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Creed-21 v. City of San Diego

California Court of Appeals, Fourth District, First Division

January 29, 2015

CREED-21, Plaintiff and Respondent,
CITY OF SAN DIEGO, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2012-00098019-CU-MC-CTL. Ronald S. Prager, Judge. Affirmed in part, reversed in part, and remanded with directions.

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Jan I. Goldsmith, City Attorney, Donald R. Worley, Daniel F. Bamberg, Assistant City Attorneys, Andrea M. Contreras and Jana Mickova, Deputy City Attorneys, for Defendant and Appellant.

Briggs Law Corporation, Cory J. Briggs and Mekaela M. Gladden for Plaintiff and Respondent.



Defendant City of San Diego (City) appeals a judgment granting the petition of plaintiff CREED-21 (CREED) for injunctive and other relief for violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)[1] relating to emergency storm drainage repair and revegetation projects in La Jolla. On appeal, City contends: (1) the trial court erred by setting the CEQA baseline for the revegetation project prior to the issuance of a 2010 emergency permit for the emergency storm drain repair project; (2) the court erred by finding CREED had standing to challenge the prior CEQA emergency exemption for the emergency storm drain repair project; (3) City submitted substantial evidence to support its finding the regular permits for the revegetation project were exempt from CEQA; (4) CREED did not carry its burden to show an exception applied to the exemption for the revegetation project; (5) the court erred by finding CREED was denied due process of law when City did not timely disclose a document requested under the California Public Records Act (CPRA) (Gov.);

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Code, § 6250 et seq. and (6) the court erred by denying City's request for judicial notice and finding its appeal fee was unauthorized.


In June 2007, City's engineering and capital projects department applied for an assessment by City's development services department of a public project known as the 7435 Via Rialto Storm Drain Replacement near 7435 Caminito Rialto in La Jolla. That project was described as the installation of 135 feet of storm drain pipe, cut-off walls, and a headwall, and the repair of the failed slope. In August 2007, a limited geotechnical investigation report was completed for the project. In April 2008, a biological resources report was completed for the project by Rocks Biological Consulting (RBC). The report described the project as the replacement of 135 feet of damaged storm drain pipe and construction of two new cleanout boxes, several new cutout walls, and a headwall within City's existing easement. RBC created a vegetation map and performed general surveys for flora and fauna on the site. No endangered, threatened, or other rare species were found on the site. However, temporary impacts to sensitive vegetation would occur because of the project, including impacts on 0.3 acres of diegan coastal sage scrub/chaparral and 0.4 acres of southern mixed chaparral.

In or about June 2009, the Via Rialto storm drain failed, causing significant erosion along the adjacent steep slopes and undermining the hillside on which single-family residences were located. City's engineer concluded that if the erosion were allowed to continue, it would present an imminent threat to public safety. He requested City issue an emergency exemption from CEQA to allow reconstruction of the failed storm drain. In so doing, he noted that since the April 2008 biological report, the 2007 replacement project had been modified to eliminate the use of mechanized equipment, resulting in a reduced work area and less impact on sensitive vegetation. He described the proposed emergency work as including the replacement of the failed pipes, construction of a concrete headwall, a modified clean out, and a storm drain rack, rehabilitation of the remaining pipes with cast-in-place pipe, and revegetation of the area with appropriate hydroseed mix and jute matting pursuant to the biological resources report.

On June 19, 2009, City issued a determination of environmental exemption, finding the proposed emergency work was exempt from CEQA pursuant to section 15269, subdivision (b) of the CEQA guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter Guidelines). That determination described the proposed work as the replacement and upgrading of the failed storm drain pipes with approximately 135 feet of new high-density polyethylene pipes and construction of two new cleanout boxes, new cutout walls, and a new.

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head wall City based the emergency exemption on its engineer's finding that deterioration of the storm drain and metal support systems presented an imminent risk to public health and safety. It found that if the storm drain was not immediately repaired, its existing condition may result in further erosion of the slope and could result in slope failure.

On January 15, 2010, City issued a notice of exemption for the emergency storm drain repair project that had been modified from its June 2009 description. The notice described the work as the installation of a concrete headwall, replacement of about 50 to 55 feet of existing pipe starting from the headwall to where the pipe separation occurred, installation of a modified clean out, application of about 310 square feet of shotcrete to the exposed slope, rehabilitation of the remaining pipe using cast-in-place pipe, and installation of a storm drain rack. The notice also stated the impacted areas would be revegetated with appropriate hydroseed mix and jute and a restoration plan would be submitted to the City Manager after completion of the emergency work. The notice stated the reason for the CEQA exemption was the combination of the very steep slope and resulting erosion caused by the failed pipe were continuously undermining the hillside below single-family homes on Caminito Rialto, and that if the erosion continued unabated, it would present an imminent threat to public safety.

Also on January 15, City issued an emergency permit (No. 133188) approving the requested emergency work, described as: "Reconstruct failed storm drain, replacement will include the replacement of failed pipes; upgrade the remaining pipes on the steep slopes, and installation of a new headwall to dissipate the energy of the water flow." The emergency permit included the express condition that within 60 days City's engineering department "shall apply for a regular coastal permit to have the emergency work be considered permanent. If a regular permit is not received, the emergency work shall be removed in its entirety within 150 days of the above date unless waived by the City Manager."[2]

Also on January 15, City's engineering and capital projects department issued an updated biological letter report modifying RBC's April 2008 report to reflect the revised scope of work. The update letter stated that the use of only hand tools and the elimination of mechanized equipment would avoid direct impact to sensitive biological resources. The letter revised the type of vegetation communities impacted by the project, the project impact analysis, and the biological resources map. The revised project area was about 2, 835

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square feet, or about 0.065 of an acre. The letter stated that during three recent site visits no rare, endangered, or threatened plant or animal species were observed. The letter stated that the project would directly impact only "disturbed habitat (Tier IV)" and would no longer impact diegan coastal sage scrub (Tier II) or southern mixed chaparral (Tier III). As described in the April 2008 report, "Tier IV" or "disturbed" habitat, also known as "ruderal" vegetation, "typically includes areas that have been previously disturbed by development or agricultural activities. It includes lands generally cleared of vegetation such that little or no natural habitat remains and lands disturbed such that at least 50 percent of plant cover is broad-leaved non-native species." The update letter stated that under City's biological guidelines, "impacts to lands classified as Tier IV upland habitat are not considered significant ...." (Italics added.)

In May 2010, the emergency storm drain repair work was completed. In October, City filed an application for a regular coastal development permit and site development permit. In November, a notice of application for the permits was posted. In June 2011, a revegetation/restoration planting plan was prepared by Merkel & Associates, Inc. for City's project. The revegetation plan noted that the storm drain repair work had been completed and City's applications for regular permits for that work would include the revegetation plan for restoration of the impacted area. The goal of the plan was to restore the area entirely with native vegetation (i.e., diegan coastal sage scrub and southern mixed chaparral) and thereby biologically improve on the current postimpact conditions of the site. The plan stated the areas impacted by the storm drain repair work were "mostly devoid of vegetation." The plan provided that the site would be revegetated with a combination of native container plantings and an application of native seed mix hydroseed slurry, with specific species set forth in tables based on the native habitat immediately adjacent to the site. In September, the La Jolla Community Planning Association approved the project.

On November 29, 2011, City issued a notice of exemption (NOE) for the project, describing it as follows: "Coastal Development Permit and Site Development Permit for previous emergency work to repair a failed storm water drain. As a result of past heavy rains a portion of the existing storm drain was washed out and on January 11, 2010, the City Engineer requested to perform emergency repair work to the failed storm water drain and eroded steep slope. On January 15, 2010, Development Services staff issued a Determination of Emergency Environmental Exemption and Emergency Coastal Development [Permit] No. 673200. The emergency work was completed in May, 2010. The emergency work restored the storm water drain which included installation of a new 5-foot by 5-foot manhole/cleanout at the failure location, removal and replacement of 55 feet of damaged CMP storm water drain with high density polyethylene (HDPE) storm pipe, lining of the

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existing storm drain from the street to the inlet to the new manhole/cleanout, and installation of a headwall with an energy dissipater at the outlet. Revegetation of the slope has not been completed; however, a Revegetation Plan is included as part of the Coastal Development and Site Development Permits. The current project includes the emergency repair work that has already been completed plus the proposed revegetation plan." (Italics added.) City concluded the project was exempt from CEQA, explaining that it had "conducted an Initial Study which determined that the project would not result in significant environmental impacts and meets the criteria set forth in CEQA [Guidelines] Sections 15301, 15302, and 15061(b)(3) (General Rule). The only physical change associated with the project is the implementation of the revegetation plan. Since the revegetation would not result in a significant effect on the environment[, ] the project would be exempt from CEQA in accordance with Section 15061(b)(3). Furthermore, since the project replaced an existing storm drain with a new storm pipe without increasing capacity and would return the surrounding vegetation to preexisting conditions[, ] the project is exempt from CEQA [Guidelines] Sections 15301 and 15302. These CEQA sections allow for the replacement of damaged public facilities with new facilities serving the same purpose without increasing capacity." City concluded the project was exempt from CEQA and the exceptions listed in Guidelines section 15300.2 did not apply.

Also on November 29, City issued a notice of right to appeal (NORA) the environmental exemption determination, which notice CREED apparently received. On December 5, 2011, CREED filed an appeal of City's environmental determination for the project, arguing it did not qualify for the exemptions stated and had the potential for significant environmental impacts. Also on December 5, CREED filed a CPRA request with City for any and all initial studies prepared for the project, noting that the NORA referred to an initial study. When City apparently did not timely provide CREED with that initial study, CREED filed a CPRA action against City, which the parties subsequently settled.

On January 31, 2012, the City council held a hearing on CREED's appeal of the exemption determination for the project and passed a resolution denying its appeal. In the recital provisions of its resolution, the City council stated "the only work that remains to be completed is the revegetation of the slope" and "a Coastal Development Permit and Site Development Permit are proposed for the completed emergency work as well as for revegetation of the slope." It further stated that "approval of the Project would not allow for any physical changes to the environment other than the revegetation of the slope. . . [¶]. . . [and] would not result in a significant effect on the environment...."

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On February 15, 2012, City's hearing officer considered the permit application for the project and apparently approved the application. CREED apparently appealed that decision to City's planning commission.

On April 26, 2012, City's planning commission denied CREED's appeal and upheld the hearing officer's written findings that the "overall siting and design of the emergency work and revegetation of the eroded slope does not adversely affect environmentally sensitive lands" and "[t]he project is for emergency work which has been completed and to revegetate the eroded slope." It further found "[t]he emergency work has been completed and the siting and design resulted in no impacts on any adjacent environmentally sensitive lands by including revegetation and erosion control plans to stabilize the slope." City then granted coastal development permit No. 79264 and site development permit No. 79265 for the project, granting permission for the existing storm water drain that was part of the emergency repair and replacement and revegetation of the eroded slope, including an existing concrete headwall and revegetation of the slope. The permits required the establishment and maintenance of the landscape improvements shown on the approved plans and, in particular, the revegetation plan dated November 30, 2011.

On May 25, CREED filed the instant petition for writ of mandate under CEQA and other laws, alleging causes of action for violation of its right to due process for City's untimely disclosure of the initial study, unlawful assessment of an unreasonable appeal fee, and failure to perform any environmental review of the project under CEQA. CREED alleged the project was not exempt from review under CEQA.

On April 25, 2013, the trial court issued a tentative ruling granting CREED's petition. After hearing arguments of counsel on April 26, the court issued an order confirming its tentative ruling. The court concluded it had jurisdiction to consider CREED's objections to the work done under the emergency exemption and no categorical exemption applied to exempt City from conducting environmental review of the project. On June 4, the court entered judgment for CREED. The judgment declared the project permits invalid, declared the project was not exempt from environmental review under CEQA, and enjoined City from undertaking any physical activities relating to the project until the court finds City has issued all required permits

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and subjected them to environmental review under CEQA.[3] The court also issued a peremptory writ of mandate against City.[4] City timely filed a notice of appeal.



CEQA and Exemption Provisions Generally

"CEQA is a comprehensive scheme designed to provide long-term protection to the environment. [Citation.]... CEQA is to be interpreted 'to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.' " (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112 [65 Cal.Rptr.2d 580, 939 P.2d 1280].)

"CEQA and its implementing administrative regulations (CEQA Guidelines) establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. [Citations.] An activity that is not a 'project' as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see § 15378) is not subject to CEQA." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380 [60 Cal.Rptr.3d 247, 160 P.3d 116], fn. omitted (Muzzy Ranch).)

"The second tier concerns exemptions from CEQA review. The Legislature has provided that certain projects, such as ministerial projects and repairs to public service facilities of an emergency nature, are exempt. [Citations.] In addition, pursuant to the Legislature's command [citation], the CEQA Guidelines list categorical exemptions or 'classes of projects' that the resources agency has determined to be exempt per se because they do not have a significant effect on the environment. [Citations.] [¶] A project that qualifies for neither a statutory nor a categorical exemption may nonetheless

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be found exempt under what is sometimes called the 'commonsense' exemption, which applies '[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment' [citation]." (Muzzy Ranch, supra, 41 Cal.4th at p. 380.)

"If a public agency properly finds that a project is exempt from CEQA, no further environmental review is necessary. [Citation.] The agency need only prepare and file a notice of exemption [citations], citing the relevant statute or section of the CEQA Guidelines and including a brief statement of reasons to support the finding of exemption [citation]. If a project does not fall within an exemption, the agency must 'conduct an initial study to determine if the project may have a significant effect on the environment.' [Citation.] If there exists 'no substantial evidence that the project or any of its aspects may cause a significant effect on the environment' [citation], the agency must prepare a 'negative declaration' that briefly describes the reasons supporting its determination [citation]." (Muzzy Ranch, supra, 41 Cal.4th at pp. 380-381.)

"CEQA's third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment. In that event, the agency must ensure that a full environmental impact report [i.e., EIR] is prepared on the proposed project." (Muzzy Ranch, supra, 41 Cal.4th at p. 381.)

On appeal, "[o]ur inquiry into whether the [agency] has complied with CEQA extends only to 'whether there was a prejudicial abuse of discretion.' [Citation.] In a CEQA case, as in other mandamus cases, our review of the administrative record for error is the same as the trial court's; we review the agency's action, not the trial court's decision." (Muzzy Ranch, supra, 41 Cal.4th at p. 381.) However, in interpreting the scope of a CEQA exemption or other questions of law, we apply the de novo standard of review. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1375 [44 Cal.Rptr.3d 128] (San Lorenzo).) Also, "[w]hen faced with a challenge to an agency's exemption ...

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