In San Francisco Beautiful v. City and County of San Francisco, No. CPF11511535, (Cal. Ct. App. 1st Dist. May 30, 2014), the First Appellate District upheld San Francisco’s application of a categorical exemption to exempt from CEQA review the installation by AT&T of 726 utility cabinets on public sidewalks.
AT&T applied for a categorical exemption for its “Lightspeed” project (the Project), which is intended to upgrade broad band Internet speed and capabilities. The majority of the utility cabinets would be approximately 48 inches high, 51.7 inches wide, and 26 inches deep. (Slip Op. at p. 2.) Although AT&T had not determined precisely where the new utility cabinets would be located, the new cabinets would be “paired” with or placed within 300 feet of existing AT&T utility cabinets. (Ibid.) In response to community concerns, AT&T also promised to affix a 24-hour-a-day contact number for reporting graffiti directly to AT&T and a system in which AT&T personnel would remove the graffiti. (Ibid. at p. 3.) In 2010, AT&T submitted a revised application for a categorical exemption pursuant to section 15303(d) of the CEQA Guidelines (Guidelines), and the San Francisco Planning Department (SFPD) determined that the Project was categorically exempt from CEQA, leading to the present litigation. The trial court denied plaintiffs’ challenge, and they appealed.
The appellate court focused on three issues in examining San Francisco’s decision to apply the categorical exemption: (1) did the Project fit into a categorical exemption?; (2) if so, did the Project fall within an exception to the exemption?; and (3) did the categorical exemption rely on mitigation measures?
First, the appellate court found that the Project properly fell within the categorical exemption– for installation of small new equipment and facilities in small structures. (Guidelines § 15303.) The court based its decision on a “common sense” understanding of the exemption in that “the provision does not limit ‘installation of small new equipment and facilities’ to installation in existing small structures,” but extends to the conversion of existing small structures from one use to another. (Ibid. § 15303; Slip Op. at p. 6-7.)
Second, the appellate court considered whether it was reasonably possible that the activity would have a significant environmental effect due to unusual circumstances. (Guidelines § 15300.2(c).) The court found that an exception did not exist for multiple reasons. First, the court found that there was “no basis to conclude that the addition of 726 additional utility cabinets would be ‘unusual’ in the context of the City’s urban environment, which is already replete with facilities mounted on the public rights-of-way.” (Slip Op. at p. 11.) Second, the court found that the Project would not create significant cumulative impacts at the individual locations in which the utility boxes would be placed because there was no evidence that AT&T was currently planning to locate more than one box in close proximity, nor that the cumulative impacts of such placement would be significant. Lastly, the court found that the Project was consistent with San Francisco’s Public Works Order and Better Streets Plan, since both envision that utility boxes will be installed on the public rights-of-way, and require applicants to locate and design the structures in a way to minimize effects on pedestrian and driver safety and aesthetics. Therefore, the court concluded that the categorical exemption did not fall within an exception requiring AT&T to produce an EIR.
Finally, the court considered whether San Francisco’s application of the categorical exemption relied on mitigation measures by subjecting the Project to the Department of Public Works for evaluation of the potential to impact to public streets, public rights-of-way, and property owners. (Slip Op. at p. 20.) Under CEQA, mitigation measures may not support a categorical exemption. (Salmon Protection & Watershed Network v. County of Marin, (2014) 125 Cal.App.4th 1098, 1102.) The court held that an agency “may rely on generally applicable regulations to conclude an environmental impact will not be significant and therefore does not require mitigation.” (Slip Op. at p. 20.) The court also determined that the record does not show that “AT&T’s agreement to increase public outreach was the basis for the Board of Supervisor’s approval of the application for categorical exemption from CEQA review, or that it constituted mitigation measure for a significant effect on the environment.” (Slip Op. at p. 21.)