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Fourth District Court of Appeal Upholds Use of CEQA Exemption

February 25, 2015

On February 18, California’s Fourth District Court of Appeal published a decision upholding a CEQA exemption issued by the City of San Diego for emergency storm repair work approved and performed in 2010 and a subsequent exemption for revegetation work approved for the same site in 2011.

The decision, CREED-21 v. City of San Diego, focused on CEQA issues involving the appropriate environmental baseline, the “common sense” exemption, and the “unusual circumstances” exception. The court made effective use of the default, “existing circumstances” environmental baseline to reject a CEQA exemption challenge, notwithstanding a degree of confusion evidenced in the city’s decision documents.

Environmental Baseline

In 2007 and 2008 the City of San Diego commissioned environmental surveys for a proposed storm drain repair project in La Jolla. In 2010, after a storm event caused the storm drain to fail and erode a hillside below single family homes, the city issued an emergency coastal permit for the repair work pursuant to CEQA’s emergency project statutory exemption. In 2011, approximately eight months after completion of the emergency repairs, the city applied the “common sense” and other, categorical exemptions to issue a coastal permit authorizing revegetation of the site.

The court agreed with the city that the environmental baseline for the 2011 revegetation permit included (and therefore excluded from CEQA review) the completed 2010 emergency work. The plaintiff took the position that a 2007 baseline was appropriate because the city initially proposed the project at that time. The plaintiff argued against an existing circumstances baseline, claiming that the emergency coastal permit issued in 2010 was “temporary” because it required removal of the repair work if a regular coastal permit was not obtained within a set time, unless waived by the City Manager. Seen this way, the 2011 permit essentially re-issued the 2010 permit de novo. The court rejected this claim. CEQA’s emergency project exemption draws no distinction between temporary and permanent emergency work and any “temporary” status of the emergency work was a function of the city’s municipal code, not CEQA.   

Standing

The court also held the plaintiff lacked standing to challenge the 2010 emergency repair permit on CEQA grounds. The plaintiff had not filed a challenge within the required 35 days of the Notice of Exemption (NOE) and, for the same reasons discussed above, it could not retain standing by claiming the emergency work was “temporary” and essentially reauthorized by the 2011 permit. Moreover, the plaintiff did not get a “second bite at the apple” simply because the 2011 NOE for the revegetation work described the project as both the 2010 emergency repair work and the proposed revegetation work. Inclusion of the 2010 emergency repair work in the NOE was “redundant and unnecessary” and to the extent the city found it exempt again, it only confirmed the prior 2010 exemption determination.

Applicability of CEQA Exemptions

The court upheld the city’s application of the common sense CEQA exemption. The 2011 coastal permit authorized revegetation of the disturbed storm drain site with native plants and the 2010 emergency repair work was already part of the environmental baseline. A consultant memorandum and city planner memorandum in the administrative record provided substantial evidence that revegetation would “indisputably” improve baseline environmental conditions. The common sense exemption therefore applied because it could be shown with certainty that the project would have no adverse significant effect on the environment. The court also noted, without holding, that several of CEQA’s categorical exemptions could have applied in support of the City’s exemption determination.

Unusual Circumstances Exception

The plaintiff claimed the unusual circumstances exception applied to invalidate use of a categorical exemption for the 2011 coastal permit. The court disagreed, noting that plaintiff’s claims rested on circumstances relating to the 2010 emergency repair work that was instead part of the environmental baseline. The plaintiff provided no evidence showing the revegetation work authorized in 2011 was unusual compared to other typically exempt projects, such as revegetation plans. Nor, assuming unusual circumstances did exist, was there any evidence showing a reasonable possibility of a significant adverse effect on the environment as a result of the revegetation project. By holding that the same conclusion would apply under a fair argument or substantial evidence standard of review, the court avoided the question of which standard of review applied, a question currently before the California Supreme Court in the Berkeley Hillside Preservation, et al. v. City of Berkeley, et al.

Conclusion

The court made effective use of the default “existing circumstances” environmental baseline as a foundation for rejecting the CEQA exemption challenge, notwithstanding a degree of confusion on the part of the city that may have helped precipitate the legal challenge and perhaps could have yielded a different result in different hands. While the decision sidesteps the California Supreme Court’s pending question of which standard of review to apply to the unusual circumstances exception, it is surprising the court addressed the unusual circumstances exception at all, given that it does not apply to the common sense exemption the court relied on to reach its holding.