Robinson v. City and
Francisco
Filed 7/20/12 Robinson v. City and County of San Francisco CA1/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
WENDY
ROBINSON et al.,
Plaintiffs and Appellants,
v.
CITY AND
COUNTY OF SAN FRANCISCO,
Defendant and Respondent;
T-MOBILE
WEST CORPORATION et al.,
Real Parties in Interest and Respondents.
A132385
(San Francisco City & County
Super. Ct. No. CGC-10-496711)
This appeal
arises from the denial of a petition for writ of mandate (writ petition)
brought under the California Environmental
Quality Act (CEQA). (Pub. Resources
Code, § 21000 et seq.) The writ
petition sought to overturn the decision of respondent City and County of San
Francisco (the City)
name="_ftnref1" title="">[1] to
permit real parties in interest and respondents T-Mobile West Corporation,
T-Mobile USA, Inc., T-Mobile Resources Corporation, and Omnipoint
Communications, Inc. (collectively T-Mobile) to place sets of wireless
telecommunications equipment on existing utility poles, including a pole
located near appellants’ homes.
name="_ftnref2" title="">[2] The trial court denied the requested
relief. We affirm.
facts and procedural background
On April 6,
2009, T-Mobile filed an application with the City’s Planning Department
requesting CEQA review of a series of about 40 proposed wireless
telecommunications equipment installations (the T-Mobile project
existing utility poles at locations “distributed throughout the city and
. . . not concentrated in one particular area.”
On August
7, 2009, T-Mobile applied to the City’s Department of Public Works for a permit
to install wireless equipment (the Randall Street equipment) on an existing
utility pole in the utility right-of-way on the block of Randall Street where
Residents’ homes are located. Although
the Planning Department had not yet issued its determination of T-Mobile’s
application for CEQA review of the T-Mobile project as a whole, T-Mobile
checked a box on the permit application indicating that the installation of the
Randall Street equipment was exempt from CEQA review under a categorical
exemption. On August 10, 2009, the
permit was issued as requested.
On
September 16, 2009, and again on November 12, 2009, the Planning Department
issued certificates of determination that the T-Mobile project was exempt from
CEQA review under a categorical exemption, as set forth in Guidelines
section 15303, subdivision (d).
installations would be “visible to passersby and observers from nearby
buildings,” but added that they “would not be so visually prominent that they
would necessarily be noticed.” The
installations would be perceived in the context of existing poles and overhead
wires that “are common throughout the City’s urbanized environment,” so that the
“incremental visual effect” would be “minimal.”
The Randall
Street equipment was installed in late December 2009. It consists of three 26.1-inch high, 6.1-inch
wide, 2.7-inch deep antennas concealed within an enclosure that is affixed at
the top of the utility pole and painted to match it, plus four 24-inch high,
17-inch wide, 11-inch deep cabinets and an 10.88-inch high, 8-inch wide,
3.5-inch deep power meter, all of which are attached to the pole at different
heights.
On February
5, 2010, Residents filed a petition for writ of mandate and complaint for
injunctive relief in the San Francisco Superior Court. On February 17, 2011, the court entered an
order denying Residents’ petition for writ of mandate. A judgment in favor of T-Mobile and the City
was entered on March 28, 2011, and filed on March 29, 2011, and this timely
appeal ensued.
discussion
A. Failure to Conduct CEQA Review
1. Applicability of Class 3
Categorical Exemption
Residents’
first argument on appeal is that the City violated CEQA by approving the
installation of the Randall Street equipment without first conducting an
environmental review. T-Mobile counters
that no such review was required, because the City correctly determined the
installation was categorically exempt from CEQA review.
Certain
“classes of projects [have been administratively] determined to be exempt from
CEQA because they ‘do not have a significant effect on the environment.’ [Citation.]
Such classes of projects are ‘declared to be categorically exempt from
the requirement for the preparation of environmental documents.’ [Citation.]
The determination whether a project is exempt under one of these classes
is made as part of the preliminary review process prior to any formal environmental
evaluation of the project.
[Citation.] . . . ‘Where a project is categorically exempt, it
is not subject to CEQA requirements and “may be implemented without any CEQA
compliance whatsoever.” ’
[Citation].” (
Water Management Dist. (2006) 141 Cal.App.4th 677, 688 (
A
governmental agency’s “determination that [a particular] project [is] exempt
from compliance with CEQA requirements . . . is subject to judicial
review under the abuse of discretion standard in [CEQA] section 21168.5. [Citations.]
. . . Abuse of
discretion is established if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substantial
evidence. [Citation.] [¶] Where the issue turns only on
an interpretation of the language of the Guidelines or the scope of a
particular CEQA exemption, this presents ‘a question of law, subject to de novo
review by this court.’ [Citations.] Our task is ‘to determine whether, as a
matter of law, the [project] met the definition of a categorically exempt
project.’ [Citation.] Thus as to the question whether the activity
comes within the categorical class of exemptions, ‘we apply a de novo standard
of review, not a substantial evidence standard.’ [Citations.]”
(Save Our Carmel River,
pp. 693-694; see also San Lorenzo
Valley Community Advocates for Responsible Education v. San Lorenzo Valley
Unified School Dist. (2006) 139 Cal.App.4th 1356, 1386-1387 (
the installation was categorically exempt did not involve the resolution of any
factual issue. Accordingly, we review
the City’s categorical exemption determination as a question of law. (See Wollmer
v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1348 (
governs review of factual determination that project is categorically exempt,
but does not govern issues of interpretation of relevant statutes and
regulations].)
In
determining that the T-Mobile project was categorically exempt, the City relied
on the set of exemptions commonly referred to as Class 3 exemptions. These exemptions apply to the “construction
and location of limited numbers of new, small facilities or structures; installation
of small new equipment and facilities in small structures; and the conversion
of existing small structures from one use to another where only minor
modifications are made in the exterior of the structure.” (Guidelines, § 15303.)
Courts have
approved the application of Class 3 exemptions to projects such as the
construction of a 2,700 square-foot single-family home in a residential
neighborhood (Association for Protection
v. City of Ukiah (1991) 2 Cal.App.4th 721 (Ukiah)), and a 1,500 square-foot addition to an existing structure
that was intended for use as a firearms training facility. (Simons
v. City of Los Angeles (1977) 72 Cal.App.3d 924.) The T-Mobile project fits squarely within the
ambit of the Class 3 exemptions.
Residents have not identified any authority under which a similar or
analogous project—i.e., the installation of small new equipment on numerous
existing small structures in scattered locations—was held not categorically
exempt under the Class 3 exemptions.
Accordingly, we hold that as a matter of law, the T-Mobile project fell
within the scope of the Class 3 categorical exemptions under the
Guidelines.
2.
Cumulative Impact Exception
The
Guidelines provide that a project that is categorically exempt under
Class 3 may nonetheless require review under CEQA if it falls within one
of the exceptions to the exemptions.
(Guidelines, § 15300.2.) One
of those exceptions is “when the cumulative impact of successive projects of
the same type in the same place, over time is significant.” (Guidelines, § 15330.2, subd. (b); see
City of Santa Monica (2002) 101 Cal.App.4th 786, 797 (
cumulative impacts be considered . . . is to ensure review of the
effects of the project in context with other projects of the same type. Thus the Guidelines expressly provide that
‘[c]umulative impacts can result from individually minor but collectively
significant projects taking place over a period of time.’ [Citation.]”
(Save Our Carmel River,
pp. 703-704.)
There is a
split in the case law regarding the standard of proof and the standard of
review applicable to an agency’s determination whether a project falls within
the cumulative impact exception to categorical exemptions. Some courts hold that a party seeking to
apply an exception must “ ‘produce substantial
evidence showing a reasonable possibility of adverse environmental impact
sufficient to remove the project from the categorically exempt class. [Citations.]’
[Citations.]” (
75 Cal.App.4th 1243, 1259, italics added.)
Under this approach, “a court will uphold an agency’s decision if there
is any substantial evidence in the
record that there will be no
significant effect on the environment.”
(Banker’s Hill, Hillcrest, Park
West Community Preservation Group v. City of San Diego (2006)
139 Cal.App.4th 249, 262 (Banker’s
Hill), original italics, fn. omitted.)
Other
courts hold that the government agency tasked with CEQA review of a project “must
apply a fair argument approach in
determining whether, under Guidelines section 15300.2[, subdivision] (c),
there is no reasonable possibility of a significant effect on the environment”
so as to bring the project within the scope of an exception. (Banker’s
Hill, supra, 139 Cal.App.4th
at p. 264, italics added; see also Wollmer,
supra, 193 Cal.App.4th at
p. 1350 [reviewing court must determine whether record reveals substantial
evidence of fair argument of possible significant effect on the environment];
to support cumulative impact exception to single-family residence categorical
exemption]; cf. Friends of the Old Trees
v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383,
1395-1397 [applying fair argument standard to issue whether to require
cumulative impact analysis of timber harvest plan].) Courts that apply this standard
“independently review the agency’s determination under Guidelines
section 15300.2[, subdivision] (c) to determine whether the record
contains evidence of a fair argument of a significant effect on the
environment.” (Banker’s Hill, supra,
139 Cal.App.4th at p. 264.)
In the
present case, we need not resolve the question which standard applies. (See Hines
v. California Coastal Com. (2010) 186 Cal.App.4th 830, 855-856 (
As will appear from the discussion that follows, even under the more
environmentally rigorous fair argument approach, Residents have not
demonstrated that the T-Mobile project is subject to the cumulative impact
exception.
Residents’
argument is that in assessing whether the cumulative impact exception applies
to the T-Mobile project, it is necessary to consider the cumulative impact of
all of the telecommunications equipment that T-Mobile and other similar
companies had installed, planned to install, or could install in the future, on
all the utility poles located throughout
the City. This argument ignores the
language in the Guidelines limiting the cumulative impact exception to
“successive projects of the same type in
the same place . . . .”
(Guidelines, § 15330.2, subd. (b), italics added.) This limitation makes sense, because without
a limitation as to the location of the projects whose cumulative impact must be
considered, agencies deciding whether the exception applies to a project would
be required, in every instance, to consider the cumulative environmental impact
of all successive similar projects in their jurisdictions, at least, and
perhaps regionally or even statewide. If
this were the case, the exception would swallow the rule, and the utility of
the Class 3 exemption would be vitiated.
Thus, we
reject Residents’ argument that the City was obligated, in determining whether
the T-Mobile project fell outside the Class 3 exemption, to consider the
cumulative impact of all similar telecommunications installations throughout
the entire City and County of San Francisco.
Rather, under the language of the Guidelines, Residents can prevail only
if there is a fair argument that an adverse environmental impact would result
from the cumulative impact of successive telecommunications installations “in
the same place.”
The meaning
of the term “the same place” in this context is not self-evident. Neither party has cited any authority
interpreting this language, as used in Guidelines section 15330.2, subdivision
(b), and our research has disclosed none.
and the Guidelines, we construe “the same place” to refer to an area whose size
and configuration depend on the nature of the potential environmental impact of
the specific project under consideration.
For example, in determining whether there may be a cumulative impact
from an otherwise categorically exempt project that may affect water quality in
a stream, consideration must be given to potential similar projects located in
the watershed of the same stream. For a
project producing noise pollution, the area to be considered would be that within
which the noise could be expected to be audible.
In the
present case, Residents have specified only the T-Mobile project’s visual and
auditory impacts as the environmental damage they contend resulted from the
project. Those impacts are inherently
limited by the range of human sensory perception. Thus, with respect to this project, the
cumulative impact exception applies only if the record contains evidence
supporting a fair argument that
potential future installations of similar equipment are likely to occur
installation included in the T-Mobile project.
As noted by
the City in its determination that the T-Mobile project was exempt from CEQA,
the locations of the installations included in the project were “widely
dispersed”; they were “distributed throughout the city and . . . not
concentrated in one particular area.”
Residents have identified no facts in the record indicating that any of
the installations at issue are within visual or auditory range of other similar
installations that currently exist or are likely to be created. On the contrary, the only evidence on this
issue in the record is the City’s finding that “all of the existing and
proposed” similar installations by other telecommunications companies were or
would be placed “separately at different locations” so that there were “no
foreseeable cumulative impacts.”
Accordingly, Residents have failed to produce substantial evidence
supporting a fair argument that the cumulative impact of the T-Mobile project,
when considered together with other similar installations, will have an adverse
visual or auditory impact on the environment.
Rather,
residents’ argument amounts to a speculation that future installations
installations included in the T-Mobile project.
However, speculation that potential future projects similar to the one
under consideration could cause a
cumulative adverse impact is not sufficient to negate a categorical
exemption. (Hines, supra, 186 Cal.App.4th
at pp. 857-858 [single family residence did not fall outside categorical
exemption due to theoretical possibility that additional residences could be
approved for construction in same area].)
In the absence of evidence supporting a fair argument that future
telecommunications installations will likely be located within sensory range of
the installations included in the T-Mobile project, the categorical exemption
here is not negated by the cumulative impact exception.
B.
Timing of Permit Issuance
As noted in
the statement of facts, when the City’s Public Works Department issued a permit
allowing T-Mobile to proceed with the project, the City’s Planning Department
had not yet issued its certification (CEQA exemption certificate) that the
T-Mobile project was exempt under CEQA.
In addition, the City’s Department of Public Health (DPH) did not issue
its certification (DPH approval) that the T-Mobile project would produce an
acceptable level of radio frequency (RF) emissions, as required by Section 11.9
of the San Francisco Administrative Code and implementing City regulations,
until after the permit had been issued.
Residents
assert that the City thereby violated its own laws and regulations, as well as
CEQA’s requirement that any required environmental review be completed before
an agency approves a project. Residents
do not dispute that the DPH approval was eventually obtained, nor do they
challenge the substantive propriety of that approval. Residents also fail to note that the record
shows the Randall Street equipment, in particular, was not installed until
after both the CEQA exemption certificate and the DPH approval had been
obtained. Indeed, Residents have not
pointed to any evidence in the record indicating that any of the installations included in the T-Mobile project were
actually carried out before the issuance of the CEQA exemption certificate and
the DPH approval. Nonetheless, Residents
argue that the City’s issuance of the permit in advance of the CEQA
determination and the DPH approval requires that the City’s approval of the
T-Mobile project be set aside.
Residents
have not cited any authority holding that a permit must be retroactively
invalidated if required approvals were obtained after, rather than before, the
permit was issued. Such a holding would
be absurd, particularly where, as here, it appears that the actual work
authorized by the permit did not occur until after all of the necessary
approvals had in fact been obtained.
None of these authorities on which Residents rely persuades us that they
are entitled to the relief they seek.
Residents
cite Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 394 (
CEQA does not permit the use of “post hoc
rationalizations to support action already taken.” Laurel
Heights, however, involved the adequacy of an environmental impact report
for a project that unquestionably required full-scale review under CEQA. Residents have not cited any case holding that
an agency violates CEQA by issuing a permit for a project that is
merely because the agency had not yet certified the exemption in writing before
issuing the permit. In fact, “there is
no requirement that [an] agency put its exemption decision in writing” at
provide that notice of a categorical exemption determination not only need not,
but should not be given until
Lorenzo, supra, 139 Cal.App.4th
at p. 1385; see Guidelines, § 15062, subd. (a).)
54 Cal.App.4th 106 (Davidon Homes) is
also distinguishable. That case involved
a project that the City of San Jose claimed was exempt under the “common sense
exemption” codified in section 15061, subdivision (b)(3) of the
Guidelines. This exemption requires the
agency to be certain that there is no possibility the project may cause
significant environmental impacts. The
court in Davidon Homes held that the
city erred in failing to conduct an initial review to determine that the common
sense exemption applied, before proceeding to approve the project. In so doing, however, the court
from categorical exemptions.
As the
categorical exemptions are “based on a finding by the Resources Agency that a
class or category of projects does not have a significant effect on the
environment. [Citations.] Thus an agency’s finding that a particular
proposed project comes within one of the exempt classes necessarily includes an
implied finding that the project has no significant effect on the
environment. [Citation.]” (Davidon
Homes, supra, 54 Cal.App.4th at
p. 115.) On the other hand, where
an agency relies on the common sense exemption, “the agency’s exemption
determination is not supported by an implied finding by the Resources Agency
that the project will not have a significant environmental impact. Without the benefit of such an implied
finding, the agency must itself provide the support for its decision before the
burden shifts to the challenger.” (
Class 3 categorical exemption, it was not required to assess the potential
environmental impact of the T-Mobile project before issuing a permit for it, because by creating the categorical
exemption, the Resources Agency had already impliedly found there would be no
such impact.
Finally,
(1983) 149 Cal.App.3d 168 (Pacifica),
is also distinguishable. Residents cite
that case for the proposition that when a city fails to follow its own
requirements for approving projects, the city cannot excuse the violation by
complying with the requirements after the fact.
In Pacifica, the city had
adopted a residential growth control ordinance that limited the number of new
residential units that could be constructed each year, and provided that
proposed developments were to be ranked annually according to specified
criteria before being allotted a portion of the available units for a given
year. (Id. at pp. 172-173.)
Before awarding annual development allotments, the city council was
required to adopt a final ranking list by merging two lists compiled by an
evaluation board, one ranking the proposed developments for their impact on
city services and facilities, and the other ranking them for their contribution
to public amenity and welfare. (
The
developer involved in Pacifica did
not receive the allotment it requested in a particular year, and brought a
mandamus action seeking to set aside the allotment awards that went to
developers who ranked lower than Pacifica according to the city’s
criteria. Because the city council had
not adopted the required final ranking list before making its allotments,
Pacifica argued that the allotments were invalid under the terms of the
ordinance. (Pacifica, supra, 149
Cal.App.3d at pp. 180-181.) The
city countered that the city council’s adoption of the actual allotments cured
the defect, and that in any event, the error was harmless. The court disagreed, holding that “the
process of adopting a final ranking before awarding allotments [was] essential
to the orderly implementation” of the growth control ordinance. (Id.
at p. 181, italics omitted.) The
court reasoned that the requirement that the city council adopt a final ranking
merging the two lists was designed to ensure that the council would “undertake
its own assessment of each development” before
making allotments. (Ibid.) Essentially, the
ordinance made it the city council’s task to balance the weight of the criteria
involved in the ranking process by merging the two separate lists into
one. Because the record did not show
that the city council had fulfilled this requirement, its adoption of the
allotments was invalid.
Here, on
the other hand, the record demonstrates that the City in fact undertook, and
correctly completed, every aspect of the decisionmaking process it was required
to follow under its own ordinances and regulations. Residents have not demonstrated that
requiring the City to redo that process in the correct order could possibly
yield a different outcome. Accordingly,
the City’s failure to issue the CEQA exemption certificate and the DPH approval
before issuing the permit for the T-Mobile project is not grounds for
invalidating the permit.
C.
Due Process Right to Notice and Hearing
Residents
argue that the City violated their federal and state
because they were not given notice and an opportunity to be heard prior to the
City’s approval of the installation of the Randall Street equipment, which
Residents allege diminished the value of their property.
rely on Horn v. County of Ventura
(1979) 24 Cal.3d 605 (Horn),
Cal.3d 541 (Scott), and
(1983) 144 Cal.App.3d 777 (Drum).
In both
supra, 6 Cal.3d 541, the plaintiffs
owned property adjacent to vacant tracts of land on which residential
subdivisions were to be developed. The
plaintiff in Horn alleged that the
planned development would cause significant increases in traffic congestion and
air pollution, and interfere with his sole means of access to his
property. (Horn, supra,
24 Cal.3d at p. 615.) In
“a seven-story apartment building, liquor store, rental office, and heliport in
a location quite close to plaintiffs’ property,” situated in such a way as to
directly block the plaintiffs’ views. (
Given the substantial impact of the proposed developments on the
plaintiffs’ properties, the courts in both cases held that due process required
notice and a hearing before the development projects could be approved by the
local jurisdictions. (
6 Cal.3d at pp. 547-549.)
As
Residents acknowledge, Horn itself
“emphasize[d] . . . that constitutional notice and hearing
requirements are triggered only by governmental action which results in
‘significant’ or ‘substantial’ deprivations of property, not by agency
decisions having only a de minimis effect on land.” (Id.
at p. 616.) As a matter of law,
affixing small equipment boxes to an existing utility pole in a developed urban
area does not result in a “ ‘significant’ or ‘substantial’ deprivation[]
of property” so as to trigger constitutional due process rights.
case; it involved an application for a variance, as to which notice and a
hearing are statutorily
required. (Gov. Code, § 65905,
subd. (a).) In Drum, a homeowner gave notice to his neighbors that he planned to
build a large garage on his property, and that he was seeking a variance from
otherwise applicable side yard requirements in order to permit the
construction. The homeowner did not,
however, inform his neighbors that the planned garage would have an additional
story above the garage, to be used as living quarters. The court concluded that building a two-story
structure rather than a single-story one has a materially greater impact on
neighboring properties, such that notice of the intent to build the smaller
structure was not sufficient to provide the statutorily required notice with
respect to the larger structure. The
court therefore held that the variance was improperly obtained. (144 Cal.App.3d at pp. 781-783.) Drum
is thus both factually and legally distinguishable from the present case. It does not support the proposition that
notice and a hearing to neighboring landowners are constitutionally required
before every planned alteration to a property, no matter how insignificant.
disposition
The
judgment is affirmed. T-Mobile shall
recover its costs on appeal.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
SEPULVEDA, J.
trial court, but has not filed a brief on appeal.
reside near a particular utility pole on which T-Mobile installed a set of
equipment. We refer to them collectively
as Residents.
