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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts Tagged ‘CEQA exemption’


Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

Thursday, June 28th, 2018

An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal. App. 5th 666, the Second District Court of Appeal held that the approval of groundwater well permits was a ministerial act and not subject to CEQA environmental review because no discretion was exercised when such permits were issued.

County of San Luis Obispo (County) staff, after finding that four groundwater well permit applications were complete and complied with County and state standards, approved each well permit without conducting CEQA review. Specifically, staff alleged the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources.

California Water Impact Network (Network) filed suit claiming that the County improperly failed to conduct CEQA review and, in doing so, “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County that no CEQA review was necessary for ministerial actions and granted the County’s demurrer.

The Appellate Court agreed with the trial court and the County that no CEQA review was required where such permit approvals were exempt as “ministerial projects” under Public Resources Code section 21080(b)(1). The Court described where a ministerial project does and does not exist and rejected Petitioners’ argument that the recently enacted Sustainable Groundwater Management Act altered the County Code.

The Court clarified that a ministerial act is where “little or no personal judgement” is used by the public official; the law is applied to the facts and no individualized or special consideration is required. The Court noted that well permits are a type of building permit which are “presumed to be [a] ministerial [act].” In contrast, a discretionary act involves judgement or deliberation. The Court reviewed the legislative intent, stated that agencies conducting ministerial acts have no ability to influence the project, and concluded that such acts are excluded from CEQA review.

Citing rules on judicial statutory interpretation, the Court rejected appellant’s argument that the County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear: a well permit “shall be issued” so long as the listed conditions are met. The Court affirmed the trial court’s decision to uphold the permits.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.

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

Thursday, March 15th, 2018

A faux eucalyptus tree cell tower stands next to a live evergreen  (Annette LeMay Burke)

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.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, February 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (Project) near the Covina Metrolink commuter rail station. The Project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

Sixth District Court of Appeal Upholds Application of CEQA Exemption for Small Facility —Utility Extension In the Absence of Petitioner Carrying Its Burden to Demonstrate the Location, Cumulative Impact, or Unusual Circumstances Exceptions Applied

Monday, February 5th, 2018

A distributed antenna system for mobile data communications is secured to a tower. (CBS)

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth District Court of Appeal found a Class 3 categorical exemption for “small structures” applied to multiple small projects considered as a group. The Court held the County of Santa Cruz (County) acted properly in reviewing a series of CEQA-exempt utility pole installations individually and as an aggregate project.

Real Party in Interest Crown Castle Inc.’s (Crown) project application proposed installation of multiple microcell distributed antenna systems (DAS) in rural County areas (Project). These installations are two-foot by one-foot antennas attached to existing utility poles operated by a single wireless carrier. Crown submitted each microcell system proposal in a separate permit application. However, Crown presented, and the County considered, the installations together as a single project. The County approved the Project, finding the DAS systems exempt from CEQA as categorically exempt “small facilities.” Aptos Resident Association (ARA) filed suit against the County.

ARA contended that the Project was not exempt from CEQA because the County improperly segmented the Project and the Project fell within multiple exceptions to the exemption based on its location (CEQA Guidelines, § 15300.2(a)), cumulative impact (CEQA Guidelines, § 15300.2 (b)), and unusual circumstances (CEQA Guidelines, § 15300.2(c)). The trial court disagreed and upheld the County’s approval of the Project. ARA timely appealed the decision.

The Appellate Court held the County properly found the project to be categorically exempt from CEQA as a Class 3 exemption (CEQA Guidelines, § 15303) and thus, no environmental review was required. Class 3 exemptions include projects that propose the construction of limited small facilities or structures, as well as the installation of small equipment and facilities in small structures, incorporating electrical, gas, and utility extensions. Relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the Court found that substantial evidence supported the County’s Class 3 exemption because the Project constituted “the installation of small new equipment on numerous existing small structures in scattered locations.”

The Court then found ARA’s segmenting claim lacked merit where the County “considered the entire group of microcell units to be the Project.” Although Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for each unit, the Project was considered as a group. Rejecting the segmentation argument, the Court noted that “[t]he nature of the paperwork required for approval of the project is immaterial.”

The Court also denied ARA’s claim that the Project would fall within a cumulative impact exception (CEQA Guidelines, § 15300.2(b)) because other cell carriers would mirror Crown’s microcell project’s approval within the County, thus increasing the visual impact. The court found ARA’s argument baseless and speculative where evidence in the record suggested to the contrary. The Northern California Joint Pole Association controlled access to the utility poles; access was only available if all of those using the pole agreed and the pole would not be overloaded by additional equipment. Thus, the possibility of additional installations on the same poles was remote.

The Court then found the location exception (CEQA Guidelines, § 15300.2(a)) to the Class 3 exemption did not apply. The location exception is restricted to projects that “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.” The County Code designating the area as “rural” and “residential agricultural” did not have any language in the statement of purpose designating the area as an environmental resource of hazardous or critical concern. ARA presented no evidence that Project site qualified.

Finally, the Court found that the County did not abuse its discretion by finding no exception based on unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court held ARA did not meet the burden of showing a reasonable possibility the activity would have a significant effect on the environment due to unusual circumstances. ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, or in areas zoned residential agricultural.

Having dismissed each of ARA’s contentions on appeal, the Court affirmed the trial court and found the DAS installations were properly exempt from CEQA.

Key Point:

When challenging CEQA exemptions, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper; speculation and hearsay are insufficient.

Further, CEQA allows the exemption for small facilities to apply to multiple small facilities at once within a project. Agriculture zoning is inadequate to successfully claim the location exception, facts must show that the project site is actually “an environmental resource of hazardous or critical concern.”