• In Respect Life South San Francisco v. City of South San Francisco, California's First District Court of Appeal rejected petitioners' arguments that protests to a Planned Parenthood Clinic would cause significant environmental impacts under the fair argument standard, calling their allegation "unsubstantiated and ill-defined."
  • The Respect Life decision provides important guidance that agencies would be well-advised to make express findings as to whether there are unusual circumstances to avoid challenges alleging that the unusual-circumstances exception applies to implied determinations.

Respect Life South San Francisco v. City of South San Francisco, No. A145992, (Cal. Ct. App., Sept. 18, 2017) (Respect Life) involves the City of South San Francisco's approval of a conditional use permit to convert an office building into a medical clinic for use by Planned Parenthood. The only physical changes to the building were interior alterations, minor exterior repairs, and a new sign. Slip op. at 2.

Case Background

In approving the permit, the City found that the office conversion qualified for three separate categorical exemptions from the California Environmental Quality Act (CEQA): 1) the operation of existing facilities (CEQA Guidelines section 15301); 2) the conversion of small structures (CEQA Guidelines section 15303); and 3) the development of urban in-fill (CEQA Guidelines section 15332). Slip op. at 3. Petitioners Respect Life South San Francisco and three individuals (Respect Life) challenged the City's determination, and were rejected by the trial court.

Court of Appeal Decision

Respect Life appealed the trial court's decision, alleging that the "unusual circumstances exception" applied. Where there are "unusual circumstances," a categorical exemption to CEQA cannot 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." CEQA Guidelines section 15300.2, subd. (c). Respect Life argued that "the notoriety of [Planned Parenthood] and its activities" would cause significant environmental impacts "not associated with the normally benign medical office," because of protest activities, such as traffic, noise, public safety and business disruption. (Slip op. at 10.) Essentially, Respect Life argued that their protests would cause significant environmental impacts, and therefore the unusual circumstance exception applied. (See "Public Invited to Respect Life SSF Protest Planned Parenthood," Everything South City, Jan. 31, 2014) [Respect Life announces protest of Planned Parenthood in order to demonstrate their environmental impacts for trial]. The court disagreed.

Under the standard set forth by the Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside), a court reviews a claim that the unusual circumstances exception applies in two steps. First, under the agency-deferential substantial evidence standard, the petitioner must establish that the project "has some feature that distinguishes it from others in the exempt class, such as its size or location." Berkeley Hillside, supra, 60 Cal.4th at 1105; 1114. Second, only if unusual circumstances are present, under the less deferential fair argument standard, the petitioner must establish that the unusual circumstance gives rise to a "reasonable possibility that the activity will have a significant effect on the environment." Ibid.

Here, the court's decision turned on the second prong. Setting aside the issue of whether Respect Life's claimed impacts are the kind of indirect effects even covered by CEQA, since they would be caused by the protests and not by the project, the court found there was no substantial evidence presented to support a fair argument that such impacts would have a significant environmental effect. Slip op. at 10.

The court pointed to evidence in the record that expected protests were typically small, with one to five protestors at a time, and police testimony that the project's security plan and police requirements were "consistent with today's security standards." Slip op. at 12. By contrast, project opponent's claims that they would protest were merely "unsubstantiated and ill-defined" allegations of impacts. Slip op. at 11. The court found that petitioners had failed to point to any substantial evidence in the record supporting a fair argument that protests would have a significant effect on the environment. Slip op. at 12.

Impact on Implied Determinations

Under CEQA, where an agency makes a determination that a categorical exemption applies to a project, that determination includes an implied finding that exceptions are inapplicable. San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1022-1023. The Respect Life court held that because the City had made no express finding, they could not affirm the City's decision solely on the basis that the record contains substantial evidence that there are not unusual circumstances. Slip op. at 8. The court reasoned that "such an approach fails to address the possibility that the entity thought there were unusual circumstances but concluded, under the second element, that these circumstances did not support a fair argument of a reasonable possibility of a significant environmental effect." Slip op. at 9. Instead, the court held that because the finding was implied, they must move on to the second prong, which required no assumptions about the City's findings, but were based solely on whether there was evidence in the record to support a fair argument.

In practical terms, this means that where a project qualifies for a categorical exemption, an agency would be well-advised to make an express finding whether there is an unusual circumstance present. Courts will review an express finding for substantial evidence. Berkeley Hillside, supra, 60 Cal.4th at 1114. Where an agency makes an implied finding, however, courts may give no deference to the agency's implied determination but may move straight to the second prong of the Berkeley Hillside analysis, and review the record for a fair argument that unusual circumstances could cause a significant environmental impact. Slip op. at 9.