In a 53-page published opinion filed on October 8, 2021, the Court of Appeals for the Fourth District mostly confirmed but partially overturned the judgment in the CEQA litigation. Blocks. McCann v. City of San Diego (2021) ___ Cal.App.5th ___. This opinion resolves and resolves some important and interesting CEQA claims and issues related to the principle of exhaustion; procedures for administrative appeals to CEQA exemption decisions (and related due process notification issues); fragmentary; project description; aesthetics; through the evaluation of the project and the local The consistency of the Climate Action Plan (CAP) is an appropriate method to determine the importance of the impact of greenhouse gas emissions.
Development and implementation of underground engineering in our city
More than 50 years ago, the City of San Diego began an effort to transform its overhead, wooden pole-supported utility system into an underground system. Limited by funding (from utility tariffs and a separate city "surcharge fund"), by 2016, it had completed 406 miles of underground projects, but there were still 1,000 miles of overhead lines to be converted and set The target of 15 miles is the number of miles per year in its 2017 Utilities Underground Plan Master Plan. The master plan divides the city’s overhead line areas into sections called “blocks” and “corridors” (marked by sources of funding), and (together with city regulations) stipulates the procedures for the city council to approve “project allocations” each year based on available funds, The staff will start the preliminary work of each block (including CEQA review). The council will then create an "underground utility zone" for the selected block for the funding of the year; the residents/owners of the zone will receive a public hearing notice and a map so that they can approve the establishment of the block with the city council Comment before. After the creation of the district, New York City went through a one to two year "detailed design process" that included convening high-profile community meetings and opportunities for residents/owners to discuss the project, including the placement of utility boxes and street lights.
The construction of the project requires workers to dig trenches or drill holes for underground wires and cables in public roads (streets and alleys), drill holes or trenches to the side lines of electric meters of individual buildings, install underground pipes, backfill soil, and pull cables. pass. If necessary, install the new transformer, cable box, and base above the ground. The central focus of the claims in the lawsuit is transformers, which are needed for every 8 to 14 households. They are green boxes, about 3 feet cubic, placed on short 4'x 4'concrete pads. After construction, the new system was activated, the existing overhead power lines and telephone poles were removed, and certain other related work was performed (new street lights, roadside ramps, street re-laying, tree planting).
Plaintiff McCann questioned two sets of projects in different locations, one of which has been determined by the City of New York as a CEQA exemption ("Exemption Project"), and the other group was approved under the Mitigation Negative Statement (MND) ("MND Project"). McCann essentially believes that the transformer box and the entire project have had a significant impact on the environment, requiring EIR for both sets of equipment. After the briefing and debate, the court of first instance rejected the requested remedy of the writ and found that McCann had not exhausted administrative remedies before seeking judicial review of the exemption program, and failed to prove that the substantive evidence supports the fair argument that the MND program may be Significant impact on the environment.
Opinion of the Court of Appeal
McCann’s timely appeal of subsequent judgments basically raised all the same issues she lost in the court of first instance, with one exception, the appeal court confirmed the rejection of relief for each issue.
McCann’s failure to exhaust administrative remedies is available for exempted programs and cities that comply with CEQA and due process
During the reexamination, the Court of Appeal held that the principle of exhaustion of administrative remedies was applicable to prohibit McCann from questioning the exemption items, and rejected her various arguments that the principle was not applicable. Note that in the case of providing administrative remedies, it is a "judicial prerequisite" and must be exhausted before the court takes action (citing Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873 -874), the court pointed out that Article 21177 of the Public Resources Law resolved the exhaustion problem in the CEQA case, but did not provide for the specific appeal procedure after the agency's exemption decision. The CEQA in other places requires agencies to require that the exemption decisions of non-elected officials or decision-making bodies be appealed to the decision-making body elected by the agency (Section 21151(c)), and “the local lead agency may establish procedures for managing such appeals” (CEQA Guidelines), § 15061(e)). (See also Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 492-493, my post on April 13, 21 can be found here.) If the agency adopts administrative During the appeal process, the common law exhaustion rule applies to CEQA cases, and the scope of remedial measures is determined by the relevant and available local procedures in the specific jurisdiction. (Quoting Citizen Concerned by Tahoe Vista v. County of Placer (2000) 81 Cal. App. 4th 577, 592, fn 6; California Clean Energy Commission v. San Jose (2013) 220 Cal. App. 4th 1325, 1345 [My 13 years The December 13th post can be found here]; Clews Land & Livestock, LLC v. San Diego (2017) 19 Cal.App.5th 161, 187 [My January 16, 2018 post can be found here]; and Stop Syar Expansion v. Napa County (2021) 63 Cal.App.5th 444, 456-457 [My 5/3/21 post can be found here].)
Here, Section 112.0520(b) of the New York City Municipal Code provides an administrative appeal procedure under which persons seeking to challenge “environmental decisions” (defined by § 113.0103 of the Code to include CEQA exemption decisions) must be in 10 An appeal application is filed with the City Council within two working days, which will allow a public hearing and decision on the waiver challenge before the project enters the project approval hearing stage. As McCann admitted that she failed to use this administrative appeal remedy, the court of appeal (such as the court of first instance) considered that she had not exhausted the administrative remedy and therefore prohibited her from challenging the immunity project.
The court rejected McCann’s related argument that because the “notice of right of appeal” provided by the City of New York violated the constitutional due process principle and CEQA, and inappropriately bifurcated the environmental determination procedure, exhaustion was not applicable. First, it abides by the procedures of New York City, publishes the notice of right of appeal on the New York City website, and emails it to all city council members and local planning teams in the affected communities, and abides by due process and reasonable Calculate personalized notifications to reach everyone. No need for affected homeowners. The exemption decision is not a land use decision, but an environmental decision different from the project approval, and does not deprive McCann of any major property rights. The due process notice principle of Horn v. County of Ventura (1979) 24 Cal.3d 605 does not apply to decisions that will not deprive neighboring owners of major property rights and have minimal impact on the land, and CEQA environmental decision notices- For example, the notice of exemption decision of non-elected officials involved here-belongs to this category.
McCann complained about the temporary construction impact that was not significant, materially or permanently deprived of her property interests. Her concerns about the aesthetic impact of the placement of the transformer box are similar to those of petitioners in other cases. These concerns involve insignificant impacts. For example, legal issues did not trigger Horn’s right to notify due process under the Constitution. (Cite and discuss Robinson v. San Francisco City and County (2012) 208 Cal.App.4th 950 [My post 9/12/12 can be found here] and the Taxpayer Responsible for School Bond Expenditure v. San Diego Unity Case) School District ( 2013) 215 Cal.App.4th 1013 [My post on June 25th, 2013 can be found here]. ) The court stated: “Although we recognize that the inconvenience of construction activities may interfere with residents’ time in a short period of time and the transformer box in the public right of way may be considered undesirable, the activities here did not deprive McCann and other residents of significant Property interests. Therefore, Horn does not apply, and the municipal notice did not infringe McCann’s due process rights."
The court acknowledged that in addition to Horn's due process notification requirements, administrative remedies must meet the basic due process requirements of reasonable notice and reasonable hearing opportunities, but in the context of CEQA, this does not require any specific procedures. According to the court, “New York City’s notification requirements provide sufficient notification because they meet the general notification requirements that the legislature considers sufficient for other CEQA determinations.” (Quoting CEQA guidelines, §§ 15072, 15073, 15075, 15087, 15094 , 15105.) In addition, the court pointed out that the Supreme Court clearly refused to impose additional requirements for notices other than those stipulated in the guidelines; therefore, it believed that the New York City "Notice of Right of Appeal" and related procedures were sufficient for administrative remedies in accordance with the principles of due process and CEQA , Denying McCann’s attempt but false reliance on the county clerk in a case involving the agency’s submission of a notice of exemption (NOE) because it involved different types of CEQA documents and discrete issues that have nothing to do with whether the New York City’s notice of right of appeal was correctly noted.
In the end, the court rejected McCann’s argument that New York City inappropriately “forked” its decision-making process as an excuse for her failure to use all her strength. CEQA allows the New York City branch process because the exemption decision is not an “environmental document” that must be reviewed and approved by the decision-making body (CEQA guidelines, §§ 15022(a)(9), 15361); cases involving review of MNDs and EIRs are inapposite in the exemption determination context, and CEQA at most requires that staff environmental decisions be made appealable to the elected decisionmaking body (Pub. Resources Code, § 21151(c)), a requirement met by the it's here. As the court concluded: “New York City appropriately authorizes staff to make a decision on project exemption under CEQA and has established a procedure for appealing the decision to the City Council. McCann believes that New York City’s procedures are correct and therefore did not do anything wrong. She did not provide any excuses for exhausting administrative remedies."
The city has no inappropriate "fragmented" or "segmented" MND projects
The Court of Appeal cited the CEQA authority’s support for the general claim that “the agency has to split the project into separate parts to avoid considering the cumulative impact of the project,” but concluded that New York City did not consider the exemption and the MND did not violate them together. The project "as a city-wide project". According to the court: “Here, every public utility underground project operates independently and does not rely on any other underground projects to operate.” If future projects do not continue, it will not affect the function of the MND project, nor Will substantially change the scope of the function or MND project (if any). Although similar in nature, each underground project is independent of each other, because it is not a "first step", nor is it a "law enforcement" or "actual assumption" of the completion of other actions, and "can be implemented independently." "(Quoting Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal. App. 4th 1209, 1223.) Therefore, the City of New York made no mistakes in defining the scope of the MND project for CEQA review purposes.
The city’s project description of the MND project is sufficient and complete
The court rejected McCann's argument that New York City improperly postponed its decision on the exact location of the transformer tank to the later design stage of the project, thereby making its description of the MND project inadequate. Regardless of whether the location of the transformer box is highly "controversial" (as McCann said), CEQA focuses on physical environmental impacts, not disputes or neighborhood emotions. McCann's failure to determine the precise location of these boxes—they are basically restricted to be placed on public roads that are not occupied by existing trees—is critical to assessing their general environmental impact (including aesthetics).
There is no substantive evidence to support the argument for fairness. The MND project will have a significant aesthetic impact
Rejecting McCann’s argument that a large amount of evidence supports the argument of fairness, the MND project will have a significant aesthetic impact that needs to be analyzed in the EIR. The court held that the argument and evidence are legally insufficient: "The impact on aesthetics under the CEQA The consideration arises from a project with a greater impact than the transformer discussed here. When considered in the context of existing case law, the aesthetic impact of a transformer is far lower than the significant impact required to trigger EIR requirements."
McCann failed to assume the responsibility to determine the recorded evidence supporting the necessary fairness argument. Although most of McCann’s arguments focus on her own Kensington community, which she believes contains historical resources, unique and pristine streetscapes, and “heritage trees,” the community is an exempt project, and her CEQA challenge is due to failure. It was banned for exhaustion. Her general claim of aesthetic influence only applies to one community actually included in the MND project. To this she only cited one commenter and expressed concerns about the removal of mature trees and the placement of transformers on streets, sidewalks, and yards. (Rather than the commenter’s preference for alleys) where they may become “graffiti magnets”.
The court cited the case of discussing the sufficiency of non-professional opinions as substantive evidence in support of the fairness argument that has significant aesthetic impact in various situations. The court adopted McCann’s evidence—that is, “a spokesperson’s comment, and her The comments of herself and her lawyers, on a small part of the MND project"-failed to constitute substantive evidence to support her claim. In addition, even if it is “substantial,” the evidence is not related to the type of significant aesthetic impact discussed in Appendix G of the CEQA Guidelines and case law, that is, it will significantly reduce the impact of the existing visual features of the community. The court found that as a “general conclusion... the utility box does not necessarily have a significant aesthetic impact” (quoting San Francisco Beauty v. San Francisco City and County (2014) 226 Cal.App.4th 1012 [my 6/2 / 14 posts, can be found here]), and discussed other cases that support this conclusion, applicable to the controversial facts and evidence here, supporting the inference that the transformer near the street "usually hides behind parking The [public] cars may be obscured by tree trunks or landscapes.” According to the court: “Although CEQA cannot ignore the aesthetic impact, we also believe that there is no reason to believe that CEQA requires EIR to evaluate small three-wheelers placed next to streets in developed communities. The aesthetic impact of the foot cube.” (Quoting Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592.) As a result of the MND project, the fact that certain trees may be trimmed or replaced elsewhere is also insufficient To establish a significant aesthetic effect.
The city determined that the greenhouse gas emissions of the MND project are not significant, and there is no substantive evidence to support it
The only ruling overturned by the court of first instance was that New York City fully assessed the consistency of the MND project with the New York City CAP to determine that there was no significant greenhouse gas/climate change impact. New York City’s 2015 CAP proposed five broad strategies, each of which included a series of specific actions to reduce New York City’s cumulative greenhouse gas emissions, and was designed to serve as a qualified greenhouse gas emission reduction plan for evaluating the effectiveness of various projects. The importance of greenhouse gas emissions is affected by CEQA, so determining the consistency of the project with CAP will support the conclusion that the project has no significant greenhouse gas impact.
Since mid-2016, New York City has adopted the "Climate Action Plan Consistency Checklist" prepared with CAP for this purpose, but the checklist has only three possible steps. It first asked whether the project complies with New York City's land use and zoning regulations, or whether it will result in the same or less greenhouse gas emissions as the unanimous project. If the answer to this question is “no”, you will usually find that you need a significant impact of EIR; if the answer is “yes”, the second step question will be asked—but the point is, only for those involving the need for proof of occupancy or certain Residential structure permit project—whether the project complies with CAP's applicable strategies and actions. Therefore, the CAP list excludes several types of projects from the CAP conformance analysis, including wireless communication facilities and non-building infrastructure projects. (The third step is only applicable to traffic priority area projects that propose to increase density beyond the existing plan, and is not relevant here.)
The obvious problem found by the Court of Appeals was that New York City used Checklist to determine that MND projects were consistent with CAP, but stopped the analysis after the first step because they did not require proof of occupancy, so New York City has never actually analyzed whether these projects meet many of CAP’s Potentially applicable terms. In short, New York City incorrectly used the checklist to determine the consistency of the MND program with the CAP. As the court explained: "[T] The city has never analyzed whether the MND project is consistent with the climate action plan, because the city’s only existing tool does not involve projects that do not require a certificate of occupancy [COO]. New York City may not It is concluded that the project is consistent with [CAP] simply by instructing employees to skip the consistency analysis.” In other words, the distinction between COO and non-COO projects is “unreasonable” and New York City needs to evaluate infrastructure projects and CAP Consistency with COO project.
Although the court emphasized that it does not believe that EIR is needed, it clearly stated that additional analysis is needed—that is, to determine the CAP greenhouse gas reduction measures applicable to MND projects and analyze their consistency with such measures—to provide materiality The evidence supports MND's conclusion. Therefore, it instructed to enter a new judgment, approve the second cause of action in the petition, and instructed to issue a writ, shelve the resolution to pass the MND and MMRP and establish the utility zone, while confirming the judgment in all other respects. (The court also confirmed that the court of first instance rejected McCann’s request for a preliminary injunction prohibiting felling of trees in its vicinity, because it was based solely on her claim to the exemption project, which lacked legal basis due to her failure to use her best.)
This case provides useful guidance on some interesting CEQA and related issues, especially regarding exhaustion of administrative remedies, related CEQA and due process notification requirements and standards, as well as aesthetics and greenhouse gas CAP consistency analysis.
Disclaimer: Due to the general nature of this update, the information provided here may not be applicable in all situations, and action should not be taken without specific legal advice based on specific circumstances.
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