Lead Agency Correctly Applied CEQA Categorical Exemption To Permits For Wireless Equipment To Be Added To Existing Utility Poles

By William W. Abbott

On April 6, 2009, T-Mobile applied to the Planning Department of the City and County of San Francisco for a determination on the installation of 40 wireless telecommunications facilities on existing utility poles throughout San Francisco. On August 7, 2009, T-Mobile applied for a permit from the Department of Public Works for an installation on Randall Street, marking the application that the installation was exempt from CEQA. Prior to the Planning Department completing its CEQA review, Public Works granted the permit on August 10. Roughly a month later, the Planning Department granted a certificate of CEQA exemption. Two months later, T-Mobile completed the Randall Street installation. A neighbor, Robinson, then filed suit, claiming that the City violated CEQA and its own approval procedures. The trial court ruled for the City and T-Mobile. Robinson appealed.

The initial issue on appeal was whether the installations met the requirement for a Class 3 exemption from CEQA. Viewing this dispute as purely a question of law, the appellate court concluded that these installations fully completed with the criteria codified in CEQA Guidelines section 15303 (construction and installation of limited number of new, small facilities or structures.) Robinson also claimed that the City was precluded from using a exemption due to cumulative impacts, arguing that the City was required to look at this question City wide. Acknowledging but sidestepping the question of whether the court should apply the substantial evidence or fair argument test to the question of whether there was evidence of cumulative impacts, the appellate court pointed out that CEQA Guidelines section 15330.2(b) calls for a more geographically focused inquiry, looking at the evidence in the record of successive projects “in the same place.” Finding only speculation that there may be later similar projects in the same place, the appellate court concluded that there was insufficient evidence to reverse the decision, regardless of which standard of review the court applied.

The appellate court then addressed the sequencing of the permit “cart” before the CEQA “horse”. While in fact the sequencing of CEQA and permit issuance was reversed, the appellate court found that the appellants made an insufficient showing that an order compelling the City to redo the process could possibly lead to a different outcome, concluding that this error was not prejudicial and therefore not a basis for reversing the decision.

The final issue on appeal was a due process claim, whereby the appellant argued that he was entitled to notice and hearing before the issuance of the permit. The appellate court distinguished the wireless permits from the leading cases on land use due process for neighbors, implicitly finding that the facilities did not rise to the level of significance such that notice and due process was required. Robinson v. City and County of San Francisco (July 20, 2012, modified August 21, 2012, A132385) ___Cal.App.4th ___.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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