[authors: Dustin D. Peterson, Tina Thomas and Amy R. Higuera]

Effective January 1, 2023, Thomas Law Group (TLG) will merge with Downey Brand. We are thrilled to welcome the TLG team to CEQA Chronicles and look forward to sharing their updates on important CEQA developments, new case law, legislation, and guidance.

In St. Ignatius Neighborhood Assn. v. City & County of San Francisco (Nov. 18, 2022, A164629) __Cal.App.5th__ [2022 Cal. App. LEXIS 992], the First District Court of Appeal held that the City & County of San Francisco (City) erred when it found that a lighting project was categorically exempt from environmental review under CEQA.

In 2018, the St. Ignatius College Preparatory High School (School) applied for approval of four permanent 90-foot-tall outdoor light standards for its athletic field (Project) to enable nighttime use of the stadium. In 2020, the planning department for the City determined that the Project was categorically exempt under both Class 1 “existing facilities” and Class 3 “New Construction or Conversion of Small Structures” exemptions. After imposing use conditions limiting the amount of days and the times that the School would be allowed to operate the lights, the City affirmed the exemption determination and approved a conditional-use authorization for the Project. The Saint Ignatius Neighborhood Association (Petitioners) petitioned for writ of mandate alleging the City erred in exempting the Project from CEQA, and that the City’s approval of the conditional-use authorization was inconsistent with the City’s planning code and general plan. The trial court denied the petition, and Petitioners timely appealed.

On appeal, Petitioners challenged the City’s determination that either exemption applied to the Project. A Class 1 exemption for “existing facilities” applies to minor alterations of existing structures that will not, among other things, result in the increase of more that 50 percent of the floor area of the structures before the addition. The City determined that the Class 1 exemption applied to the Project because it involved little or no expansion of the existing athletic field and, while the addition of lights would support the evening use of the stadium for up to 150 evenings a year, the School did not anticipate an intensification of use of the stadium or an overall increase in attendance. While the Court agreed with the City that the Project would not result in an increased capacity of the stadium or overall frequency of use, it held that it was “undisputed” that the Project would expand the nighttime use of the stadium. Noting that, absent the Project, the neighborhood would mostly be quiet and dark in the evenings during the fall and winter months, the Court found that the Project allowed the increased use of the field for up to 150 additional nights a year resulting in a significant expansion of the facility’s existing usage. As such, the Court concluded that the City erred in finding the Class 1 exemption applied to the Project.

The City argued that installation of the four lights fell within the Class 3 “New Conversion or Construction of Small Structures” exemption because they represented a limited number of new, small structures. Searching the examples of Class 3 exempt projects given by the Secretary of the State Resources Agency, which included single-family homes, duplexes and commercial buildings that did not exceed certain square footage requirements, the Court found that the lights at issue here were “fundamentally dissimilar” to all of the examples given. Comparing the 90-foot-tall lights to the average 25-foot-tall homes in the area, the Court held that the Project did not qualify as “small” within the meaning of the Class 3 exemption.

In making this determination, the Court distinguished the Project from the cell tower at issue in Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 359 (Parks). In Parks, the court held that a cell tower disguised as a 35-foot-high faux eucalyptus tree and accompanying 250 square-foot equipment structure fell within the scope of the Class 3 exemption. This was, in part, because the cell tower project had a smaller footprint than a single-family residence and the tower was installed in an existing stand of trees that were approximately 55 feet high. Unlike the cell tower in Parks, which was small within its setting, the Court found that the 90-foot lights here were by far the tallest structure in the surrounding area and towered over the environment.

Because the Court found that neither exemption applied to the Project, it did not reach the merits of Petitioners’ alternative arguments that unusual circumstances precluded application of the exemptions and that the City’s approval of the conditional-use authorization was inconsistent with City planning documents.

In sum, the Court determined that reliance on categorical exemptions from CEQA must be tailored to the project under consideration. Here, the Court reversed the use of the Class 1 and Class 3 exemptions because project-specific features were inconsistent with the defined categories.

Key Points:

• Exemption categories are not to be expanded beyond the reasonable scope of their statutory language.
• Courts look to the surrounding environment to determine whether a project is “small” in applying the Class 3 exemption.

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