California Court of Appeal Clarifies Five-Acre Project Size Requirement for CEQA’s Infill Exemption for Gas Station Project

In Protect Tustin Ranch v. City of Tustin (G059709), an unpublished opinion, the Fourth District Court of Appeal upheld the use of CEQA’s infill exemption to approve a Conditional Use Permit (“CUP”) for the demolition of a structure and construction of a gas station in an existing Costco shopping center.

The action challenged the City of Tustin’s conclusion that the project was exempt from CEQA under the categorical exemption for “in-fill development” on the ground that the gas station project site exceeded the 5-acre project site size limit, because the CUP application described the project site as approximately 12 acres. The Court of Appeal found there was substantial evidence in the record supporting the City’s finding that the project site was less than 5 acres in size because only 2.38 acres of the approximately 12-acre shopping center were to be altered by demolition and construction activities.

Because no new development or construction activity related to the proposed project would occur in other portions of the shopping center, the court held the City did not err in determining the project met the 5-acre maximum project site requirement and was therefore exempt from further CEQA review. Central to the court’s holding is that in determining project site size for the purposes of the CEQA infill exemption, agencies should be concerned with the “area of work” i.e., the number of acres disturbed by the project, not the parcel size or even the total acreage of the site on which the project will occur.

Although unpublished, the court’s opinion may be considered a good indication that future agencies and courts should determine the 5-acre size limitation for the infill exemption according to the amount of acreage to be disturbed by a particular project, regardless of total site or parcel size.

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Joanne Gothard is a Law Clerk at Harrison, Temblador, Hungerford & Guernsey LLP in Sacramento, California.

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