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.