CEQA "Unusual Circumstances" Exemption

San Francisco Beautiful v. City and County of San Francisco

(2014) 226 Cal.App.4th 1012

In yet another case involving CEQA’s categorical exemptions, and the “unusual circumstances” exceptions to them, the California Court of Appeal held that the installation of 726 new utility cabinets on San Francisco sidewalks fell within a categorical exemption, and did not require preparation of an EIR.

An internet service provider proposed to install an extended fiber-optic network through 726 new utility cabinets on public sidewalks in San Francisco. The service provider applied for the New Construction or Conversion of Small Structures (Class 3) exemption under CEQA. The City’s Planning Department determined the project was categorically exempt because the project consisted of installation of small new equipment and facilities in small structures. Multiple organizations argued, among others, that the project fell within an exception to the exemption, and that an EIR was required because the project would have significant environmental impacts due to unusual circumstances. The trial court held that the project fell within the exemption.

On appeal, the court first stated that a project presents “unusual circumstances” if the project’s circumstances differ from the general circumstances of projects covered by that exemption, and those differing circumstances create an environmental risk that does not exist for the general class of exempt projects. The organizations failed to prove that the utility boxes created impacts or presented an environmental risk different from that which already existed in San Francisco, a city with tens of thousands of street mounted facilities.

Second, the appellate court found that the project’s impact was not significant, measured against the existing visual character and quality of the surroundings. The project proposed to place new utility cabinets in a city already containing tens of thousands of structures on the sidewalks, and there was no basis to conclude that their addition would create a significant impact. Therefore, the court concluded that the exception did not apply and that the project was exempt from CEQA.

The court made its decision against the backdrop of an unresolved legal issue involving the proper standard for deciding whether “unusual circumstances” exist. The court noted that the California Supreme Court is currently reviewing this standard and evaluating whether a two part test applies as applied by this court, or whether unusual circumstances exist whenever there is a possibility of significant impacts. The court in this case determined, as a number of recent courts have, that the project passed muster under either standard.

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