The same appellate panel that decided the controversial Berkeley Hillside Preservation case (which is currently in the briefing stage of Supreme Court review) rendered another significant categorical exemption decision in its recently published opinion in Robinson v. City and County of San Francisco (T-Mobile West Corporation, et al., Real Parties) (July 26, 2012, 1st Dist., Div. 4) 208 Cal.App.4th 950.  This opinion was more deferential to the local agency’s exemption decision, and seemingly more circumspect regarding both its practical impact on the utility of categorical exemptions and its acknowledgment of the split of judicial authority in the standard of review applicable to exceptions to exemptions.

The project at issue was the installation of telecommunications equipment by T-Mobile on certain existing utility poles in the City of San Francisco, to wit: “three 26.1-inch high, 6.1-inch wide, 2.7-inch deep antennas concealed within an enclosure that is affixed at the top of the utility pole and painted to match it, plus four 24-inch high, 17-inch wide, 11-inch deep cabinets and an [sic] 10.88-inch high, 8-inch wide, 3.5-inch deep power meter, all of which are attached to the pole at different heights.”  The City determined this project was categorically exempt under the CEQA Guidelines’ Class 3 exemptions for “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.”  (14Cal.Code Regs., § 15303.)  The trial court denied the writ petition of a group of neighboring residents seeking to set aside the city’s project approvals on CEQA and due process grounds, and the Court of Appeal affirmed.

Key points of the First District’s decision include:

  • Where the validity of a governmental agency’s categorical exemption determination “turns only on an interpretation of the Guidelines or the scope of a particular CEQA exemption, this presents ‘a question of law, subject to [the court’s] do novo review ….’”  In such cases, the court’s “task is ‘to determine whether, as a matter of law, the [project] met the definition of a categorically exempt project[,]’” and the court applies a do novo, rather than a substantial evidence, standard of review.  The City’s exemption determination regarding the T-Mobile project under review by the Court “did not involve the resolution of any factual issue” and was thus “review[ed] … as a question of law[,]” and the Court held as a matter of law that the project “fell within the scope of the Class 3 categorical exemption[.]”
  • “There is a split in the case law regarding the standard of proof and the standard of review applicable to an agency’s determination whether a project falls within the cumulative impact exception to categorical exemptions[,]” with some courts “uphold[ing] an agency’s decision if there is any substantial evidence in the record that there will be no significant effect on the environment” and others holding government agencies “‘must apply a fair argument approach in determining whether, under Guidelines section 15300.2[](c), there is no reasonable possibility of a significant effect on the environment’ so as to bring the project within the scope of an exception.”
  • Echoing its vacated and under-review Berkeley Hillside Preservation decision – and underscoring the significance of the Supreme Court’s forthcoming decision in that case – the Court observed that courts applying the “fair argument approach” “independently review the agency’s determination under Guidelines section 15300.2[](c) to determine whether the record contains evidence of a fair argument of a significant effect on the environment.”
  • The Court of Appeal found no need to decide the standard-of-review split in the authorities to resolve the case before it since “even under the more environmentally rigorous fair argument approach, [plaintiffs] have not demonstrated that the T-Mobile project is subject to the cumulative impact exception.”
  • The Court rejected plaintiffs’ argument that in determining applicability of the cumulative impact exception the City was required to consider all existing, planned or potential installations by T-Mobile and all similar companies of telecommunications equipment on all utility poles throughout the City; rather, the Guidelines limit the exception to “successive projects of the same type in the same place ….”  The meaning of the “in the same place” limit of the exception cannot, in every instance at least, be jurisdiction-wide, region-wide, or state-wide, since under such an expansive interpretation “the exception would swallow the rule, and the utility of the Class 3 exemption would be vitiated.”  Ultimately, the Court held that “given the overall purpose of CEQA, and the Guidelines,” the meaning of “in the same place” for purposes of the exception to the exemption is “an area whose size and configuration depend on the nature of the potential environmental impact of  the specific project under consideration,” i.e., the area within which an impact can be measured, felt or perceived.
  • Applying this interpretation to the case before it, the Court noted that the plaintiffs complained only of visual and noise impacts which are “inherently limited by the range of human sensory perception”; therefore, the cumulative impact exception would apply “only if the record contains evidence supporting a fair argument that potential future installations of similar equipment are likely to occur within visual or auditory range of an installation included in the T-Mobile project.”  The uncontradicted record evidence showed T-Mobile’s installations were “widely dispersed” and “distributed throughout the City and … not concentrated in one particular area”; Plaintiffs’ “argument amount[ed] to speculation that future installations may occur within sensory range of the [T-Mobile project] installations” and was therefore not a fair argument supported by evidence sufficient to invoke the cumulative impacts exception.

In addition to these key points, the Court also rejected plaintiffs’ CEQA and non-CEQA arguments which were based on the sequence of events in the case, i.e., the fact that the City’s project approval (a Public Works Department permit) actually occurred prior to the issuance of the City’s Planning Department’s CEQA exemption certificate and Department of Public Health’s required radio frequency (RF) emissions certification, though actual project construction by T-Mobile did not commence until thereafter.  The Court distinguished Laurel Heights and its CEQA rule prohibiting “post hoc rationalizations” of actions already taken as applying in the EIR context, but not where a project is categorically exempt, since “‘there is no requirement that [an] agency put its exemption decision in writing at any time, and the Guidelines expressly provide that notice of a categorical exemption determination not only need not, but should not be given until after the project is approved.”  (Citing San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1385 and 14 Cal. Code Regs. § 15062(a).)  It also rejected plaintiffs’ constitutionally based due process arguments, distinguishing Horn v. County of Ventura and like precedents as requiring notice and an opportunity to be heard prior to a project’s approval only where the governmental action at issue results in “significant” or “substantial” deprivations of property, not where there is merely “a de minimus impact on the land.”  Finally, it held case law construing statutory notice and hearing requirements for variance approvals was simply inapplicable.

While I think it reaches the right result, a couple of things about the Robinson opinion strike me as carrying the potential to be misconstrued if taken outside their context.  First, its definition of Guidelines Section 15300.2(b)’s “in the same place” seems inherently ambiguous and a little contrived.  Would, for example, billboards or signs popping up at regular intervals all along the coast or across a city not be considered to have a significant cumulative impact simply because a “sensitive receptor” (i.e., a human) would have to travel along city streets or a scenic highway to see more than one at a time?  I suppose context is everything, and the court undoubtedly did the best it could, but the definition remains a little unsatisfying.

Second, and perhaps more significantly, there is potential for mischief and confusion in the Court’s statements that “the Guidelines expressly provide that notice of a categorical exemption determination not only need not, but should not be given until after the project is approved.”  These statements may confuse the distinct concepts of: (1) an agency giving notice of its intended exemption determination and the grounds therefor prior to a project approval hearing in the notice published for that hearing; and (2) the filing of a formal Notice of Exemption, the sole purpose of which is to trigger the 35-day statute of limitations period for challenging the exemption determination, and which thus properly occurs only after approval of the project.  With respect to the first concept, such “notice” is commonly provided prior to project approval hearings – and may even be necessary to trigger the exhaustion of administrative remedies requirement that the Supreme Court recently held applicable to categorical exemption challenges in Tomlinson v. County of Alameda (2012) __ Cal.4th __ (see my June 18, 2012 post, “Supreme Court Holds CEQA’s Exhaustion Requirement Applies to Categorical Exemption Challenges”).  While a Notice of Exemption would obviously be invalid and ineffective to trigger the statute of limitations if filed prior to project approval, it would make no sense, in my view, to read the Robinson court’s above language as condemning or forbidding the salutary agency practice of providing pre-hearing notice of its proposed exemption determination and the grounds therefor.

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit