THE COUNTY OF MARIN et al., Defendants; JOSHUA HEDLUND, Real Party in Interest and Appellant.
COURT OF APPEAL, FIRST DISTRICT, DIVISION
Neil Sorensen; Stoel Rives, Anne Evelyn Mudge, for Real Party in Interest and Appellant:
Michael Ward Graf for Plaintiff and Respondents:
The trial court issued a writ of mandate commanding the County to set aside its approval of the project. The trial court found that the County erred in relying upon mitigation measures to grant a categorical exemption from CEQA. We affirm the lower court’s order. Only those projects having no significant effect on the environment are categorically exempt from CEQA review. (Pub. Resources Code, §§ 21080, subd. (b)(9), 21084, subd. (a).) If a project may have a significant effect on the environment, CEQA review must occur and only then are mitigation measures relevant. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1199-2000 (Azusa).) Mitigation measures may support a negative declaration but not a categorical exemption. (Ibid.)
The County general plan governing land use recognizes riparian systems as “irreplaceable” and valuable for water quality, fish and wildlife, recreation, aesthetics, erosion control, and human health. To protect riparian systems, the general plan designates natural watercourses and adjacent riparian habitat as stream conservation areas. Protective polices for stream conservation areas are implemented through the County’s permit review process and adoption of specific ordinances.
ordinance requires discretionary review of any development adjacent to anadromous fish streams, even construction of single-family
fish, like salmon, migrate upriver from the sea to breed in fresh water. In adopting the ordinance, the
In June 2002, Hedlund submitted a design review application to the County for permission to build a four-bedroom house of 3,649 square feet, with a garage of 768 square feet, on a 7.26-acre parcel abutting San Geronimo Creek and within a designated stream conservation area. The house would be within 40 feet of the creek’s bank, and the creek setback for the parking area would be just 20 feet. Respondents Salmon Protection and Watershed Network (SPAWN) and Tomales Bay Association (collectively, SPAWN), among others, objected to the proposed development.
Community Development Agency (
2003, the County Planning Commission likewise approved the project, over SPAWN’s objections, after imposing additional mitigation
measures. The Planning Commission found
that the project “as conditioned incorporates numerous provisions reducing to
insignificance the possibility that the project would harm coho
salmon or steelhead trout.” SPAWN appealed
project approval to the
Following a hearing on the merits, the trial court granted SPAWN’s petition for a writ of mandate and issued an order commanding the County to set aside its approval of the Hedlund project. The court found that the County “erred procedurally and substantively” in finding the project categorically exempt from CEQA review. The project was within a stream conservation area and had the potential to impact a County designated environmental resource of critical concern, thus disentitling the project to CEQA exemption. (Cal. Code Regs., tit. 14, § 15300.2, subd. (a).) The County erred, the trial court concluded, in finding that Hedlund was nevertheless entitled to a categorical exemption because the project’s adverse impacts could be mitigated. The trial court noted that eligibility for a categorical exemption must be determined without reference to mitigation measures. (Azusa, supra, 52 Cal.App.4th at pp. 1199-1200.) Hedlund appealed the trial court’s order.
A. CEQA requirements.
“CEQA is a comprehensive scheme
designed to provide long-term protection to the environment,” and must 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.) To achieve its objective of environmental
protection, CEQA and the regulatory guidelines implementing it “establish a
three-tiered structure. If a project
falls within a category exempt by administrative regulation [citation] or ‘it
can be seen with certainty that the activity in question will not have a
significant effect on the environment [citation] [then] no further agency
evaluation is required. If there is a
possibility that the project may have a significant effect, the agency
undertakes an initial threshold study [citation] [and] if that study
demonstrates that the project ‘will not have a significant effect,’ the agency
may so declare in a brief Negative Declaration.
If the project is one ‘which may have a significant effect on the
environment,’ an [Environmental Impact Report (
Certain “classes of projects are ‘categorically exempt’ from CEQA pursuant to administrative regulation because they do not have a significant effect on the environment.” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at pp. 112-113; Pub. Resources Code, §§ 21080, subd. (b)(9), 21084, subd. (a).) Single-family homes are categorically exempt from CEQA. (Cal. Code Regs., tit. 14, § 15303, subd. (a).)
exemptions, however, are subject to important exceptions based on factors such
as location, cumulative impact, or unusual circumstances. (
“An agency should decide whether a project is eligible for a categorical exemption as part of its preliminary review of the project” without reference or reliance upon any proposed mitigation measures. (Azusa, supra, 52 Cal.App.4th at pp. 1199-2000.) “ ‘In categorical exemption cases, where the agency establishes that the project is within an exempt class, the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions’ ” listed in the regulatory guidelines. (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.)
B. The County erred in finding the Hedlund project categorically exempt from CEQA.
Single-family homes are categorically exempt from CEQA, except (1) when they “may impact on an environmental resource of . . . critical concern”; (2) “when the cumulative impact of successive projects of the same type in the same place, over time is significant”; or “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Cal. Code Regs., tit. 14, § 15300.2, subds. (a)-(c).) SPAWN maintains that all of these exceptions apply here.
The County did not expressly address these regulatory exceptions but did make a general finding that the project was exempt from CEQA “because the construction of one single-family residence on a legal lot would not create adverse environmental impacts,” and also found “no reasonable possibility of any significant impacts.” The County’s exemption finding is contrary to the evidence. The first exception to CEQA exemptions, where a project “may impact on an environmental resource of . . . critical concern” is the dispositive regulation here. (Cal. Code Regs., tit. 14, § 15300.2, subd. (a).) It is undisputed that the project site is adjacent to a protected anadromous fish stream and within a stream conservation area. The County itself conceded in the lower court that the project is within an area of “critical concern” of its own designation. (Cal. Code Regs., tit. 14, § 15300.2, subd. (a).) The relevant issue is thus reduced to whether the project “may impact” on that environmental resource of critical concern.
Appellant Hedlund claims there is no potential for an adverse
environmental impact, but the County’s own findings prove otherwise. The
As the trial court properly found, the County erred in relying upon mitigation measures to grant a categorical exemption from CEQA. Only those projects having no significant effect on the environment are categorically exempt from CEQA review. (Pub. Resources Code, §§ 21080, subd. (b)(9), 21084, subd. (a).) “[A]n activity that may have a significant effect on the environment cannot be categorically exempt.” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 124.) If a project may have a significant effect on the environment, CEQA review must occur, and only then are mitigation measures relevant. (Azusa, supra, 52 Cal.App.4th at pp. 1199-2000.)
the categorical exemption, the agency in
here likewise made a premature and unauthorized environmental evaluation at the
preliminary stage of considering eligibility for a categorical exemption. The
The order is affirmed.
IN THE COURT OF APPEAL OF THE STATE
FIRST APPELLATE DISTRICT
ordered that the opinion filed herein on
1. Add the following at page 8, after the second full paragraph:
Appellant Hedlund argues that
2. Delete the first sentence of the last paragraph on page 8 and replace it with:
The County made a premature and unauthorized environmental evaluation at the preliminary stage of considering eligibility for a categorical exemption.
The above modification does not effect any change in the appellate judgment. (Cal. Rules of Court, rule 24(c)(2).)
in the above-entitled matter filed on