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In Nassiri v. City of Lafayette (2024) 103 Cal.App.5th 910, the First District Court of Appeal (Court) held that a proposed 12-unit condo (Project) in the City of Lafayette (City) was exempt from CEQA because it qualified for the Class 32 Infill Exemption, upholding the trial court’s determination. In doing so, the Court rejected arguments leveled by the owner of a nearby office building (Petitioner) regarding the Project site’s potential value as habitat for “rare” bird species and the Project’s impacts to air quality.

In 2018, Project proponents applied to the City to demolish a vacant building in order to construct a 12-unit condominium on a relatively flat, 0.3 acre parcel bordered by buildings on two sides, and a creek on another. After extensive public review and multiple City hearings, the City, relying on substantial evidence in an expert’s biological resources report and CEQA exemption memorandum, approved the Project over Petitioner’s assertion that the Project did not qualify for the Class 32 Infill Exemption. At trial, the court initially ruled for Petitioner, finding that substantial evidence did not support the City’s determination that the site held no habitat for rare birds. But, upon granting a motion for new trial in light of the newly rendered opinion in Protect Tustin Ranch v. City of Tustin (2001) 70 Cal.App.5th 951 (Tustin), which addressed the meaning of “project site” for infill exemptions (see our coverage of Tustin here), the trial court found there was substantial evidence to show the Project “site” here would not affect the creek-side portion of the parcel where the “rare” birds were located. Petitioner appealed.

Habitat Value

In order to qualify for the Class 32 Infill Exemption, an agency must show, among other things, that the project site has “no value, as habitat for endangered, rare or threatened species.” On appeal, Petitioner contended that the Project was not eligible for the exemption because two species of birds listed as “Bird Species of Special Concern” by the United States Fish and Wildlife Services (USFWS) were observed on the creek portion of the site. According to Petitioner, these species were considered “rare” under CEQA and their presence on the creek to the rear of the property represented habitat that was properly part of the Project site.

The City responded that substantial evidence supported its finding that the Project site had no value as habitat, citing its biological expert’s statements that these birds were “locally and regionally abundant” and not listed under the federal or state Endangered Species Acts. Further, the City’s expert noted that these birds did not meet the definition of “rare” found in CEQA Guidelines section 15380, referring to species that currently “exist in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens.” The First District Court of Appeal agreed with the City, noting that there was no evidence that either species was likely to become a candidate for listing, nor did Petitioner make a showing that the species were in danger of becoming endangered throughout a significant portion of their ranges. Accordingly, the Court found that substantial evidence supported the City’s determination that the Project site did not have any value as habitat. The Court declined to reach the City’s Tustin argument contending that only the Project footprint should be considered as the “project site.” Even still, the Court found that the Tustin opinion was inapplicable to the facts of this case.

Air Quality

In order for a project to be eligible for the Class 32 Infill Exemption, it must not result in any significant effects to, among other things, air quality. Petitioner, bolstered by its own expert’s “health risk assessment” that estimated diesel particulate matter (DPM) from construction equipment during Project construction could cause “potentially significant” air quality and health impacts, argued that the City’s failure to rebut this assessment undermined its determination that the Project would have no significant air quality impacts. The City responded, and the Court agreed, that Petitioner’s health risk assessment did not represent substantial evidence because it was based on an exaggerated rate of DPM emissions that did not accurately reflect the actual construction that would take place for the Project. Because the assessment did not constitute substantial evidence, the Court held the City could disregard it.

Unusual Circumstances

Petitioner also argued that the presence of the creek along one side of the Project with attendant construction impacts on special status species represented an “unusual circumstance” precluding the Project’s reliance on the Categorical Infill Exemption. The Court noted, however, that although Petitioner had raised unusual circumstances in its petition, it had failed to brief the merits of its argument at the trial court; effectively waiving the argument on appeal. While Petitioner urged the Court to exercise its discretion to hear the issue as it involved matters of public interest and the facts of the case were set, the Court declined Petitioner’s request to raise substantial evidence arguments for the first time on appeal.

Key Takeaways

  • As a general rule, points that are not properly raised in the trial court are waived on appeal.
  • Birds that are listed as Bird Species of Conservation Concern by the United States Fish and Wildlife Service are not automatically considered “rare” for the purposes of the Class 32 Infill Exemptions without further analysis of whether the species exist in such small numbers in all or a significant portion of their ranges that they may become “endangered” if their environments worsen.