United States: California Court Of Appeal Rejects CEQA Challenge To Proposed Planned Parenthood Clinic

Joseph Taboada is an Associate and Amanda Monchamp is a Partner in the San Francisco office


  • 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions