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.