Note: the Supreme Court granted a request for depublication of this opinion on August 22, 2016. See here.
On June 17, 2016, the Fourth Appellate District modified its recently published opinion, People for Proper Planning v. City of Palm Springs. As modified, the opinion now cites to last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside), which articulated the standard of review for the unusual circumstances exception to CEQA’s categorical exemptions.
As stated by the Supreme Court in Berkeley Hillside, the determination of whether the unusual circumstances exception to a categorical exemption applies to a project consists of a two-step analysis. The first step is to determine whether the project exhibits any unusual circumstances; an inquiry reviewed under the substantial evidence standard of review. The second step is to consider whether an unusual circumstances, if present, give rise to a potentially significant environmental impact; an inquiry reviewed under the fair argument standard of review.
Before the decision was modified, it was unclear whether the court applied the two-part test in Berkeley Hillside. The modified opinion includes a footnote explaining that the City of Palm Springs did not dispute that the case presents an unusual circumstance. As a result, the focus of the decision is on the second prong – whether petitioners presented a fair argument of a potentially significant environmental impact resulting from the unusual circumstances. Because the court concluded petitioners presented a fair argument of a potentially significant land use impact, the court granted the writ. For a complete summary of the court’s analysis, please see our previous blog post here.
Key Point: Because the first prong of unusual circumstances analysis applies the deferential substantial evidence standard of review, to increase the defensibility of using a categorical exemption it is integral that lead agencies adopt findings that explain why a proposed project does not involve unusual circumstances.