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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

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.”