FIRST DISTRICT UPHOLDS INFILL EXEMPTION FOR HOUSING PROJECT

In Nassiri v. City of Lafayette (2024) (June 27, 2024, No. A165324) ___ Cal.App.5th ___, the First District Court of Appeal held that the City of Lafayette properly relied on the “Class 32” infill exemption under CEQA Guidelines section 15332 for a 12-unit condominium project located adjacent to commercial buildings and a creek that provided habitat for Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service. The Court clarified the circumstances in which a species may be considered “rare” under CEQA for purposes of the infill exemption.

Background

In 2018, a developer applied to demolish a vacant building and construct a new 4-story, 12-unit condominium building on a 0.3-acre lot adjacent to commercial buildings and a creek. The City Council adopted a resolution approving the project and finding it exempt from CEQA pursuant to the infill exemption under CEQA Guidelines section 15332.

The owner of an office building adjacent to the project filed a petition for writ of mandate, alleging that the approval of the project violated CEQA. The trial court granted the petition based on its finding that substantial evidence did not support the City’s determination that the project site held no value as a habitat for endangered, rare or threatened species, but rejected the other CEQA claims.

The developer and the City filed a motion for new trial arguing that the only potential habitat for rare birds near the project was an area not part of the project site under CEQA Guidelines section 15332, subdivision (b) (citing Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951 (Tustin Ranch)). The trial court granted the motion for based on its finding that substantial evidence in the administrative record supported the developer’s and City’s position. The trial court subsequently entered judgment denying the petition for writ of mandate. Petitioner appealed.

The Court of Appeal’s Decision

Habitat for Rare Species

The Court of Appeal concluded that substantial evidence supported the City’s finding that the project site was not known to have any value as habitat for rare species.

To qualify for the infill exemption, the project site must have no value as habitat for endangered, rare or threatened species. A species is considered “rare” under CEQA when it meets the criteria of CEQA Guidelines section 15380, subdivision (b)(2), and either: (A) “exist[s] in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens,” or (B) “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.”

The Court explained that while two bird species listed as Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service were observed on the parcel near the proposed project, Petitioner provided no authority or legal analysis to support its claim that said species are “rare” under the CEQA Guidelines section 15380, subdivision (b)(2). The Court noted that Petitioner’s expert biologist never specifically addressed the definition of “rare” under the CEQA Guidelines, and only opined that the project site provided habitat value for “special-status species” without connecting this opinion to a conclusion that the species were therefore “rare.” The Court concluded that the City, on the other hand, provided substantial evidence in the form of expert reports explaining that the bird species were not “rare” based on the criteria listed under CEQA Guidelines section 15380. Moreover, the Court noted that even if Petitioner’s expert had provided an opinion that the bird species are rare, such a conclusion would only serve as evidence that the Court could weigh against evidence to the contrary.

While the Court did not reach the City’s argument that the “creek area” of the parcel where the bird species were observed was not part of the “project site” based on Tustin Ranch, supra, 70 Cal.App.5th 951, it did distinguish that case. Tustin Ranch held that an agency can consider a project site to be only part of an existing parcel for purposes of calculating the required 5-acre maximum site size for the CEQA infill development exemption. Here, the court explained, nothing suggested that the City considered the project site to exclude the “creek area.”

Air Quality

The Court also rejected Petitioner’s argument that the City lacked substantial evidence to conclude that the project would not result in a significant effect on air quality, another one of the criteria that must be satisfied before an agency can rely on the infill exemption.  Specifically, the Court disagreed with Petitioner’s argument that evidence in the form of a consultant firm’s report submitted by Petitioner constituted evidence that the project “would” result in significant effects on air quality, because the report only concluded that the project “may” result in impacts on the surrounding environment and “could” result in a potentially significant impact on air quality. The Court emphasized this distinction because the infill exemption “depends on if [a project] will have a significant effect.” Moreover, the Court agreed with the City that the consultant’s report did not constitute substantial evidence because it did not accurately reflect the scope of construction for the project or provide an accurate estimate of the associated health risks.