In a decision filed January 29, and belatedly ordered published on February 18, 2015, the Fourth District Court of Appeal rejected numerous CEQA (and other) challenges to the City of San Diego’s regular, after-the-fact coastal and site development permits authorizing already-completed emergency storm drainage repair work as well as site revegetation at a hillside site in La Jolla. CREED-21 v. City of San Diego (4th Dist., Div. 1, 2015) ___ Cal. App. 4th __, 2015 WL 682777.) In so doing, it reversed the trial court’s decision granting a writ of mandate setting aside the City’s approvals, and made crystal-clear that work performed and completed under CEQA’s emergency exemption becomes part of the “existing conditions” environmental baseline for purposes of a subsequent CEQA challenge to the permanent permits when the exemption itself is not timely challenged.

The case arose from City’s 2007 proposal to install 135 feet of storm drain pipe, cut-off walls, and a head wall, and to repair a failed slope. Biological studies revealed the project would have temporary impacts to sensitive vegetation, but the site harbored no endangered, threatened or rare species. In 2009, the storm drain failed. This failure caused significant erosion impacts along adjacent steep slopes, undermined a hillside on which single family residences were located, and presented (per the City’s engineer) an imminent threat to public safety if the situation continued unabated. The engineer requested, and the City promptly issued, a determination finding the proposed emergency repair work exempt from CEQA under Guidelines § 15269(b), pursuant to the engineer’s findings that “deterioration of the storm drain and metal support systems presented an imminent risk to public health and safety” and that if they were “not immediately repaired, [their] existing condition may result in further erosion of the slope and could result in slope failure.”

On January 5, 2010, the City issued an emergency permit and a notice of exemption (NOE) for the emergency work; the permit included a provision, pursuant to local ordinance, stating as an express condition that within 60 days the City’s engineering department would “apply for a regular coastal permit to have the work declared permanent” and that if a regular permit were not obtained would “remove[ ] the work in its entirety within 150 days … unless waived by the City Manager.” The City’s engineering and capital projects department concurrently issued an updated biological letter confirming the work would be performed with hand tools only (not mechanized equipment) to avoid impacts, that no species of concern were observed on the site, and that impacts to the ruderal vegetation/disturbed habitat on the site was not considered significant under the City’s relevant habitat classifications. In May 2010, the emergency work was completed; in October 2010, the City applied for regular permits; in June 2011, a revegetation plan was prepared for the project, and it noted the storm drain work repair work had been completed and that City’s regular permit applications included that work and the site revegetation plan, whose goal was to restore the area – then “mostly devoid of vegetation” – entirely with native vegetation that would biologically improve it.

In November 2011, the City issued an NOE for the project concluding that since the emergency work had long been completed “[t]he only physical change associated with the project is the implementation of the vegetation plan.” Since it found that plan would not result in a significant adverse effect on the environment, it concluded the project was exempt from CEQA under Guidelines §§ 15301 and 15302 and not subject to any exception to the exemptions. Following CREED’s unsuccessful administrative appeals of the exemption determination and the permits, it filed a mandate petition in May 2012 alleging CEQA and other causes of action. The trial court issued judgment granting the petition in June 2013. In reversing, the Court of Appeal addressed a number of interesting CEQA and land use issues. Key points of its decision include:

  • “ ‘The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. [Citations.] In addition, pursuant to the Legislature’s command [citation], the CEQA Guidelines list categorical exemptions or ‘classes of projects’ that the resources agency has determined to be exempt per se because they do not have a significant effect on the environment. If a public agency finds that a project is exempt from CEQA, no further environmental review is necessary. …” (Quoting Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380-381.)
  • The trial court erred in granting the petition “based on its finding that the project’s baseline was in 2007 when the storm drain work was initially proposed by City.” Under Public Resources Code § 21080(a), “CEQA generally applies prospectively to activities to be carried out in the future and not retrospectively to work already completed.” To determine a proposed project’s potential effects on the environment, “a public agency must first make a fair assessment of existing physical conditions (i.e., baseline conditions) and then compare it to the anticipated or expected physical conditions were the project completed, thereby allowing the agency to focus on the nature and degree of changes expected in those physical conditions after the project and whether those changes result in any significant effect on the existing environment.” (Citing, inter alia, 14 Cal. Code Regs., 15125(a); Communities For a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319-321, 328.)
  • Here, the CEQA baseline for the permanent permit/revegetation project included the completed post-emergency work, which, “was, in effect, an intervening and superseding event that changed the physical environment without any requirement for CEQA review of that work for a significant effect on the environment.” As CREED conceded, the “City correctly found the storm drain repair work done in 2010 was exempt from CEQA pursuant to the statutory exemption for emergency projects. (§21080, subd. (b), 21060.3.)” CREED’s attempted reliance on a condition of the emergency permit issued by City – based on its Municipal Code, and providing for removal of emergency work if a regular permit was not received – was unavailing. Any “temporary” status of the completed emergency work was based solely on City’s Code, not CEQA, and did not support the trial court’s CEQA-based relief and findings; moreover, CREED did not plead any Code violations in its petition.
  • Per the Court: “Because CEQA and the Guidelines do not contain any provisions for environmental review of emergency projects, any emergency work completed pursuant to an emergency exemption and permit is deemed to be done outside of CEQA’s requirements and therefore no subsequent environmental review of that completed work is required.” The Court noted CREED did not timely challenge City’s issuance of the emergency exemption and permits; consequently, it had no standing to challenge them in its action attacking the permanent permits, and the trial court lacked jurisdiction to act on them. Moreover, environmental impact is irrelevant to the emergency exemption, whose “self-evident purpose … is to provide an escape from the EIR requirement despite a project’s clear, significant impact.’” (Quoting Western Mun. Water Dist. v. Superior Court(1986) 187 Cal.App.3d 1104, 1113.) “Whether the work completed pursuant to an emergency exemption and permit is a short-term or “stop-gap” measure or long-term or “permanent” construction, that work is exempt from CEQA’s environmental review provisions.”
  • Under these rules, the completed emergency work changed the baseline for CEQA review purposes such that “any future work proposed to be completed at the site was required to be considered under CEQA based on the physical environment that existed thereafter without any environmental review of the emergency work completed in 2010 and without any consideration of the physical conditions that existed prior to that emergency work.” Since the only post-2010 work to be done at the site was the revegetation plan, CEQA applied only to that work. Substantial evidence supported the City’s conclusion that the revegetation work was categorically “exempt from CEQA pursuant to the common sense exemption under Guidelines, 15061, subdivision (b)(3),” as it would only biologically and visually improve the site by returning the barren slope to its previous conditions, and the record showed with certainty there was no possibility it would have a significant adverse impact. Moreover, CREED failed to carry its burden to show the “unusual circumstances” exception applied to defeat this exemption, whether the issue was reviewed under the “substantial evidence” or “fair argument” standard.
  • With respect to the non-CEQA rulings, the Court rejected CREED’s due process challenge to the fairness of City’s administrative appeal proceedings. It upheld only the trial court’s denial of City’s belated request for judicial notice of its administrative appeal fee ordinance and its related ruling that three $100 appeal fees charged by the City were unauthorized and must be refunded to CREED. The City’s request for judicial notice came very late – after the trial court’s tentative ruling on the petition and on the very day of the merits hearing – without any explanation or justification, and it provided insufficient information since it did not present the complete fee ordinance or properly authenticate it. Under the applicable deferential abuse of discretion standard, the Court of Appeal could not find that no reasonable judge would have denied the City’s request for judicial notice under these circumstances. Accordingly, the record lacked any evidence showing the City’s appeal fee was authorized and the trial court thus did not err in ruling for CREED on this point. (The Court of Appeal denied CREED’s motion for sanctions against the City for certain actions or omissions on appeal, without discussion.)

Whether considered exceptionally thorough or unnecessarily lengthy and redundant in its analysis of the central baseline issue, the Court of Appeal’s 48-page decision undoubtedly reaches the correct result. It is only the most recent in a now-substantial line of published opinions emphatically holding that the “normal” and standard CEQA baseline is existing physical conditions when review of a project commences – no matter how they came to exist.