Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449.
Perhaps we have entered a new era in CEQA history. It no longer matters whether you seek to protect the environment, so long as you can plausibly “greenwash” your ulterior motives in CEQA terminology. Some might say this happened years ago, but Respect Life South San Francisco feels like peak-absurdum.
The City of South San Francisco (the “City”) considered approval of a conditional use permit (“CUP”) for a proposed Planned Parenthood clinic at an existing office building in the City’s downtown (the “Project”). To comply with the California Environmental Quality Act (“CEQA”), the City cited several categorical exemptions, including: (1) Existing Facilities (CEQA Guidelines §15301); (2) Conversion of Small Structures (Id. §15303); and (3) the Infill Exemption (Id. §15332). Respect Life of South San Francisco (“Respect Life” or “Petitioner”) argued that an Environmental Impact Report (“EIR”) was required, because there were unusual circumstances that precluded use of the categorical exemptions. Specifically, Respect Life asserted that due to “the inherently noxious and controversial nature of a portion of Planned Parenthood’s services,” protests that would occur as a result would cause significant environmental impacts to traffic, parking, public health and safety, and noise. Planned Parenthood countered the claims with additional testimony about protests at similar facilities elsewhere in the Bay Area which indicated future protests were likely to be small and manageable. The City approved the Project finding it exempt from CEQA and Respect Life filed suit. The trial court rejected petitioner’s claims and upheld the City’s determination that the Project was exempt from CEQA. Respect Life appealed.
The appellate court first considered whether Respect Life had proper standing, finding that Respect Life had adequately pled it had a beneficial interest in the litigation, by alleging in the verified complaint that members of the unincorporated association “reside in the vicinity of the Project and are affected by the proposed Project’s environmental impacts.” Moving to the underlying substantive CEQA matters, the court applied the standards in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, to find that Respect Life failed to present “substantial evidence of a fair argument of a reasonable possibility of a significant environmental effect” resulting from an unusual circumstance. First, the court looked to the administrative record to note that the City had not made specific findings that there was not an unusual circumstance. Thus, the court reasoned that it therefore must: (1) assume the City found that the project involved unusual circumstances; and (2) despite this fact, conclude the City’s CEQA decision implied that the unusual circumstances exception was nonetheless inapplicable. As a result, the court determined that it must look to the record to determine whether there is substantial evidence to support either: (1) that an unusual circumstance exists; or (2) that a fair argument of a reasonable possibility that any purported unusual circumstances identified will have a significant effect on the environment.
Focusing on the second option, the court concluded that Respect Life failed to meet its burden to identify substantial evidence of a possibility of a significant effect resulting from the Project. Specifically, the court reasoned that the claims of impacts from protests at the facility did not amount to substantial evidence. It concluded that without specific evidence indicating the number of protesters, or the specific traffic, noise, or other disruptive impacts that could occur, the statements were nothing more than vague and speculative assertions of indirect or secondary effects of the protests. It further reasoned that testimony from Planned Parenthood representatives and others about their experience of “small and manageable” protests at other similar facilities in the region reflected “the presence of evidence supporting a determination that there is no reasonable possibility of a significant effect on the environment.” Thus, the court held that there was no substantial evidence supporting a fair argument of a reasonable possibility that impacts resulting from the protests will have a significant effect on the environment and affirmed the trial court judgment.
The case was utterly fascinating, as it raises serious issues worth exploring. First, the more practical take-away is it is now clear that an agency’s failure to specifically find that no unusual circumstances exist can significantly undermine the deferential standard of review offered by the CEQA exemption. Agencies and applicants should insist on including this finding when using categorical exemptions whenever possible, particularly when a potential opponent has raised a concern that could be construed as unusual circumstances.
There is a second and more provocative issue here. A project opponent was asserting potentially significant effects that would result from approval of a project that would be the direct result of actions that the opponent threatened (at least impliedly) to take against the project once it was operating. Normally, even when one strongly suspects an opponent does not actually care about the environmental concerns raised, it is never a certainty because it is not possible to truly know another person’s motives. This case is fundamentally different. The significant effects asserted by the petitioners were largely within their own control—meaning if there was truly a concern about the environmental impacts, the petitioners were the ones in a position to eliminate or at least reduce those impacts. While some may dismiss the arguments as absurd, the court was obligated to, and did, treat it seriously. Given the standard that applied in this case, it is possible to see how things could have turned out differently if the petitioners had presented evidence of the specific impacts from those protests. Is this a one-off? Or, could it be the beginning of a new form of opposition?
Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc., at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.