234 Cal. App. 4th 488
Cal. Ct. App.2015Background
- In 2007 City proposed a storm drain replacement at 7435 Via Rialto in La Jolla; biological and geotechnical studies were prepared showing some sensitive vegetation impacts.
- After a 2009/2010 storm failure undermined slopes below homes, City performed emergency storm drain repairs in January–May 2010 under a CEQA statutory emergency exemption and issued an emergency coastal permit conditioned on later applying for regular permits.
- City completed the emergency repairs (pipe replacement, headwall, shotcrete, etc.) and later (2011) prepared a revegetation/restoration plan to restore the slope with native species; City issued a Notice of Exemption (NOE) for the revegetation and then granted regular coastal/site development permits.
- CREED-21 appealed the exemption and filed a CEQA petition challenging the project exemptions, arguing the CEQA baseline should be pre‑2007 conditions, that the emergency exemption was improperly insulated from review, that the revegetation was not exempt, and that City denied due process by not timely providing an Initial Study requested under the CPRA; CREED also sought refund of appeal fees.
- The trial court granted CREED's petition, voided the permits, found no exemption applied, and ordered injunctive relief; City appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper CEQA baseline for revegetation | Baseline should be 2007 (pre‑emergency) because environmental review for the original storm drain project began then | Baseline is post‑2010 (after emergency work) because the emergency repair was exempt and changed the site conditions | Baseline is post‑2010; trial court erred in using 2007 baseline |
| Standing to challenge 2010 emergency exemption | CREED could challenge the emergency work now, at permitting stage | CREED failed to timely challenge the emergency exemption and may not collaterally attack it later | CREED lacked standing to challenge the 2010 emergency exemption; may only challenge the revegetation exemption |
| Whether revegetation was exempt from CEQA | Revegetation could have significant impacts; should be studied against pre‑emergency baseline | Revegetation is categorically or commonly exempt (15061(b)(3)); it improves post‑repair bare/non‑native site | Substantial evidence supports City’s use of the common‑sense exemption (15061(b)(3)); revegetation not a significant adverse change |
| Unusual‑circumstances exception to exemption | Site’s steep slopes and past repair history make the exemption inapplicable; reasonable possibility of significant effect | CREED offered no substantial evidence of unusual circumstances or a reasonable possibility of significant impact | CREED failed to carry burden to show unusual circumstances or reasonable possibility of significant impact |
| Due process / CPRA nondisclosure of Initial Study | City’s failure to produce the Initial Study before the appeal hearing denied a fair hearing | CREED got notice and opportunity to be heard; staff testified to conclusions at hearing | No due‑process violation; lack of that single document did not prejudice CREED |
| Appeal fee authorization | Fee was unauthorized under San Diego code | Fee is an ordinary processing fee authorized by ordinance | Trial court correctly found City did not prove the fee was authorized and ordered refund |
Key Cases Cited
- Mountain Lion Foundation v. Fish & Game Com., 16 Cal.4th 105 (Cal. 1997) (CEQA interpreted to afford fullest protection to environment)
- Muzzy Ranch Co. v. Solano County Airport Land Use Com., 41 Cal.4th 372 (Cal. 2007) (standards of review in CEQA mandamus proceedings)
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (Cal. 2010) (baseline and need to compare existing conditions to project effects)
- San Lorenzo Valley Community Advocates v. San Lorenzo Valley Unified School Dist., 139 Cal.App.4th 1356 (Cal. Ct. App. 2006) (agency exemption determinations reviewed for substantial evidence; legal questions de novo)
- Davidon Homes v. City of San Jose, 54 Cal.App.4th 106 (Cal. Ct. App. 1997) (purpose and scope of the common‑sense exemption)
- Western Mun. Water Dist. v. Superior Court, 187 Cal.App.3d 1104 (Cal. Ct. App. 1986) (emergency exemption provides escape from EIR requirement)
- Apartment Assn. of Greater Los Angeles v. City of Los Angeles, 90 Cal.App.4th 1162 (Cal. Ct. App. 2001) (distinguishing contexts for CEQA challenges)
Decision: Affirmed in part (appeal fee refund), reversed in part (vacating writ and injunction as to CEQA issues), remanded with directions; City recovers costs on appeal.