Court Upholds Use Of Post Emergency Construction Conditions As Baseline For Project Description

By William W. Abbott

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

As reflected in the recent decision in CREED-21 v. City of San Diego, a lead agency can validly “reset” the baseline for CEQA analysis to the post-emergency condition, even in circumstances in which the lead agency had previously considered undertaking the construction and post-construction work in non-emergency conditions.

In 2007, the City of San Diego’s engineering department sought environmental assessment of a storm drain replacement project consisting of 135 feet of storm drain, cut-off walls, headwall and repair of failed slope. In 2007 and 2008, assessments were performed. No rare or endangered species were found, although potential impacts to sensitive coastal species were identified. The project was never approved. In 2009, the slope failed. Based upon a risk to public health and safety, the city engineer sought a CEQA exemption for emergency work. The 2009 work was similar to, but not exactly the same as the 2007 proposed project. The city determined the work to be exempt, and authorized the work in January 2010 with a condition that the department apply for a regular coastal permit to authorize the emergency work with the added proviso that if the coastal permit was not issued within 150 days, that the emergency work could be removed upon order of the city manager. At the time of the permit issuance, the engineering department released an updated biological assessment based upon the 2009 project. By May 2010, the storm drain repair work was complete and the engineering department filed for its coastal permit. The city released an updated revegetation plan consisting of native plants. The revegetation plan noted that the storm drain work was complete, and that the site was devoid of vegetation. Based upon the narrow scope of work (replacement of existing facility without increasing the capacity and the revegetation plan), the city determined that the project was exempt from CEQA review, relying upon Guidelines section 15301 and 15302. An interested group, CREED-21 (CREED) administratively appealed the use of the CEQA exemption. Responding to the appeals, the city council affirmed the exemption, noting that the only remaining work consisted of revegetation of the slope. CREED filed suit.

The trial court agreed with a number of CREED’s arguments, and issued a judgment invalidating the permits, requiring CEQA review and issued a writ of mandate. The city appealed, and the appellate court addressed six issues: (1) what was the appropriate baseline; (2) did CREED have standing; (3) did substantial evidence support the city’s use of an exemption for the revegetation project; (4) did the unusual circumstances exception apply to the city’s use of an exemption; (5) was CREED denied due process in that the city filed to timely provide a copy of the initial study; and (6) did the city improperly charge CREED an appeal fee?

Resolving first the baseline issue, the appellate court reversed the trial court’s focus on 2007 as the baseline. The 2009 slide condition constituted a superseding event, notwithstanding the City’s prior consideration of the project in non-emergency conditions. Once the City has exercised the exemption and the work was complete, the baseline shifted to the post-construction conditions. Next, the city had argued that CREED lacked standing to challenge the 2010 work in a CEQA challenge to the later approval of the revegetation plan. The appellate court agreed, concluding that the later-in-time approval did not give CREED a “second bite of the apple”. Third in consideration was the use of the exemption for the revegetation work. The City’s 2001 Notice of Exemption (NOE) referenced CEQA Guidelines sections 15061, 15062 and 15063(b)(3) (the latter being the common sense exemption.) The NOE’s analysis focused mostly on the common sense exemption. Applying the substantial evidence test, the appellate court found ample evidence to support the use of the common sense exemption, declining to rule on the remaining alternative grounds. CREED’s primary argument against the use of the exemption was an extension of its earlier argument that the baseline was a pre-construction baseline, which argument the court had already rejected. The appellate court then turned to CREED’s fourth argument that there were unusual circumstances which nullified the use of the exemption. This argument failed for lack of evidence in the record which showed unusual circumstances. The evidence which related to the pipeline reconstruction work was irrelevant in the challenge to the post construction revegetation work. The fifth issue, the due process claim, was new ground in the CEQA context. As CREED administratively appealed the CEQA exemption, it filed a Public Records Act request for the “initial study” referenced in the NOE. The city did not furnish the initial study to CREED until after the city council considered the appeal. The city argued that the proceeding met minimum due process requirements and the appellate court agreed. The court concluded that CREED was able to present its arguments on the exemption. At final hearing, staff presented testimony explaining its rationale for the exemption. The final issue pertained to authority of the city to charge CREED appeal fees in the amount of $100 each (for three appeals.) Despite requests by the city for judicial notice of a local ordinance, the trial court declined to grant the request due to procedural errors. The appellate court declined to consider a new request for judicial notice that had not been before the trial court, resulting in an affirmation of the trial court decision setting aside the administrative appeal fee.

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, nor 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.