70 Cal.App.5th 51
Cal. Ct. App.2021Background
- The City of San Diego operates a multi-decade Utilities Undergrounding Program to convert overhead utility lines to underground systems; projects require new above‑ground transformers (roughly 3'x3'x3' boxes) placed in public rights‑of‑way.
- The appeal concerns two groups: 11 "Exempt Projects" for which City staff issued categorical exemption determinations, and 8 (of 9 drafted) "MND Projects" for which the City adopted a mitigated negative declaration (MND).
- The City posted a "Notice of Right to Appeal" when staff made exemption determinations; no administrative appeals were filed. The City later approved the districts and filed Notices of Exemption after Council approval.
- McCann filed a timely CEQA writ petition and sought a preliminary injunction (to stop tree removal in Kensington); the trial court denied both the writ and injunction. McCann appealed.
- The Court of Appeal affirmed rejection of challenges to the Exempt Projects (for failure to exhaust administrative remedies), affirmed denial of the injunction, affirmed most MND findings, but reversed as to the City’s greenhouse gas (GHG) analysis and remanded for further CAP consistency review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Exhaustion of administrative remedies for staff exemption determinations | McCann argued the City’s Notice of Right to Appeal and process were inadequate (due process/CEQA) so she should be excused from administratively appealing | City: administrative appeal was available, notices met CEQA/due process; failing to appeal bars judicial review | Held: exhaustion required; City’s notice and procedure adequate; McCann’s CEQA challenge to Exempt Projects is barred |
| 2) Segmentation / piecemealing of undergrounding program | McCann: City unlawfully split a citywide undergrounding effort into smaller projects to avoid cumulative review | City: each block/district is an independent, implementable project | Held: no improper segmentation—each MND Project is functionally independent |
| 3) Deferred design and aesthetic impacts from transformer boxes | McCann: City improperly deferred placement/design; transformers and potential tree removal create significant aesthetic impacts requiring an EIR | City: project description (right‑of‑way placement constraints) was adequate; aesthetic impacts are not substantial | Held: aesthetic claims fail—record lacks substantial evidence supporting a fair argument of significant visual impact; EIR not required on aesthetics |
| 4) Greenhouse gas analysis / consistency with City Climate Action Plan (CAP) | McCann: City failed to analyze project GHGs or demonstrate consistency with CAP; MND’s GHG finding not supported | City: used CAP and a CAP consistency checklist to conclude no significant GHG impact | Held: City abused discretion—Checklist used was inapplicable to non‑building infrastructure projects; City must analyze CAP consistency (or otherwise mitigate) before relying on CAP to conclude no significant GHG impact; remand for further analysis |
| 5) Preliminary injunction to prevent tree removal | McCann: immediate tree removal threatened and injunction necessary | City: tree removal was unrelated sidewalk work; McCann unlikely to prevail on merits | Held: denial affirmed—McCann cannot show probability of success on merits (Exempt Projects challenge barred) |
Key Cases Cited
- Schmid v. City & County of San Francisco, 60 Cal.App.5th 470 (Cal. Ct. App. 2021) (failure to use local administrative appeal process bars CEQA challenge to an exemption determination)
- Tomlinson v. County of Alameda, 54 Cal.4th 281 (Cal. 2012) (exhaustion of administrative remedies applies when agency gives pre‑determination process and notice)
- Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (Cal. 2015) (discusses CEQA duties on GHG and role of programmatic plans)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (Cal. 1988) (anti‑piecemealing principles; project description requirements)
- Clews Land & Livestock, LLC v. City of San Diego, 19 Cal.App.5th 161 (Cal. Ct. App. 2017) (procedures for bifurcated CEQA review and when delegation to staff is permissible)
- San Francisco Beautiful v. City & County of San Francisco, 226 Cal.App.4th 1012 (Cal. Ct. App. 2014) (utility/communication box proliferation not necessarily a significant aesthetic impact)
- Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist., 215 Cal.App.4th 1013 (Cal. Ct. App. 2013) (aesthetic impact standard; individualized objections insufficient)
- Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369 (Cal. 2015) (overview of CEQA process and significance determination)
- Golden Door Properties, LLC v. County of San Diego, 50 Cal.App.5th 467 (Cal. Ct. App. 2020) (background on California policy toward GHG reductions and CEQA)
- Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, 48 Cal.4th 32 (Cal. 2010) (courts will not impose notice requirements beyond CEQA Guidelines)