The case began in 2009 when a storm drain in La Jolla failed, causing significant erosion along nearby steep slopes. At the time of the failure, the city had been in the engage in CEQA review of potential improvements to the storm drain. After the failure, the city undertook emergency repairs (the installation of a new storm pipe) under CEQA Guidelines 15269, the statutory exemption for emergency projects.
Relying on previously prepared biological stuies, the emergency permit required the city's Public Works Department to use hand tools rather than mechanized equipment in order to minimize the disruption to sensitive resources. The emergency permit also required Public Works obtain a permanent permit from the city's Development Services Department within 150 days or else the temporary repairs would have to be repaired.
When Development Services issued the permanent permit in 2010, the city concluded that the additional work being undertaken – implementation of a revegetation plan – was exempt from CEQA under Guidelines 15061(b)(3) because the revegetation plan would improve the environment and did not hold the potential for significant impact. The Notice of Exemption defined the project as including the work done under the emergency permit that was covered by the previous exemption.
The community group CREED-21 – the name stands for "Citizens for Responsible Equitable Environmental Development" – appealed the CEQA determination to the San Diego City Council, which denied it. Subsequently the city's hearing officer approved the permanent permit. CREED-21 appealed that decision to the San Diego Planning Commission, which upheld it.
CREED-21 then sued and won in the trial court. San Diego Superior Court Judge Ronald S. Prager bought CREED-21's argument that the baseline to be considered in the CEQA analysis should have been existing conditions prior to the emergency repairs, and he even enjoined the city from moving forward on the revegetation plan.
In his ruling, Prager wrote: : "[I]f the City's logic is accepted, it would undermine the purpose of CEQA, as an applicant who is granted an emergency permit would be able to avoid more stringent scrutiny of its project during the regular permitting process due to the fact that it was previously able to obtain this type of permit."
A three-judge panel of the Fourt District Court of Appeal overturned Prager on almost all points, however. In his opinion for the court, Justice Alex McDonald wrote: "Although the court correctly noted environmental review for the storm drain repair work and related revegetation plan began in 2007 when City filed its initial application, we conclude the court misapplied the CEQA statutes and regulations regarding exemptions. … [T[he storm drain repair work completed in 2010 pursuant to the emergency exemption was, in effect, an intervening and superseding event that changed the physical environment without any requirement for CEQA review of that work for a significant effect on the environment."
McDonald added: "Because CEQA ‘applies only to ‘discretionary projects proposed to be carried out or approved by public agencies" ‘ (San Lorenzo, supra, 139 Cal.App.4th at p. 1376) and the revegetation plan was the only ‘project' under CEQA proposed to be carried out at the site after completion of the 2010 emergency work, CEQA applies only to the revegetation plan and not to the work done as part of the 2010 emergency storm drain repair. Therefore, in conducting a preliminary review of the revegetation project under CEQA, City was charged with making a comparison between the existing physical conditions after the 2010 emergency work was completed without the revegetation project and the conditions expected to be produced by the revegetation project."
The court also overturned Prager's ruling on CREED-21's standing, saying that the group did not have standing to challenge the city's determination that the emergency repair work was exempt from CEQA. CREED-21 had argued that it had standing even though it did not challenge the emergency permit's CEQA determination in a timely fashion because that exemption had, in essence, been rolled into the project description for the permanent permit. But McDonald rejected that argument: "To the extent City thereafter found its completed storm drain repair work was exempt from CEQA, it was merely confirming its prior emergency exemption determination."
The appellate court did affirm the trial court's ruling that a $100 appeal fee was unauthorized, in part because it did not provide the trial court with the relevant ordinance in a timely fashion.
The Case:
CREED-21 v. City of San Diego, No. D064186, decided January 29, published February 18
The Lawyers:
For CREED-21:
Cory Briggs, 619-497-0021
For City of San Diego:
Deputy City Attorneys Andrea M. Contreras (now with Sunroad Enterprises, acontreras@sunroadenterprises.com) and Jana Mickova, jwill@sandiego.gov.
