Anderson v. County of Santa Barbara

Filed 7/19/23; Certified for Publication 8/16/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CHRISTOPHER ANDERSON 2d Civil No. B322465
et al., (Super. Ct. No. 22CV01299)
(Santa Barbara County)
Plaintiffs and Respondents,
v.
COUNTY OF SANTA
BARBARA et al.,
Defendants and Appellants.
The Superior Court may not enjoin a public officer,
here the county Road Commissioner, from enforcing the law. The
injunction at issue here allows adjacent landowners to encroach
upon a public right-of-way, a misdemeanor offense. Any claimed
“failure” to follow the California Environmental Quality Act
(CEQA) (Pub. Res. Code, § 2100 et seq.) 1 is not a defense to the
All statutory references are to the Public Resources Code
1
unless otherwise stated.
commission of a crime. We will reverse the Superior Court’s
grant of a preliminary injunction.
The County of Santa Barbara (County) appeals from
the entry of a preliminary injunction prohibiting its Road
Commissioner from removing unpermitted encroachments placed
in the public right of way along a portion of East Mountain Drive
in Montecito. East Mountain Drive leads to the trailhead of a
popular hiking trail in Hot Springs Canyon. The encroachments,
which include landscaping, boulders and at least one
unpermitted “No Parking” sign, block what would otherwise be
public parking spaces. Respondents contend the County violated
the CEQA by ordering the encroachments’ removal without
considering the environmental impact of increased public parking
in their neighborhood. The trial court agreed and issued a
preliminary injunction prohibiting removal of the encroachments
pending a trial on the merits of the CEQA claims.
While this appeal was pending, the County filed a
cross complaint alleging causes of action for public nuisance and
trespass against respondents. The parties also filed briefs in the
trial court addressing the merits of respondents’ petition for writ
of mandate. After entertaining oral argument on the writ
petition, the trial court issued a statement of decision granting
the petition and stating that it would issue a “peremptory writ of
mandate . . . compelling [the] County to comply with its CEQA
obligations with respect to its trailhead parking creation project.”
The statement of decision further explained that, “[T]he
peremptory writ to be issued by the Court will also suspend all
efforts by County to enforce the right-of-way encroachments
(acting to effectively extend the existing preliminary injunction)
2
until this Court has determined, by way of a Return provided by
the County, that County has complied with CEQA.”
We conclude the trial court erred because
respondents are not correct on the merits of their CEQA claim
and will not be irreparably harmed by removal of encroachments
installed without permits in the public right of way of an existing
road. The County Road Commissioner is authorized by statute
and local ordinance to remove any encroachment on a public right
of way. (Sts. & Hy. Code, § 1481.) CEQA is not “a limitation or
restriction on the power or authority of any public agency in the
enforcement or administration of any provision of law which it is
specifically permitted or required to enforce . . . .” (Pub.
Resources Code, § 21174.) Respondents will suffer no irreparable
harm because “a party suffers no grave or irreparable harm by
being prohibited from violating the law . . . .” (People v. Uber
Technologies, Inc. (2020) 56 Cal.App.5th 266, 306 (Uber
Technologies).)
Facts
East Mountain Drive winds through the enclave of
Montecito and leads to the trailhead of the Hot Springs Trail, a
very popular hiking trail open to the general public. There are a
handful of parking spaces near the trailhead. Members of the
public may also legally park on some public roads in the area. In
the spring of 2021, the County removed about 50 parking spaces
along Riven Rock Road near the trailhead after the fire
department raised concerns about fire risks and access for
emergency vehicles. East Mountain Drive remains available for
public parking.
Some property owners have installed landscaping,
boulders, smaller rocks, trees, bushes and signs in the public
3
right of way along East Mountain Drive, to discourage or prevent
members of the public from parking in front of their properties.
These encroachments, and related parking problems, were
reported to the traffic engineer for Santa Barbara County’s Public
Works Department (Department). The County began efforts to
restore public parking on East Mountain Drive.
In September 2021, the Board of Supervisors
appropriated $100,000 for Hot Springs Trailhead access
improvement studies and implementation. The agenda letter
supporting that decision explained that the Department sought
funding to study and “plan improvements to trailhead access
within the public road rights-of-way adjacent to the Hot Springs
Trailhead.” The Department identified an “urgent need” to
“address the imbalance” between demand for parking and the
spaces available at the trailhead given that the popularity of the
trail had “skyrocketed” during the pandemic and “dozens” of
parking spaces were removed from Riven Rock Road as a fire
safety measure. Funding would “provide for studies and initial
implementation of parking improvements” near the trailhead.
The public right-of-way on East Mountain Drive “is currently
unusable for parking due to private encroachments . . . .”
Funding would be used to define and stake the right of way and
“document the obstacles to creating public parking.” The
Department would then work with the Parks Department and
adjacent owners to “create public parking while minimizing the
impacts to their property frontage.”
Members of the public continued to park on the
street, despite the encroachments. Because the encroachments
occupy much of the public right of way, people park in a way that
partially obstructs the travel lane. This effectively converts
4
swaths of the two-lane road into a one-lane road. The
encroachments also create a safety hazard for pedestrians,
bicycles and equestrians, especially at night.
After staking the right of way, the County’s
Transportation Division sent notices to three properties
instructing the owners to remove unpermitted encroachments
within 60 days. Thereafter, the Department filed a Notice of
Exemption for restoring the right of way, finding that the
restoration was categorically exempt pursuant to CEQA
Guidelines. (Cal. Code Regs., tit. 14, § 15301(c).)2
The Notice of Exemption referred to the project as,
“Montecito Right of Way Restoration,” and explained the project
included “implementation of right of way restoration, repair,
maintenance and operation of existing facilities to allow for
public parking and continued use near the trailhead access
within the public right of way adjacent to the Hot Springs
Trailhead along East Mountain Drive.” The work was needed
because the public right of way “is currently unusable for public
parking in many areas due to encroachments . . . installed in the
public road right of way without the required road encroachment
permits.”
The Department determined the project was exempt
from CEQA under Guideline section 15301(c) because it “involves
the restoration of the existing roadway to maintain the safe
traveling condition of the roadway right of way. The minor
alteration of existing public facilities will allow for safe public
2 CEQA’s implementing regulations, the “Guidelines,” are
found in California Code of Regulations, title 14, section 15000, et
seq. All subsequent regulatory citations to the Guidelines are to
title 14 of the Code of Regulations.
5
parking for the pedestrians and also cyclists going to the adjacent
public trails.” Because the right of way areas to be restored to
public use are within the existing developed roadway, the
Department concluded the work would have no impact on the
environment.
The Writ Petition.
Respondents, who own property in the area but are
not owners of the properties that received notices, filed a petition
for writ of mandate. They sought to prevent removal of the
encroachments until Santa Barbara County complied with
CEQA. Respondents alleged removal of the encroachments
would have a significant impact on the environment because it
would create additional parking spaces which would lead to more
hikers using the trail and would make it more difficult to
evacuate the neighborhood in the event of a wild fire.
The Preliminary Injunction.
Agreeing with respondents, the trial court issued a
preliminary injunction prohibiting the removal of encroachments
“within 0.5 miles of the Hot Springs Canyon trailhead, pending
trial of this action.” It disagreed with the County’s determination
that removal of encroachments was categorically exempt from
CEQA review because the exemptions apply only where the
project “involve[s] negligible or no expansion of . . . use,” or only a
“minor . . . alteration[ ]in the condition of land, water, and/or
vegetation . . . .” (Guidelines, §§ 15301, 15304.)
The trial court concluded instead that the project to
remove encroachments from the public right of way “was
developed for the express purpose of creating substantial new
and/or additional parking spaces to accommodate the
skyrocketing increase in hikers on the Hot Springs Trial . . . .”
6
This larger project might expand use of the trail or otherwise
have a significant impact on the environment. “Under these
circumstances, the Court cannot find that there is no possibility,
or no likelihood, that [respondents] will prevail on the merits” by
showing the exemptions do not apply.
The trial court also declined to apply the exemption
for “enforcement of a law, general rule, standard, or objective,
administered or adopted by the regulatory agency.” (Guidelines,
§ 15321.) It found instead that focusing only on the removal of
encroachments “would impermissibly require dissecting the
greater project as a whole into discrete pieces, since the fact that
the County may have enforcement authority over unpermitted
encroachments could not and should not apply to exempt from
CEQA review a greater project which involves as one of its
element[s] the clearing [of] unpermitted encroachments, which
could potentially have a direct or indirect significant
environmental impact on an area other than that where the
encroachments are being removed.”
The trial court further concluded that the balance of
harm favored respondents. It gave little weight to the County’s
interest in providing roads that are safe for motorists, cyclists,
pedestrians and equestrians, or safe parking near the trailhead
because the County had tolerated the encroachments for many
years. By contrast, “destruction of encroachments which have
existed for many years with County’s express or implied
permission, will cause irreparable harm to the properties at
issue. Many of the longstanding encroachments consist of
mature landscaping which, once removed, will likely be gone
forever.” The trial court was not convinced County would have
acted to remove the encroachments had “the issue of the demand
7
for increased trail parking not become a significant issue. They
are being removed specifically to provide trail access parking.”
Once cleared, the right of way would be immediately available for
public parking, “with potential instantaneous significant impacts
to the sensitive trail environment caused by increased hiker
counts.”
The Peremptory Writ.
The trial court also ordered a peremptory writ to
issue making a finding of fact that the County’s order to remove
encroachments was actually a “parking creation project” that was
“capable of causing direct or reasonably foreseeable indirect
effects on the trail environment and is therefore a ‘project’ within
the meaning of CEQA.” It rejected County’s arguments that the
Road Commissioner is not a public agency subject to CEQA and
that the removal of encroachments was not a “project” within the
meaning of CEQA. Because the removal of encroachments was,
in the trial court’s view, only one segment of a larger “parking
creation” project for Hot Springs trail, the trial court concluded it
was not properly viewed as a project to enforce or administer the
encroachment laws.
The trial court rejected County’s unclean hands
defense because it concluded the County had acquiesced in the
installation and maintenance of the encroachments. In addition,
the harm created by respondents’ conduct in violating the
encroachment laws, “bears little to no relationship to the claimed
injuries sustained by the petitioners, i.e., the failure [of] County
to fulfill its independent legal duty to comply with CEQA for its
project to create parking to accommodate hikers seeking to access
the Hot Springs Trail trailhead, given the potential that the
8
resulting increased hiker traffic on the trail could cause a change
to the trail environment.”
The trial court conceded that respondents “legally
cannot” be “granted the exclusive use of public property,” even
though its writ would prevent the County from exercising control
over the public right of way pending completion of a CEQA
review. “Once it has complied with its CEQA obligations, and
assuming that the project that is thereafter adopted still involves
the creation of parking through the removal of rights-of-way
encroachments, County will be free to proceed with such project,
including enforcing the right-of-way encroachment laws.”
The trial court concluded it would grant the writ of
mandate because, “County failed to proceed in a manner required
by law when it determined to proceed with the project of creating
additional parking in the vicinity of the Hot Springs Trail
trailhead without engaging in environmental review pursuant to
CEQA.” It explained that its decision would void any definitive
determination made by the County to create parking for the
trailhead area, and would “suspend all efforts by County to
enforce the right-of-way encroachments (acting to effectively
extend the existing preliminary injunction)” pending the trial
court’s determination that County had complied with CEQA. The
trial court further declared that it would retain jurisdiction over
the matter until the County has complied with CEQA, “or the
Court of Appeal has reversed this Court’s suspension order.”
Respondents’ Request for Judicial Notice
and to Dismiss Appeal as Moot
Respondents request that we take judicial notice of
the trial court’s statement of decision dated May 3, 2023, and
that we dismiss the appeal as moot because the statement of
9
decision represents a final judgment on the merits of their writ
petition. We grant the request to take judicial notice of the
statement of decision. (Evid. Code, § 452, subd. (d).)
We decline, however, to dismiss this appeal as moot.
But, a final judgment granting a permanent injunction renders
an appeal from the order granting the preliminary injunction
moot. (People v. Rath Packing Co. (1978) 85 Cal.App.3d 308,
314.) Final judgment has not yet been entered. County’s cross-
complaint has not been resolved and the trial court’s statement of
decision indicates that its peremptory writ is intended to extend
the preliminary injunction pending County’s compliance or this
Court’s reversal of the “suspension order.” Our reversal of the
preliminary injunction will impact the peremptory writ
envisioned by the statement of decision and resolution of the
County’s cross-complaint. The matter is not moot. (See, e.g.,
Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77
Cal.App.4th 880, 888 [case is not moot where ruling by court of
appeal could have a “practical impact or provide the parties
effectual relief”].)
Mootness aside, we have discretion to consider any
matter, “(1) when the case presents a issue of broad public
interest that is likely to recur . . . ; (2) when there may be a
recurrence of the controversy between the parties; and (3) when a
material question remains for the court’s determination . . . .”
(Cucamongans United for Reasonable Expansion v. City of
Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480.) This
case involves issues of public interest relating to local
governments’ enforcement of encroachment laws and their
obligations under CEQA. (Leenay v. Superior Court (2022) 81
Cal.App.5th 553, 573 [“The proper interpretation of a statute
10
presents a matter of public interest”]; see also, Cundall v.
Mitchell-Clyde (2020) 51 Cal.App.5th 571, 575, fn.1.) We will
exercise our discretion to decide this appeal.
Standard of Review
“When ruling on a motion for preliminary injunction,
‘trial courts should evaluate two interrelated factors when
deciding whether or not to issue a preliminary injunction. The
first is the likelihood that the plaintiff will prevail on the merits
at trial. The second is the interim harm that the plaintiff is likely
to sustain if the injunction were denied as compared to the harm
that the defendant is likely to suffer if the preliminary injunction
were issued. [Citations.]’ [Citations.]” (Best Friends Animal
Society v. Macerich Westside Pavilion Property LLC (2011) 193
Cal.App.4th 168, 174.)
Our review of a preliminary injunction “may trigger
any or all of the three standards of appellate review.” (Huong
Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 408.) The trial
court’s evaluation and weighing of the parties’ likelihood of
success on the merits and the balance of harm is reviewed for
abuse of discretion. (IT Corp. v. County of Imperial (1983) 35
Cal.3d 63, 69-70 (IT Corp.).) We review de novo the trial court’s
application of legal principles and we review its findings of fact
under the substantial evidence standard. (Huong Que, Inc.,
supra, at pp. 408-409.)
Although the trial court has broad discretionary
powers to grant or deny a preliminary injunction, it has no
discretion to act capriciously or in a manner that “‘transgresses
the confines of the applicable principles of law . . . .’” (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747, 773, quoting City of Sacramento v. Drew (1989) 207
11
Cal.App.3d 1287, 1297-1298.) “In other words, judicial discretion
must be measured against the general rules of law and, in the
case of a statutory grant of discretion, against the specific law
that grants the discretion.” (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 393.)
Code of Civil Procedure section 526 provides: “An
injunction cannot be granted . . . to prevent the execution of a
public statute by officers of the law for the public benefit.” (§ 526,
subd. (b)(4); see also Alfaro v. Terhune (2002) 98 Cal.App.4th 492,
500 (Alfaro).) As we explain, the trial court’s order is at variance
with this rule. The statute is subject to exceptions, including
“where the public official’s action exceeds his or her authority.”
(Alfaro, supra, at p. 501.) But that is not the situation here.
CEQA
CEQA is designed to protect and maintain
California’s environmental quality by compelling
“‘“‘“‘government at all levels to make decisions with
environmental consequences in mind. . . .’”’”’” (Citizens for a
Green San Mateo v. San Mateo County Community College Dist.
(2014) 226 Cal.App.4th 1572, 1586.) Consistent with that
legislative purpose, “we interpret CEQA to afford the most
thorough possible protection to the environment that fits
reasonably within the scope of its text.” (California Building
Industry Assn. v. Bay Area Air Quality Management Dist. (2015)
62 Cal.4th 369, 381.) Although it requires that “‘“environmental
considerations play a significant role in governmental decision
making[,]” . . .’” (Joshua Tree Downtown Bus. Alliance v. County
of San Bernardino (2016) 1 Cal.App.5th 677, 683 (Joshua Tree)),
CEQA is not a “limitation or restriction on the power or authority
of any public agency in the enforcement or administration of any
12
provision of law which it is specifically permitted or required to
enforce or administer . . . .” (§ 21174.)
With limited exceptions, CEQA requires a public
agency to prepare an environmental impact report (EIR)
“‘whenever substantial evidence supports a fair argument that a
proposed project “may have a significant effect on the
environment.” . . .’” (Pocket Protectors v. City of Sacramento
(2004) 124 Cal.App.4th 903, 927.) Certain activities are,
however, categorically exempt from CEQA review. (Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086,
1092 (Berkeley Hillside); Guidelines, § 15300, et seq.)
County contends three categorical exemptions apply
here. First, a project to repair or maintain existing facilities,
including existing highways and streets, is categorically exempt
if the project “involve[s] negligible or no expansion of . . . use.”
(Guidelines, § 15301, subd. (c).) Second, “minor public or private
alterations in the condition of land . . . ” are exempt. (Id.,
§ 15304.) Finally, the Guidelines exempt actions by a regulatory
agency that involve the “enforcement of a law, general rule,
standard or objective, administered or adopted by the regulatory
agency.” (Id., § 15321.)
These categorical exemptions are subject to the
exceptions listed in section 15300.2 of the Guidelines. As
relevant here, this Guideline provides, “A categorical exemption
shall not be used for an activity where there is a reasonable
possibility that the activity will have a significant effect on the
environment due to unusual circumstances.” (Id., subd. (c).)
The Vehicle Code provides that public parking is
allowed on any street or road unless the relevant local governing
body adopts an ordinance prohibiting or restricting it. (Veh.
13
Code, §§ 21, subd. (a), § 22507, subd. (a).) The County has
adopted no such ordinance with regard to East Mountain Drive.
Public parking is therefore allowed on that road.
By contrast, both state law and County ordinances
prohibit encroachments on the right of way of any public road.
The Streets and Highways Code authorizes the county road
commissioner to remove, after appropriate notice, any
encroachment placed without a permit in any public right of way.
(Sts. & Hy. Code, §§ 1480.5, 1481.) Property owners may not,
consistent with state law, maintain unpermitted encroachments.
(Id., § 1460.)
Santa Barbara County has adopted an ordinance
requiring a permit to install or maintain any “facilities or
substructures in, on, over, or under any road right of way.”
(Santa Barbara County Code of Ordinances, section 28-3(b); Ord.
No. 1491, § 4.) A County ordinance also provides that it is a
misdemeanor to perform “any of the acts for which a permit is
required by this article without first obtaining such permit.” (Id.,
section 28-53(c); Ord. No. 1491, § 54.)
In addition, the Department has adopted engineering
design standards requiring that a “clear zone,” of between 7 to 10
feet from the edge of pavement be maintained along county
roads. The clear zone is defined as an “unobstructed, relatively
flat area beyond the edge of the traveled way provided for the
recovery of errant vehicles.” The Montecito Fire Department’s
clearance standards also require that horizontal clearance of
vegetation “shall be maintained, at a minimum, to the road right-
of-way or the edge of the pavement depending on individual
easements to maintain maximum traffic circulation in the event
of emergency evacuation.”
14
Likelihood of Success on the Merits.
“A trial court may not grant a preliminary injunction,
regardless of the balance of interim harm, unless there is some
possibility that the plaintiff would ultimately prevail on the
merits of the claim.” (Butt v. State of California (1992) 4 Cal.4th
668, 678.) Here, the trial court found that the project to remove
encroachments was part of a larger project to increase the
number of hikers using Hot Springs Trail by increasing parking
on East Mountain Drive. Because it concluded this “larger”
project could have a significant environmental impact, the trial
court found the “smaller” project – removing encroachments from
the public right of way – was not categorically exempt from
CEQA review.
It further concluded that the road commissioner’s
authority to remove encroachments “cannot and should not
immunize County from injunctive relief or legal responsibility
under CEQA, simply because such actions are ordinarily within
the County’s enforcement authority.” If the “larger project”
violated CEQA, smaller projects undertaken without adequate
environmental review to complete it “would no longer be lawful,”
and could be enjoined, “if the factors supporting issuance of an
injunction otherwise exist.”
The County meritoriously contends the trial court
erred because CEQA does not limit its authority to enforce
encroachment laws and because there is no substantial evidence
of a larger project. The current project is properly considered a
stand-alone project because it has independent utility.
Considered in its proper context as a stand-alone project, the
right of way restoration project is categorically exempt from
CEQA because it involves the maintenance or repair of an
15
existing road and the enforcement of statutes and ordinances
prohibiting unpermitted encroachments in the public right of
way. In addition, there is no substantial evidence that the
project presents unusual circumstances.
Road Commissioner’s Authority to Enforce
Encroachment Laws
The Streets and Highways Code and Santa Barbara
County ordinances forbid property owners from maintaining
unpermitted encroachments in the public right of way. (Sts. &
Hy. Code, § 1460; Santa Barbara County Ordinance No. 1491,
section 4.) Compliance with these legal standards is not
discretionary for property owners. Maintaining unpermitted
encroachments is a misdemeanor and the Road Commissioner is
authorized to remove such encroachments. (Sts. & Hy. Code,
§1480.5; Santa Barbara County Ordinance No. 1491, section 54.)
The trial court may not allow CEQA to trump the criminal law.
CEQA is not “a limitation or restriction on the power or
authority” of the Road Commissioner to enforce the
encroachment laws. (§ 21174.)
“In general, a trial court may not grant an injunction
‘[t]o prevent the execution of a public statute by officers of the
law for the public benefit.’ [Citations.]” (Jamison v. Department
of Transportation (2016) 4 Cal.App.5th 356, 363-364 (Jamison);
Alfaro, supra, 98 Cal.App.4th at pp. 500-501.) One recognized
exception to this general rule provides that an enforcement action
may be enjoined where “the public official’s action exceeds his or
her authority.” (Alfaro, supra, at p. 501.) Here, the trial court
erroneously concluded respondents might succeed on the merits
of their contention that the Road Commissioner exceeded his
authority because a “larger project” might violate CEQA.
16
Categorical Exemptions
The County determined this project was categorically
exempt from CEQA review because it consisted of repairing and
maintaining an existing road (Guidelines, § 15301, subd. (c)) and
involved only minor alterations to land or vegetation. (Id.,
§ 15304.) County further contends the project is also
categorically exempt because it enforces the Streets and
Highways Code and county ordinances prohibiting unpermitted
private encroachments in a public right of way. (Id., § 15321,
subd. (a).)
Respondents contend County’s reliance on these
exemptions is a pretext because its “real” motivation is to
increase hikers’ access to Hot Springs Canyon by increasing
parking on East Mountain Drive. But the County’s “motivation”
to recover public parking spaces is not inconsistent with its
reliance on the CEQA exemptions. Public parking has always
been allowed on East Mountain Drive. Respondents and other
property owners thwarted access to it by installing unpermitted
encroachments. Removing the encroachments does not “increase”
or add new parking; it restores access to parking spaces that have
always existed.
The trial court declined to apply the categorical
exemptions because it found a “larger project” would involve an
expansion of use (Guidelines, § 15301), and more than minor
alterations. (Id., § 15304.) It found the exemption for
enforcement actions (id., § 15321) did not apply here because “the
fact that the County may have enforcement authority over
unpermitted encroachments could not and should not apply to
exempt from CEQA review a greater project which involves as
one of its element[s] the clearing [of] unpermitted encroachments,
17
which could potentially have a direct or indirect significant
environmental impact on an area other than that where the
encroachments are being removed.”
Each of these legal conclusions depends on the trial
court’s finding that the current project is one segment of a larger
project that may have a significant environmental effect. In
reaching this conclusion, the trial court erred. The County’s
project to restore public use of the public right of way by
removing unpermitted and illegal private encroachments has
independent utility and need not be linked to any future, as yet
unannounced project.
“Project” is a term of art that refers to “‘the whole of
an action,’” rather than to each individual component of it.
(County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th
377, 385; Banning Ranch Conservancy v. City of Newport Beach
(2012) 211 Cal.App.4th 1209, 1220 (Banning Ranch); Guidelines,
§ 15378, subd. (a).) The potential environmental impacts of a
project are to be measured against a baseline that describes
existing environmental conditions. (Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority (2013) 57 Cal.4th
439, 452; see also Riverwatch v. County of San Diego (1999) 76
Cal.App.4th 1428, 1453 [“environmental impacts should be
examined in light of the environment as it exists when a project
is approved”].) The lead agency involved in approving a project
has discretion to determine that baseline. (Neighbors for Smart
Rail, supra, at p. 452; Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310,
328.)
CEQA forbids “piecemeal” review of the
environmental effects of a project. (McCann v. City of San Diego
18
(2021) 70 Cal.App.5th 51, 84 (McCann); Communities for a Better
Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 98.)
Environmental review under CEQA cannot be avoided by
chopping up a large or cumulative project that has significant
environmental effects into ‘bite-size pieces’ that have
insignificant effects individually.” (El Dorado County Taxpayers
for Quality Growth v. County of El Dorado (2004) 122
Cal.App.4th 1591, 1599.) We review piecemealing claims de
novo. (Make UC a Good Neighbor v. Regents of University of
California (2023) 88 Cal.App.5th 656, 683 (Make UC a Good
Neighbor); Banning Ranch, supra, 211 Cal.App.4th at p. 1224.)
Improper piecemealing occurs where “the purpose of
the reviewed project is to be the first step toward future
development.” (Banning Ranch, supra, 211 Cal.App.4th at p.
1223.) An environmental analysis must consider “the
environmental effects of future expansion or other action if (1) it
is a reasonably foreseeable consequence of the initial project; and
(2) the future expansion or action will be significant in that it will
likely change the scope or nature of the initial project or its
environmental effects. Absent these two circumstances, the
future expansion need not be considered in the EIR for the
proposed project. Of course, if the future action is not considered
at that time, it will have to be discussed in a subsequent EIR
before the future action can be approved under CEQA.” (Laurel
Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 396 (Laurel Heights).)
Laurel Heights concluded that an EIR improperly
segmented a university’s decision to relocate its school of
pharmacy to a specific building. Although the EIR stated the
school would occupy 100,000 square feet of the building, it did not
19
mention that the school intended to occupy the remaining
254,000 square feet when the existing tenant moved out.
Because school officials had already publicly announced their
intention to use the whole building, the EIR should have
analyzed that eventuality. (Laurel Heights, supra, 47 Cal.3d at
pp. 396-397.)
Piecemealing may also occur when “the reviewed
project legally compels or practically presumes completion of
another action.” (Banning Ranch, supra, 211 Cal.App.4th at p.
1223.) For example, the court concluded in Tuolumne County
Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155
Cal.App.4th 1214, that a proposed home improvement center and
the realignment of a road were part of a single project because
the home improvement center could not be completed and opened
without the realigned road. (Id. at p. 1231.)
A project may properly be considered separately from
potential future projects, however, when the two “have different
proponents, serve different purposes or can be implemented
independently.” (Banning Ranch, supra, 211 Cal.App.4th at p.
1223; see also, Make UC a Good Neighbor, supra, 88 Cal.App.5th
at p. 684.) A project may also be reviewed without reference to
potential future projects when it has “significant independent or
local utility” and would be implemented with or without approval
of the future project, even if the two are related in some other
respects. (Planning & Conservation League v. Castaic Lake
Water Agency (2009) 180 Cal.App.4th 210, 237; Sierra Club v.
West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 699.)
In Banning Ranch, supra, for example, appellants
contended that an EIR for a public park and access road should
also have considered the impact of future residential and
20
commercial development on an adjacent property. The court of
appeal rejected this contention because the park and the
residential development served different purposes and each had
independent utility. The park would provide recreational
opportunities for existing residents while the future project would
develop new housing and commercial buildings. In addition, the
park had independent utility because “the City can and will build
the park regardless of any development” on the adjacent
property. (Banning Ranch, supra, 211 Cal.App.4th at p. 1226.)
Similarly, in McCann, supra, 70 Cal.App.5th 51, the
City of San Diego announced a group of projects to convert
overhead utility wires to an underground system with each
undergrounding project covering a different geographical area.
The City declared one undergrounding project exempt from
CEQA and adopted a mitigated negative declaration (MND) for
another. A resident contended the City violated CEQA by
segmenting what should have been a single, citywide project into
smaller projects.
The court of appeal rejected this piecemealing claim.
“Here, each utility undergrounding project was independently
functional and did not rely on any other undergrounding project
to operate.” (McCann, supra, 70 Cal.App.5th at p. 85.) The
functionality of each completed undergrounding project would not
be affected by the completion or abandonment of other
undergrounding projects. “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.’” (Id. at p. 85,
quoting Banning Ranch, supra, 211 Cal.App.4th at p. 1223.)
21
Here, the Road Commissioner described the project
as the “Montecito Right of Way Restoration” project, explaining
that it would also improve access to the Hot Springs trailhead.
As defined by the Road Commissioner, the project would restore
the right of way by removing unpermitted private
encroachments. This would maintain the safe traveling condition
of the road for vehicles, pedestrians and cyclists and restore
public parking near the trailhead.
To carry out the project, the Road Commissioner sent
notices to three property owners to remove unpermitted
encroachments from the public right of way. Respondents and
the trial court inferred that these notices were the first step of a
“larger project,” which involves encouraging many more hikers to
use the Hot Springs trail by making it easier for them to park
near the trailhead. Because respondents had at least some
chance of demonstrating that a “larger project” might have
significant environmental effects, the trial court concluded
respondents had at least some chance of succeeding on the merits
of their claim that the project is not categorically exempt from
CEQA.
We conclude the trial court erred as a matter of law.
The current project as defined by the Road Commissioner has
independent utility, regardless of whether notices are sent to
other property owners in the future or other, as yet unannounced
actions are taken to increase access to or use of the Hot Springs
trail. Removing encroachments brings the properties into
compliance with the Streets and Highways Code and county
ordinances and engineering standards by restoring the “clear
zone” in front of these properties. It also recovers space for public
parking. These results occur regardless of whether other
22
homeowners are later notified to remove encroachments or other
steps are taken to increase hikers’ access to Hot Springs trail.
Exception to Categorical Exemptions.
Guidelines section 15300.2 provides, “A categorical
exemption shall not be used for an activity where there is a
reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances.” (Id.,
subd. (c).) Respondents contend that unusual circumstances exist
here because East Mountain Drive is adjacent to environmentally
sensitive Hot Springs Canyon. They contend removing the
encroachments will have an environmental impact because it will
create more parking which will draw more hikers to the canyon.
The trial court agreed with this analysis. We conclude the trial
court erred.
Assessing whether the unusual circumstances
exception applies requires us to engage in the analysis developed
in Berkeley Hillside, supra, 60 Cal.4th 1086. There, our Supreme
Court instructed that, where a project is otherwise categorically
exempt, “a party challenging the exemption has the burden of
producing evidence supporting an exception. [Citations.] . . . [T]o
establish the unusual circumstances exception, it is not enough
for a challenger merely to provide substantial evidence that the
project may have a significant effect on the environment, because
that is the inquiry CEQA requires absent an exemption.
[Citation.] . . . On the other hand, evidence that the
project will have a significant effect does tend to prove that some
circumstance of the project is unusual.” (Id. at p. 1105.)
The challenger “may establish an unusual
circumstance without evidence of an environmental effect, by
showing that the project has some feature that distinguishes it
23
from others in the exempt class, such as its size or location. In
such a case, to render the exception applicable, the party need
only show a reasonable possibility of a significant effect due to
that unusual circumstance. Alternatively, under our reading of
the guideline, a party may establish an unusual circumstance
with evidence that the project will have a significant
environmental effect. That evidence, if convincing, necessarily
also establishes ‘a reasonable possibility that the activity will
have a significant effect on the environment due to unusual
circumstances.’ (Guidelines, § 15300.2, subd. (c).)” (Berkeley
Hillside, supra, 60 Cal.4th at p. 1105.)
Under either line of analysis, the party challenging
the exemption has the burden to establish by substantial
evidence either that the project presents an unusual
circumstance or that it will have a significant environmental
effect. (Walters v. City of Redondo Beach (2016) 1 Cal.App.5th
809, 820; Citizens for Environmental Responsibility v. State ex rel.
14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 575-576
(Citizens for Environmental Responsibility).) “This standard
requires that we ‘“resolv[e] all evidentiary conflicts in the
agency’s favor and indulg[e] in all legitimate and reasonable
inferences to uphold the agency’s finding.”’” (Walters, supra, at p.
820.) Substantial evidence “includes facts, reasonable
assumptions predicated upon facts, and expert opinion supported
by facts. [Citations.] It does not include ‘[a]rgument,
speculation, unsubstantiated opinion or narrative, [or] evidence
which is clearly inaccurate or erroneous . . . .’” (North Coast
Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 673.)
“‘[R]eviewing courts, after resolving all evidentiary
conflicts in the agency’s favor and indulging in all legitimate and
24
reasonable inferences to uphold the agency’s finding [of no
unusual circumstances], must affirm that finding if there is any
substantial evidence, contradicted or uncontradicted, to support
it. . . .’” (Citizens for Environmental Responsibility, supra, 242
Cal.App.4th at p. 575.) As a reviewing court, we are required to
give the lead agency “‘the benefit of the doubt on any legitimate,
disputed issues of credibility. . . .’” (Joshua Tree, supra, 1
Cal.App.5th at p. 692.)
The trial court found there was an unusual
circumstance here because of the project’s location adjacent to
Hot Springs Canyon. But the Road Commissioner and the
County considered the setting in reaching their conclusion that
the project was categorically exempt. Like many roads in
Montecito, East Mountain Drive is an existing, developed road
portions of which are located near an Environmentally Sensitive
Habitat (ESH) area overlay zone. The public may park on all
county roads in Montecito, unless they are otherwise posted. By
definition, this includes a county road like East Mountain Drive
that is adjacent to an ESH area overlay zone. East Mountain
Drive’s proximity to the overlay zone does not make it unique in
Montecito, nor is it evidence of an unusual circumstance. The
County determined that the project would involve only the
“restoration of existing roadway” to “maintain the safe traveling
condition” of the road and “allow for safe public parking for the
pedestrians and also cyclists going to the adjacent public trails.”
This is substantial evidence supporting the County’s
determination of no unusual circumstances. The absence of
unusual circumstances “‘means the exception does not apply.’”
(Banker’s Hill, Hillcreast Park West Community Preservation
Group v. City of San Diego (2006) 139 Cal.App.4th 249, 278.)
25
Irreparable Harm.
The second factor that must be considered in
determining whether to grant a preliminary injunction is “the
relative balance of harms that is likely to result from the
granting or denial of interim injunctive relief.” (White v. Davis
(2003) 30 Cal.4th 528, 554.) Like the trial court, we are required
to consider whether respondents have shown they “would suffer
grave or irreparable harm from the issuance of the preliminary
injunction and, if so, to balance the relative actual harms to the
parties, while taking into account the degree of certainty of the
outcome on the merits.” (Uber Technologies, supra, 56 Cal.5th at
pp. 302-303.) The ultimate goal of this balancing process is “to
minimize the harm which an erroneous interim decision may
cause.” (IT Corp, supra, 35 Cal.3d at p. 73.)
In balancing the relative harms here, the trial court
gave no weight to either the County’s interest or the public
interest in enforcing the encroachment laws. Instead, it found
County’s arguments about irreparable harm “relate more to its
perceptions of the benefits of proceeding with the project, than
they do to any legitimate harm which it or the public would suffer
if the status quo were preserved . . . . Indeed, the Court sees
little, if any, harm to County should the injunction issue.”
Allowing the encroachments to remain, the trial court reasoned,
would not cost the County any money or prevent it from enforcing
the encroachment laws if the petition is ultimately denied.
Respondents, in the trial court’s view, would be
harmed if their encroachments were removed. “[P]ermitting the
destruction of encroachments which have existed for many years
with County’s express or implied permission, will cause
irreparable harm to the properties at issue. Many of the
26
longstanding encroachments consist of mature landscaping
which, once removed, will likely be gone forever.”
We conclude the trial court abused its discretion
when it found County had no legitimate interest in enforcing the
laws against encroachments and that respondents would be
irreparably harmed by complying with those laws. First, the
record includes substantial evidence that encroachments in the
public right of way present both fire safety risks and public safety
risks to motorists, pedestrians and cyclists. Even without that
evidence, the encroachment statutes and ordinances themselves
represent a legislative determination that the public interest is
served by prohibiting and authorizing the removal of
unpermitted encroachments in the public right of way. The
public interest is served by their enforcement. (IT Corp, supra,
35 Cal.3d at p. 72; see also Carson Mobilehome Park Owwners’
Assn. v. City of Carson (1983) 35 Cal.3d 184, 195 [“courts lack
jurisdiction to enjoin the enforcement of a validly adopted
constitutional ordinance”]; Code Civ. Proc., § 526.)
Second, the record contains no substantial evidence
that respondents will be irreparably harmed by removal of the
encroachments. The plants and other objects they have installed
in the public right of way can presumably be moved off public
property and onto respondents’ private property. In any event,
respondents have an obligation to obey the law, including the
encroachment laws. (Jamison, supra, 4 Cal.App.5th at pp. 365-
366.) “[A] party suffers no grave or irreparable harm by being
prohibited from violating the law . . . .” (Uber Technologies,
supra, 56 Cal.5th at p. 306; see also People ex rel. Reisig v. Acuna
(2010) 182 Cal.App.4th 866, 882 [party “cannot claim harm” from
27
restrictions imposed by a gang injunction on “activities that
constitute the public nuisance”].)
Conclusion
The request for judicial notice is granted. The order
granting a preliminary injunction is reversed. This matter is
remanded to the Superior Court for further proceedings
consistent with this opinion. Appellants shall recover their costs
on appeal.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
28
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Rachel Van Mullem, County Counsel, Lina Somait,
Sr. Deputy, for Defendants and Appellants.
Jennifer Bacon Henning, for amicus curiae on behalf
of appellants.
Cappello & Noël and A. Barry Cappello, David L.
Cousineau, G. Michael Brelje, for Plaintiffs and Respodents.
Filed 8/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CHRISTOPHER ANDERSON 2d Civil No. B322465
et al., (Super. Ct. No. 22CV01299)
(Santa Barbara County)
Plaintiffs and Respondents,
ORDER CERTIFYING
v. OPINION FOR
PUBLICATION
COUNTY OF SANTA [NO CHANGE IN
BARBARA et al., JUDGMENT]
Defendants and Appellants.
THE COURT:
The opinion in the above-entitled matter filed on July
19, 2023, was not certified for publication in the Official Reports.
For good cause, it now appears that the opinion should be
published in the Official Reports and it is so ordered.
GILBERT, P. J. YEGAN, J. BALTODANO, J.