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.