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In Wendy Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the First District Court of Appeal upheld the City’s approval of T-Mobile’s installation of wireless telecommunication equipment on existing utility poles throughout San Francisco as proper under the California Environmental Quality Act (CEQA).

The issue raised by appellants (a group of residents near one of the utility poles in question) , was that the Department of Public Works authorized the construction of T-Mobile’s project before the Planning Department prepared a certificate classifying the project as a Class 3 categorical exemption and thus exempt from CEQA review.  On appeal, the court addressed three issues: CEQA review, timing of the permit issuance, and the due process right to notice and hearing.

Beginning with CEQA review, the court first explained Class 3 exemptions apply to the construction and location of limited numbers of new and small facilities, installation of small new equipment, and the conversion of existing small structures with only minor modifications made to the exterior of the structure.  The court found the T-Mobile project involved “installation of small new equipment on numerous existing small structures in scatted locations,” and therefore, as a matter of law, T-Mobile’s project falls within the scope of the exception.  Second, the court reviewed the cumulative impact exception to the exemption and held it did not apply.  The CEQA Guidelines state the exception applies “when the cumulative impact of successive projects of the same type in the same place, over time is significant.”  The court emphasized the use of “the same place” as an important limit on the exception.  The court defined “same place” as referring to an area “whose size and configuration depend on the nature of the potential environmental impact of the specific project under consideration.”  With respect to this project, given the absence of evidence showing future telecommunications installations will likely be located within “sensory range of the installations included in the T-Mobile project,” the cumulative impact exception to the Class 3 categorical exemption did not apply.

The court next addressed the timing of the permit issuance.  The appellants pointed out T-Mobile received a permit to build before it received a CEQA exemption certificate or a Department of Public Health approval.  The court, however, found the actual work of the project authorized by the permit did not occur until after all of the necessary approvals had been obtained.  The court found appellants’ argument that the permit be retroactively invalidated “absurd” and explained the City’s failure to issue the CEQA exemption and the Department of Public Health approval before issuing the permit were inadequate grounds for invalidating the permit.  The court found no requirement that an agency must put its exemption decision in writing at any specific time, and also that notice of a categorical exemption determination should not be given until after project approval.

Lastly, the court addressed the issue of the due process right to notice and hearing.  The court explained constitutional notice and hearing provisions are triggered only by governmental action resulting in substantial or significant deprivation of property.  Given this case involved agency action, and the project of putting small equipment boxes on existing utility poles in an already developed urban area did not result in a significant deprivation of property, the due process rights to notice and hearing were not triggered.

Key Point:

If construction of a project does not begin until after all the requisite permits were received, then failure of a city to issue a CEQA exemption and Department of Public Health certificates before issuing a permit approving the construction of a project is not adequate grounds for invalidating the permit.  This case also reiterates there is no requirement for an agency to put an exemption decision in writing at any specific time.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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