In a published opinion filed March 15, 2018, the Fourth District Court of Appeal (Division One) affirmed the trial court’s judgment denying a writ petition and complaint challenging the City of San Diego’s approvals of a wireless telecommunications facility to be constructed by real party Verizon Wireless in Ridgewood Neighborhood Park, a dedicated park. Don’t Cell Our Parks v. City of San Diego (Verizon Wireless, Real Party in Interest) (2018) ____ Cal.App.5th ____.

Most of the Court’s opinion involved the issue whether placement of the Project – “a 35‑foot-tall mono-eucalyptus and a 220-square-foot equipment enclosure with a trellis roof and a chain link lid” – in an existing stand of tall trees on the outskirts of the 8.53 acre Park would violate Section 55 of the City’s Charter. That charter provision prohibits changing the use or purpose of real property formally dedicated in perpetuity to park, recreation, or cemetery purposes without a two-thirds popular vote. (In keeping with this blog’s purpose, the Court’s analysis of these non-CEQA issues will not be addressed in detail here. For present purposes, it will suffice to say that, after analyzing and applying the general legal rules and principles for construing city charters, the Court held the record supported the City’s construction and conclusion that the use proposed by the Project was permissible, and would not disrupt or interfere with park or recreation uses or purposes; in essence, the Project’s relatively small addition to the Park did not run afoul of the Charter’s prohibition on changing the use or purpose of dedicated parks, and the City’s determinations were fully consistent with its implementing ordinances and guidelines, as well as its past decisions regarding telecommunications facilities on parkland and open space.)

Turning to the CEQA portion of the decision, which upheld the City’s Class 3 categorical exemption determination for the Project, the Court rendered the following pertinent holdings and observations:

  • The first tier of CEQA’s three-step process “requires an agency to determine whether the proposed activity is a project and, if so, whether the project is exempt from CEQA.” (Citing San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1372-1373.) A project is CEQA-exempt if subject to a categorical exemption stated in Guidelines §§ 15301-15333, and the application of the exemption is not barred by one of Section 15300.2’s exceptions.
  • Whether an activity meets the definition of a categorically exempt project is determined by courts as a matter of law. Exemptions are narrowly construed to afford the fullest possible environmental protection, but in conducting their de novo review of an agency’s exemption determination, courts apply a “‘highly deferential’ review standard … to the agency’s factual determinations.” (Citing at 1387.)
  • As a threshold issue, the Court found that plaintiff/appellant DCOP’s CEQA challenge was not barred by failure to exhaust administrative remedies, even though it failed to raise its CEQA arguments in its administrative appeal or any written materials submitted to the City. The Court held the exception to the exhaustion requirement set forth in Public Resources Code 21177(e) applied, i.e., “there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law.” The Court reasoned as follows: “[T]he City[’s staff] determined on April 15 that the Project was exempt from CEQA. It later prepared and distributed a “Notice of Right to Appeal.” DCOP filed an appeal later that month. There is nothing in the record, however, indicating that before the City determined that the Project was exempt it held a public hearing or otherwise provided members of the public the opportunity to raise oral or written objections. Rather, it appears that the City filed the notice of exemption before the Project had even been approved. Accordingly, the exception to the exhaustion requirement applies to DCOP’s CEQA arguments.”
  • The opinion’s cursory analysis of the exhaustion issue (quoted above) is questionable. While any error in this regard also appears to be harmless (because the Court ultimately affirmed on the merits), the opinion’s CEQA exhaustion analysis and holding are, at the very least, confusing and should not uncritically be relied on by practitioners. The opinion seems to erroneously conflate an administratively appealable staff exemption determination, which must obviously be made at some point prior to project approval, with a “notice of exemption” (NOE) that cannot validly be “filed” (with the County Clerk) until after project approval. It is well settled the only real purpose of a NOE, the filing of which is optional and not mandatory, is to shorten the statute of limitations for challenging an approved project to 35 days. (See Resources Code, § 21167(d); CEQA Guidelines, § 15062(d).) A prematurely filed NOE – one filed before project approval – is invalid and ineffective to trigger the 35-day statute of limitations. (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408.) Our Supreme Court has held that the exhaustion requirement of Public Resources Code § 21177(a) applies to challenges to a lead agency’s categorical exemption determinations “as long as the public agency gives notice of the ground for its exemption determination, and that determination is preceded by public hearings at which members of the public had the opportunity to raise any concerns or objections to the proposed project.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 291.) While the opinion’s cursory analysis is not clear, it appears that City’s staff here likely made a proposed exemption determination for the Project of which DCOP was given some sort of notice, and which was subject to administrative appeal. That DCOP apparently could have administratively appealed and had a public hearing on CEQA grounds before the Project was finally approved, but for some reason did not choose to appeal on CEQA grounds, would appear to support a meritorious failure-to-exhaust defense here. Allowing DCOP to withhold its CEQA arguments from its administrative appeal and assert them in court for the first time under these circumstances would appear antithetical to the purposes of the jurisdictional exhaustion requirement, which include lightening the burden of overworked courts while developing a complete administrative record promoting judicial efficiency and facilitating judicial review.
  • On the merits, the Court rejected DCOP’s argument that the Project failed to “qualify for a Class 3 exemption because it is a new stand-alone utility that is not an intended type of urban infill development encompassed by the Class 3 exemption[,]” which exemption covers the “construction and location of [(1)] limited numbers of new, small facilities or structures; [(2)] installation of small new equipment and facilities in small structures; and [(3)] the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.” (Quoting CEQA Guidelines, § 15303.) Noting the “paucity of case law applying th[e] exemption[,]” the Court observed nonetheless that it “has been applied to the installation of 726 telecommunications equipment boxes on city property” and “to the installation of small new telecommunications equipment on numerous existing small structures in scattered locations.” (Citing San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1021-1022, and Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, 956.) (For analysis of a more recent published decision upholding the County of Santa Cruz’s determination that the Class 3 exemption applied to a Verizon project consisting of the installation of about a dozen small telecommunications facilities on existing utility poles in the unincorporated rural Aptos area, see my post here.) The Court concluded that the Verizon “faux tree” Project here fit under Section 15303’s “plain language” as “construction and location of a new small facility or structure” which was only “534 square feet, including the above‑ground branch diameter of the faux tree” and was “much smaller than a single-family residence, store, motel, office or restaurant” (which the Guideline section lists as examples of the exempt projects).
  • The Court rejected DCOP’s argument that the “unusual circumstances” exception under Guidelines section 15300.2(c) applied to negate the exemption. The existence of unusual circumstances for projects in an exempt class presents a factual issue reviewed under the “traditional substantial evidence standard,” while a finding as to whether unusual circumstances give rise to a reasonable possibility of significant environmental effect is reviewed to determine whether the agency proceeded in the manner required by law in applying the “fair argument standard.” Here, the Court noted that, contrary to DCOP’s contention “that the Project’s location within a dedicated park is an unusual circumstance,” “evidence [in the record] that at least 37 similar facilities exist in dedicated parks” suggested “that construction of the Project within the Park is not unusual.” While that seemingly should have been the end of the Court’s analysis, it proceeded to observe that the Project’s non-interference with Park uses, minimal grading and trenching on mostly disturbed non-environmentally sensitive lands, and insignificant noise and habitat effects “show[ed that] the City proceeded in the manner required by law when it determined that a reasonable possibility did not exist that the Project would have a significant effect on the environment” and that “DCOP does not challenge th[at] evidence[.]” Further, based on before-and-after photo simulations and the Project’s required movement of only a single piece of exercise equipment about 100 feet north of its current location, no record evidence supported DCOP’s arguments of potentially significant aesthetic or recreational impacts.
  • Finally, and assuming arguendo that it had not been forfeited by DCOP’s failure to raise it either in the administrative proceedings or trial court, the Court rejected the argument that the Project’s location within a dedicated park triggered the “location exception” to exemptions for projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted to pursuant to law by federal, state, or local agencies.” (Quoting Guidelines, § 15300.2(a).) The Court held that the absence of evidence that the Park is a location “designated” by any federal, state or local agency as an “environmental resource of hazardous or critical concern” defeated application of the exception.

The opinion’s extensive City Charter analysis was clearly its prime focus; while its secondary CEQA holding that this “faux tree” telecommunications facility Project was properly found categorically exempt, and not subject to any exception, is undoubtedly correct, some of its reasoning in getting to that conclusion appears questionable. For example, the lack of clarity in the opinion’s cursory discussion of the exhaustion issue is confusing at best (and at worst just wrong), and its discussion of the Project’s lack of significant environmental effects appears largely extraneous given that the record clearly contained substantial evidence supporting the City’s factual conclusion that the Project presented no “unusual circumstances.”