant impact on the environment unless the project’s administrative record sufficiently demonstrates applicability of an exception to the claimed exemption. Where the claimed exception is the unusual circumstances exception, courts will not reach the question of whether there is a fair argument of a reasonable possibility of a significant environmental effect unless there is an adequate showing of an unusual circumstance. Petitioners failed to satisfy this preliminary requirement. Accordingly, the Court affirmed the judgement of the trial court in full and awarded the City costs on appeal.

Key Points

  • When considering applicability with the Class 32 infill categorical exemption, the size of the project is determinative, not the size of the parcel where the project will occur.
  • Under the two-prong Berkeley Hillside test, parties raising the unusual circumstances exception to a categorical CEQA exemption must support their claims with explanation of how a project’s features distinguish it from similarly situated exempt projects. Merely raising the issue without support is insufficient.



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