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Posts Tagged ‘categorical exemption’


First District Finds Design Review Does Not Make Entire Project Subject to Discretionary Review

Tuesday, January 15th, 2019

In McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 2018 Cal.App.LEXIS 1233, the First District Court of Appeal held that the City’s design review process did not require the separate invocation of CEQA; the City complied with CEQA where it was at its discretion to find the express content of the design review ordinance limited its review.

The City of St. Helena (City) approved a demolition permit and design review to demolish a single-family home and develop an eight-unit multifamily residential building (Project). The site’s zoning designation of “high density residential” established that multifamily housing was a permitted use, subject to design review. The Planning Commission found that the Project was a categorically-exempt infill project (CEQA Guidelines, § 15332) and approved it.  McCorkle Eastside Neighborhood Group (McCorkle) appealed the decision to the City Council.

The City Council found that the Project met the design standards under the applicable zoning designation and approved the Project. In doing so, the Council found that the Project met all 14 required design review factors and that the design review ordinance prevents the City from disapproving the Project for any non-design-related reasons. The Council also found that a Class 32 infill exemption to CEQA applied and the Project would not “result in any significant effects relating to traffic, noise, air quality or water quality.” The City’s resolution specifically stated that the exemption finding “was consistent with the City’s limited discretion to consider or address environmental impacts [where] ‘Multi-family residential land uses are permitted by right in the [zoning] District.’” The City thus concluded that “in the context of this design review approval, the [City’s] authority/discretion is limited to (design related) concerns stemming from the only discretionary actions required for project approval.” McCorkle filed suit.

McCorkle alleged that the City was incorrect to find that its design review process did not require the separate invocation of CEQA. Further, McCorkle alleged that the City improperly found the Project a categorically-exempt infill project and abused its discretion for not requiring the preparation of an EIR. McCorkle also alleged that the City Council improperly delegated CEQA authority to the Planning Commission. The trial court denied the petition for writ of mandate. McCorkle timely appealed.

The Appellate Court first held that there was no improper delegation of the City and City Council’s authority under CEQA. The Planning Commission was the initial reviewing agency, but that did not mean that the City Council had abdicated its project review duties to the Planning Commission. Instead, following an appeal of the Planning Commission’s decision, the City Council took independent action in finding the Project exempt and approving the Project. There was no improper delegation.

The Court then disagreed with McCorkle’s claim that, because the City had discretion to conduct design review, the entire Project was discretionary and subject to CEQA. McCorkle relied on the general rule that, where a project involves both discretionary and ministerial approvals, the entire project is deemed discretionary.  However, the Court concluded that the rule “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.” Here, the design review process allowed the City to change the appearance of the Project, but the general plan and design review standards did not provide a means for the City to mitigate impacts to parking, traffic, safety and soil remediation. Thus, the City did not abuse its discretion in finding that the design review ordinance did not mandate that the City consider disapproving the Project for non-design related matters.

Echoing the holding in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, the Court found that the City was not, pursuant to general law, required to have a design review ordinance. Where the City chose to impose an additional level of review, “it is for the City to determine the scope that such review will entail.” Thus, the City’s understanding of its own ordinance was afforded great deference as “the [CEQA] Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the local ordinance, rather than vice versa.” The Court found this explanation in line with CEQA Guidelines section 15040, which expressly limits an agency’s authority under CEQA to only powers expressly or impliedly granted to the agency by other laws. 

After finding that the City was not required to mitigate non-design related environmental impacts, the Court found it unnecessary to evaluate the City’s reliance on the CEQA exemption for infill projects. Because the Project was consistent with the general plan and the City addressed Appellants’ argument to the contrary “in great detail,” there was no need for the Court to continue its analysis.

The Court affirmed the trial court’s holding.

Key Point:

A municipality’s design review process does not always require the separate invocation of CEQA.


Note: This case was originally unpublished. January 11, 2019 the court ordered its publication on the request of the California Building Industry Association, California Infill Builders Federation, Treasury Wine Estates Americas LLC, and the California Chapter of the American Planning Association.

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

Tuesday, September 18th, 2018

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.

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

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.

Speak Now or Forever Hold Your Peace: Petitioners Must Exhaust Their Administrative Remedies Prior to Challenging an Agency’s Decision That a Project is Categorically Exempt from CEQA

Friday, June 15th, 2012

In Tomlinson v. County of Alameda (Case No. S188161), the Supreme Court of California held that the exhaustion of administrative remedies provision as set forth in Public Resources Code section 21177, subdivision (e), applies to a public agency’s decision that a project is categorically exempt from CEQA. The Court’s eleven page decision put to rest the notion that a project opponent need not object to a categorical exemption during the administrative proceedings prior to filing a lawsuit to challenge the exemption.

Public Resources Code Section 21177, subdivision (a), provides that a CEQA challenge may be brought only if the petitioner’s alleged grounds for noncompliance with CEQA were presented to the public agency either during the public comment period or prior to the close of the public hearing on the project before the issuance of the notice of determination (NOD). Section 21177, subdivision (e), states that CEQA’s exhaustion requirement does not apply to CEQA challenges where there was no public hearing or other opportunity for members of the public to raise their objections to a proposed action prior to approval of a proposed project. In other words, the exhaustion requirement requires either a public comment period or an opportunity for public comment at public hearings before issuance of a NOD.

The Court’s holding is a significant victory for public agencies because it overturns the Court of Appeal’s decision (188 Cal.App.4th 1406) that Section 21177’s exhaustion requirement does not apply to a public agency’s decision that a project is categorically exempt from CEQA. The Court of Appeal’s decision relied heavily on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, which held that section 21177’s public comment provision is inapplicable when a public agency determines a project is categorically exempt from CEQA because CEQA does not provide for a public comment period preceding an agency’s exemption determination. The Supreme Court disagreed, noting that in Azusa, the public agency did not hold any public hearings prior to determining the proposed project was exempt from CEQA; in contrast, the public agency did hold public hearings in Tomlinson and thereby provided petitioners the opportunity to object to the project prior to the agency’s determination that the project was exempt under CEQA’s categorical infill exemption (CEQA Guidelines section 15332).

The Supreme Court also disagreed with the Court of Appeal’s conclusion that the public hearing provision in section 21177, subdivision (a), does not apply when no NOD is filed. The Court found instead that where a NOD is filed, the public hearing provision requires a challenging party to raise its objections to the project at a public hearing before the NOD is filed. But if no NOD is filed, the public hearing provision nonetheless applies. In other words, where a party is given the opportunity to raise its objections at a public hearing before project approval, the challenging party is required to exhaust its administrative remedies by presenting its objections at the hearing. When a party fails to raise its objection, it is precluded from later raising that objection in court. An agency’s failure to file a NOD does not negate the exhaustion requirement; rather, as the Supreme Court explained: “what matters is the opportunity for comment at … public hearings, not the filing of a notice of determination.”

In light of the Court’s conclusion that the exhaustion doctrine applies to categorical exemptions, it declined to comment on petitioners’ remaining arguments that their objections at the public hearing were in fact sufficient to satisfy the exhaustion requirement and that the lead agency had misled them. The Court remanded the case to the Court of Appeal to consider what constitutes exhaustion.

Key Point:

Under the Court of Appeal’s ruling, a petitioner could refrain from objecting to an agency’s decision to approve a categorical exemption and later file a lawsuit challenging the exemption — a result that, at least according to some practitioners, undermined the very function of the exhaustion doctrine as a jurisdictional prerequisite to the courts. The Supreme Court ruling restores the exhaustion requirement for petitioners seeking to challenge a categorical exemption where the agency holds a public hearing and provides assurances to lead agencies that any parties opposed to CEQA exemptions must first exhaust their administrative remedies before filing a lawsuit.

Written By: Tina Thomas and Ashle Crocker
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

California’s Highest Court Grants Review of Berkeley Hillside Preservation Decision

Thursday, May 31st, 2012

On May 23, 2012, the California Supreme Court unanimously agreed to grant review of Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The issue before the court will be whether the City of Berkeley must prepare an environmental impact report (EIR) before approving the construction of a 10,000-square-foot single-family home. The trial court upheld the City’s approval and determination that the project fell within two CEQA exemptions: (1) the Infill Development Exemption and (2) the New Construction/Conversion of a Small Structure Exemption. The First Appellate District reversed the lower court’s holding, ruling that based on a “fair argument,” the “unusual circumstances” exception prohibited the City from relying on the categorical exemptions, thus requiring the City to conduct an EIR. The City of Berkeley and Real Party in Interest petitioned for review. The court’s review is estimated to take 12 to 18 months.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Applying the Fair Argument Test, Court holds that Construction of a Large Single-Family Home was Not Exempt from CEQA Because the Unusual Circumstances Exception Applied

Tuesday, February 21st, 2012

In Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal. App. 4th 656, the Berkeley Zoning Adjustment Board (Board) determined that a new roughly 10,000 square foot home in the Berkeley hills was categorically exempt from CEQA pursuant to (1) the Infill Development Exemption and (2) the New Construction / Conversion of a Small Structure Exemption. The Board also determined that none of the exceptions to the CEQA exemptions applied.

Petitioners filed an administrative appeal. During the administrative appeal, the city received a number of comment letters including two letters from a geotechnical engineer with over 50 years of experience concluding that the slope of the property, the need for massive grading, and the proximity to the Hayward fault established that the project would have very significant effects on the environment both during and after construction. Another geotechnical engineer disagreed with the above conclusions, and after allowing testimony from both engineers during the appeal hearing, the city council affirmed the decision to approve the use permits to construct the home. Thereafter, petitioners filed a petition for writ of mandate challenging the city’s approval of the use permits.

On appeal from the trial court ruling upholding the city’s actions, petitioners conceded that the project is subject to the two CEQA categorical exemptions asserted by the city. Petitioners argued, however, that the “unusual circumstances” exception to the exemptions applied and prevented the city from relying on the exemptions. The court agreed, holding that “a categorical exemption does not apply where there is any reasonable possibility that proposed activity may have a significant effect on the environment.” The “unusual circumstances” exception can apply to a project that is not unusual; the existence of substantial evidence supporting a fair argument that a project normally exempt from CEQA may result in a significant environmental impact is itself an “unusual circumstance” prohibiting use of a categorical exemption. Nevertheless, the court stated that it may be helpful to first analyze whether the project is unusual in considering whether the “unusual circumstances” exception applies to a project.

Relying on the “fair argument” test, the court concluded that the administrative record included substantial evidence supporting a fair argument that the project is both unusual and would result in significant environmental impacts. With respect to the project’s unusual nature, the court explained that petitioners demonstrated that the home would be one of the largest in the entire city. As a matter of law, the 10,000-square-foot home was unusual “because the circumstances of the project differ from the general circumstances of projects covered by the single-family residence exemption…” Next, the court found a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual size to the project. Although the court acknowledged that a disagreement existed between geotechnical engineers, the court held that “contrary evidence is not adequate to support a decision to dispense with an EIR.” (Original emphasis.) The court, therefore, reversed the trial court’s judgment and ordered the lower court to issue a writ of mandate directing the city to prepare an EIR.

Key Points:

For a lead agency to rely on a categorical exemption in the face of opposition, the lead agency must determine that evidence in the record does not support a “fair argument” that the project may result in one or more significant environmental impacts. If such evidence can be found in the record, then the “unusual circumstances” exception applies and use of a CEQA exemption is improper. This case represents a shift from previous case law requiring a showing of substantial evidence to support an argument that unusual circumstances exist.
Additionally, in holding that the project’s “proximity to a fault” was evidence of an unusual circumstance, the opinion is inconsistent with Ballona Wetlands Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. In Ballona Wetlands, the Court held that CEQA requires consideration of a project’s impacts on the environment and not consideration of the environment’s impact on a project (e.g. such as sea level rise or fault impacts on a project). Moreover, if “proximity to a fault” disqualifies a project from relying on CEQA exemptions, like the in-fill exemption, then most of the Bay Area will, as a practical matter, be unable to rely on CEQA exemptions for any projects.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.