By Daniel P. Brunton, Lucas I. Quass, and Stephanie L. Postal
CEQA Case Report: Understanding the Judicial Landscape for Development [i]
In a published opinion issued March 15, 2018, Don’t Cell Our Parks v. City of San Diego, the California Court of Appeal affirmed the trial court’s judgment and upheld the City of San Diego’s (the City’s) determination that a wireless communications facility (the Project) qualified for a categorical exemption for new small facilities under CEQA. In summary, the court determined:
- Exhaustion of administrative remedies is not required if the agency did not hold a public hearing or otherwise provide an opportunity for members of the public to raise objections.
- A standalone utility can qualify under the Class 3 exemption.
- For the location exception to CEQA exemptions to apply, a location impacted by a project must be designated as an environmental resource of hazardous or critical concern by an agency.
The petitioner, a non-profit entity (Petitioner), had filed an unsuccessful petition for writ of mandate seeking to overturn the approval of development and use permits for the Project. Petitioner argued that the City’s determination that the Project was exempt from environmental review under the Class 3 exemption was erroneous because, as a standalone utility, the Project would not qualify for a Class 3 exemption. Petitioner also argued that, even if the Project fell within the Class 3 exemption, an environmental impact report (EIR) would be required because the unusual circumstances exception and location exception applied . The court rejected each of these arguments.
Background for Appeal
In June 2014, Verizon filed an application to build the Project, a wireless communications facility consisting of a 35-foot high faux tree and a 220-square-foot equipment enclosure in a dedicated park. In April 2015, the City determined that the Project was exempt from CEQA because the Project qualified for a Class 3 categorical exemption. Petitioner appealed the City’s exemption determination, but the City Council denied this appeal, determining that the Project was exempt from environmental review. The City subsequently approved development and use permits for the Project. Petitioner filed a petition for writ of mandate seeking to overturn the City’s approval of these permits and exemption determination. The trial court ruled in favor of the City, and Petitioner appealed.
Exception to Exhaustion of Administrative Remedies Applies
The City argued that Petitioner’s CEQA claims were barred because Petitioner had failed to exhaust its administrative remedies; Petitioner had not raised its arguments in the administrative appeal or in materials submitted to the City. The court noted that CEQA’s exhaustion requirement provides an exception in cases in which there was no public hearing or other opportunity for members of the public to raise those objections before the approval of the project. The court determined that nothing in the record indicated that the City had held a hearing or provided an opportunity for the public to raise objections before the City filed a notice of CEQA exemption. Therefore, the court held that the exception to the exhaustion requirement applied to Petitioner’s CEQA arguments.
Project is Within Class 3 Categorical Exemption
Petitioner argued that the Project did not fit within the meaning or use of the Class 3 exemption — which applies to new, small facilities — because the Project was a new standalone utility rather than the type of urban infill development the Class 3 exemption was intended to exempt from CEQA review. The court held that the Project qualified for a Class 3 exemption based on the plain language of CEQA Guidelines section 15303. The court reasoned that although none of the qualifying examples of projects listed in section 15303 directly applied, the Project was “much smaller” than some of the examples provided in section 15303. In support of the City’s determination that the Class 3 exemption applied, the court also cited case law applying the Class 3 exemptions to hundreds of telecommunications equipment boxes on city property.
Unusual Circumstances Exception Does Not Apply
Next, Petitioner argued that, even if the Project fell within the Class 3 exemption, the unusual circumstances exception applied because there was evidence the Project would have significant environmental impacts. Under the two methods of establishing that the unusual circumstances exception applies, the party invoking the exception must either: (1) prove both unusual circumstances and a significant environmental effect due to those circumstances, or (2) provide evidence that the project will have a significant environmental impact.
Petitioner argued that the Project’s location within a dedicated park is an unusual circumstance, and that the Project would have an adverse environmental impact on aesthetics and the uses of the park. Applying the first method, the court determined that, even if the Project was an unusual circumstance, Petitioner failed to prove a significant environmental effect. The court discussed evidence in the record showing that the Project would not have a significant adverse impact on the environment, noting that Petitioner did not challenge this evidence. The court then determined that the record did not support a conclusion that the Project would cause a “significant” adverse impact to aesthetics or uses of the park. Specifically, the court found that before-and-after photographs demonstrated that the Project would not significantly impede views from the park, and that Petitioner presented no evidence showing how the Project would impact aesthetics or uses of the park. Based on these same findings and reasons, the court determined that Petitioner also failed to satisfy the second method. Thus, the court concluded that Petitioner failed to establish that the unusual circumstances exception applied to the Project.
Location Exception Does Not Apply
Finally, Petitioner argued that the location exception — which applies 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 — applied to the Project, contending that the Project’s location in a dedicated park, was a sensitive and protected resource area. The court determined that Petitioner provided no evidence that the park had been designated an “environmental resource of hazardous or critical concern” by any agency. The court concluded that the lack of such a designation defeated Petitioner’s argument that the location exception applied.
Accordingly, the court affirmed the trial court’s judgment. The City’s determination that the Project is categorically exempt from CEQA review under a Class 3 exemption and subsequent approval of the Project will stand.
- Opinion by Justice Gilbert Nares, with Acting Presiding Justice Richard D. Huffman, , and Justice Judith L. Haller, concurring.
- Trial Court: Superior Court of San Diego County, Case No. 37-2015-00026359-CU-TT-CTL, Judge Judith F. Hayes.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act [NEPA], though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments.
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