McCann v. City of San Diego ( 2021 )

Filed 10/8/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARGARET MCCANN, D077568
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2019-
CITY OF SAN DIEGO et. al., 00011813-CU-TT-CTL)
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed in part and reversed in part.
Law Office of Todd T. Cardiff and Todd T. Cardiff for Plaintiff and
Appellant.
Mara W. Elliot, City Attorney, George Schaefer, Assistant City
Attorney, and Jana Mickova Will, Deputy City Attorney, for Defendants and
Respondents.
INTRODUCTION
Plaintiff Margaret McCann appeals a judgment in favor of defendant
City of San Diego (City) on McCann’s petition for writ of mandate and an
order denying her request for a preliminary injunction. McCann challenges
the City’s environmental review process related to its decision to approve two
sets of projects which would convert overhead utility wires to an underground
system in several neighborhoods. McCann’s primary concern is the need for
the underground system to be supplemented with several above-ground
transformers, which would be housed in three-foot-tall metal boxes in the
public right-of-way.
According to McCann, the City violated the California Environmental
Quality Act (CEQA), (Pub. Resources Code, § 21000 et seq.) 1 by failing to
properly consider the environmental impact of these projects. The City
determined one set of projects was exempt from CEQA, and adopted a
mitigated negative declaration (MND) for the second set of projects. McCann
asserts that the significant impact on the environment caused by the above-
ground transformer boxes, and the projects as a whole, required the City to
prepare an environmental impact report (EIR) for both sets of projects.
We conclude McCann’s claims are barred as to the first set of projects
because she failed to exhaust her administrative remedies to challenge the
1 Further statutory references are to the Public Resources Code unless
otherwise stated. The administrative guidelines adopted by the Secretary of
the California Natural Resources Agency to implement CEQA (Cal. Code
Regs., tit. 14, § 15000 et seq.) will be referred to as “Guidelines” followed by
the section number. “[T]he Guidelines are entitled to great weight so long as
they are not clearly unauthorized or erroneous.” (California Oak Foundation
v. Regents of University of California (2010) 188 Cal.App.4th 227, 240, fn. 3.)
McCann does not challenge any of the Guidelines in this appeal.
2
City’s determination that the projects were exempt from CEQA. To further
the goal that environmental issues be resolved in an expeditious manner, the
San Diego Municipal Code (Municipal Code) creates a specific procedure for
interested parties to file an administrative appeal of an exemption
determination before a project is submitted for approval. McCann did not
avail herself of that procedure and she may not now raise that issue for the
first time in this legal action. Her challenge to the trial court’s order denying
a preliminary injunction related to those projects necessarily fails.
Regarding the MND adopted for the other set of projects, McCann
contends the City violated CEQA by segmenting the citywide undergrounding
project into smaller projects; not defining the location of each transformer box
before considering the environmental impact of the plan; and failing to
consider the significant impact on aesthetics caused by the projects. We
reject these assertions and conclude the City complied with CEQA.
However, we find merit in McCann’s argument the City’s finding that
the projects would not have a significant environmental impact due to
greenhouse gas emissions is not supported by substantial evidence. As we
shall explain, although CEQA provides agencies with a mechanism to
conduct a streamlined review of a project’s greenhouse gas emissions by
analyzing a project’s consistency with a broader greenhouse gas emission
plan, such as the City’s “Climate Action Plan,” the record shows the City
never completed the required analytical process. Thus, remand is necessary
to allow the City to conduct a further review to determine if the greenhouse
gas emissions are consistent with the City’s Climate Action Plan. We
therefore reverse the judgment in part, but otherwise affirm.
3
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Utility Undergrounding Overview
In 1970, the City began its decades-long effort to convert its overhead
utility systems, suspended on wooden poles, to an underground system. The
local effort mirrored a shift across the state arising from the California Public
Utilities Commission’s decisions to require (1) new construction to install
utility lines underground, and (2) utilities to allocate funds to convert
existing overhead utility lines to underground. Constrained by the limits of
this funding, the City established a separate “Surcharge Fund” in 2002 to
provide for increased utility undergrounding. 2
By the end of fiscal year 2016, the City had completed 406 miles of
utility undergrounding, but still had to convert approximately 1,000 miles of
overhead lines. As part of its new Utilities Undergrounding Program Master
Plan (Master Plan), adopted in 2017, the City set a goal of undergrounding 15
miles of overhead lines each year.
Given the small scope of projects that could be completed in any one
year due to the limited funding, the Master Plan and accompanying
Municipal Code section developed a process to manage the selection and
prioritization of undergrounding projects in any given year. The Master Plan
divided the portions of the City with existing overhead utility lines into
discrete “blocks” for “surcharge projects” and corridors for “20A projects” and
2 Projects funded by the utility tariffs are known as “20A projects” and
are focused on high-traffic corridors and tourism areas, whereas the other
projects, often covering residential neighborhoods, are funded by the City’s
own program and sometimes referred to as “surcharge” projects. The projects
at issue here include both 20A projects and surcharge projects.
4
provided a rough estimate of the cost to complete the undergrounding
projects in each block. 3
Following the process set forth in the Master Plan and Municipal Code,
the City Council each year approves a “project allocation” to select blocks to
be completed based on the available funding. Once the allocation is
approved, City staff begins its initial work, including environmental review
pursuant to CEQA, for each block.
Subsequently, the City Council creates an “Underground Utility
District” including the selected blocks for projects to be completed with that
year’s funding. All residents and property owners within the proposed
district are mailed a notice of public hearing and a map of the proposed area
for the undergrounding projects. Any member of the public may attend and
comment on the proposal. The City Council then holds a public hearing and,
assuming no insurmountable issues arise, approves the creation of the
Underground Utility District.
Thereafter, the City begins a detailed design process that takes one to
two years to complete. During community meetings, residents and property
owners are given an opportunity to discuss the projects, including the
placement of utility boxes and streetlights. Throughout the design process,
community members are notified of upcoming construction and invited to
attend a community forum as the design is finalized.
During the construction phase, workers dig trenches or drill tunnels
within the public right-of-way (i.e., streets and alleys) to accommodate the
3 For purposes of the undergrounding program, each “block” is not the
same as what is commonly referred to as a city block, but rather encompasses
a group of streets, each varying in size but including dozens of homes within
each neighborhood.
5
underground wires and cables. Lateral lines to individual buildings are
completed via boring or trenching to the location of the current electrical
meter. Workers then install underground conduit, fill in the soil, and then
pull cable through the conduit.
At the same time, new transformers, cable boxes, and pedestals are
installed above ground as needed. These transformers, the central focus of
the claims raised in this case, are required for every 8 to 14 homes. The cube-
shaped boxes are roughly three feet in each dimension, painted green, and
placed on a short concrete pad measuring four feet by four feet. 4
When construction is complete, the new system is energized and
properties are switched to the new system. Thereafter, the existing overhead
wires and utility poles are removed. As part of the utility undergrounding
projects, the City also commits to install new streetlights, install curb ramps
for sidewalks at intersections, repave streets after trenching, and plant trees.
This appeal involves McCann’s challenge to the approval of two sets of
undergrounding projects. Given the different circumstances arising from
their different locations, one set was found to be exempt from CEQA and the
4 In the trial court, the City requested judicial notice of a “Project
Management Fact Sheet” that discusses the size of the transformers and the
likely quantities. McCann opposed the request on the basis that the fact
sheet was not in the administrative record and the trial court denied the
request for judicial notice. However, that same document is included in the
administrative record, as tab 544, and McCann did not file any objection to
the inclusion of the document in the administrative record pursuant to rule
3.225(c) of the California Rules of Court. Having failed to do so, she waived
any objection to the inclusion of the document in the administrative record.
6
other set required the preparation of an MND. For sake of simplicity, we
refer to these two groups as the “Exempt Projects” and the “MND Projects.” 5
B. Exempt Projects
In 2016 the City Council approved a project allocation identifying 11
blocks for undergrounding districts. That same year, McCann began her
involvement in the undergrounding process for her neighborhood. In a series
of e-mails to City staff, McCann discussed her concerns regarding the
procedures relating to the inclusion of her neighborhood in the
undergrounding plans.
On July 10, 2018, City staff made an environmental determination the
11 blocks were exempt from CEQA. On the same day, the City issued a
“Notice of Right to Appeal Environmental Determination” (Notice of Right to
Appeal) identifying these 11 blocks. The Notice of Right to Appeal included a
description revealing that the projects would involve the construction of an
“Underground Utility System,” which would consist of trenching, “installing
conduit and substructures such as transformers on concrete pads,” installing
cable through the conduits, providing individual customer connections,
removing overhead utility lines and poles, and installing new streetlights.
The description also discussed the potential need to install new utility poles
at the boundaries of each district and it noted the projects included
5 The City refers to each undergrounding district as its own “project,”
such that multiple projects are included in each environmental review and
city approval. The parties do not dispute that the undergrounding projects
are a “project” as that term is used under CEQA or assert the environmental
review improperly grouped the city projects into one CEQA “project.” For
ease of reference, we follow the City in referring to the subject of this
litigation as “projects” rather than using the CEQA term of art to refer to the
collected projects as a singular “project.”
7
installation of curb ramps, sidewalk repairs, and street resurfacing. The
description stated that “[a]ny street tree removal, relocation, and/or trimming
would be done under the supervision of the City Arborist.”
The Notice of Right to Appeal stated that the City had determined the
projects were categorically exempt from CEQA pursuant to section 15302,
subdivision (d) of the Guidelines. The City maintains this exemption “allows
for the replacement or reconstruction of existing structures and facilities,
including the conversion of overhead electric utility distribution system
facilities to underground when the surface is restored to the existing
condition, and where the new structure will be located on the same site and
have substantially the same purpose and capacity.”
The Notice of Right to Appeal further stated that this environmental
determination “is appealable to the City Council” and that “[a]pplications to
appeal CEQA determination to the City Council must be filed in the office of
the City Clerk within 10 business days from the date of the posting of this
Notice [of Right to Appeal].” The Notice of Right to Appeal was posted in the
City Development Services Department Office, posted on the City’s website,
and was sent via e-mail to every city councilmember and to local community
planning groups in the areas designated as exempt from CEQA. As McCann
concedes, no one filed an administrative appeal.
On December 11, 2018, following a presentation at a public City
Council meeting, the City Council approved setting a hearing for January 29,
2019 to consider the creation of the Underground Utility Districts for the 11
Exempt Projects. Days later, the City mailed a “Notice of City Council Public
Hearing to Establish an Underground Utility District” to every affected
property owner. The notice informed property owners that if the City Council
established the districts, the utility company “will be obligated to remove all
8
overhead utility services from the streets and/or alleys and replace them with
underground services.” The notice further explained that the creation of the
districts “would require the removal of overhead electric and communication
wires and old wooden poles. Other street improvements associated with the
conversion of utilities may include installation of new streetlights,
installation of pedestrian curb ramps, street pavement renewal, and planting
of street trees.” The notice included a “Fact Sheet” with more information,
and directed property owners to the City’s website for details of the
undergrounding program. The notice also informed the recipients of the date,
time, and location of the hearing, and that they “may appear at this hearing
in support or opposition.”
Three days before the City Council hearing, McCann sent an e-mail to
the City Council raising several issues regarding the Exempt Projects and
asserting the environmental review was inadequate. In another e-mail,
McCann noted she had been following the project on the City’s website and by
reviewing her local planning group’s agendas, but had not seen the Notice of
Right to Appeal. In another e-mail sent the day before the hearing, McCann
asserted that the Notice of Exemption could not be filed until after the project
was approved. 6
In a report prepared for the hearing, staff explained that the City
Council’s adoption of the resolution creating the districts “allows staff to
proceed with undergrounding of overhead utilities in coordination with utility
companies.” In compliance with the City’s duty to consider the
environmental impacts of every project, the report also explained that no EIR
6 McCann appears to conflate the City’s Notice of Right to Appeal with a
separate CEQA document, a Notice of Exemption. As we will discuss, these
are two distinct documents that serve different purposes.
9
was required because the projects were exempt from CEQA, “for which a
Notice of Right to Appeal (NORA) has already been completed, and no
appeals were filed.”
At the hearing, City staff informed the City Council that if the districts
were approved, staff “will move into the design phase as formally created
districts.” McCann’s counsel spoke in opposition, claiming that the CEQA
review was “premature” given there were no precise plans regarding tree
removal and the placement of the transformer boxes. Several other residents
attended and spoke in favor of the creation of the districts. As McCann notes,
some of the speakers in favor expressed concerned about the placement of the
transformer boxes and asked if they could be placed in alleys. When
questioned by a councilmember, staff explained that the location of the
transformers would be determined during the subsequent design phase. The
City Council voted unanimously to approve the creation of the
undergrounding districts for the Exempt Projects.
In February, the City issued two “notices of exemption” for the Exempt
Projects. 7 As required under CEQA, the notices were filed in the office of the
county clerk. 8
7 The City filed a separate notice of exemption for the project in
Kensington, McCann’s neighborhood, apparently in the expectation she may
only challenge that project.
8 As McCann notes, the notices of exemption were prepared and signed
by City staff in July 2018, but not filed with the county clerk until after the
projects were approved by the City Council. As we discuss post, this
procedure complied with CEQA.
10
C. MND Projects
In November 2018, the City published a draft MND for an additional
nine potential undergrounding districts. Based on earlier discussions with
Native American tribes, the City learned that some of the districts included
sites with cultural significance. Following further inquiry, the City
determined the projects may have a significant impact on cultural resources,
but the impact could be mitigated by requiring monitoring by a tribe during
trenching. The draft MND included a mitigation, monitoring, and reporting
program aimed at mitigating any impact to archaeological and cultural
resources that may be uncovered during trenching. Based on the monitoring
process, the final MND determined that “although the proposed project could
have a significant effect on the environment, there will not be a significant
effect in this case because revisions in the project have been made by or
agreed to by the project proponent.” As part of this process, the City also
considered the aesthetic effect and greenhouse gas emissions of the projects,
but found they would have no significant impact.
At the same hearing at which the Exempt Projects were approved, the
City Council approved setting a public hearing on March 5, 2019 to consider
approving the MND Projects. 9 McCann and her attorney submitted written
comments challenging the adequacy of the MND concerning the location of
the transformers, the cumulative impact from greenhouse gases, and the
effect on trees.
9 Although the MND discusses nine districts, only eight districts were
included in the hearing for approval. The missing project, for the district
referred to as “UU957 Residential Block 70 (College Area)” was not included
in McCann’s writ petition and is not at issue in this case despite her
reference to nine districts in the MND Projects.
11
At the hearing on March 5, 2019, McCann’s attorney made a public
comment in opposition to the projects to express his concerns with the MND.
The City Council unanimously approved the creation of the undergrounding
districts and adopted the MND and the associated mitigation, monitoring,
and reporting program. Thereafter, the City filed a notice of determination
providing notice of the adoption of the MND.
D. McCann’s Petition for Writ of Mandate and Request for
Preliminary Injunction
McCann filed a timely petition for writ of mandate, alleging the City
violated CEQA when it determined the Exempt Projects were exempt.
Shortly thereafter, she filed an amended petition to add an additional cause
of action to allege the City similarly violated CEQA when it adopted the
MND for the MND Projects.
Months later, in January 2020, McCann filed an ex parte application
for a temporary restraining order and to set a hearing on an order to show
cause regarding a preliminary injunction. In an accompanying declaration,
McCann explained that the City cut down a “historic” pepper tree on her
street. She also claimed to have spoken with a worker who informed her that
the tree in front of her house was also to be cut down. She sought a
temporary restraining order “enjoining [City] from engaging in any physical
construction in furtherance of the undergrounding projects, including
demolition or removal of trees, in project areas during the pendency of this
action.” The next day, the court issued a temporary restraining order
enjoining the City from “cutting down any Pepper Trees in Kensington” and
setting a hearing on the request for a preliminary injunction on the same day
it was set to hear McCann’s writ petition.
In an opposition, the City explained the tree removal was entirely
unrelated to the undergrounding projects, but rather was part of a sidewalk
12
repair project. In a declaration, the City Forester explained that removal of
the trees was necessary to repair the sidewalk and because some of the trees
were suffering from excessive rot, which posed a public safety hazard by
causing branches to fall.
After briefing and argument, the trial court denied both the writ
petition and the request for a preliminary injunction. Regarding the
preliminary injunction, the court found it had no jurisdiction to consider the
request because the evidence established that the trees in question were not
at risk of removal due to the undergrounding projects, but rather because of a
different project that McCann did not challenge in her writ petition. The
court also found that McCann did not establish a probability of success on her
claims and the balancing of interests favored the City, which had a strong
interest in removing trees that posed a risk to public safety.
Turning to the merits of McCann’s writ petition, the trial court found
that McCann failed to exhaust her administrative remedies prior to seeking
judicial review of the Exempt Projects. The court noted the City provided an
administrative appeal to challenge a determination a project was exempt
from CEQA but McCann did not pursue this remedy and thus, she “may not
challenge the City’s approval of the categorical exemption determination.” In
the alternative, the court also rejected McCann’s claims that the City
(1) violated CEQA by not disclosing the exact location of the transformers;
(2) did not provide adequate notice; and (3) improperly determined that a
categorical exemption applies.
Regarding the MND Projects, the court found that McCann failed to
demonstrate that substantial evidence supported a fair argument that the
13
MND Projects may have a significant impact on the environment. 10 Thus, it
concluded that no EIR was required.
The court concluded that McCann “is not entitled to any relief” and
denied the writ petition in full. The court directed the City’s counsel to
prepare a judgment. The court subsequently entered judgment and McCann
timely appealed. 11
II. DISCUSSION
A. Overview of CEQA
“CEQA was enacted to advance four related purposes: to (1) inform the
government and public about a proposed activity’s potential environmental
impacts; (2) identify ways to reduce, or avoid, environmental damage;
(3) prevent environmental damage by requiring project changes via
alternatives or mitigation measures when feasible; and (4) disclose to the
10 The court’s minute order does not address McCann’s alternative
argument that the City’s finding that the projects would have no significant
impact was not supported by substantial evidence. As we will discuss,
although McCann’s briefing on this issue is not entirely clear, she argues
both that the City’s finding is “clearly deficient” and that an EIR was
necessary because there is a fair argument that the projects will have a
significant impact.
11 During the pendency of this appeal, we asked the parties to address the
issue of the timeliness of McCann’s appeal. At the time, the application of
certain emergency orders declaring dates to be holidays for the purposes of
computing time, entered by the superior court as a result of the COVID-19
pandemic, was uncertain. McCann provided additional briefing explaining
why her appeal was timely, which the City does not dispute. We agree with
McCann that her appeal was timely filed. We grant her request for judicial
notice of the superior court’s emergency orders as well as her additional
unopposed request for judicial notice of additional documents related to the
merits of her claim.
14
public the rationale for governmental approval of a project that may
significantly impact the environment.” (California Building Industry Assn. v.
Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382 (Building
Industry).)
To advance these purposes, CEQA requires an agency, such as the City,
to “follow a three-step process when planning an activity that could fall
within its scope.” (Building Industry, supra, 62 Cal.4th at p. 382.) “First, the
public agency must determine whether a proposed activity is a ‘[p]roject,’ i.e.,
an activity that is undertaken, supported, or approved by a public agency and
that ‘may cause either a direct physical change in the environment, or a
reasonably foreseeable indirect physical change in the environment.’ ” (Ibid.)
Second, if the activity is determined to be a project, “the agency must
next decide whether the project is exempt from the CEQA review process
under either a statutory exemption (see § 21080) or [as in this case] a
categorical exemption set forth in the CEQA Guidelines (see § 21084, subd.
(a); Guidelines, § 15300 et seq.).” (Building Industry, supra, 62 Cal.4th at
p. 382.) “A categorical exemption is based on a finding by the Resources
Agency that a class or category of projects does not have a significant effect
on the environment. ([ ] §§ 21083, 21084; Guidelines, § 15354.) 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.” (Davidon Homes v. City of San Jose
(1997) 54 Cal.App.4th 106, 115.) If an exemption applies, the project is
excused from CEQA’s environmental review, which occurs only if an agency
determines the project is not exempt from CEQA. (Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1186
[“Environmental review is required under CEQA only if a public agency
15
concludes that a proposed activity is a project and does not qualify for an
exemption.”].)
“If the agency determines the project is not exempt, it must then decide
whether the project may have a significant environmental effect. And where
the project will not have such an effect, the agency ‘must “adopt a negative
declaration to that effect.” ’ ” (Building Industry, supra, 62 Cal.4th at p. 382.)
A negative declaration is “a written statement briefly describing the reasons
that a proposed project will not have a significant effect on the environment
and does not require the preparation of an environmental impact report.”
(§ 21064.)
Relatedly, “[i]f potentially significant environmental effects are
discovered, but the project applicant agrees to changes that would avoid or
mitigate them, the agency prepares a mitigated negative declaration
(§ 21080, subd. (c)(2); [ ] Guidelines, § 15070, subd. (b)), which also ends
CEQA review.” (Protecting Our Water & Environmental Resources v. County
of Stanislaus (2020) 10 Cal.5th 479, 489 (Protecting Our Water).) An MND is
“a negative declaration prepared for a project when the initial study has
identified potentially significant effects on the environment, but (1) revisions
in the project plans or proposals made by, or agreed to by, the applicant
before the proposed negative declaration and initial study are released for
public review would avoid the effects or mitigate the effects to a point where
clearly no significant effect on the environment would occur, and (2) there is
no substantial evidence in light of the whole record before the public agency
that the project, as revised, may have a significant effect on the
environment.” (§ 21064.5.)
Third, if the agency’s initial study of a proposed project produces
substantial evidence supporting a fair argument that a project may have a
16
significant effect on the environment, it must prepare an EIR before
approving the project. (Clews Land & Livestock, LLC v. City of San Diego
(2017) 19 Cal.App.5th 161, 187 (Clews).) “Determining environmental
significance ‘calls for careful judgment on the part of the public agency
involved, based to the extent possible on scientific and factual data.’
(Guidelines, § 15064, subd. (b).) The Guidelines encourage public agencies to
develop and publish ‘thresholds of significance’ (Guidelines, § 15064.7, subd.
(a)), which generally promote predictability and efficiency when the agencies
determine whether to prepare an EIR.” (Building Industry, supra, 62 Cal.4th
at p. 383.)
“In general, judicial review of agency actions for CEQA compliance
extends to ‘whether there was a prejudicial abuse of discretion.’ (§ 21168.5;
see Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
41 Cal.4th 372, 381 (Muzzy Ranch).) ‘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.’
(§ 21168.5.)” (Protecting Our Water, supra, 10 Cal.5th at p. 495.) Our review
as an appellate court is the same as the trial court’s review: we focus on the
agency’s actions, not the trial court’s decision, applying our independent, de
novo review. (Ibid.) We discuss the more specific standards of review that
apply to McCann’s arguments concurrently with our discussion of those
arguments.
B. The Exempt Projects
McCann maintains the City’s determination that 11 of the underground
districts were exempt from CEQA was erroneous and that the trial court
erred in concluding she failed to exhaust her administrative remedies.
Applying a de novo standard of review (Citizens for Open Government v. City
17
of Lodi (2006) 144 Cal.App.4th 865, 873 (Citizens for Open Government)), we
find the exhaustion of administrative remedies doctrine applies and therefore
need not consider her arguments challenging the City’s finding the projects
are exempt from CEQA.
1. McCann Did Not Exhaust Her Administrative Remedies for
the Exempt Projects
“The exhaustion of administrative remedies doctrine ‘bars the pursuit
of a judicial remedy by a person to whom administrative action was available
for the purpose of enforcing the right he seeks to assert in court, but who has
failed to commence such action and is attempting to obtain judicial redress
where no administrative proceeding has occurred at all; it also operates as a
defense to litigation commenced by persons who have been aggrieved by
action taken in an administrative proceeding which has in fact occurred but
who have failed to “exhaust” the remedy available to them in the course of
the proceeding itself.’ [Citation.] As our Supreme Court has stated it: ‘In
brief, the rule is that where an administrative remedy is provided by statute,
relief must be sought from the administrative body and this remedy
exhausted before the courts will act.’ [Citation.] The rule is a jurisdictional
prerequisite in the sense that it ‘is not a matter of judicial discretion, but is a
fundamental rule of procedure laid down by courts of last resort, followed
under the doctrine of stare decisis, and binding upon all courts.’ ” (Citizens
for Open Government, supra, 144 Cal.App.4th at p. 874.)
Section 21177 addresses the exhaustion of administrative remedies in
CEQA cases, but it does not prescribe a specific appeal process following a
18
determination a project is exempt from CEQA. 12 Instead CEQA requires
that if a nonelected official or decisionmaking body determines a project is
exempt from CEQA, the agency must allow for an appeal of that
determination to the agency’s elected decisionmaking body. (§ 21151,
subd. (c).) The Guidelines also provide the “local lead agency may establish
procedures governing such appeals.” (Guidelines, § 15061, subd. (e).) As
recently explained in Schmid v. City and County of San Francisco (2021)
60 Cal.App.5th 470 (Schmid), CEQA itself does not “preempt” any local
administrative appeal process, but rather “expressly contemplate[s] that ‘[a]
local lead agency may establish [its own] procedures.’ ” (Id. at pp. 492-493.)
Several cases recognize that when an agency elects to adopt an
administrative appeal process, the common law rule requiring the exhaustion
of administrative remedies applies to CEQA litigation and the scope of the
remedy is “determined by the procedures applicable to the public agency in
question.” (Tahoe Vista Concerned Citizens v. County of Placer (2000)
81 Cal.App.4th 577, 592, fn. 6) Thus, “whether the exhaustion doctrine
applies depends on the relevant procedures available in a specific
jurisdiction.” (California Clean Energy Committee v. City of San Jose (2013)
220 Cal.App.4th 1325, 1345). Where an appeal process is available and a
party fails to exhaust its administrative remedies, it may not bring a judicial
12 Section 21177 provides that an action or proceeding alleging an agency
failed to comply with CEQA shall not be brought unless (1) the alleged
grounds for noncompliance “were presented to the public agency orally or in
writing by any person during the public comment period provided by [CEQA]
or before the close of the public hearing on the project before the issuance of
the notice of determination” and (2) the person bringing the action “objected
to the approval of the project orally or in writing during the public comment
period provided by this division or before the close of the public hearing on
the project before the filing of notice of determination.” (Id. at subds. (a), (b).)
19
action challenging the environmental determination. (Clews, supra, 19
Cal.App.5th at p. 187.)
In Schmid, supra, 60 Cal.App.5th 470, the court discussed the
application of the common law rules regarding exhaustion of administrative
remedies as applied to an exemption determination. There, the First District
considered a challenge to a decision by the City and County of San Francisco
(City of San Francisco) to remove a controversial statue. (Id. at pp. 476-477.)
Similar to the process at issue in this appeal, the City of San Francisco
provided that a staff determination that a project is exempt from CEQA could
be appealed to the elected Board of Supervisors. (Id. at p. 492.) The
challenger asserted that the City of San Francisco violated CEQA after staff
determined the project was exempt before the project was ultimately
approved, but the appellate court held that the claim was barred because the
appellant failed to exhaust his administrative remedies. (Id. at p. 490.) The
First District concluded that by ignoring the administrative appeal
requirements, the appellant “failed to exhaust administrative remedies and
sacrificed his right to bring a CEQA cause of action.” (Id. at p. 492; see also
Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, 456-457
[where agency creates an administrative appeal process for CEQA
determinations, a challenger bears the burden of demonstrating it exhausted
that remedy before seeking judicial review].)
In accord with a lead agency’s authority to establish its own
administrative appeal process, section 112.0520(b) of the Municipal Code
provides that a person wishing to challenge an “environmental
determination” not made by the City Council must file an application to
appeal within 10 business days of the determination. Municipal Code section
113.0103 clarifies that an “environmental determination” includes a
20
determination that a project is exempt from CEQA under section 15061,
subdivision (b) of the Guidelines.
Here, the City provided notice that it made an environmental
determination on July 10, 2018, that the Exempt Projects were exempt from
CEQA and that any application to appeal had to be filed by July 24, 2018. 13
McCann concedes she did not file an administrative appeal. Because she did
not avail herself to the administrative appeal remedies offered by the City to
address her concerns regarding the environmental determination she failed
to exhaust her administrative remedies and the trial court correctly found
that she is now barred from bringing a judicial action to challenge that
determination. 14
To avoid application of the exhaustion doctrine, McCann maintains
posting the Notice of Right to Appeal the exemption determination
13 As we discuss post, McCann challenges the sufficiency of that notice.
14 In Tomlinson v. County of Alameda (2012) 54 Cal.4th 281 our Supreme
Court concluded that when a local agency voluntarily elects to provide an
opportunity for public comment before an exemption determination is made,
section 21177 applies “as long as the public agency gives notice of the ground
for its exemption determination, and that determination is preceded by public
hearings at which members of the public had the opportunity to raise any
concerns or objections to the proposed project.” (Id. at p. 291.) Although the
local administrative appeal process addressed in Tomlinson provided for a
public hearing before an exemption determination is made, and the process
the City has adopted here does not, we are satisfied the City’s process
complies with the principles discussed in Tomlinson, including the Supreme
Court’s reaffirmation of the “common law doctrine requiring exhaustion of
administrative remedies before bringing a court action.” (Ibid.) Here, the
City provided an appeal to the City Council, allowing for a public hearing to
challenge the exemption determination, and thus facilitated a resolution of
environmental determination disputes well before the project proceeded to a
public hearing to consider project approval.
21
(1) violated constitutional due process principles; (2) failed to comply with
CEQA; and (3) improperly bifurcated the environmental determination
process. We see no merit in these contentions.
In her constitutional claim, McCann argues the posting of the Notice of
Right to Appeal on the City’s website and sending e-mails to every city
councilmember and local planning groups failed to comply with due process
principles. Instead she contends the City was required to provide notice that
was reasonably calculated to reach every impacted homeowner. To support
this contention, she relies on Horn v. County of Ventura (1979) 24 Cal.3d 605(Horn). There, the Supreme Court discussed the application of due process
principles to the notice and hearing requirements that apply “before
governmental deprivation of a significant property interest.” (Id. at p. 612.)
The Court in Horn did not specifically define the scope of significant property
interests, but relied on a prior opinion to explain that the constitutional
rights to notice and a hearing applied to “land use decisions which
‘substantially affect’ the property rights of owners of adjacent parcels,” not
“agency decisions having only a de minimus effect on land.” 15 (Id. at pp. 615-
616.)
15 Horn also clarified that only “adjudicatory” decisions required notice
and a hearing, not “legislative” decisions. (Horn, supra, 24 Cal.3d at pp. 612-
613.) McCann does not address this distinction, but we note that multiple
courts have held a finding that a project is exempt from CEQA, which does
not require a hearing or a specific consideration of evidence, is quasi-
legislative in nature, not adjudicatory. (See Great Oaks Water Co. v. Santa
Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 968; Bus Riders Union
v. Los Angeles County Metropolitan Transportation Agency (2009)
179 Cal.App.4th 101, 106; Save Our Carmel River v. Monterey Peninsula
Water Management Dist. (2006) 141 Cal.App.4th 677, 693; see also Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567.)
22
Here, the determination that the projects are exempt from CEQA was
not a land use decision and did not deprive McCann of any significant
property interest. As we discuss, an environmental determination is an
entirely distinct decision from the actual project approval. The Supreme
Court recognized this distinction in Horn, noting that while the CEQA
notices for the environmental determination related to the project at issue
were adequate “to encourage the generalized public participation in the
environmental decision making contemplated by CEQA, they are inadequate
to meet due process standards where fundamental interests are substantially
affected.” (Horn, supra, 24 Cal.3d at pp. 617-618; see also Oceanside Marina
Towers Assn. v. Oceanside Community Development Com. (1986)
187 Cal.App.3d 735, 746, fn. 8 [recognizing that Horn applies to project
approval but does not apply to CEQA determinations, which do not involve a
deprivation of property rights].) McCann fails to cite any authority that Horn
applies to notice of a determination by a nonelected official that a project is
categorically exempt—as distinct from notice of a land use decision itself—
and we see no basis for extending Horn in that manner.
McCann also fails to establish that the exemption determination (or the
related undergrounding project) would result in a “significant” or
“substantial” deprivation of her property rights. (Horn, supra, 24 Cal.3d at
p. 616.) McCann chiefly complains of transitory effects on her property
caused by construction, not a permanent deprivation of her property
interests. Her concerns about the placement of transformer boxes closely
mirrors the petitioners’ concerns in Robinson v. City and County of San
Francisco (2012) 208 Cal.App.4th 950 regarding wireless communication
boxes. (Id. at p. 963.) In that case, the First District considered Horn, but
dismissed the concerns over de minimis effects and held that as a matter of
23
law, adding small utility boxes in a developed urban area “does not result in a
‘ “significant” or “substantial” deprivation[ ] of property’ so as to trigger
constitutional due process rights.” (Ibid.)
Similarly, in Taxpayers for Accountable School Bond Spending v. San
Diego Unified School District (2013) 215 Cal.App.4th 1013 (Taxpayers), this
court rejected the application of Horn to a school board’s determination that
the installation of large athletic field lights was exempt from CEQA. (Id. at
pp. 1058-1059.) We concluded that “the appearance of tall light standards,
along with occasional evening events involving some light trespass and
additional traffic, could not, as a matter of law, result in a significant
deprivation of a property interest in the circumstances of this case. Horn
does not persuade us District was required to provide neighboring property
owners with reasonable notice and an opportunity to be heard on the Board’s
proposed exemption action.” (Id. at p. 1059.) We see no reason to depart
from our reasoning in Taxpayers that the impacts associated with projects
like the stadium lights in Taxpayers and the utility undergrounding in this
case do not require individualized notice beyond that required by CEQA.
Although we recognize the inconvenience of construction activity may
interrupt residents for a short period of time and the transformer boxes in
the public right of way may be considered less than ideal, the activities here
do not deprive McCann and other residents of a significant property interest.
Thus, Horn does not apply and the City’s notice did not violate McCann’s due
process rights.
Beyond her reliance on Horn, McCann fails to address what procedural
due process requirements may apply to an administrative appeal of a CEQA
determination. We do not dispute that the doctrine of exhaustion of
administrative remedies applies only when the remedy itself comports with
24
the requirements of due process. (See, e.g., Bockover v. Perko (1994)
28 Cal.App.4th 479, 486.) However, as we have previously recognized in the
CEQA context, “ ‘[d]ue process . . . “does not require any particular form of
notice or method of procedure. If the [administrative remedy] provides for
reasonable notice and a reasonable opportunity to be heard, that is all that is
required [for due process]. [Citations.]” ’ ” (CREED-21 v. City of San Diego
(2015) 234 Cal.App.4th 488, 517.)
Absent authority to the contrary, we are satisfied that the City’s
noticing requirements provide adequate notice because they comport with the
general noticing requirements the Legislature has deemed sufficient for other
CEQA determinations. CEQA requires nothing more for a notice of intent to
adopt a negative declaration than a single publication in a newspaper and a
20-day public review period. (Guidelines, §§ 15072, subd. (b), 15073, 15105.)
The same publication requirement applies for the circulation of a draft EIR
before it is considered for certification, with a 30-day review period.
(Guidelines, §§ 15087, subd. (a), 15073, 15105.) Similarly, following an
agency’s decision to adopt or certify a negative declaration or EIR, CEQA only
requires that the notice be filed in the county clerk’s office and be available
for public inspection. (Guidelines, §§ 15075, 15094.)
Our Supreme Court has expressly declined to “impose additional
requirements for a [notice of determination] beyond those described in the
Guidelines.” (Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 53, citing Lee v. Lost Hills Water Dist.
(1978) 78 Cal.App.3d 630, 634 [rejecting contention that “due process
requires . . . more or better notice than that prescribed by the [CEQA]
statute.”].) McCann fails to offer any argument, beyond her misplaced
reliance on Horn, that we should find CEQA’s noticing provisions to be
25
incompatible with constitutional due process requirements. We are satisfied
that the City’s administrative appeal noticing requirements, which require
(1) posting of the notice of right to appeal in a public location and on the
Internet, and (2) distribution by e-mail to all city councilmembers and the
community planning groups that represent the areas in which a project is
proposed, are consistent with CEQA’s noticing provisions and provide
adequate notice for due process purposes. Here, the City provided sufficient
notice by complying with these requirements when it posted the notice in a
public office, on the City’s website, and e-mailed the notice to the city
councilmembers and community planning groups, including McCann’s city
councilmember and the community planning group representing her
Kensington neighborhood.
Alternatively, McCann asserts that even if the noticing requirements
pass constitutional muster, she should be excused from exhausting her
administrative remedies because the City’s noticing process was inadequate
under CEQA. She does not cite any provision in CEQA or the Guidelines that
requires specific noticing that an agency has determined a project is exempt.
Instead, McCann mistakenly relies on two decisions (Stockton Citizens for
Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 501 and
Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408) which
did not involve a “notice of right to appeal,” but rather discussed the distinct
requirements under CEQA regarding a “notice of exemption.”
A “notice of right to appeal” is a different document than a “notice of
exemption.” Pursuant to Municipal Code section 112.0310(a), a “notice of
right to appeal” is filed when City staff determines a project is exempt from
CEQA. (Ibid.) The notice is intended to inform interested parties that they
may file an administrative appeal of the determination. (Ibid.) By contrast,
26
a “notice of exemption,” discussed in section 15062 of the Guidelines, is not a
part of any administrative appeal process. Instead, an agency may file a
“notice of exemption” following project approval to start a 35-day statute of
limitations period to file a legal challenge to an agency’s decision that the
project is exempt from CEQA. (§ 21167, subd. (d); Guidelines, § 15062, subd.
(d).) 16
In short, the City’s “notice of right to appeal” alerts parties to the right
to file an administrative appeal, whereas a “notice of exemption” alerts
parties of the shortened time frame in which to file a legal action challenging
the CEQA determination. Here, the City filed notices of exemption for the
Exempt Projects after the projects were approved by the City. Those notices
were proper and triggered the 35-day filing deadline to file a legal challenge,
but they are also distinct from the Notice of Right to Appeal filed by the City.
McCann’s claim that the City violated the procedures for notices of exemption
16 The notice of exemption shall be filed with the county clerk for posting
for a period of 30 days and agencies are encouraged, but not required, to post
the notice on the Internet. (Guidelines, § 15062, subd. (c)(2), (3).) Nothing in
CEQA or the Guidelines requires individualized notice. A “notice of
exemption” may be prepared by staff when the exemption determination is
made, but it may not be filed until after the project is approved. (Guidelines,
§ 15062, subd. (b).) This ensures that a party is not required to file a legal
challenge to the environmental determination before the project is approved.
27
is not only mistaken, but it also has no bearing on whether the City’s Notice
of Right to Appeal was properly noticed. 17
Both CEQA and the common law doctrine of exhaustion of
administrative remedies required McCann to avail herself to the City’s
administrative appeal process to preserve her legal challenge to the City’s
determination that the projects are exempt from CEQA. She failed to do so
and does not establish a basis for excusing her failure to exhaust
administrative remedies. Accordingly, as the trial court found, McCann’s
challenge to the Exempt Projects is barred.
Finally, McCann argues she was not required to pursue an
administrative appeal because the City improperly bifurcated its decision
process by allowing staff to make the environmental determination that the
projects were exempt despite the requirement that the City Council approve
the projects themselves. We disagree.
In Clews, supra, we upheld the City’s administrative appeal process
and held that it did not result in an improper “bifurcation.” (19 Cal.App.5th
at pp. 184-191.) As we explained in Clews, for each project that potentially
falls under CEQA’s purview, the City must (1) consider the environmental
impact, and (2) approve the actual project. (Clews, supra, 19 Cal.App.5th at
pp. 185-186.) The “environmental determination,” defined by the City as the
17 In her reply brief, McCann contends the City failed to comply with its
Municipal Code by not sending a “Notice of Public Hearing” before making its
finding that the projects were exempt. McCann made a passing reference to
the relevant code section in her opening brief, but made no argument that the
alleged violation by staff was an independent basis for finding notice to be
inadequate. Although this argument appears to be premised on a
misinterpretation of the relevant code section, the issue is forfeited and we
need not address claims not properly addressed in the opening brief. (See,
e.g., Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1542.)
28
decision that a project is either exempt from CEQA or instead requires the
adoption of a negative declaration or certification of an EIR, is entirely
distinct from the decision to approve a project. Although the same
decisionmaking person or body often considers both the environmental
determination and project approval, the City’s process allows for staff to
determine a project is exempt from CEQA while a different decisionmaking
body later considers project approval.
This bifurcated process is permitted by CEQA. Specifically, section
15025, subdivision (a), of the Guidelines permits a public agency to delegate
certain CEQA functions to staff, including the determination a project is
exempt. In section 15022, subdivision (a)(9), the Guidelines direct public
agencies to ensure that the decision-making body that will approve a project
also review and consider “environmental documents,” but the Guidelines also
clearly define “environmental documents” as not including an exemption
determination. (Guidelines, § 15361.) At most, where an agency elects to use
a bifurcated process, CEQA requires that staff environmental decisions can
be appealed to the elected decisionmaking body. (§ 21151, subd. (c).)
McCann mistakenly relies on decisions involving MNDs and EIRs to
support her claim that the City’s process for exemptions was improper. We
do not dispute that a person or body that does have authority to approve the
project is not permitted to (1) review and consider a final EIR or approve a
negative declaration, or (2) make findings pursuant to sections 15091 and
15093. (Guidelines, § 15025, subd. (b)(1), (2).) Where these limitations exist,
the agency may not bifurcate the environmental determination from project
approval. (Clews, supra, 19 Cal.App.5th at p. 187.) Because, here, the City
was not considering an EIR or an MND and was not making findings
required by sections 15091 or 15093 (which arise only in the context of an
29
EIR), the City was permitted to delegate to staff authority to determine the
project was exempt. 18 For this reason, McCann’s reliance on California
Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325,
which held that a non-decisionmaking body may not certify an EIR, is
misplaced. (Id. at pp. 1340-1341.)
Nothing in the Guidelines prevents a public agency from delegating
authority to staff to determine a project is exempt from CEQA and then make
a different decisionmaking body responsible for subsequently approving the
project. The City properly delegated to staff the authority to make the
determination under CEQA that the projects were exempt and established a
procedure to appeal that decision to the City Council. Seeing no error in the
City’s process, McCann fails to establish any excuse to her failure to exhaust
her administrative remedies.
C. The MND Projects
1. The City Did Not Violate CEQA by Improperly Segmenting
the MND Projects
Turning to the MND Projects, McCann asserts the City violated CEQA
by segmenting the utility underground projects rather than considering the
projects as one citywide project. Generally, an agency may not improperly
split a project into separate segments to avoid consideration of the
18 In Clews, we analyzed whether the City’s process for a project involving
an MND involved an improper bifurcation. (Clews, supra, 19 Cal.App.5th at
p. 187.) Relying on section 15025, subdivision (b) of the Guidelines, we
recognized that a City may not delegate the adoption of an MND to staff who
was not also tasked with approving the project. (Ibid.) Clews did not involve
an exempt project and to the extent it implicitly suggests that an exemption
determination may not be bifurcated from project approval, any such
implication was mere dicta.
30
cumulative environmental impacts of a project. “ ‘There is no dispute that
CEQA forbids “piecemeal” review of the significant environmental impacts of
a project.’ [Citation.] Rather, CEQA mandates ‘that environmental
considerations do not become submerged by chopping a large project into
many little ones—each with a minimal potential impact on the
environment—which cumulatively may have disastrous consequences.’
[Citation.] Thus, the Guidelines define ‘project’ broadly as ‘the whole of an
action, which has a potential for resulting in either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in
the environment . . . .’ (Guidelines, § 15378, subd. (a).) The question of which
acts constitute the ‘whole of an action’ for purposes of CEQA is one of law,
which we review de novo based on the undisputed facts in the record.”
(Communities for a Better Environment v. City of Richmond (2010)
184 Cal.App.4th 70, 98.)
In Laurel Heights Improvement Association v. Regents of the University
of California (1988) 47 Cal.3d 376, the California Supreme Court concluded
that to avoid piecemealing, an agency’s environmental review of a project
under CEQA must address all aspects of a project that are a “reasonably
foreseeable consequence” of the project and would be “significant” such that
“it will likely change the scope or nature of the initial project or its
environmental effects.” (Id. at p. 396.) Similarly, “[s]ome courts have
concluded a proposed project is part of a larger project for CEQA purposes if
the proposed project is a crucial functional element of the larger project such
that, without it, the larger project could not proceed.” (Communities for a
Better Environment v. City of Richmond, supra, 184 Cal.App.4th at p. 99.)
Here, each utility undergrounding project was independently functional
and did not rely on any other undergrounding project to operate. Assuming
31
no future undergrounding project occurs, it would not affect the functionality
of the MND Projects. Similarly, if those future projects do occur, they would
not materially change the function or scope of the MND Projects. Thus,
although the City has expressed an intent to pursue similar projects in other
neighborhoods, the MND Projects are not necessarily part of a larger
interdependent project.
Although similar in nature, each undergrounding project stands alone
such that it is not the “first step” toward additional projects and does not
“legally compel[] or practically presume[] completion of another action.”
(Banning Ranch Conservancy v. City of Newport Beach (2012)
211 Cal.App.4th 1209, 1223.) Different projects “may properly undergo
separate environmental review (i.e., no piecemealing) when the
projects . . . can be implemented independently.” (Ibid.) Here, each MND
Project is an independent project that does not rely on future projects. Thus,
we conclude the City did not err in defining the scope of the MND Projects for
purposes of environmental review.
2. The City’s Description for the MND Projects Was Adequate
McCann also asserts the City improperly deferred its decision on the
precise location of the transformer boxes, which she contends precluded the
City from considering the environmental impacts of the MND Projects in
their entirety. The first step of the CEQA process requires agencies to
determine whether an activity is a “project” subject to CEQA. (Muzzy Ranch,
supra, 41 Cal.4th at pp. 379-380.) As part of this process, the agency must
also provide an accurate and complete description of the “project.” (Save
Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1448.)
“ ‘Only through an accurate view of the project may affected outsiders and
public decision-makers balance the proposal’s benefit against its
32
environmental cost, consider mitigation measures, assess the advantage of
terminating the proposal (i.e., the “no project” alternative) and weigh other
alternatives in the balance. An accurate, stable and finite project description
is the sine qua non of an informative and legally sufficient EIR.’ [Citation.]
The description should not, however, ‘supply extensive detail beyond that
needed for evaluation and review of the environment impact.’ ” (Ibid.)
Regarding the location of the transformers, McCann asserts that “[t]he
primary issue in this case is whether a public agency may properly defer
disclosure and design of the most controversial aspect of the project until after
the project is approved and the project is no longer subject to challenge under
CEQA.” (Italics added) Nothing in CEQA, however, requires an agency to
focus on “controversy.” (Georgetown Preservation Society v. County of El
Dorado (2018) 30 Cal.App.5th 358, 374 (Georgetown) [“the mere existence of a
public controversy does not satisfy the fair argument standard”].) Indeed, it
is entirely possible, if not common, for a controversial or unpopular project to
be exempt from CEQA. Neighborhood sentiment is not an impact that must
be directly considered in the environmental determination process. (See, e.g.,
Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 579 [“CEQA
does not require an analysis of subjective psychological feelings or social
impacts”].) Instead, CEQA requires an agency to focus on the aspects of a
project that may have an impact on the physical environment. (Ibid.)
As applied here, the City’s position is that regardless of the precise
location of each transformer, the environmental impact of the projects is the
same. On appeal, McCann’s arguments accept this premise. As we discuss
post, she argues that regardless of where the transformers are placed, they
will impact the aesthetics of the neighborhood. Thus, although McCann and
some property owners may have strong opinions regarding the location of the
33
transformers in front of their individual homes, she fails to establish that the
precise location is critical to considering the generalized environmental
impact of the projects.
The MND reveals that the relevant portions of the projects, including
the transformers, will be constructed in the public right-of-way unless a
voluntary private easement is secured. Existing trees within the right-of-way
will be protected unless removal is reasonably necessary, implying that the
boxes will not be placed in the same location as existing trees unless it is
necessary to do so. Accepting these limited constraints on the location of the
transformers, the City could reasonably consider the environmental impacts
of the projects.
3. Substantial Evidence Does Not Support a Fair Argument
that the MND Projects Would Have a Significant Aesthetic
Impact
Relatedly, McCann contends that the record contains substantial
evidence to support a fair argument that the MND Projects will have a
significant effect on the environment due to aesthetic concerns and thus the
City was required to prepare an EIR. McCann does not make a sufficient
showing to support this argument. The consideration of aesthetic impacts
under CEQA arises for projects that have a significantly larger impact than
the transformers at issue here. When considered in the context of existing
case law, the aesthetic impact of the transformers falls far short of the
significant impact needed to trigger the need for an EIR.
In reviewing the adoption of the MND, we must determine whether the
record contains substantial evidence supporting a “fair argument” that the
projects will have a significant impact on the environment. (Clews, supra, 19
Cal.App.5th at p. 192.) If an appellant demonstrates that substantial
34
evidence of an unmitigated impact exists, then we must conclude the City
abused its discretion by not preparing an EIR. (Ibid.)
As the appellant, McCann bears the burden of identifying substantial
evidence in the administrative record to support a fair argument that the
projects may have a significant impact that is not mitigated. (Clews, supra,
19 Cal.App.5th at p. 193.) “ ‘[S]ubstantial evidence includes fact, a
reasonable assumption predicated upon fact, or expert opinion supported by
fact.’ (§ 21080, subd. (e)(1).) ‘Substantial evidence is not argument,
speculation, unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts that do not
contribute to, or are not caused by, physical impacts on the environment.’
(§ 21080, subd. (e)(2).) ‘The existence of public controversy over the
environmental effects of a project shall not require preparation of an
environmental impact report if there is no substantial evidence in light of the
whole record before the lead agency that the project may have a significant
effect on the environment.’ (§ 21082.2, subd. (b).) ‘Relevant personal
observations of area residents on nontechnical subjects may qualify as
substantial evidence . . . . [Citations.] So may expert opinion if supported by
facts, even if not based on specific observations as to the site under review.’ ”
(Id. at p. 192.)
McCann asserts that the MND Projects will have a significant impact
on the community’s aesthetics. The majority of McCann’s arguments
concerning aesthetics are centered specifically on her own Kensington
neighborhood, which she suggests contains numerous historical resources,
unique streetscapes devoid of “industrial elements,” and trees she describes
as “heritage trees.” As discussed ante, Kensington falls within a district
under the Exempt Projects, not the MND Projects. In light of our conclusion
35
that she failed to exhaust her administrative remedies, we do not consider
her challenge to the adequacy of the determination that those projects were
exempt from CEQA.
Nevertheless, she raises a generalized claim regarding the aesthetics of
the undergrounding projects as applied to one neighborhood, Normal Heights,
encompassed in the MND Projects. McCann contends that “having above
ground transformers placed on the streets, sidewalks or yards” and the
removal of mature trees would have “significant aesthetic impacts.” To
support this contention as applied to the Normal Heights neighborhood, she
cites the testimony of a commenter at the City Council hearing. That
commenter, who asserted he was representing a larger group, spoke in favor
of the undergrounding projects but expressed a preference to have the
transformers placed in the alleys. He also noted that if the boxes were placed
on the street, the boxes may become “a graffiti magnet.” McCann asks us to
rely on this testimony from a community member to find that the record
supports a fair argument that the transformers would have a significant
aesthetic impact warranting the preparation of an EIR.
The City does not dispute that, generally speaking, lay opinion from the
community regarding a project’s aesthetic impact may provide substantial
evidence to support a fair argument that a project may have a significant
impact of the environment, triggering the need to prepare an EIR. (See, e.g.,
Georgetown, supra, 30 Cal.App.5th at p. 363.) However, cases frequently
note that individualized claims of aesthetic impact do not constitute
substantial evidence. (See, e.g., Taxpayers, supra, 215 Cal.App.4th at
p. 1042; Porterville Citizens for Responsible Hillside Development v. City of
Porterville (2007) 157 Cal.App.4th 885, 903 [vague complaints by two
speakers regarding project’s aesthetics do not constitute substantial
36
evidence].) Even cases that rely on community opposition as a basis to find
substantial evidence supporting a fair argument recognize that “a few stray
comments” or “expressions of concern by one or two people” are not enough to
constitute substantial evidence. (Georgetown, at p. 375; Ocean View Estates
Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396,
403 (Ocean View Estates).)
Here, McCann relies on a comment by a single speaker, along with her
own comments and those of her attorney, regarding a small portion of the
MND Projects to support her claim that substantial evidence supports a fair
argument that the projects would have a significant impact on the aesthetics
of the neighborhood. This is not enough to meet her burden of demonstrating
that substantial evidence supports her claim.
Regardless, even assuming the limited comments in the administrative
record did constitute substantial evidence, McCann fails to establish those
comments support a fair argument of a significant aesthetic impact caused by
the transformers at issue here.
“Appendix G of the Guidelines provides a model environmental
checklist for an initial study under CEQA. Under the category of aesthetics,
(capitalization omitted) appendix G directs the lead agency to analyze
whether the project would (1) have a substantial adverse effect on scenic
vista; (2) substantially damage scenic resources, including but not limited to,
trees, rock outcroppings, and historic buildings within a state scenic highway;
(3) substantially degrade the existing visual character or quality of the site
and its surroundings; and (4) create a new source of substantial light or glare
which would adversely affect day or nighttime views in the area. (Guidelines,
appen. G, § I.)” (Preserve Poway v. City of Poway, supra, 245 Cal.App.4th
37560, 578.) Here, the City’s initial study checklist mirrored the Guideline’s
model checklist.
McCann does not contend the short transformer boxes would affect any
scenic vista, damage scenic resources, or create a new source or light or glare.
Instead, she focuses on the effect the boxes would have on the “look and feel”
of “quaint” residential neighborhoods. She fails, however, to cite any case law
finding that such small structures, measuring only three feet tall, would
cause a significant aesthetic impact by substantially degrading the existing
visual character of the neighborhood.
In San Francisco Beautiful v. City and County of San Francisco (2014)
226 Cal.App.4th 1012 (San Francisco Beautiful), the court concluded that
concerns about the aesthetic impact of over 700 utility boxes in the urban
environment of San Francisco was insufficient to establish a fair argument
that the boxes would have a significant environmental impact. (Id. at
pp. 1027-1028.) We do not disagree with McCann that the impact of utility
boxes in the context of San Francisco may be distinguishable from the impact
of utility boxes in the purportedly “quaint” neighborhoods involved in this
case. However, although San Francisco Beautiful considered the impact of
utility boxes in an urban environment full of similar utility boxes, it also
considered the impact of a project to add over 700 such boxes, far more than
would be installed as part of the MND Projects. Despite these differences,
the decision in San Francisco Beautiful supports a general conclusion that
utility boxes will not necessarily have a significant aesthetic impact.
Other decisions bolster our conclusion that the transformers will not
have a significant impact. In Taxpayers, supra, 215 Cal.App.4th 1013, this
court considered the petitioner’s argument that the aesthetic impact of
multiple athletic field lighting poles measuring approximately 100 feet in
38
height necessitated an EIR. (Id. at pp. 1038-1039.) We rejected the claim
that the visual impact of these relatively large poles and the associated
bright lights would constitute a significant effect on the environment based
on the petitioner’s claims that they were to be installed in the neighborhood
of Talmadge, which was described in terms similar to McCann’s description
of the neighborhoods involved in this case. (Id. at p. 1042.) A three-foot-tall
transformer box has a significantly smaller impact than a 100-foot-tall pole
topped with bright lights.
McCann relies on other cases to support her claim regarding aesthetic
impacts, but these cases reveal that a potential significant aesthetic impact is
usually found in projects involving large buildings or structures, often in
rural or undeveloped areas. In Georgetown, supra, the project at issue was a
large commercial building spanning three lots in a “quaint” hamlet in a rural
county. (30 Cal.App.5th at p. 363.) In Pocket Protectors v. City of Sacramento
(2004) 124 Cal.App.4th 903, the court held that the record supported a fair
argument that a project consisting of over one hundred homes built on an
undeveloped, 20-acre parcel would have a significant aesthetic impact. (Id. at
pp. 908-910, 937-939.) In another case not cited by McCann, the appellate
court held that the petitioners successfully established a fair argument that
an aluminum roof covering a four-acre reservoir would have a significant
impact on the aesthetics of a natural area with public views. (Ocean View
Estates, supra, 116 Cal.App.4th at pp. 398, 402-403.)
Each of these decisions considered projects entirely distinguishable
from the three-foot-tall transformer boxes at issue here. Even assuming the
transformers could not be unobtrusively placed in alleys and may
occasionally attract graffiti, McCann’s own counsel noted they would be
placed in what he referred to as the “devil’s strip” of landscaping between the
39
sidewalk and curbside parking. McCann’s own photographs, submitted as
attachments to her declarations, support the inference that the transformers
placed in this “devil’s strip” would often be hidden from view behind parked
cars or obscured by tree trunks or landscaping. Although some of the
neighborhoods at issue in this case may not be as dense as the parts of San
Francisco, there is no dispute that each neighborhood is a developed urban
area similar to other neighborhoods in the City.
While aesthetic impacts must not be ignored under CEQA, we also see
no reason to believe that CEQA requires an EIR to evaluate the aesthetic
impact of small, three-foot cubes placed next to the street in a developed
neighborhood. (See, e.g., Bowman v. City of Berkeley (2004) 122 Cal.App.4th
572, 592 [“[W]e do not believe that our Legislature in enacting CEQA . . .
intended to require an EIR where the sole environmental impact is the
aesthetic merit of a building in a highly developed area. [Citations.] To rule
otherwise would mean that an EIR would be required for every urban
building project that is not exempt under CEQA if enough people could be
marshaled to complain about how it will look.”].)
McCann also mentions the possible removal of trees as having a
significant aesthetic impact. Although she acknowledges that the City
offered assurances that “tree removal is unlikely,” she suggests that the mere
possibility that a tree may be cut down requires an EIR. This argument
ignores the existing city policy that requires, whenever possible, that the City
“replace trees that are removed.” The fact some trees may be trimmed or
need to be replaced by a tree in another location is not enough to establish a
significant aesthetic impact. McCann fails to establish that the record
40
contains substantial evidence to support a fair argument the projects would
have a significant impact on the environment. 19
4. The City’s Determination that the MND Projects’
Greenhouse Gas Emissions Are Not Significant Is Not
Supported by Substantial Evidence.
McCann asserts that the City’s finding that the projects would have no
significant impact due to greenhouse gas emissions was not supported by
substantial evidence such that the City erred in adopting the MND. We
agree.
a. CEQA’s Requirement to Consider Greenhouse Gas
Emissions
Over the past two decades, the State of California has expressed a
growing commitment to addressing climate change. Beginning in 2006, the
Legislature passed legislation that instituted a series of statewide goals to
significantly reduce greenhouse gas emissions as part of the effort to combat
climate change. 20 (Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 488-489 (Golden Door).) To implement this broad
state policy, CEQA was amended in 2007 to require the “preparation,
adoption and periodic update of guidelines for mitigation of greenhouse gas
impacts.” (Center for Biological Diversity v. Department of Fish & Wildlife
(2015) 62 Cal.4th 204, 217 (Center for Biological Diversity).)
19 McCann also challenges the impact of tree removal on the City’s effort
to reduce greenhouse gas emissions. We discuss this contention in the
subsequent section of this opinion.
20 “ ‘Greenhouse gases absorb infrared radiation and trap the heat in the
Earth’s atmosphere, rather than allowing the radiation to escape into
space. . . .’ ” (Golden Door, supra, 50 Cal.App.5th at p. 484.)
41
The resulting Guidelines, adopted in 2010, included a new requirement
for lead agencies to “describe, calculate or estimate” the amount of
greenhouse gases a project will emit. (Guidelines, § 15064.4, subd. (a); see
also Center for Biological Diversity, supra, 62 Cal.4th at p. 217; Golden Door,
supra, 50 Cal.App.5th at p. 484.) Section 15064.4 of the Guidelines grants
each lead agency broad discretion to determine significance thresholds and
does not mandate any one particular method to address greenhouse gas
emissions. (Center for Biological Diversity, at pp. 217, 221-222.)
As the Supreme Court recognized in Center for Biological Diversity, the
unique challenges of climate change place a heavy burden on local agencies to
determine whether any particular project’s greenhouse gas emissions are
“significant” under CEQA. (Center for Biological Diversity, supra, 62 Cal.4th
at pp. 219-220.) “The challenge for CEQA purposes is to determine whether
the impact of the project’s emissions of greenhouse gases is cumulatively
considerable, in the sense that ‘the incremental effects of [the] individual
project are considerable when viewed in connection with the effects of past
projects, the effects of other current projects, and the effects of probable
future projects.’ ” (Id. at p. 219.)
Section 15183.5 of the Guidelines eases the burden on local agencies to
consider the significance of every project’s individualized greenhouse gas
emissions by creating a procedure that allows for the adoption of broad
“greenhouse gas emission reduction plans,” which provide a basis for the
tiering, or streamlining, of subsequent project-level CEQA analysis. (Center
for Biological Diversity, supra, 62 Cal.4th at p. 230.) Often referred to as
“climate action plans,” such plans “may, if sufficiently detailed and
adequately supported, be used in later project-specific CEQA documents to
42
simplify the evaluation of the project’s cumulative contribution to the effects
of greenhouse gas emissions.” (Ibid.)
In other words, an agency may adopt a comprehensive plan to make
defined reductions in a region’s greenhouse gas emissions that are collectively
sufficient to meet the reduction targets set by the state. Thereafter, the
agency may fulfill its duty under CEQA to consider the significance of an
individual project’s greenhouse gas emissions by analyzing whether the
project is consistent with the broader plan. If a project is found to be
consistent with the broad plan, that finding provides sufficient evidence for
the agency to conclude the project has no significant impact due to
greenhouse gas emissions.
b. The City’s Procedure for Analyzing Greenhouse Gas
Emissions
In compliance with the change in state law, the City began to analyze
every project’s greenhouse gas emissions as part of the environmental review
process. For earlier utility undergrounding projects, documents in the
administrative record suggest that the environmental review involved a
calculation of the expected greenhouse gas emissions for each project and a
reference to statewide standards to determine whether the project would
have a significant impact. So long as a project would result in less than 900
metric tons of greenhouse gas emissions, the City would conclude a project
would have no significant impact.
In 2015, the City adopted a greenhouse gas reduction plan to provide
for streamlined review rather than calculating the emissions from each
individual project. This reduction plan, known as the Climate Action Plan or
“CAP,” provides a detailed outline of the specific actions the City “will
undertake to achieve its proportional share of State greenhouse gas (GHG)
emission reductions.” Using 2010 as the baseline year, the Climate Action
43
Plan committed the City to reducing all cumulative greenhouse gas emissions
in the City by 15 percent by 2020, 40 percent by 2030, and 50 percent by
2035. To achieve these goals, the City committed to a total reduction of
10,428,926 metric tons of “CO2e,” or carbon dioxide equivalents, by 2035. 21
To meet this overall goal, the Climate Action Plan sets forth five broad
strategies, each consisting of a range of specific actions, to reduce the
cumulative greenhouse gas emissions within City limits. These five
strategies commit the City to (1) requiring energy and water efficient
buildings; (2) providing clean and renewable energy; (3) shifting
transportation strategies to deemphasize automobiles; (4) achieving “zero
waste” in city landfills; and (5) ensuring “climate resiliency” to deal with the
shocks of a changing climate. The City calculated the quantifiable
greenhouse gas reductions for each of these strategies to reach its overall
reduction goal. As one example of a specific action, the Climate Action Plan’s
“climate resiliency” strategy commits the City to, inter alia, consider an
“Urban Tree Planting Program” to achieve the goal of having 15 percent of
the City covered by an “urban tree canopy” by 2020. The City estimates that
this program, if implemented, would result in a reduction of 43,839 metric
tons of CO2e. The Climate Action Plan includes 17 such actions within the
five strategies to achieve the overall reduction goal.
As it relates to CEQA, the Climate Action Plan states the plan “will
serve as a Qualified GHG Reduction Plan for purposes of tiering under
CEQA.” Relatedly, the City relies on the Climate Action Plan in its published
document outlining the “thresholds of significance” that apply in the
21 A “carbon dioxide equivalent” is a commonly used unit to quantify
greenhouse gases, each of which has a different potential to trap heat in the
atmosphere.
44
environmental review process. 22 In that document, the City directs that
when conducting its environmental review, staff must consider whether a
project would “[c]onflict with the City’s Climate Action Plan or another
applicable plan, policy or regulation adopted for the purpose of reducing the
emissions of greenhouse gases[.]”
In conjunction with the Climate Action Plan, the City prepared a
“Climate Action Plan Consistency Checklist” (Checklist) for the express
purpose of allowing “project-specific environmental documents, if eligible, to
tier from and/or incorporate by reference the [Climate Action Plan]’s
programmatic review of GHG impacts in their cumulative impact analysis.”
The City notes that since July 1, 2016, the City has utilized the Checklist to
determine whether a project is consistent with the Climate Action Plan and,
by extension, whether an EIR is required.
The Checklist includes three possible steps. The first step, labeled as
“Land Use Consistency,” asks whether the project is consistent with the
City’s land use and zoning regulations or would otherwise result in an
equivalent or less “GHG-intensive” project than would be allowed under the
zoning and land use regulations. If the answer is “no,” the project is
generally determined to have a significant impact and an EIR would be
required.
22 Section 15064.7 of the Guidelines encourages local agencies to develop
and publish “thresholds of significance” that are used in the determination of
the significance of environmental effects. “A threshold of significance is an
identifiable quantitative, qualitative or performance level of a particular
environmental effect, noncompliance with which means the effect will
normally be determined to be significant by the agency and compliance with
which means the effect normally will be determined to be less than
significant.” (Guidelines, § 15064.7, subd. (a).)
45
If the answer to the first step is “yes,” the analysis proceeds to “Step 2.”
The second step requires an analysis of whether the project is consistent with
“the applicable strategies and actions of the CAP.” The Checklist, however,
clarifies that “Step 2 only applies to development projects that involve
permits that would require a certificate of occupancy from the Building
Official or projects comprised of one and two family dwellings or
townhouses . . . and their accessory structures.” In a footnote, the CAP
Checklist explains that several project types are not subject to the analysis
under “Step 2,” including “discretionary map actions,” permits for wireless
communication facilities, special event permits, use permits, and “non-
building infrastructure projects such as roads and pipelines.” Thus, if a
project does not require a certificate of occupancy, staff does not complete the
second step. 23 The Checklist includes a third step, not relevant here, that
applies when a project proposes increased housing density not consistent
with existing land use plans but within a “transit priority area.” After it
adopted the Checklist, the City changed its analysis for all discretionary
projects to provide for streamlined environmental review.
23 The Checklist specifies that for projects that do not require a certificate
of occupancy, the City or project applicant must implement the “Best
Management Practices” set forth in the “Greenbook.” The Greenbook is not
in the record, but it appears to simply detail basic standards for construction
activity and is unrelated to the Climate Action Plan. The City refers to a
related “Whitebook” in its respondent’s brief with a link to a website for more
information. Because the City does not ask us to take judicial notice of either
document, and they are not in the record, we do not consider the linked
website.
46
c. The City’s Analysis of the MND Projects’ Consistency
with the Climate Action Plan
During its initial study of the MND Projects, the City used the
Checklist to determine whether the projects were consistent with the Climate
Action Plan. In that analysis, it found under “Step 1” that the MND Projects
were consistent with existing land use and zoning designations. Under “Step
2,” the City explained that the step did not apply because the MND Projects
did not require a certificate of occupancy. The City concluded that “[s]ince a
utility line replacement project does not require a certificate of occupancy, the
review is complete and the project is determined to be consistent with the
CAP. The projects would therefore not cause any significant increase in GHG
emissions, and no mitigation is required. Impacts would be less than
significant.” The record does not include any indication that the City
conducted any other analysis of the impact of the MND Projects’ greenhouse
gas emissions.
d. Analysis
In response to McCann’s claim that the City failed to conduct the
necessary analysis, the City relies on its completion of the Checklist and
asserts that “[p]rojects that are consistent with the CAP as determined
through the use of this Checklist may rely on the CAP for cumulative impacts
analysis of GHG emissions.” (Italics added.)
We agree with the City, based on the record before us, that projects
that are consistent with the Climate Action Plan may rely on that plan for
the required project-level analysis of the significance of cumulative
47
greenhouse gas emissions. 24 Pursuant to section 15183.5 of the Guidelines,
the City may determine that the impact from a project is not significant if it
complies with the requirements for greenhouse gas emission reductions
specified in the Climate Action Plan. The City’s existing policies require staff
to review whether projects are consistent with the Climate Action Plan when
conducting an environmental review under CEQA. If staff determines a
project is consistent with the Climate Action Plan, it may then conclude that
the project has no significant impact due to greenhouse gas emissions,
avoiding the need to prepare an EIR. We see no error in this regard.
However, the City erred in using an inapplicable Checklist to
determine the MND Projects’ consistency with the Climate Action Plan. The
Checklist expressly states that it does not apply to projects that do not
require certificates of occupancy, including the infrastructure projects at
issue here, and staff skipped the consistency analysis for these projects.
Thus, the City never analyzed whether the MND Projects are consistent with
the Climate Action Plan because the City’s only existing tool does not address
projects that do not require a certificate of occupancy. The City may not
conclude the projects are consistent with the Climate Action Plan simply by
directing staff to skip the consistency analysis.
The City’s distinction between projects that require a certificate of
occupancy and projects that do not require a certificate of occupancy appears
to have no rational basis. In a footnote, the Checklist claims that Step 2 does
not apply if no certificate of occupancy is required because “such actions
24 McCann does not dispute that the Climate Action Plan meets the
requirements of section 15183.5 of the Guidelines and we assume, for
purposes of this appeal, that the plan is sufficient to allow for streamlined
CEQA review.
48
would not result in new occupancy buildings from which GHG reductions
could be achieved.” However, the record demonstrates that many of the
Climate Action Plan’s measures for greenhouse gas reductions apply to non-
building projects, including utility projects like those at issue here. For
example, the technical documents for the Checklist reveal that the Climate
Action Plan identifies reduction measures including a “Smart Energy
Management & Monitoring System,” electrical vehicle charging, facilitating
“onsite photovoltaic energy generation and energy storage systems,” and a
significant increase in street trees. Less directly, because the MND Projects
would include changes to sidewalks, the potential loss of parking, and street
resurfacing, the scope of the projects potentially invokes other measures in
the Climate Action Plan related to electric vehicle parking and changes to
public rights-of-way to enhance non-automotive transportation. Although the
specifics of these measures are not before us, they arguably apply to
infrastructure projects that do not require a certificate of occupancy.
If an infrastructure project conflicts with these measures, completing
the Checklist would not reveal the inconsistency with the Climate Action
Plan such that the Checklist cannot provide a basis for determining a project
will not have a significant impact. Our conclusion is not meant to suggest
that the use of a “checklist” to determine consistency with the Climate Action
Plan is inappropriate. The City could amend its current Checklist to include
a step to assess infrastructure projects or create a second checklist that
applies only to infrastructure projects. All that is required is that the City
analyze each project’s consistency with the specific greenhouse gas reduction
measures included in the Climate Action Plan. Until such an analysis is
completed, it is impossible for the City to know the environmental impact of
its infrastructure projects.
49
Thus, the City’s MND determination is incomplete because it failed to
analyze whether the projects were consistent with the Climate Action Plan
and additional analysis is necessary before the City can properly certify the
MND. Section 15183.5 of the Guidelines requires the City, as lead agency, to
“identify those requirements specified in the [Climate Action Plan] that apply
to the project, and, if those requirements are not otherwise binding and
enforceable, incorporate those requirements as mitigation measures
applicable to the project.” (Id. at subd. (b)(2).) For projects falling outside the
scope of the Checklist (like the infrastructure projects here) the City must
consider whether the projects comply with each action identified in the
Climate Action Plan if it wishes to avail itself to the streamlined review
provided by section 15183.5 of the Guidelines. As part of that review, the
City must identify the reduction measures that apply to the project and, if
they are not otherwise binding and enforceable, include them as mitigation
measures. (Guidelines, § 15183.5, subd. (b)(2).) As discussed above, several
reduction measures may apply to the scope of work included in the MND
Projects and each must be addressed in the MND before the City may
determine the projects will have no significant impact.
An agency abuses its discretion under CEQA by reaching factual
conclusions unsupported by substantial evidence. (Golden Door, supra, 50
Cal.App.5th at p. 504.) Without conducting the required analysis to
determine consistency with the Climate Action Plan and identifying any
applicable requirements, the City’s determination that the projects would not
have a significant impact as it relates to greenhouse gas emissions is not
supported by substantial evidence. This omitted analysis precludes the City
from considering whether each individual project is consistent with the
Climate Action Plan and, more broadly, the full extent of the environmental
50
impact of the projects. Therefore, the City abused its discretion in adopting
the MND.
Our conclusion, however, does not mean the City must necessarily
complete an EIR. Nothing in the record before us supports a fair argument
that the MND Projects are inconsistent with the reduction measures
identified by the City in the Climate Action Plan. For this reason, McCann
does not establish that the City was required to prepare an EIR. 25 Instead,
the City must perform the required analysis to determine whether the MND
Projects are consistent with the Climate Action Plan. If it finds the projects
are consistent and includes all required mitigation measures, it may still
avoid the need to prepare an EIR. However, if the analysis determines the
projects are inconsistent with the Climate Action Plan and the projects
cannot be revised or the impact cannot be mitigated, it will be required to
prepare an EIR.
25 McCann relies on evidence suggesting that the MND Projects would
result in greenhouse gas emissions during construction that would have been
considered significant under an older threshold of significance used by the
City. However, state law acknowledges that in many cases, a project’s
greenhouse gas emissions are “inevitable” and the simple fact that a project
will result in greenhouse gas emissions does not mean that it will have a
significant impact requiring an EIR. (See, e.g., Center for Biological
Diversity, supra, 62 Cal.4th at pp. 219-221.) The City’s published thresholds
for significance reveal that the City now relies upon the project’s consistency
with the Climate Action Plan as the appropriate threshold of significance, not
the total emissions caused by the project. McCann does not establish that the
MND Projects are inconsistent with the Climate Action Plan, likely because
the City did not conduct the required analysis.
51
D. The Trial Court Did Not Abuse its Discretion in Denying
McCann’s Request for Preliminary Injunction
Finally, McCann challenges the trial court’s order denying her request
for a preliminary injunction. Given our affirmance of the trial court’s order
denying her writ petition in regard to the Exempt Projects, McCann is unable
to demonstrate a probability of prevailing on her claim and, therefore, does
not establish a right to a preliminary injunction.
McCann’s request for a preliminary injunction arose from her assertion
that the City was planning to cut down trees on her street in Kensington.
McCann did not seek an injunction for every project, but rather only an
injunction barring the City from “cutting down or otherwise destroying and
removing any pepper trees in Kensington” during the pendency of this action.
McCann does not dispute that her street, and the project in general involving
Kensington, was located in “Block 3AA,” which was part of the Exempt
Projects.
“The general purpose of a preliminary injunction is to preserve the
status quo pending a determination on the merits of the action.” (SB Liberty,
LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) “In
determining whether to issue a preliminary injunction, the trial court
considers: (1) the likelihood that the moving party will prevail on the merits
and (2) the interim harm to the respective parties if an injunction is granted
or denied. The moving party must prevail on both factors to obtain an
injunction. Thus, where the trial court denies an injunction, its ruling should
be affirmed if it correctly found the moving party failed to satisfy either of the
factors.” (Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th
1137, 1145.)
Here, the trial court found that McCann could not establish a
probability of prevailing on the merits because the trial court denied her writ
52
petition at the same hearing. In regard to the Exempt Projects, we affirm the
trial court’s denial of McCann’s writ petition. Thus, McCann fails to
establish on appeal that she has a probability of prevailing on the merits of
her claim such that she fails to establish an abuse of discretion by the trial
court in denying her request for a preliminary injunction. (See, e.g., MaJor v.
Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.)
DISPOSITION
The judgment is reversed with directions to the trial court to enter a
new judgment granting the petition as to the second cause of action
challenging the MND Projects and to issue a peremptory writ of mandate
directing the City to set aside its March 5 and March 7, 2019, resolutions
adopting the mitigated negative declaration, the mitigation monitoring and
reporting program, and establishing the relevant utility undergrounding
districts. In all other respects, the judgment is affirmed. The order denying
the request for preliminary injunction is affirmed. The parties are to bear
their own costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
DATO, J.
53