On February 5, 2018, the Sixth Appellate District of the California Court of Appeal issued its decision in a case called Aptos Residents Association v. County of Santa Cruz (2018 WL 1069730). The case affirms that wireless telecommunications networks in the public rightsof-way are exempt from environmental review under the California Environmental Quality Act (CEQA). Michael Shonafelt of Newmeyer and Dillion argued the case on behalf of respondent, the County of Santa Cruz, and real-party-in-interest, Crown Castle NG West LLC. The court ordered the case for publication on February 27, 2018.
Trends in the use of wireless telecommunications devices are being tracked by the U.S. Department of Health and Human Services. According to that agency, over 50 percent of all American homes are now wireless only. Global mobile data traffic is expected to reach a sevenfold increase by 2021. As use of mobile smart phones and tablets proliferates, and dependency on such technologies grows, the telecommunications industry and local governments alike need certainty on the applicability of CEQA exemptions for the vital communications infrastructure, whether such networks exist in rural or urban settings. Aptos Residents Association v. County of Santa Cruz advances that level of certainty.
BACKGROUND ON THE CASE
The case addresses whether the County properly determined that Crown Castle’s wireless “distributed antenna system” or “DAS” network installed in the public rights-of-way (“ROW”) was exempt from CEQA. The County approved Crown Castle’s conditional use permits for the DAS network in the ROW of the Day Valley area of Santa Cruz, finding that the project fell within the “Class 3” categorical exemption. A “Class 3” categorical exemption from CEQA applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures” including “electrical, gas, and other utility extensions . . . .” (CEQA Guidelines, § 15303, italics added.) When a project comes within a categorical exemption, no environmental review is required unless the project falls within an “exception” to the categorical exemption.
The appellant, Aptos Residents Association (“Aptos”) argued that the County abused its discretion by (1) finding that the exemption applied because it failed to consider the entire project and instead improperly segmented the project by considering each of the 11 DAS microcells individually, (2) failing to consider information submitted by Aptos that AT&T was interested in putting cell transmitters in the Day Valley area and finding that the “cumulative impact” exception did not apply, (3) finding that the “location” exception did not apply, and (4) finding that the “unusual circumstances” exception did not apply. The court rejected Aptos’s contentions and affirmed the judgment of the trial court in favor of the County and Crown Castle.
The case highlights the propriety of Class 3 CEQA exemptions for critical wireless telecommunications and broadband infrastructure in the State of California. The First Appellate District Court of Appeal had earlier held that a network like Crown Castle’s DAS project was subject to the Class 3 CEQA exemption in the urban setting of San Francisco. (Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, 956.) The Aptos Residents Association case establishes that the exemption also applies in a rural setting, where aesthetic impacts may be more heightened. Aptos Residents Association also breaks new ground by establishing that that “substantial evidence” standard of review applies when a court reviews threshold factual determinations regarding whether or not the “location” or “cumulative impacts” exceptions defeat a Class 3 CEQA exemption. Finally, the case demonstrates the application of the California Supreme Court’s recent articulation of the bifurcated standard of review for the “unusual circumstances” exception in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.
To read the Aptos Residents Association v. County of Santa Cruz decision published on February 27th, click here.