Archives: August 2012

First District Court of Appeal Upholds Categorical Exemption Determination for Installation of Telecommunication Equipment on Existing Utility Poles

On July 20, 2012, the First District Court of Appeal—in Robinson v. City & County of San Francisco (2012) 2012 Cal.App.LEXIS 903—affirmed a trial court ruling denying a petition for writ of mandate brought by residents who challenged San Francisco’s approval of a project to install wireless telecommunication equipment on existing utility poles. 

In April 2009, T-Mobile filed an application with the City requesting CEQA review of a series of approximately 40 proposed wireless equipment installations that would be fastened to existing utility poles distributed throughout the city. In August 2009, T-Mobile applied to the City for a permit to install wireless equipment on an existing utility pole in the utility right-of-way on the block where Plaintiffs’ homes were located. The City’s Planning Department had not yet issued its CEQA determination for T-Mobile’s application, but T-Mobile checked a box on the permit application indicating the installation was categorically exempt from CEQA.  In September and November 2009, the City determined that the T-Mobile project was categorically exempt. In February 2010, residents filed a petition for writ of mandate challenging the installations, which was denied by the trial court. Plaintiffs appealed.

On appeal, the residents first argued the City violated CEQA by approving installation of the telecommunication equipment without first conducting an environmental review. T-Mobile argued no such review was required because the installations were categorically exempt under the Class 3 exemption (CEQA Guidelines § 15303, subd. (d)), which applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made to the exterior of the structure.” The appellate court found that, as a matter of law, the T-Mobile project fit “squarely within the ambit of the Class 3 exemptions.”

Residents next argued that the cumulative imapcts exception to the categorical exemption applied to the project. (See CEQA Guidelines, § 15300.2, subd. (b).) The appellate court acknowledged a split in case law regarding the standard of review to apply to an agency’s determination whether a project falls within the cumulative impact exception to categorical exemptions.  Some courts apply a deferential standard, requiring the party seeking to assert the exception must “‘produce substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the project from the categorically exempt class.” (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.) Under this approach, “a court will uphold an agency’s decision if there is any substantial evidence in the record that there will be no significant effect on the environment.” Other courts have been less deferential, holding that the lead agency must itself adopt a fair argument approach when evaluating whether an exception to a categorical exemption applies. (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 262.)  When applying this standard, courts independently review the agency’s determination to determine whether the record contains evidence of a fair argument of a significant effect on the environment.”

While acknowledging this split, the court declined to take a stance on this split in authority by finding that the residents could not demonstrate the T-Mobile project was subject to the cumulative impact exception under even a fair argument standard of review. In doing so, the court took a very narrow view of the cumulative impact exception.

The court rejected the resident’s assertion that it was necessary for the agency to consider the cumulative impact of all telecommunications equipment that had been installed, were planned for installation, or could be installed in the future by all telecommunication companies throughout the entire city. The appellate court noted this argument ignored the language in the Guidelines, limiting the cumulative impact exception to “successive projects of the same type in the same place…”  The court determined “same place” referred to an area whose size and configuration depend on the nature of the potential environmental impact of the specific project under consideration. Residents had specified only visual and auditory impacts from the T-Mobile project, which the court found are inherently limited by the range of human sensory perception. This provided the limit for analyzing cumulative impacts of projects in the “same place.”

Finally, the residents argued the City violated CEQA’s requirement that any required environmental review be completed before an agency approves a project. The court noted that the equipment in question was not installed until after all relevant approvals had been obtained. The residents failed to cite any authority holding a permit must be retroactively invalidated if required approvals were obtained after, rather than before, the permit was issued. Instead, the court found the City undertook and correctly completed every aspect of the decisionmaking process it was required to follow. Further, the residents could not demonstrate that requiring the city to redo the process in the correct order could possibly yield a different outcome.

The residents additionally asserted a due process claim, arguing the installation of the equipment reduced the value of their property which violated their federal and state constitutional rights to due process because they were not given notice and an opportunity to be heard prior to the City’s approval. To trigger this requirement, government action must result in significant or substantial deprivations of property, not by agency decisions having only a de minimis effect on land. The court found, as a matter of law, that the affixing of small equipment boxes to a utility pole in a developed urban area does not result in a significant or substantial deprivation of property so as to trigger constitutional due process rights.

Fourth District Upholds City’s Project Approvals Despite Numerous Procedural Errors When Plaintiffs Failed to Show That Those Errors Resulted in Prejudice or Substantial Injury

On July 31, 2012, the California Court of Appeal for the Fourth District certified its ruling for partial publication in Rialto Citizens for Responsible Growth v. City of Rialto  (2012) 208 Cal.App.4th 44.  

Factual and Procedural Background

The City of Rialto approved a 230,000-square-foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth petitioned the trial court for a writ of mandate invalidating several project approvals, including the City’s resolution certifying the final environmental impact report (EIR) for the project, several resolutions  [2] amending the City’s general plan and the “Gateway Specific Plan” governing the project site, and an ordinance approving a development agreement for the project.

The trial court struck down the City’s approvals of the Project on the basis that the City had violated multiple provisions of the California Planning and Zoning Law and the California Environmental Quality Act (CEQA).  Specifically, the trial court found that (1) the notice of the public hearing before the City Council violated Government Code section 65094 because it failed to include the planning commission’s recommendation; (2) the City Council violated Government Code section 65867.5 by approving the development agreement without making a finding that it was consistent with the General Plan and the Gateway Specific Plan; (3) the EIR failed to identify the development agreement as an approval required to implement the project; (4) the EIR failed to adequately analyze the project’s cumulative impacts on traffic; (5) the EIR failed to adequately analyze the project’s cumulative impacts on air quality; (6) the EIR improperly dismissed the cumulative impacts of greenhouse gas emissions and climate change impacts because of an inability to analyze the individual impacts of the project; (7) the EIR failed to separately list greenhouse gas emissions among the significant impacts of the project; (8) the EIR improperly deferred mitigations to reduce biological impacts; and (9) the City improperly rejected the reduced density alternative as infeasible.

Court of Appeal Decision

The Court of Appeal reversed the trial court on all counts and reinstated the Project approvals.  The appellate court agreed that the City had made significant procedural errors in violation various Government Code sections.   In particular, it agreed with the trial court that the public notice was flawed and that there was no finding of consistency when the development agreement was approved.  The court, however, found that Rialto Citizens failed to meet the requirements of Government Code section 65010.  Under that section, according to the court, Rialto Citizens had the burden of demonstrating prejudice, substantial injury, and the probability of a different result.  Because Rialto Citizens made no attempt to show, and the trial court did not find, that the City’s errors resulted in prejudice or substantial injury, or that a different result was probable absent the errors, there was no basis for overturning the City’s approvals.

In an unpublished portion of the opinion, the court addressed whether the City violated CEQA.  The court agreed with the trial court’s determination that the project description was inadequate because it did not identify the development agreement as an approval required to implement the project. The court held, however, that this omission did not preclude or undermine informed decisionmaking on the project as a whole or the development agreement, because the ordinance approving the development agreement was duly noticed and considered, along with other project approvals, at the public hearing on the project before the City Council.  The court also concluded, contrary to the trial court’s rulings, that the EIR adequately analyzed the project’s cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change, and did not improperly defer mitigation of potential impacts on any of the special status plant or wildlife species.  The appellate court also found that substantial evidence supported the City’s finding, at the project approval stage, that the reduced density alternative was infeasible.

Thus, the court found no prejudicial violations of either the Planning and Zoning Law or CEQA in the City’s approval of the project.

Second District Court of Appeal Publishes City Of Maywood v. Los Angeles Unified School District in its Entirety, Including Previously Unpublished Portions of the Decision that Found School’s EIR to Be Inadequate.

On August 14, 2012, the Second District Court of Appeal ordered its entire ruling published in the case of City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case Nos. B233739, B236408), including provisions dealing with the District’s compliance with the California Environmental Quality Act (CEQA).

The appellate court affirmed the trial court’s ruling requiring the Los Angeles Unified School District to address whether the proposed design of the school campus, which is bisected by an active roadway, presents significant impacts to pedestrian safety.  Second, the court held the Final Environmental Impact Report (FEIR) adequately addressed whether the project site was contaminated with hazardous materials, adequately analyzed the cumulative impacts from a planned expansion of the I-710 freeway, and contained an adequate discussion of project alternatives.

Pedestrian Safety

The proposed new school campus is on a site bounded on all four sides by streets as well as completely bisected by a street with active traffic. On one side of the bisecting street lie classrooms, on the other a football stadium and parking garage. The Draft EIR (DEIR) proposed a pedestrian bridge to carry students from one part of the school campus to another, as well as other traffic safety mitigation measures along the bisecting road. The DEIR also concluded, however, that the implementation of the proposed mitigation measures along the road was under the jurisdiction of another agency—the City of Maywood—and therefore could not be guaranteed by the school district.

The school district conceded that it had a duty to consider whether the design of the project would have a significant impact to pedestrian safety.  The court found that the evidence in the administrative record analyzed the safety of pedestrians traveling to the project site, but not within it. The court was concerned that the road bisecting the school presented potential impacts that were not analyzed in the EIR.  Although the school proposed a pedestrian bridge to address this concern, the court found that the record contained no evidence that students and other pedestrians would actually use the access bridge up and over the road bisecting the project.  The mere existence of the bridge, without more, was not substantial evidence that the potential impact would be mitigated, and the court ruled that the FEIR failed to adequately address pedestrian safety.

Cumulative Impacts

The appellate court further held that the trial court erred in concluding that the FEIR was required to analyze the cumulative impacts of a proposed freeway expansion and off-ramp near the project because the freeway project was not a reasonably foreseeable probable future project. (CEQA Guidelines, §§ 15130, subd.(a), 15355; Pub. Resources Code, § 21083, subd. (b)(2).) Since the City of Mayfield did not include enough information in the record to establish that the proposed off-ramp was a probable future project, the school district did not need to include the effect of the off-ramp in its cumulative impacts analysis. (See Grey v. County of Madera (2008) 167 Cal.App.4th 1099, 1127.) In this case, the city only included one email in the administrative record which showed that an off-ramp near the project was under consideration. This was insufficient to bring into question the school district’s cumulative impact analysis.

Hazardous Materials

The DEIR stated that the Notice of Preparation determined the project would have no significant impact or a less-than-significant impact related to hazardous materials. Nevertheless, because of public concerns, the school district conducted a phase I environmental assessment, a preliminary endangerment assessment, and a health risk assessment. As a result, several potential contamination hazards were revealed on the project site, including four industrial facilities and residential structures with the potential for lead-based paint and insecticide contamination.

In addition to the environmental assessment, the school district also worked with the Department of Toxic Substance Control (DTSC) to draft a remediation work plan and prepare to work under DTSC’s oversight until it received a “no further action” determination from DTSC.  Such a determination would confirm the elimination of any risk to the health and safety of students, faculty, employees, and visitors, before construction would begin. The school district argued in the appellate court that, under CEQA, it was “permitted to commit itself to craft mitigation measures that would satisfy enforceable performance criteria by the time of project approval.” Further, the school district argued, it would be “impractical and infeasible to complete [the process] before the EIR is prepared and certified and before the project is approved… In circumstances where practical considerations preclude devising specific measures to mitigate at the planning stage, CEQA allows a Lead Agency to commit itself to devise measures that will satisfy performance criteria at the time of project approval.”  Of particular note, in order to fully develop the plan, the school district would have had to procure access agreements for 27 residential properties at the project site and secure a judicial right of entry to conduct testing on the parcels. The court upheld the City’s analysis, reasoning that in accordance with  Oakland Heritage Alliance v. City of Oakland  (2011) 195 Cal.App.4th 884, 906, “[A] condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance.” Therefore, the court reversed the trial court and upheld the FEIR’s hazardous waste analysis.

Project Alternatives

The appellate court also held that the FEIR adequately analyzed a reasonable range of alternatives. The CEQA Guidelines require that an EIR “describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (CEQA Guidelines, § 15126.6, subd. (a).)   The DEIR contained analysis of six possible alternatives to the site, including a no build alternative, a reduced project alternative, and four alternatives at different locations. The City of Maywood argued that the school district should have analyzed a reduced-project alternative, one that had the same number of classrooms but occupied less land. The school district successfully countered that the Department of Education requires a certain amount of land per student, and to increase the density of the student population would violate the department’s maximum student-per-acre density of 150 students, so that alternative was unreasonable.  The court agreed that an “EIR is not required to consider alternatives which are infeasible.” (CEQA Guidelines, § 15126.6, subd. (a).) The school district also rejected consideration of an offsite alternative, which had greater impacts to pedestrian safety and greater potential hazardous materials issues concerns due to proximity to industrial facilities. The court overturned the trial court’s ruling that the FEIR should have given more consideration to this other site, holding that the school district had substantial evidence in the record supporting the FEIR’s statements, assessment, and rejection of the alternative site.

Note: the attorney’s fees portion of this case, holding that the Supreme Court’s decision in Whitley applies to equally to public entity litigants, has been previously discussed on our blog on July 19, 2012. See:

Supreme Court Grants Review in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority

This spring, we blogged on the opinion of the Second Appellate District Court of Appeal in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552, which upheld the use of a future baseline for the purposes of evaluating environmental impacts in appropriate cases.  On August 8, the California Supreme Court has granted review, rendering the court of appeal opinion uncitable and inciting speculation in the environmental law community that the Court might finally provide guidance on the baseline question. (CA Supreme Court Case No. S202828)

In that case, Petitioner Neighbors for Smart Rail argued that Exposition Metro’s use of a future baseline was improper for reviewing significant environmental impacts under CEQA, which requires an “existing conditions baseline.” The lower appellate court found that the CEQA Guidelines provide some flexibility to agencies in selecting an appropriate baseline, and that Exposition Metro’s incorporation of future population growth into its baseline was both realistic and proper. Exposition Metro was therefore not prevented, as a matter of law, from using its future baseline in evaluating environmental effects.

This holding seems to be in conflict with Fifth and Sixth District Court of Appeals in their opinions Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.


Ninth Circuit Court of Appeals holds U.S Bureau of Reclamation renewal of water service contracts not discretionary and therefore not subject to Section 7(a)(2) of the Endangered Species Act

On July 17, 2012, the Ninth Circuit Court of Appeals released its decision in Natural Resources Defense Council v. Salazar, 2012 U.S. App. Lexis 14614 (Case No. 09-17661) affirming Judge Oliver Wanger’s decision in the Eastern District of California, finding that the United States Bureau of Reclamation did not violate section 7(a)(2) of the federal Endangered Species Act by renewing 41 water supply contracts. In this case, plaintiffs argued the Bureau unlawfully renewed the water service contracts without conducting adequate consultation under Section 7(a)(2) of the ESA, and that the contract renewals jeopardized the existence of the Delta smelt.

Background and Procedure

The Bureau operates the Central Valley Project, which is a network of dams, reservoirs, and pumping facilities for regulating and distributing water from the Sacramento and San Joaquin River watersheds. California’s State Water Project operates within the same watershed, and is an analogue to the CVP.

The Bureau and the SWP have coordinated management of the CVP since the 1930’s when the Bureau assumed control of the CVP because California could not finance the project. To operate the CVP, the Bureau was required to obtain water rights under state law, but a dispute arose regarding the priority of pre-project water rights. The California Water Rights Board held hearings on the matter and issued a decision allowing the Bureau to manage CVP water if it first addressed the issue of senior water rights holders. In response to that decision, the Bureau entered into 142 settlement contracts, each for 40-year terms with some parties asserting senior water rights from 1964. The contracts guaranteed so-called “Settlement Contractors” a certain amount of base water, which could only be reduced by 25% in very dry years. The Bureau also entered into long-term contracts with a coalition of water service contractors who obtained water from the Delta-Mendota Canal (DMC Contractors).

In 2003, the Bureau prepared a biological assessment under the ESA regarding effects on the Delta smelt from the renewal of the contracts, and requested consultation with the Fish and Wildlife Service. In 2004, the Service issued concurrence letters, which concluded the contract renewals were not likely to adversely affect any listed species or their critical habitat. Following the decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (invalidating the regulatory definition of “destruction or adverse modification”), the Bureau reinitiated consultation with the Service.  In 2005, FWS reissued concurrence letters reaching the same conclusion.  The concurrence letters incorporated by reference sections of the biological opinion for the Long-Term CVP and State Water Project Operations Criteria and Plan (known as “OCAP”).  Following completion of the Service’s ESA consultation, the Bureau renewed contracts with both the Settlement Contractors and the DMC Contractors.

In 2005, plaintiffs filed suit challenging the 2005 OCAP biological opinion.  The lawsuit also included claims that the Bureau violated its legal obligations under Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. After reviewing the 2005 biological opinion, a district court held it was  unlawful for failing to adequately consider impacts to the Delta smelt’s critical habitat, failing to rely on the best available scientific information, and for not including mandatory mitigation measures to protect the Delta smelt. The district court remanded the 2005 OCAP biological opinion without vacatur, ordered the Bureau and the Service to re-consult, and imposed interim measures that automatically expired on the issuance of a new biological opinion.

The Service filed a new biological opinion in 2008 that concluded the CVP and SWP operations were likely to threaten the Delta smelt and identified “reasonable and prudent alternatives” to avoid jeopardy.  Following the issuance of the 2008 biological opinion, plaintiffs filed another complaint alleging that the Bureau had violated Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. Each side moved for summary judgment, and the district court granted summary judgment for the defendants. The District court found that plaintiffs lacked standing to challenge the DMC contracts, and that the Settlement Contracts were not subject to Section 7(a)(2).

The Ninth Circuit’s Opinion

The Ninth Circuit first rejected defendants’ argument that the issuance of the 2008 biological opinion by the Service rendered plaintiffs’ claims moot.  The court explained the claims were not moot because, unlike its prior cases where a new biological opinion clearly replaced the old opinion, in this case there was ongoing litigation regarding the validity of the 2008 opinion and a district court decision in a separate matter holding that parts of that 2008 opinion violated the ESA.   The Ninth Circuit also held the claims were not moot because it was unclear if the contracts at issue were considered in the 2008 opinion.

The Ninth Circuit then addressed plaintiffs’ standing to challenge the DMC contracts. The court determined plaintiffs failed to establish a causal connection between the threatened injury and the Bureau’s action because the DMC contracts included a shortage provision which expressly allowed the Bureau to take action to meet its legal obligations. These actions could include not delivering water to DMC Contractors if necessary in order to comply with the ESA. Therefore, the threatened injury, jeopardy to Delta smelt, would not be traceable to the contract renewals because the contracts expressly allowed for compliance with Section 7(a)(2). Based on this reasoning, the Ninth Circuit concluded the lower court properly determined the plaintiffs lacked standing to challenge the DMC contracts.

After addressing the DMC Contracts, the Ninth Circuit considered the applicability of Section 7(a)(2) to the Settlement Contracts. With respect to the Settlement Contracts, the Ninth Circuit ruled there was no “discretionary action” triggering the duty to consult under section 7(a)(2) of the ESA.  Citing the Supreme Court’s decision in Nat’l Ass’n. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007), the Court explained that “Section 7(a)(2) of the ESA only applies to federal agency action ‘in which there is discretionary Federal involvement or control.’”  The Ninth Circuit, therefore, held the lower court properly determined that the Bureau’s renewal of the Settlement Contracts was not subject to Section 7(a)(2) because the action was not discretionary.

The court explained that under the Reclamation Act of 1902, the Bureau must operate the CVP in conformity with California water law, including full recognition of any vested right acquired under California law. Under the state law, senior appropriative water rights must be satisfied before junior water rights. Under the Settlement Contracts, the Bureau is required to deliver base supply water that may only be reduced in critically dry years. This duty to deliver is mandatory, and under the Central Valley Project Improvement Act, the Bureau is required to renew these contracts upon request. Due to this requirement, the Bureau’s discretion was limited with regard to the Settlement Contracts such that Section 7(a)(2) of the ESA was not triggered. Based on this reasoning and lack of standing, the Ninth Circuit upheld the district court’s grant of summary judgment in favor of the defendants. (By John Wheat)

California Natural Resources Agency moves forward with regulations for streamlined environmental review for qualified infill projects.

On July 27th, the California Natural Resources Agency took the next step toward rulemaking for streamlined environmental review for qualified infill projects. The action proposed is to add a new section 15183.3 to the CEQA Guidelines, as well as a new Appendix M and N to the Guidelines, pursuant to SB 226 (which added Pub. Resources Code section 21094.5.5, directing the Resources Agency’s rulemaking). The written comment period will remain open until 5:00 p.m. on September 10, 2012. Two public hearings have been scheduled, the first on September 7, 2012 in Los Angeles, and the second on September 10, 2012 in Sacramento.

While existing law already permits streamlined CEQA review for qualified infill projects under SB 226, the Natural Resources Agency’s proposed guidelines would establish a process for documenting and applying SB 226’s streamlining provisions. The proposed rules also clarify the type of specific environmental review required, which may include a checklist approach, more information about the evidence standard for lead agencies, an explanation of the threshold amount of allowable environmental impact, further guidance on which additional policy documents may be used in the streamlined process, and a discussion of mitigation measures.

The proposal also details the performance standards needed for streamlining eligibility as required by SB 226 to ensure that infill development advances state policies with respect to GHG emissions, public health, and water and resource management. Overall, SB 226 and the implementing Guideline section are intended to promote infill development over greenfield development, and to make environmental review less burdensome for qualifying projects. (By Holly W. Roberson)

More information can be found at: