In a published opinion filed December 30, 2025, the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the City of Davis’s (City) notice of exemption for a project consisting of the relocation of existing playground equipment within a park. The Court held petitioners failed to establish that CEQA’s unusual circumstances exception applied to negate the exemption under either of the alternative tests for proving that exception, rejecting their argument that the project’s alleged violation of a City noise ordinance standard established a significant effect where the only evidence relied on showed the relocation project would actually reduce noise at all measured locations. Joe Krovoza et al. v. City of Davis et al. (2025) __Cal.App.5th__.
City’s Sky Track Relocation Project and the Litigation
City installed the Sky Track playground equipment – which imitates the sense of flight in riders and involves a swing and seat suspended on parallel tracks akin to a zip line – at Arroyo Park in May 2019. Following its installation, City received complaints about resulting mechanical noise affecting nearby homes, and in July 2019 City retained acoustical consultant Bollard to study noise generated by Sky Track’s use and operation at its existing location. Bollard took short-term noise measurements at three locations, two of which were residences to the south of Sky Track, compared the results (hourly averages of 46, 44, and 46 decibels, respectively) against City noise ordinance standards, and concluded Sky Track noise was under the noise threshold during the day but exceeded it at night. City implemented various measures upon Bollard’s recommendation to address nighttime noise concerns, including operating hours signage, additional noise-absorbing rubber bumpers at both ends of the track, and locking the equipment to prevent use outside of operating hours. These measures reduced nighttime noise impacts, but presented other security and operational challenges, due to lock vandalism and tampering and Sky Track’s distance from the pool complex where staff performed their primary duties. These issues led to City exploring relocation of Sky Track to another area within the park.
City retained another noise consultant (Acoustics) to assist in evaluating relocation; on December 2, 2021, Acoustics visited the site to obtain baseline noise data from Sky Track in its current location and to conduct modeling of noise levels at four alternative locations in the park. Acoustics took three short-term measurements in roughly the same locations as the Bollard study to document noise levels generated by Sky Track at its existing location (ranging from 45.1 to 55.5, 45.3 to 54.0, and 53.5 to 62.1 decibels, respectively), and concluded the noise levels from Sky Track’s existing operation exceeded both City’s day and night noise ordinance standards under certain circumstances. Based on this study, City closed Sky Track pending its relocation to a more suitable location. (Note: the Opinion observes that petitioners “raised no argument pertaining to the baseline at issue for the CEQA analysis” and makes clear that the City evaluated noise impacts of the relocation project against those of Sky Track operating at its original/existing location.)
Acoustics’s analysis concluded that only three alternative locations (A, B, and C) would meet City’s day and night noise level standards measured at the nearest residential boundaries, and City’s staff recommended location B – nearer to the center of the park and aquatics center – for the relocation. Acoustics identified Sky Track’s existing operating noise levels at the three short‑term measurement locations as 57.2, 55.5, and 63.3 decibels, respectively, and predicted post-relocation (to site B) operating noise levels at those same locations would be reduced to 49.2, 47.7, and 54.3 decibels, respectively. (For perspective, Acoustics explained in a chart that 40-50 decibels is generally equated with the noise of a refrigerator humming, 50-60 decibels with a quiet office, and 60-70 decibels with normal conversation.)
On August 30, 2022, City’s Council approved the Sky Track’s relocation to location B and filed a notice of exemption finding the project exempt under the CEQA Guidelines’ categorical exemptions for Class 3 (new construction, installation, or conversion of limited number of small structures, facilities, equipment), Class 4 (minor alterations to land, water, vegetation), and Class 11 (construction or placement of accessory structures). (CEQA Guidelines, §§ 15303, 15304, 15311.)
Petitioners Joe and Janet Krovoza filed a writ petition challenging the exemption, and the trial court denied the petition, finding the project fell within the claimed exemptions, that substantial evidence supported City’s finding that no unusual circumstances existed, and that petitioners failed to carry their burden to establish the unusual circumstances exception because substantial evidence showed Sky Track’s operating noise levels at the new location would be reduced from those at the existing location.
The petitioners timely appealed and the Court of Appeal affirmed.
The Court of Appeal’s Opinion
Tests for Establishing Unusual Circumstances Exception
and Summary of Court’s Conclusions
The Court of Appeal’s Opinion began its discussion by summarizing the Court’s conclusions and reviewing some CEQA basics. CEQA’s two alternative tests for establishing the unusual circumstances exception to a categorical exemption are: (1) the challenger “establish[es] with evidence that the project will have a significant effect on the environment,” or (2) the challenger “show[s] (1) ‘the project has some feature that distinguishes it from others in the exempt class, such as its size or location’; and (2) there is ‘a reasonable possibility of a significant effect [on the environment] due to that unusual circumstance.’” (Citing and quoting from Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, a landmark California Supreme Court CEQA categorical exemption decision which I analyzed in a March 3, 2015 post that can be found here.)
The Court of Appeal first concluded that appellants failed to satisfy the first test with their argument that the evidence shows the relocation project would produce noise exceeding City’s noise ordinance’s standards (as appellants construed them) because, even if true, evidence of a noise standard violation standing alone does not constitute substantial evidence that the project will have a significant effect on the environment. (As the Opinion would later explain in more detail, a significant effect on the environment is by definition an adverse change and no evidence showed the relocation would increase the Sky Track’s existing noise levels at any off‑site locations.) Given that this conclusion was dispositive of appellant’s failure to satisfy the first test, the Court of Appeal did not need to address appellants’ arguments regarding whether any noise standard, properly construed, was actually violated.
The Court also rejected appellants’ arguments under the second test, concluding City did not abuse its discretion by failing to evaluate whether the project would result in a substantial increase in ambient noise levels, or unauthorized noise audible within homes under another ordinance provision.
CEQA’s Three-Tier Review Process
Outlining CEQA’s relevant three-tier review process, the Court observed that under the first tier, the “agency conducts a preliminary review to determine whether an activity is a project” as defined by CEQA, and if it is not, CEQA does not apply. If the activity is a project, the agency conducts a second-tier review for exemptions (whether statutory or categorical), and if the activity is properly found exempt, no further environmental review is necessary; the agency can then prepare and file a notice of exemption. If the project is not exempt, however, the agency must conduct an initial study to determine whether there is any substantial evidence the project may have a significant environmental effect, and, if there is not, the agency must prepare a negative declaration stating that determination and briefly describing the reasons supporting it. If substantial evidence exists that the project may have a significant effect, CEQA’s third tier applies and the agency must prepare an EIR. (Citing Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380-381.)
The issues before the Court of Appeal pertained to a categorical exemption determination made by the City at CEQA’s second tier.
Relevant Legal Principles and Holdings
The “party challenging [an] exemption [under the above-described alternative tests] has the burden of producing evidence supporting an exception” (citing Berkeley Hillside, 60 Cal.4th at 1105), and “[u]nder both tests, the phrase “‘significant effect on the environment’” means “a substantial, or potentially substantial, adverse change in the environment.” (Citing Pub. Resources Code, § 21068, emph. Court’s; Lewis v. Seventeenth Dist. Agriculture Assn. (1985) 165 Cal.App.3d 823, 829; see also CEQA Guidelines, § 15382.)
Applying these principles, the Court agreed with City’s position that “a project’s violation of its noise ordinance standing alone cannot constitute substantial evidence that the project will have a significant noise impact.” Regardless of the requirements of City’s noise ordinance – which the Court reviewed and whose interpretation and application the parties disputed – there can by definition be no significant environmental “effect” supporting an exception to an exemption unless there is substantial evidence showing the project results in an “adverse change in the environment.” (Citing Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 823; Pub. Resources Code, § 21068.) The exception thus doesn’t apply if (1) the project causes no change in existing baseline physical conditions – i.e., the physical conditions existing in the area affected by the project, when the agency makes its CEQA determination – or (2) any change is not adverse. (Citing North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 872; Campbell v. Third Dist. Agriculture Assn. (1987) 195 Cal.App.3d 115, 118.)
Simply put, appellants were required to “show that relocating Sky Track would cause an adverse change in noise levels compared to existing physical conditions.” But, per the Court, even assuming (without deciding) that they could prove the project exceeds noise ordinance standards, that “violation alone says nothing about the baseline conditions against which the project must be compared,” and, thus, does not constitute substantial evidence that the project will have a significant effect on the environment. (And, as noted above, appellants did not challenge the City’s selected baseline.)
Appellants’ arguments under the second test also failed for essentially the same reason: the Court didn’t even need to “address [their prong one] arguments that the Sky Track constitutes an unusual circumstance because [it] conclude[d] [under the test’s second prong] there is no substantial evidence to support a fair argument of a reasonable possibility that the purported unusual circumstance may have a significant effect on the environment [whether due to an unusual circumstance or otherwise].” (Footnote omitted.)
In other words, even assuming arguendo the existence of an unusual circumstance, the prescribed “fair argument” of a significant effect was not supported by any evidence rising to the level of “substantial evidence,” which must be evidence “of ponderable legal significance . . . reasonable in nature, credible, and of solid value” and cannot include “argument, speculation, unsubstantiated opinions, concerns, and suspicions about a project . . . .” (Citations omitted.) Per the Court: “Here, the record contains no factual foundation supporting the proposition that it is reasonably possible the project may create a significant increase in noise when the Sky Track is placed in its new location.” All of the public comments relied on by appellants did not constitute such substantial evidence because they all related to noise from the Sky Track’s existing location. The City’s expert consultant’s noise studies plainly predicted the Sky Track’s relocation would result in lower noise levels at the three locations where measurements were taken, and such reduction did not demonstrate any adverse change in the environment. The Court rejected appellants’ attempt to “manufacture” an argument by engaging in speculative assumptions and inferences not supported in the studies or record, and concluded they had identified no record evidence demonstrating a reasonable probability the project may increase noise levels for adjoining areas at its new location.
The Court also rejected appellants’ argument (assuming arguendo they had exhausted it) that the City abused its discretion by not conducting an ambient noise level analysis as “rest[ing] on a conflation of the different levels of analysis required under CEQA.” All the cases cited by appellants in support of this argument “involved the CEQA analysis required after the public agency found that the project was not exempt” from CEQA review and none dealt with the relevant standards for analyzing and determining the applicability of exemptions from CEQA review. Appellants “identified no legal requirement that the City had to conduct an ambient noise study prior to approving the exempt project.” Nor did they identify any record evidence supporting their argument that Sky Track would generate ordinance-violating noise within their homes, and City’s consultants’ studies merely analyzed noise levels at locations outside of certain residences.
Conclusion and Implications
The critical factors driving this case’s outcome were obviously the appellants’ burden to produce evidence supporting the unusual circumstances exception; the City’s unchallenged existing conditions noise baseline; and the lack of any record evidence showing anything but a reduction in Sky Track’s operational noise in areas of sensitive receptors resulting from its relocation. A key takeaway for practitioners dealing with exemption determinations and challenges is that proving an exception requires substantial evidence that relevant baseline environmental conditions will actually change in an adverse way, which entails measuring the project’s effects against those baseline conditions, rather than simply against absolute numeric limitations in an ordinance.
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