Costco Wholesale Corporation (“Costco”) applied to the City of Tustin (the “City”) for a conditional use permit and design review approval to build a new 32-pump gas station project next to an existing Costco warehouse. The project site was located within an existing shopping center and surrounded by commercial uses. The project consisted of two components which totaled 2.38 acres of development and included: (1) 1.74 acres for the gas station and ancillary facilities, and (2) 0.64 acres which included demolition of an existing Goodyear Tire Center and development of parking spaces. Original planning and environmental assessment documents listed the project site size as nearly 12 acres, which was the total size of the existing shopping center. The City’s planning commission determined that the project was categorically exempt from environmental review under the California Environmental Quality Act (“CEQA”) pursuant to the Class 32, Infill Development Projects exemption. (CEQA Guidelines § 15332). Appellants appealed the planning commission’s decision, and the city council adopted a resolution affirming the categorical exemption and concluded that the unusual circumstances exception does not apply to the infill exemption. The appellant filed a petition for writ of mandate and argued that the project did not qualify for the infill exemption because (1) the 12-acre project site listed in the original documents exceeded the project size criterion available under the exemption, and (2) the project fell within the scope of the unusual circumstances exception. The trial court denied the writ petition, and following appeal the Court of Appeal affirmed the trial court’s decision.

For a project to qualify for an infill exemption, five criteria must be met: (1) the project must be consistent with the applicable general plan and zoning, (2) development must occur within city limits on a project site of no more than five acres substantially surrounded by urban uses, (3) the site must not be habitat for endangered, rare, or threatened species, (4) project approval must not result in significant effects to traffic, noise, air quality, or water quality, and (5) the site must be adequately served by utilities and public services. Here, Appellants argued that the project site exceeded the five acres permitted under the infill exemption. However, the Court of Appeal found that the administrative record contained substantial evidence confirming that development for the project was limited to 2.38 acres of the total 12-acre shopping center, including language within the revised environmental assessment form, technical documents, maps, and staff reports that specified the area of work. As to application of the unusual circumstances exception, a categorical exemption 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 § 15300.2(c)). Here, the appellant argued that the unusual circumstances applied because of (1) potential soil contamination from the former operations of the Goodyear Service Center, (2) unusually large number of fueling pumps, and (3) the efforts required to reroute traffic. However, the Court of Appeal found that substantial evidence supported the City’s conclusion that the project was not unusual in size compared to other developments that qualified for the infill exemption nor was the project unusual as to the zoning and land use conditions within the vicinity of the project. Therefore, the Court of Appeal found that the City correctly applied the infill exemption.

William Abbott is Of Counsel and Mariah Ponce is a Law Clerk 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.