CEQA Plaintiffs Still Searching For “Unusual Circumstances”
The First District Court of Appeal recently upheld the City of South San Francisco’s decision to approve a CUP for converting office buildings to a medical clinic via a CEQA categorical exemption. (Respect Life South San Francisco v. City of South San Francisco (2017) Case No. A145992.) The proposed conversion included only minor physical changes to the existing office building, and the City determined multiple categorical exemptions applied, including: operation of existing facilities; the conversion of small structures; and the development of urban in-fill.
Project opponents argued that unusual circumstances rendered the CEQA exemptions inapplicable. Specifically, project opponents argued that the project was inherently controversial and would implicate environmental impacts that were different and more extensive than the historic use of the property. The First District Court of Appeal rejected the challenge after applying the review standard set forth by the California Supreme Court in Berkeley Hillside.
In Berkeley Hillside, the Supreme Court explained that whether a project presents unusual circumstances is a factual inquiry subject to the deferential substantial evidence standard of review. Project opponents must then demonstrate that there is a reasonably possibility that a significant environmental effect will result due to those unusual circumstances. This second prong is reviewed under the non-deferential fair argument standard. Applying this test, the First District Court of Appeal concluded that project opponents offered no substantial evidence in the record supporting a fair argument that the project would result in significant impacts.
This case is instructional for lead agencies intending to apply a categorical exemption. Notably, the First District Court of Appeal rejected claims by project opponents under the second prong, which is less deferential, because the City did not make explicit findings when determining that the CEQA categorical exemptions applied. A sophisticated project opponent has a high chance of overcoming the fair argument standard. Thus, lead agencies should make explicit findings that no unusual circumstances exist when approving CEQA categorical exemptions.