Tag: infill exemption

Fourth District Upholds City of Tustin’s Reliance on CEQA’s Infill Exemption for a Costco Gas Station and Parking Lot

In Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, Division Three of the Fourth District Court of Appeal upheld the City of Tustin’s reliance on CEQAs’ categorical exemption for infill projects, holding that the petitioner failed to show that the project did not meet the requirements for the exemption or that an exception to the exemption applied.

Background

This case involves a proposal by Costco Wholesale Corporation to build a gas station next to an existing Costco warehouse in the Tustin Ranch area of the City of Tustin. The project site is already developed with a shopping center and is surrounded by commercial uses, as well as some residential development.

The project includes two components: (1) a 16-pump gas station with a canopy and landscaping, and (2) the demolition of an existing Goodyear Tire Center and parking lot, which would be replaced with a new 56-stall parking lot.

The planning commission voted to approve the project and adopted a resolution finding that the project is categorically exempt from CEQA under CEQA Guidelines section 15332 (Class 32, Infill Development Projects).

Members of the public appealed the planning commission’s decision to the city council. The staff report for the city council hearing explained why staff believed the project fell within the infill exemption. It also explained that, although Costco’s initial application indicated that the project site is 11.97 acres, the project site (i.e., the portion of the site to be developed) is actually only 2.38 acres.

The city council agreed with the planning commission and staff that the project is exempt under the infill exemption. The city council adopted a resolution finding the project categorically exempt and approved the project. In doing so, the city council expressly found that the project did not present any unusual circumstances as compared to other projects that would qualify for the exemption.

The trial court upheld the city’s determination that the project is categorically exempt from CEQA review. Petitioner appealed.

The Court of Appeal’s Decision

To qualify for the Class 32 infill exemption, a project must meet five criteria: (1) the project must be consistent with the general plan and with the zoning code, including all applicable general plan policies and zoning regulations; (2) the project must be located within city limits on a site that is no larger than five acres and is surrounded by urban uses; (3) the site must have no value as habitat for special-status species; (4) approval of the project must not cause any significant impacts related to air quality, noise, traffic, or water quality, and (5) the site must be adequately served by utilities and public services. (CEQA Guidelines, § 15332.)

Petitioner challenged the city’s reliance on the infill exemption only with respect to the size of the project, arguing that the project does not qualify for the exemption because the project site is larger than five acres. The court explained that the city’s conclusion that the project site is five acres or less is a factual determination to which the court applies the deferential “substantial evidence” standard of review. Under this standard, the court does not weigh conflicting evidence. Rather, the court must uphold the agency’s determination if it is supported by any substantial evidence in the record as a whole. In the case before it, explained the court, multiple documents in the administrative record confirmed that the size of the project site is 2.38 acres. For instance, Costco’s revised development application states that the “area of work” would be 2.38 acres, inclusive of the new gas station and parking at the demolished Goodyear site. A water quality management plan and maps of the project also showed that the site is 2.38 acres.  Additionally, at the city council’s hearing on the project, city staff clarified that the total project site was calculated by adding together the acreages of both components of the project—1.74 acres for the gas station and 0.64 acres of new surface parking where the Goodyear center would be demolished. Thus, held the court, substantial evidence supports the city’s determination that the project fits within the requirements of the infill exemption.

The court next considered whether the “unusual circumstances” exception to the categorical exemption applies. CEQA Guidelines section 15300.2, subdivision (c), provides that “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” If a project meets the requirements of a categorical exemption, the burden is on the party challenging the exemption to produce evidence supporting an exception. The Supreme Court, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, explained that this showing may be made in two ways. First, the challenger may identify evidence that the project will have a significant environmental impact. Alternatively, the challenger may show that the project is unusual because its features distinguish it from others in the exempt class, and that there is a “reasonable possibility” that the project will result in a significant environmental impact due to that unusual circumstance. The substantial evidence standard applies to an agency’s determination that there are no unusual circumstances. But the less deferential “fair argument” standard applies to the question of whether there is a reasonable possibility that the unusual circumstances may cause a significant effect.

Petitioner argued that the unusual circumstances exception applied for three reasons. First, the project is located on a former Goodyear Tire Center where tires were installed and oil and other fluids were changed. Second, the proposed gasoline fueling station with 16 pumps is unusually large. And third, Costco proposed to re-route traffic during peak hours. The court summarily rejected these arguments, however, because petitioner had failed to explain why these features made the project unusual compared to other projects qualifying for the infill and exemption. In fact, evidence in the record showed that the project is similar to other Costco gas stations in California and is not unusually large—as evidenced by the fact that the project is less than five acres in size. The court went so far as to question whether the size of a project can be a characteristic that makes an otherwise exempt infill project unusual, since the infill exemption is expressly limited to projects less than five acres in size.

Petitioner further argued that the city’s reliance on the exemption was improper because the city should undertake studies to determine whether the project would contaminate soils. The court rejected this argument, however, explaining that unsupported assumptions and speculation are not enough to require the city to conduct CEQA review. By law, a categorically exempt project is deemed not to have potentially significant impacts unless the project’s administrative record shows that an exception to the exemption applies. Here, petitioner failed to show an exception applies. The fact that the project may have a significant environmental impact is not a sufficient basis to require CEQA review for a categorically exempt project.

Implications

This case highlights the standard of review that the courts will apply to an agency’s determination that a project is categorically exempt from CEQA. The burden of showing that the “unusual circumstances” exception applies is on the petitioner. In this case, the petitioner did not offer any concrete reasons or evidence showing that the project is distinct from other projects qualifying for the in-fill exemption. Therefore, the court upheld the city’s reliance on the exemption.

City of San Diego Appropriately Relied on CEQA’s In-Fill Exemption in Approving Residential Development, Although Project Less Dense than Typically Required by the general plan, Fourth District Holds

In Holden v. City of San Diego (2019) 43 Cal.App.5th 404, the Fourth District Court of Appeal upheld the City of San Diego’s reliance on CEQA’s in-fill exemption for a seven unit residential project on environmentally sensitive land in the city’s North Park community. The court rejected plaintiff’s claim that the city erred in relying on the in-fill exemption because the project was less dense than the standards established in the city’s general plan. The court held that substantial evidence supported the city’s reliance on the exemption because the general plan, together with an applicable community plan, allowed the city to deviate from the density standards for projects in environmentally sensitive areas.

Background

In 2014, the developer applied to the city to demolish two houses and to construct seven new residential condos on a 0.517-acre site located on a canyon hillside. City staff initially informed the developer that the project did not comply with the minimum density standards for the site under the general plan and an applicable community plan. Specifically, staff determined Policy LU-C.4 of the general plan and the housing element of the community plan required a minimum of 16 dwelling units on the site. Later, however, city staff concluded that a reduced density of seven units was appropriate because the site is considered environmentally sensitive.

The city determined that the project was categorically exempt from CEQA under the infill exemption set forth in CEQA Guidelines section 15332. To qualify for this exemption, a project must be consistent with the general plan’s designations and policies. On April 18, 2017, at the planning commission’s recommendation, the city council unanimously voted to approve the project.

The petitioner filed a petition for writ of mandate challenging the city’s determination that the project is exempt from CEQA and the city’s approval of the project. The trial court denied the petition. The petitioner appealed.

The Court of Appeal’s Opinion

On appeal, petitioner contended that the city erred in finding the project is exempt from CEQA under the infill exemption because the project provides less residential density than is required by the general plan. In so arguing, petitioner relied primarily on a policy of the general plan to “‘[e]nsure efficient use of remaining land available for residential development … by requiring that new development meet the density minimums of appliable plan designations.’” The general plan recommended that residential areas designated “Medium High”—including the project site—provide multi-family housing with a density range of 30- to 44-dwelling units per acre. Because the project did not meet this standard, petitioner argued the project was inconsistent with the general plan, and, therefore, the city abused its discretion in relying on CEQA’s in-fill exemption.

The court rejected the petitioner’s argument as too rigid of an interpretation of the general plan. The court explained that the city’s determination that the project is consistent with the general plan is entitled to great weight because the city is in the best position to interpret it. The general plan consistency requirement does not require rigid conformity to the general plan. A project is consistent with the general plan if it will further the plan’s objectives and policies, and not obstruct their attainment.

Although the general plan’s density standards would ordinarily require 16 or more units on the site, the city council adopted extensive findings explaining why the project was consistent with the general plan, despite its lower density. In support of its findings, the city council cited a note in the community plan, which states that the residential density recommendations “‘may be subject to modification.’” Further, the community plan provided that modifications could be made to the recommended densities. The general plan provides that the community plans are integral components of the general plan; thus, the court held, the city appropriately considered these statements in the community plan as part of the general plan. The city council found that the project, at seven units, struck a reasonable balance of meeting the city’s housing goals, while also respecting the environmentally sensitive canyons. The city’s code limits development on steep hillsides, and the project proposed design was consistent with the city’s hillside development standards. Further, the project would provide infill residential housing, consistent with the city’s housing policies. As stated by the city council, the project’s “‘creation of seven new dwellings, where there existed two units, would assist the housing needs of the North Park area community.’”

The Court of Appeal concluded that the city’s extensive general plan consistency findings demonstrated that the city considered the general plan, the community plan, and the city’s steep hillside development regulations in approving the project and balanced the competing interest of those plans and regulations. Based on its review of the record, the court concluded that the city acted reasonably and did not abuse its discretion by balancing those competing policies and regulations to determine the project is consistent with the general plan. Accordingly, the court held that substantial evidence supported the city’s reliance on the in-fill exemption.

 

Laura Harris