Real Estate and Land Use

June 04, 2015

Emergency Work Can Modify a Project’s Environmental Baseline

CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488

Why It Matters: This decision provides an important clarification of what constitutes the “environmental baseline” under the California Environmental Quality Act (CEQA). The Court of Appeal held that the appropriate environmental baseline under CEQA is the existing physical conditions at the site when environmental review commences—even when site conditions were altered by prior emergency work that was statutorily exempt from CEQA.

Facts: In 2007, the City of San Diego proposed to install 135 feet of storm drain pipe and repair a failed slope. Biological studies revealed that the project may have temporary impacts to sensitive vegetation, but no endangered, threatened or rare species were found on the site. In 2009, the storm drain failed and caused significant erosion along the adjacent steep slopes and undermined the hillside on which single-family residences were located. The City Engineer concluded that there would be an imminent threat to public safety if the erosion were allowed to continue, and requested the City to issue an emergency exemption to allow reconstruction of the failed storm drain pursuant to CEQA Guidelines Section 15269(b), which establishes a statutory exemption for emergency projects. In 2010, the City issued an emergency coastal permit and a notice of exemption from CEQA for storm drain repair work. The emergency permit included an express condition requiring the City to obtain a regular coastal permit for the work and implement a revegetation plan. In 2011, the City issued a regular coastal permit for already-completed storm drain repair work and a proposed revegetation plan. The City determined that the project was exempt from CEQA under three exemptions: the “common sense” exemption, and the categorical exemptions for existing facilities and the repair and replacement of existing structures and facilities. The revegetation plan noted that the storm drain repair work had been completed and the City’s proposed project was for the revegetation plan to restore the area with native vegetation and thereby biologically improve on the current post-impact conditions of the site. In issuing the CEQA exemption, the City concluded that the emergency repair work had already been completed, and thus, the only physical change associated with the project (implementation of the revegetation plan) would not result in a significant effect on the environment.

CREED-21 (CREED) filed administrative appeals of the exemption determination and the permits, and filed a writ of mandate petition alleging CEQA and other causes of action. In June 2013, the trial court issued a judgment granting the petition.

The Decision: The Court of Appeal reversed the trial court’s decision on most issues. Although the primary focus of the opinion was the baseline issue, the Court’s opinion addressed a number of other causes of action presented by CREED’s petition, all of which are summarized below.

Work Done Under CEQA Emergency Exemption Becomes Part of the Existing Environmental Baseline for Subsequent CEQA Review. CREED argued that when it conducted the CEQA review for the regular coastal permit in 2011, the City should have based its analysis on the physical conditions that existed in the area in 2007 prior to the 2010 emergency storm drain work. CREED based its position on the language of the City’s Municipal Code and a condition of the emergency permit requiring that a “regular” coastal permit be obtained for the work authorized by the emergency permit. Because the City was required to conduct a CEQA review in connection with the issuance of the regular coastal permit, CREED argued that the City was required to determine whether the storm drain repair work already completed would have a significant effect on the environment, and not limit its review to just the proposed revegetation work. CREED asserted that the environmental baseline should therefore reflect 2007 conditions, and not the existing conditions present in 2011 after completion of the emergency work.

The Court refused to require application of the earlier 2007 baseline agreeing with the City that the baseline for the 2011 revegetation project should be the physical conditions that existed after the 2010 emergency work had been completed. The Court explained that the 2010 emergency storm drain repair work was an intervening and superseding event that changed the physical environment without any requirement for CEQA review of that work. Accordingly, after the 2010 emergency work was completed, the only activity to be performed under the 2011 project was the implementation of the revegetation plan. Therefore, the CEQA baseline for the revegetation project must be set after the 2010 emergency work was completed, and any qualification for a CEQA exemption and/or significant environmental effect of that project must be reviewed against the physical environment of the site following the emergency work.

CREED Did Not Have Standing. The Court upheld the City’s argument that CREED did not have standing to challenge the City’s 2010 emergency storm drain repair work. The Court explained that absent a timely challenge to an agency’s emergency exemption determination, a party will not have standing to challenge that determination. Furthermore, the Court noted that whether the emergency work is considered “permanent” or “temporary” does not impact whether a party has standing since all emergency work is considered exempt from CEQA review. Accordingly, the Court’s decision only addressed the revegetation project which was the subject of the 2011 coastal permit.

Substantial Evidence Supported the City’s Use of the “Common Sense” CEQA Exemption. The City argued that it had substantial evidence to support its finding that the revegetation project was exempt from CEQA pursuant to the “common sense” exemption of CEQA Guidelines Section 15061. The “common sense” exemption can be used when “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The Court concluded that the revegetation would undoubtedly improve the site’s physical conditions, therefore not resulting in any adverse significant effect on the environment within the meaning of CEQA.

No “Unusual Circumstances” Were Shown to Preclude Use of the Categorical Exemptions. The Court agreed that CREED did not carry its burden to present substantial evidence to show that the “unusual circumstances” exception applied to the existing facilities exemptions that the City also relied on for the revegetation project. The Court explained that a challenger must not only show the existence of an unusual circumstance, but must also prove that there is a reasonable possibility that the unusual circumstance will cause the project to have a significant effect on the environment. CREED failed to present evidence that unusual circumstances existed, and that there was a reasonable possibility that the revegetation project would have a significant effect on the environment because of such unusual circumstances.

City’s Failure to Timely Disclose a Document Under the California Public Records Act Was Not a Denial of Due Process. The Court held that CREED was not denied due process of law when the City did not provide it with a copy of the revegetation project’s Initial Study until after the hearing regarding CREED’s appeal of the City’s exemption determination. The Court concluded that CREED received notice of the hearing of its appeal and also had a reasonable opportunity to be heard at the appeal hearing. The Court further explained that the fact that CREED did not have one item of evidence (Initial Study) at the time of the appeal hearing did not violate its right to due process of law and a fair hearing.

City’s $100 Appeal Fee Was Not Authorized. Finally, the Court determined that the City did not provide sufficient information to support the imposition of the $100 appeal fee it charged CREED to file the administrative appeal, as it did not present the complete fee ordinance and did not properly authenticate it.

Practice Pointers:

Emergency work that is statutorily exempt from CEQA becomes part of the “existing conditions” environmental baseline for purposes of CEQA.
In order to challenge the use of a categorical exemption because of the presence of “unusual circumstances,” a challenger must not only show the existence of an unusual circumstance, but must also prove that there is a reasonable possibility that the unusual circumstance will cause the project to have a significant effect on the environment.
Due process does not require any particular form of notice or method of procedure. While due process requires a fair trial before an impartial tribunal, it is the substance, not the technical formalism, of an administrative procedure that ultimately affords due process.