In an opinion filed February 5 and later ordered published on February 27, 2018, the Sixth District Court of Appeal affirmed a judgment denying Aptos Residents Association’s (“ARA”) writ petition challenging Santa Cruz County’s approval, as categorically exempt from CEQA, of real party Crown Castle’s (“Crown”) project to extend Verizon’s wireless coverage by installing a 13-microcell Distributed Antenna System (“DAS”) in Aptos’ Day Valley area. Aptos Residents Association v. County of Santa Cruz (Crown Castle, Inc., Real Party in Interest (2018) 20 Cal.App.5th 1039.
Crown submitted to County’s Zoning Administrator 11 separate permit applications to install 13 microcells – 11 in the public right of way and 2 on private property – in the rural portion of County’s unincorporated Aptos area. Each microcell consists of a two-foot by one-foot antenna and related pole-mounted equipment that would be mounted on an extender pole attached to an existing utility pole. Many residents objected to the project as a “health hazard” and “aesthetic blight,” and (as relevant to the issues preserved on appeal) ARA submitted a letter contending the project was not categorically exempt from CEQA under the “cumulative impact” or “unusual circumstances” exceptions.
The Zoning Administrator, who considered Crown’s 11 applications together, disagreed and approved the project, finding the “relatively visually inconspicuous” microcells fell within the CEQA Guidelines’ Class 3 exemption for small structures (14 Cal. Code Regs., § 15303) and that no exceptions applied. (The Class 3 exemption from CEQA applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures” including “electrical, gas, and other utility extensions…”) The Zoning Administrator’s determinations were affirmed on ARA’s administrative appeal to the Planning Commission, which found the project would have a “negligible” visual impact even when considered in conjunction with an already-CEQA reviewed but abandoned PG&E project to replace some wooden utility poles with 100-foot tubular steel poles. County’s Board of Supervisors, after considering the many staff reports, photo simulations, and letters in the record, and hearing ARA’s attorney’s 20-minute presentation, declined to take jurisdiction over ARA’s appeals of the project permits.
The superior court subsequently denied ARA’s writ petition, rejecting its “segmenting” and cumulative impact arguments, and also rejecting its new argument that the project’s location in a “mapped protective designation” – i.e., “Residential Agricultural” zoning – and supposed “particularly sensitive environment” rendered exceptions to the categorical exemption applicable.
The Court of Appeal affirmed. Key takeaways from its 18-page published opinion include:
- “When a project comes within a categorical exemption, no environmental review is required unless the project falls within an exception to the categorical exemption. Although categorical exemptions are construed narrowly, our review of an agency’s decision that a project falls within a categorical exemption is deferential, and we determine only whether that decision is supported by substantial evidence. (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697.)”
- ARA’s argument that the project failed to qualify for the Class 3 exemption lacked merit. The exemption repeatedly employs the plural in referring to “limited numbers” of “small structures,” and explicitly includes “utility extensions.” Further, case law holds it “applies to the installation of small new equipment on numerous existing small structures in scattered locations.” (Quoting Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, 956, emph. added by Court, internal quotes omitted.) The project’s proposal to install small microcell units on existing utility poles in scattered locations in Day Valley thus fell squarely within the exemption.
- ARA’s “segmenting” argument also lacked merit because, despite Crown’s filing of separate permit applications and the County’s issuance of separate permits and exemptions for each microcell unit, the County at all times considered and analyzed the project for environmental review purposes as encompassing the entire group of units. Per the Court: “The nature of the paperwork required for approval of the project is immaterial.”
- When a project meets the requirements of a categorical exemption, ““a party challenging the exemption has the burden of producing evidence supporting an exception.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal. 4th 1086, 1105 ….)”
- ARA contended on appeal that three exceptions to the Class 3 categorical exemption applied: (1) “impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies”; (2) “cumulative impact of successive projects of the same type in the same place, over time”; and (3) “reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (14 Cal Code Regs., § 15300.2(a), (b), (c).) While the Supreme Court in Berkeley Hillside held the standard of judicial review for the unusual circumstances exception to categorical exemptions was bifurcated, the Court of Appeal here held that “a similar standard of judicial review applies to all three exceptions” set forth in CEQA Guidelines § 15300.2. Thus, “where an exception is predicated on a factual issue, we apply a traditional substantial evidence standard of judicial review to that factual issue[,]” while “[o]ther issues are reviewed to determine whether substantial evidence support[s] the agency’s conclusion as to whether the prescribed “fair argument” could be made.” (Citations and internal quotations omitted.)
- “ARA’s belated submission of . . . .ambiguous and unreliable [information about a possible future] AT&T [project to County’s Board]. . . . did not satisfy ARA’s burden to produce evidence that there was a fair argument that the cumulative impact exception applied.” County’s Board did not abuse its discretion in declining to take jurisdiction over ARA’s appeal under a local Code provision authorizing it to do so if convinced there is significant relevant new evidence that could not have been presented when the appealed decision was made. ARA’s attorney’s declaration that AT&T had contacted a County planner and expressed a desire to install cell transmitters in the same area was vague and ambiguous double-hearsay and amounting to pure speculation, not the new significant or substantial evidence needed to support either a Board appeal or a fair argument of potential cumulative impacts. Indeed, the evidence properly before the Board revealed that any separate AT&T project was unlikely as Crown was a “neutral host” with whom AT&T could contract to use the DAS project to obtain its own cell coverage in Day Valley.
- APA’s primary argument on appeal – that County erred in failing to apply the “location” exception – was not raised below and was also meritless. ARA presented no evidence that either Day Valley or the utility poles at issue constituted a “location” that is a “designated, precisely mapped” “environmental resource of hazardous or critical concern. . . .” The fact that Day Valley is a “rural” area zoned “Residential Agricultural” failed to fill this fatal “evidentiary void” since nothing in the zoning ordinance suggested it was “designated” as “an environmental resource of hazardous or critical concern.” Nor did the evidence show that the project would violate other Code provisions requiring that it “not significantly increase the visual impact of the existing facility/tower/pole.” Thus, the Court found that “any visual impact of the project was necessarily insignificant and could not require further environmental review under CEQA.”
- Finally, “ARA failed to produce evidence that the circumstances of this project were unusual for Class 3 exempt projects” – i.e., ARA failed to “show[ ] that the project has some feature that distinguishes it from others in the exempt class, such as size or location.” (Citing Berkeley Hillside, supra, 60 Cal.4th at 1105.) In concluding that ARA failed to meet its burden to show unusual circumstances, the Court observed that the Class 3 exemption applies to small structures, including utility extensions, and that “[i]t is not unusual that such services are provided by small structures.” Per the Court: “While rural areas may not need as many utility extensions as urban areas, ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, Nor did ARA show that it was unusual for small structures to be used to provide utility extensions in an area that is zoned Residential Agricultural. Areas that are used for residential and agricultural purposes clearly need utilities, including cell coverage.”
The result in this case is hardly surprising. The proposed project here clearly fit within the plain language of the Class 3 exemption, and the County’s staff obviously did a good job putting together staff reports with abundant factual evidence and credible photo simulations showing the aesthetic effects of the proposed project – which were the only alleged effects advanced on appeal – would be minor, even in an undoubtedly bucolic rural area. County’s CEQA review also clearly focused on the whole of the proposed action, rendering petitioner’s hypertechnical “segmenting” argument based on the permitting “paperwork” meritless. Petitioner’s argument that a “Residential Agricultural” Zoning designation rendered the Day Valley area a “particularly sensitive environment” or a mapped “environmental resource of hazardous or critical concern” within the meaning of that “location” exception to certain exemptions (including Class 3) was an untenable stretch that the Court also had little trouble rejecting. Perhaps the most interesting part of this opinion is its extension of the “bifurcated” standard of judicial rule, announced in Berkeley Hillside for the “unusual circumstances” exception, to the exceptions for sensitive “location” and “cumulative impact” also set forth under Guidelines § 15300.2.
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 more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.