Note: the Supreme Court granted a request for depublication of this opinion on August 22, 2016. See here.
In a recently published opinion, People for Proper Planning v. City of Palm Springs, 2016 Cal. App. LEXIS 407, the Fourth District reversed the trial court and held that the City of Palm Springs’s (City) general plan amendment was not categorically exempt from CEQA.
The City’s general plan previously designated the minimum and maximum density of residential units allowed in each land use zone. In 2013, the City amended its general plan to eliminate minimum density requirements for all residential zones. The City concluded that the change was exempt from CEQA based on a Class 5 categorical exemption for “minor alterations in land use limitations . . . which do not result in any changes in land use or density.” (CEQA Guidelines, § 15305.) The City argued that the amendment would not actually result in density changes because the City had been disregarding the minimum density requirement for years, effectively creating a baseline where there were no minimum densities.
The Court disagreed, holding that the baseline was the general plan itself, not the City’s pattern of practice. Therefore, the City could not rely on the Class 5 exemption because the amendment would clearly change the densities contained in the general plan. The court held that even if the project did fall within the Class 5 exemption, the petitioner had put forward sufficient evidence that this amendment could have a significant effect on the environment by causing cumulative impacts to the City’s stock of high density, low, and moderate income housing. The opinion appears to rely on the “unusual circumstances” exception to categorical exemptions in holding that the project was not exempt from CEQA.
Surprisingly, the opinion does not mention last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, which articulated the standard of review for the unusual circumstances exception. As stated by the Supreme Court, “[e]vidence that a project may have a significant effect is not alone enough to remove it from a class consisting of similar projects that the Secretary has found ‘do not have a significant effect on the environment.’” (Id. at p. 1115, original italics.) Rather, the unusual circumstances exception must be triggered by: (1) providing substantial evidence that an unusual circumstance distinguishes the project from others in the exempt class; or (2) providing substantial evidence that the project will have a significant effect on the environment, thus presenting unusual circumstances.
Instead of citing to Berkeley Hillside, the opinion quotes Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168 for the proposition that courts are divided on the standard of review, and then appears to apply the fair argument standard. The end result is almost certainly correct because the court stated that it would have reached the same conclusion using the substantial evidence test. However, the opinion may reinsert confusion into the proper approach to evaluating and applying the “unusual circumstances” exception despite the Supreme Court’s clear articulation of the proper inquiry in Berkeley Hillside. Accordingly, Thomas Law Group has requested depublication of the opinion.