United States: CEQA "Common Sense" Exemption Upheld; Environmental Baseline For Project Following Improvements Pursuant To An Emergency Exemption Clarified

CREED-21 v. City of San Diego (2/18/2015, 4th  Civil No. D064186)

The Fourth District Court of Appeal upheld a CEQA exemption related to the City of San Diego's approval of a project comprising emergency storm drainage repair and site revegetation. The decision addressed various CEQA issues, including the environmental baseline determination, the "common sense" exemption, and the "unusual circumstances" exception.

In June 2009, a storm drain located in La Jolla failed, causing erosion to the adjacent sleep slopes in the area and undermining a hillside on which single-family residences were located. The City's engineer concluded that if the erosion continued, it would present an imminent threat to the public. On this basis, he requested the City issue an emergency exemption from CEQA to allow reconstruction of the failed storm drain. The City found that the proposed emergency work was exempt from CEQA based on the engineer's findings, and issued an emergency permit approving the requested emergency work.

In 2011, the City proposed a revegetation plan for restoration of the area impacted by the storm drain. The goal of the plan was "to restore the area entirely with native vegetation and thereby biologically improve on the current post-impact conditions of the site." Therefore, the City had concluded based on an initial study that the project qualified for the "common sense" exemption because the project obviously would not result in significant environmental impacts. CREED alleged that the project was not exempt from CEQA, and that the City had failed to perform any environmental review of the project.

Environmental Baseline

The first issue the court addressed was the environmental baseline for the 2011 project. The court agreed with the City that the environmental baseline for the 2011 permit included the completed 2010 emergency work. Therefore, the environmental baseline for the revegetation project should have been established as the physical conditions that existed after the emergency work had been completed. The court rejected CREED's argument that the baseline was in 2007 before improvements were made pursuant to the emergency permit, when the City initially proposed the project. CREED argued that the 2010 emergency exemption was for "temporary" work and that a condition of the emergency permit required the City's engineering department to apply within 60 days for a regular coastal permit to have emergency work considered permanent. The emergency permit also provided that if a regular permit were not received, the emergency work had to be removed in its entirety within a certain period of time.

The court rejected this claim because it was based on San Diego's Municipal Code and not on CEQA. The court noted that CEQA's emergency exemption draws no distinction between temporary and permanent emergency work. Therefore, any future work proposed to be completed at that site had to be considered under CEQA based on the physical environment that existed after the emergency improvement.  Thus, the baseline for consideration of the revegetation plan was the post-2010 emergency work physical conditions, and not the 2007 pre-emergency work physical conditions.

CREED's Standing

The court also held that the plaintiff lacked standing to challenge the 2010 emergency repair permit on CEQA grounds because the plaintiff had not filed a challenge within the required 35 days of the 2010 Notice of Exemption for that work. According to the court, "absent a timely challenge to an agency's emergency exemption determination, any emergency work completed pursuant to that exemption determination cannot collaterally be challenged," citing CEQA Section 21167. Therefore, CREED did not have standing to collaterally challenge the City's 2010 storm drain repair work.  However, CREED did have standing to challenge the City's determination that the revegetation project was exempt from CEQA because CREED had made a timely challenge to the 2011 Notice of Exemption for that work.

CREED argued that it had standing to challenge the 2010 repairs because the 2011 NOE for the revegetation work described the project as both the 2010 emergency repair work and the proposed revegetation work. The court rejected this argument and determined that the inclusion of the 2010 repairs in the 2011 NOE was "redundant and unnecessary" and to the extent the City found it exempt again, it only confirmed the prior 2010 exemption determination.

CEQA Exemptions: Common Sense Exemption and Categorical Exemptions

The court upheld the City's application of the CEQA common sense exemption because it could be shown with certainty that the project would have no adverse significant effect on the environment. The only physical change associated with the project was the implementation of the revegetation plan. As noted above, the City properly considered the 2011 post emergency work condition of the site as the baseline against which the revegetation plan was to be compared in determining whether the project might have a significant impact on the environment. Because the revegetation plan would install native plants and improve the physical condition of the site, the plan would not result in any adverse changes in the physical conditions of the environment. Therefore, the court held that there was substantial evidence to support the City's determination that the revegetation project was exempt from CEQA pursuant to the common sense exemption. The court also noted, without holding, that several of CEQA's categorical exemptions could have applied as well.

Unusual Circumstances Exception

Even though the court did not rely on the categorical exemptions to reach its holding, it addressed the unusual circumstances exception. The plaintiff argued that the unusual circumstances exception to the categorical exemptions applied based on a reasonable possibility that the project may have a significant effect on the environment. However, as support, the plaintiff primarily cited to circumstances relating to the emergency storm drain repair work; however, as discussed above, the court held that those circumstances were irrelevant to the determination of whether the 2011 revegetation plan was exempt from CEQA. The plaintiff provided no evidence to support that the revegetation plan was unusual compared to other typically exempt projects. In addition, there was no evidence showing that even if unusual circumstances did exist, there was any reasonable possibility of a significant adverse effect on the environment from the revegetation project. The court was careful to note that the same conclusion would result under a fair argument and substantial evidence standard of review, and thus did not address the question of which standard of review applied to the unusual circumstances exception.

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