“Yes, Virginia, there is a Santa Claus.” – Editorial by Francis Pharcellus Church first appearing in New York newspaper The Sun on September 21, 1897
In keeping with the spirit of the holiday season, it is entirely fitting that some cynical and unbelieving jurisdictions be gifted with a published judicial reminder that CEQA really does exist – and that its required procedures must be scrupulously followed. In an opinion filed November 18, and later ordered published on December 5, 2002, the First District Court of Appeal (Div. 4) bestowed such a gift upon the City and County of San Francisco (“City”), although the “jury is out” on whether the latter lead agency will receive it in the proper spirit or view it as humbug and the proverbial lump of coal. Saint Ignatius Neighborhood Association v. City and County of San Francisco (2022) ___ Cal.App.5th ___.
Factual and Procedural Background
The tale of the case’s factual and procedural background is simply told. Saint Ignatius College Preparatory High School (school) requested City’s approval to install four 90-foot tall light standards in its athletic stadium, which is located in the Outer Sunset District, seats 2,008 persons, and is surrounded by two-story, mostly single-family homes. The school’s purpose was to shift the timing of field use from weekday mornings and weekend afternoons to weekday evenings, which would significantly expand existing nighttime use of the stadium from about 40-50 evenings per year (using temporary lights) to up to 150 evenings per year. The project would not, however, increase the stadium’s capacity or overall frequency of use.
The City’s Board of Supervisors approved the school’s nighttime lighting project with numerous conditions and affirmed the planning department’s determination that it was categorically exempt from CEQA under the Guidelines’ class 1 (existing facilities) and class 3 (small structures) categorical exemptions. The neighborhood association (SINA) sued, challenging the City’s CEQA exemption determinations and the project’s general plan and planning code consistency; the trial court denied its writ petition and SINA appealed.
The Court of Appeal’s Decision
The Court of Appeal reversed. Reviewing the exemption determinations under CEQA’s usual “abuse of discretion” standard – i.e., for compliance with CEQA’s legal procedures and substantial evidence support – the Court observed: “Interpretation of the language of the Guidelines and the scope of a categori[c]al exemption is a legal question subject to our de novo review, while the city’s determination that the project fits within an exemption is subject to review for substantial evidence.” (Citing Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693-694.)
The Court first held that substantial evidence did not support the City’s application of the class 1 exemption for “existing facilities,” which applies to “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of the existing or former use.” (CEQA Guidelines, § 15301.) While substantial evidence supported the City’s findings that the project would not increase the stadium’s capacity or overall frequency of use, it was “undisputed that the project will significantly expand the nighttime use of the stadium.” While it was apparently disputed whether the school’s existing nighttime stadium use of 40-50 evenings per year with temporary lights was authorized, the Court held that “[e]ither way, increasing the use of the field to 150 nights a year is a significant expansion of the facility’s existing use” and that “the city [therefore] erred in finding the class 1 categorical exemption applicable.”
The City’s attempted reliance on the class 3 exemption for “New Construction or Conversion of Small Structures” fared no better. That exemption applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.” (CEQA Guidelines, § 15303.) The Guideline’s non-exclusive list of examples include: small residential structures; small stores, motels, offices and restaurants not involving use of hazardous materials or exceeding 2,500 square feet of floor area; small commercial buildings not involving use of significant amounts of hazardous materials or exceeding 10,000 square feet of floor area in urbanized areas; utility extensions; and appurtenant structures. (Ibid.)
Observing that categorical exemptions, as exceptions to CEQA, are “narrowly construed” and “not to be expanded beyond the reasonable scope of their statutory language” (quoting San Lorenzo Valley Community Advocates For Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1382), the Court looked to the State Resources Agency’s non-exclusive list and concluded that “[t]he light standards are fundamentally dissimilar from all of the examples.” While square footage serves as a meaningful standard of size when applied to commercial and residential structures, which are subject to applicable zoning requirements restricting their height, the Court found that “detached light-emitting standards cannot [similarly or reasonably] be evaluated solely on the basis of the square footage at their base.” Per the Court: “The light standards, at 90 feet tall, are significantly taller than any other structure in the neighborhood. In comparison, homes in the area are typically 20 to 25 feet tall, the City’s zoning ordinance limits residential buildings in the area to 40 feet tall and typical streetlights are only 25 to 30 feet tall. [citation] In short, a 90-foot tall light standard does not qualify as “small” within the meaning of the exemption.”
The Court had no trouble distinguishing the handful of categorical exemption cases on which the City relied. In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338 (my 3/26/18 post on which can be found here), the 35-foot high faux eucalyptus tree cell tower and associated 250-square foot landscaped equipment structure approved under the class 3 exemption were not only of much smaller square footage than the list of examples, but were located in an existing stand of trees, two of which were about 55 feet tall. Thus, the Court concluded, “[t]he cell tower was small within its setting, unlike the [school’s proposed] light standards[,] . . . which will be by far the tallest structure[s] in the surrounding area . . . [and] are not small within the environment but instead tower over it.”
The Court also rejected City’s attempted reliance on “several cases in which courts have upheld application of the class 3 exemption to a wide variety of new telecommunication projects. (See Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039 [10 microcell transmitter units on existing utility poles] [my 3/1/18 post on which can be found here]; Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950 [40 wireless equipment cabinets on existing utility poles] [my 9/12/12 post on which can be found here]; San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012 [726 new utility cabinets on public sidewalks] [my 6/2/14 post on which can be found here].) The Court concluded that “[t]he installation of new 90-foot light standards . . . can hardly be considered similar to the installation of utility boxes on existing utility poles” and “cannot fairly be considered small structures within the meaning of the class 3 exemption.”
In light of its holding that neither of the CEQA categorical exemptions relied on by the City applied, the Court reversed the judgment denying SINA’s writ petition and found it unnecessary to reach SINA’s alternative arguments that the “unusual circumstances” exception to the exemptions (CEQA Guidelines, § 15300.2(c)) applied, or that the project approval violated the City’s code and general plan.
Conclusion and Implications
In concluding its opinion, the Court aptly observed that the purpose of enforcing CEQA’s environmental review requirement is not necessarily to kill the project, but to require careful consideration of measures to mitigate its environmental impacts, which the evidence here indicated included light, noise and traffic impacts on the surrounding residential neighborhood. And while the City here imposed conditions of approval to address such concerns, the Court noted that “the neighborhood citizens are entitled to have the sufficiency of these conditions scrutinized in accordance with CEQA standards and, if deemed necessary, enforceable limitations imposed.”
The Court’s opinion was a fine stocking-stuffer to the neighbors, indeed. Whether the Court’s holiday present of precedent will cause the City to abandon its miserly, Scrooge-like application of CEQA’s environmental review and mitigation requirements, and to embrace the true meaning and spirit of CEQA, however, is another matter, and remains to be seen.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.