Archives: April 2018

Sixth District Upholds Categorical Exemption Determination for Microcell Transmitter Project

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth Appellate District upheld a county’s determination that the installation of microcell transmitters on existing utility poles for the purpose of providing wireless coverage was exempt from CEQA review.

The county zoning administrator considered 11 applications for the installation of 13 microcell transmitters in the Day Valley area of Aptos, finding that the project fell within the Class 3 categorical exemption that applies to small structures and that no exceptions to the exemption applied. The petitioner association appealed to the county planning commission, which denied the appeal—and the board of supervisors declined to take jurisdiction over the appeal. The petition for writ of mandate alleged that the county had improperly segmented the project and that several potential exceptions applied to the project, thereby defeating the county’s use of the Class 3 categorical exemption. The petitioner also alleged that the board had abused its discretion in declining to take jurisdiction of the administrative appeal.

With respect to “piecemealing,” the court held that the county had not improperly segmented the project. The applicant’s filing of separate permit applications and the county’s issuance of a separate permit and exemption for each project were not evidence of piecemealing. The court found that throughout the administrative proceedings, the county had considered the entire group of microcell units to be one project. It stated that “[t]he nature of the paperwork required for approval of the project is immaterial.”

Next, the court held that the board had not abused its discretion in finding that new evidence submitted by petitioner about a possible future AT&T project was not significant new evidence relevant to its decision. The petitioner had submitted a declaration from its attorney stating that county staff had been contacted by AT&T about a cell transmitter project in the same area. The court found that the evidence was too vague to support a finding that a possible AT&T project would be of “the same type in the same place.”

The court also held that the location exception to the exemption in CEQA Guidelines section 15300.2, subdivision (a) did not apply. The court rejected the argument that the neighborhood’s residential-agricultural zoning classification designated the area “an environmental resource of hazardous or critical concern,” because nothing in the statement of the purpose for that zoning district indicated as much.

Finally, the court found that the unusual circumstances exception also did not apply because petitioner produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area or in an area zoned residential-agricultural.

Fourth District Upholds City’s Reliance on Class 3 Categorical Exemption for Wireless Telecommunications Project in Dedicated Park

In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, the Court of Appeal held that the approval of a wireless telecommunications facility (WCF) on the edge of a dedicated park did not violate the San Diego City Charter. The court also held that the city’s determination that the project qualified for the Class 3 categorical exemption was supported by substantial evidence, and the project challengers failed to meet their burden of showing that any of the potential exceptions to the use of categorical exemptions precluded the city’s reliance on the exemption here.

In 2014, Verizon Wireless filed an application with the city to build the WCF on the outskirts of Ridgewood Neighborhood Park in San Diego. The project consisted of a 35-foot-tall faux eucalyptus tree and a 220-square-foot equipment enclosure with a trellis roof and a chain link lid.

The city approved the project in 2015 after finding that it was consistent with the city’s charter and was exempt from CEQA under the Class 3 categorical exemption. A local group dubbed Don’t Cell Our Parks (DCOP) filed a lawsuit challenging the city’s decision. The trial court ruled in favor of the city and DCOP appealed.

The court first rejected DCOP’s argument that the project violated the city’s charter. Pursuant to section 55 of the charter, any changed use of a dedicated park must be approved or ratified by the voters. The court concluded this provision did not apply because there was ample evidence to support the conclusion that the project would not change the park’s use or purpose. Nor would the project would disrupt or interfere with park or recreation uses.

DCOP next argued that the project did not qualify for a Class 3 exemption because it was a new stand-alone utility that was not an intended type of urban infill development encompassed by the Class 3 exemption. The court disagreed.

Applying the plain language of CEQA Guidelines section 15303, the court held that the project consisted of the construction and location of a new small facility or structure, within the meaning of the Class 3 exemption. The project was a new small facility totaling 534 square feet, including the above-ground branch diameter of the faux tree. The court noted that while none of the project examples listed in the exemption were exactly like the proposed project, the facility was much smaller than the listed examples of a single-family residence, store, motel, office or restaurant.

DCOP argued that even if the project qualified for the Class 3 exemption, the “unusual circumstances” exception precluded the city’s reliance on the exemption. Under that exception, an agency cannot rely on a categorical exemption if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. In order to prove the exception, project opponents generally must prove (1) that there are unusual circumstances that distinguish the project from other projects in the exempt class and (2) that there is a reasonable possibility of environmental impacts due to those unusual circumstances. DCOP could not satisfy either part of that test.

For the first part, DCOP argued that the project’s location within a dedicated park was an unusual circumstance in and of itself. The court disagreed, noting that there was substantial evidence in the record that at least at least 37 similar facilities already existed in dedicated parks elsewhere in the city. Therefore the city’s determination that the project did not present or arise under unusual circumstances was upheld by the court.

Even assuming, for argument’s sake, that the project was unusual, the court found that DCOP failed to show a reasonable possibility that the unusual circumstances (i.e., the project’s location in the park) would cause any significant environmental impacts. DCOP claimed that the project would have an adverse environmental impact on aesthetics and the park and recreational uses, but the court found that the evidence relied on by DCOP was insufficient even under the “fair argument” standard.

Finally, DCOP argued that the placement of the project in a sensitive and protected resource area— a dedicated park—precluded the use of a categorical exemption under subdivision (a) of Guidelines section 15300.2. The “location exception” is restricted to projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” According to the court, DCOP presented no evidence that the park was a location “designated” as an “environmental resource of hazardous or critical concern” by any federal, state or local agency. The court explained that the lack of such a formal designation defeated the application of the exception.

City Must Place Certified Referendum on Ballot, First District Rules

In Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, the First Appellate District reversed the trial court’s ruling, finding that a certified voter referendum must be placed on the ballot, and rejecting the city’s argument that doing so would conflict with the Planning and Zoning Law.

In August 2015, the city adopted a resolution amending the general plan to re-designate the subject parcel from administrative professional office (APO) to low-density single-family residential (R-20). After the general plan amendment became effective, the city approved an ordinance codifying the zoning change. The updated zoning would allow for the development of 44 single-family homes proposed by a developer. Subsequently, appellants timely certified a referendum seeking to repeal the ordinance, or alternatively, to have the ordinance submitted to a public vote. The city refused to place it on the ballot. The city maintained that it had discretion to do so, because the referendum was de facto invalid. The city reasoned that if it passed, the referendum would result in an inconsistency between the general plan (R-20 zoning) and the municipal code (which would revert it to APO). Under the Government Code, a zoning ordinance that conflicts with the general plan is invalid. Appellants filed a petition for writ of mandate to compel the city to place the referendum on the ballot. After the trial court ruled for the city, this appeal followed.

In finding for the appellants, the court relied on the Sixth District’s recent decision under similar facts in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34 (review granted Aug. 23, 2017). Key to the Bushey court’s decision was the difference between a referendum and an initiative. An initiative is the power of electorate to propose new laws. In contrast, a referendum grants the electorate the power to approve or reject existing laws. A referendum which vacates an ordinance, like the one at issue here, maintains the status quo. If the voters approved the referendum, then the city must adopt alternative zoning which is consistent with the general plan. If the voters reject the referendum, then no inconsistency is created.

Furthermore, the city does not have discretion to unilaterally keep a properly certified referendum off of the ballot. When presented with the certified referendum, the city’s options were to repeal the zoning ordinance, place the referendum on the ballot and suspend the ordinance, or after placing the referendum on the ballot, file a writ of mandate to have the referendum removed. When a local agency inappropriately refuses to place a referendum on the ballot, this refusal, although improper, may be retroactively validated by the court. Here, the city should have placed the referendum on the ballot, then filed a writ of mandate. Nevertheless, for reasons stated, the court did not validate the city’s decision. The remaining issue of the appellant’s attorneys’ fees was remanded to the trial court.

Eastern District of California Upholds Biological Opinion for Yuba River Dams Against Federal Endangered Species Act Challenge

On February 22, 2018, the U.S. District Court, Eastern District of California, issued a detailed written decision in Friends of the River v. National Marine Fisheries Service (E.D.Cal. 2018) 293 F.Supp.3d 1151, upholding the 2014 Biological Opinion (BiOp) and Letter of Concurrence adopted by the National Marine Fisheries Service (NMFS) under the federal Endangered Species Act (ESA) for the U.S. Army Corps of Engineers’ (Corps’) activities at the Daguerre Point and Englebright Dams on the Yuba River. RMM attorneys Howard “Chip” Wilkins, Laura Harris, and Elizabeth Sarine represented the defendant-intervenor Yuba County Water Agency (YCWA) in the matter.

The case is part of a long-standing dispute over whether the Corps’ ongoing activities at Daguerre Point Dam and Englebright Dam jeopardize the survival and recovery of three ESA-listed species or adversely modify their critical habitat. The primary purpose of both Daguerre Point Dam and Englebright Dam is to retain hydraulic mining debris. Both dams were constructed prior to Congress’ enactment of ESA.

In 2012, the Corps prepared a biological assessment (BA) as part of its ESA consultation for the Corps activities on Daguerre Point and Englebright. The 2012 BA excluded the future effects of the dams’ presence as part of the “agency action,” and instead posited that such effects should be included in the environmental baseline. The Corps made this determination on the basis that it did not have the authority to change the existence of the dams (e.g., the Corps had not authority to remove the dams). The 2012 BiOp issued by NMFS, however, concluded that the Corps’ activities—including those over which the BA stated the Corps had no discretion, such as the existence of the dams—were likely to jeopardize the listed species.

The Corps and YCWA had “serious concerns” regarding the 2012 BiOp and the Corps sought to reinitiate consultation. In 2013, the Corps reasserted its position that the dams’ continued existence was not an agency action because it was non-discretionary. The Corps also broke up what it had previously considered one “agency action” along the Yuba River into several parts, separating actions connected with the dams, and licensing.

In 2014, NMFS issued a “Letter of Concurrence” for the Englebright Dam, in which NMFS concurred with the Corps’ 2013 BA for that dam. NMFS agreed with the Corps that the Corps’ proposed action at Englebright was not likely to jeopardize listed species. NMFS also issued a new BiOp for Daguerre Point (2014 BiOp), also agreeing with the Corps that the Corps’ activities at Daguerre Point were not likely to jeopardize listed species.

Friends of the River (FOR) filed a lawsuit in the U.S. District Court, Eastern District, against NMFS and the Corps alleging the 2014 Letter of Concurrence and the 2012 BiOp violated Section 7 of ESA’s consultation requirements. FOR also alleged the Corps had violated Section 9 of ESA, which prohibits “take” of a listed species. YCWA moved to intervene as a defendant in the case, and the motion was granted. The court decided the case via motion and cross-motions for summary judgment.

At the heart of the dispute between FOR and the defendants was the question of whether the Corps and NMFS had properly defined the scope of the Corps’ actions on the Daguerre Point and Englebright Dams. In particular, FOR argued that the agencies violated ESA in excluding impacts arising from the existence of the dams from the agency action under consultation. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency action, was not arbitrary and capricious.

In particular, FOR argued to the District Court that the agencies violated the ESA in excluding impacts arising from the existence of the dams from the effects of the agency action. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency actions, was not arbitrary and capricious. The court also held: (1) NMFS consideration of voluntary conservation measures as part of the agency actions was not arbitrary or capricious; (2) the federal agencies were not required to include additional activities on the Yuba River as interrelated and interdependent actions in their evaluation of the agency actions; (3) federal defendants’ assessment of the action area was not arbitrary and capricious; (4) NMFS was under no duty to re-identify the agency actions defined by the Corps; (5) the conclusions that the Corps’ activities at the dams would not likely adversely affect listed species was not arbitrary and capricious; (6) NMFS adequately explained its change in position from the 2012 BiOp that took a different approach in defining the agency actions; (7) reinitiation of consultation was not required; and (8) the Corps could not be held liable under Section 9 for take caused by the existence of the dams because the Corps has no discretion over the dams’ existence.

The decision represents an important victory for YCWA and the federal defendants in the long-standing dispute concerning the Corps’ activities at Englebright and Daguerre Point Dams and their effects on listed species.

Fifth District Finds Report Prepared by Real Estate Broker Was Not Substantial Evidence of Urban Decay

In Visalia Retail, LP v. City of Visalia (2018) ­­20 Cal.App.5th­­ 1, the Fifth District upheld the City of Visalia’s certification of an Environmental Impact Report (EIR) for its general plan update. Though the EIR did not analyze the potential for urban decay, the court found that the record contained no substantial evidence that a land use policy restricting the size of commercial tenants in a neighborhood commercial area would result in urban decay. The court also found that the city’s general plan was not internally inconsistent and that the city had not violated relevant Planning and Zoning Law notice provisions.

The city prepared an EIR for an update to its general plan, which included updating the land use policy at issue. Under that policy, commercial tenants in neighborhood commercial areas may not be larger than 40,000 square feet. The petitioner argued that the size restriction would cause significant physical impacts in the form of urban decay, and therefore the EIR was inadequate for failing to address those impacts. In support of this argument, the petitioner submitted a report prepared by a real estate broker, who opined that the 40,000-square-foot cap would cause grocers to refuse to locate in the neighborhood commercial centers, which would cause vacancies and would then, in turn, result in urban decay.

The court rejected this argument finding that the report did not provide the requisite basis for the petitioner’s challenge because its analysis of causation was speculative and the potential economic consequences does not mean that urban decay would result. The court distinguished Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, where it had held that the EIR in that case was fatally defective for failing to analyze the individual and cumulative potential to indirectly cause urban decay resulting from the development of two shopping centers. But there, the court emphasized, the analysis of urban decay is required when there is evidence suggesting that the economic and social effects caused by development could result in urban decay. Here, the court found no such evidence in the record.

The court also found that the size restriction was not inconsistent with the general plan’s stated goal of encouraging infill development. Finally, the court held that the city did not violate the 10-day notice requirement set forth in the Planning and Zoning Law by failing to re-notice additional meetings on the general plan amendment.