The Fourth District has waded into the world of CEQA exemptions, holding that the City of Palm Springs improperly relied upon the Class 5 categorical exemption for “minor alterations in land use limitations.” However, in a confusing discussion of whether an exception to that exemption might apply, the Court seemed to ignore the Supreme Court’s guidance in Berkeley Hillside Preservation v. City of Berkeley. This marks at least the second instance in which, despite a clear ruling in Berkeley Hillside, a court of appeal has so grossly misread the Supreme Court’s ruling, which portends a confusing road ahead for categorical exemptions. (See also Paulek v. Western Riverside County Regional Conservation Authority (2015) 238 Cal.App.4th 583, now unpublished, which applied the wrong standard of review to the unusual circumstances exception).
In 2013, the City approved a General Plan amendment removing reference to minimum density requirements for each land use designation. The General Plan had stated that, while the maximum densities were limits, the lower thresholds represented “a minimum amount of development anticipated” in that land use designation – in other words, they were predictions, not lower bounds. The City found that the action was exempt under CEQA’s Class 5 categorical exemption for “minor alterations in land use limitations in areas with an average slope of less than 20%, which do not result in any changes in land use or density . . .”, because it was simply revising the General Plan to conform with the City’s ongoing permitting practices.