Court of Appeal Finds Unusual Circumstances Exception Inapplicable

Citizens for Environmental Responsibility, Stop the Rodeo and Eric Zmost ("Appellants"), challenged the 14th District Agricultural Association’s (“Association”) approval of a Class 23 CEQA Exemption for a rodeo (“Project”) held at the Santa Cruz County Fairground (“Fairground").  Appellants asserted that the Project constituted an impermissible mitigated exemption and that stormwater flows were running over the Fairground and washing animal feces into a nearby creek constituting unusual circumstances making the exemption inapplicable.  The trial court denied the petition.  Appellants appealed and the Court of Appeal affirmed the trial court decision. (Citizens for Environmental Responsibility et al. v. State of California ex. rel. 14th District Agricultural Association et al. (2014) 224 Cal.App.4th 1542.)

The Association approved a rental agreement with the Santa Cruz County Deputy Sherriff’s Association acting through its nonprofit corporation Stars of Justice, for a two day rodeo at the Santa Cruz County Fairground.  The Association found the agreement was exempt from CEQA pursuant to CEQA Guidelines section 15323, or Class 23.  The Class 23 exemption is a Categorical Exemption to CEQA applicable to the “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose.”  The Association adopted a notice of exemption which stated the Class 23 exemption was appropriate because the “Fairground is an existing facility designed for public gatherings . . . including equestrian and livestock events” and “[o]n average, the facility has sponsored two to four equestrian or livestock shows per month for the past 25 to 30 years.”

Categorical Exemptions are classes of projects that the Secretary of the Resources Agency has determined will have no significant effect on the environment.  (Guidelines, § 15300.)  The application of a Categorical Exemption is subject to a number of limitations.  The two at issue here are as follows: mitigated categorical exemptions are not allowed and a project falling within a Categorical Exemption may nonetheless require environmental review if there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. (Azusa Land Reclamation Co. v Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1200; Guidelines, §15300.2(c).)

Appellants first contended that the Class 23 exemption was inapplicable because an existing on-site Manure Management Plan (“MMP”) reduces or eliminates the impacts of the project over time by “preservation and maintenance operations during the life of the action,” and thus falls within the definition of “mitigation” set forth in Guidelines section 15370(d) and constitutes an impermissibly mitigated Categorical Exemption.  The Fairgrounds had operated an MMP for the regular hauling of manure off of the Fairgrounds site since the 1960s, although it did not reduce the plan to writing until 2010.  The court rejected Appellants’ argument because the MMP is not a new measure proposed for or necessitated by the rodeo project.  The court clarified that the MMP was a preexisting measure previously implemented to address a preexisting water quality concern and that it was part of ongoing “normal operations.”

Appellants next contended that the Project does not qualify for the Class 23 exemption because the impaired status of the adjacent Salsipuedes Creek constitutes an “unusual circumstance.” The court explained that a court considers two questions when determining whether the project will trigger the unusual circumstances exception to a Categorical Exemption.  First, the court considers "whether the project presents unusual circumstances."  Second, the court considers "whether there is a reasonable possibility of significant effect on the environment due to the unusual circumstances."  With respect to the first inquiry, "Courts view circumstances as unusual within the meaning of the exemption when 'the circumstance of the project differ from the general circumstances of projects covered by a particular categorical exemption.'" The court found that in determining whether the circumstances of the Project differ from the general circumstances of the projects covered by the Class 23 categorical exemption, it was appropriate to look to the Fairground’s other events and operations.  Appellants argued the comparison should be to activities at other facilities that would be exempt under the Class 23 exemption.

The court rejected Appellants’ position for two reasons. First, "looking to public gathering facilities generally covered by the exemption may not produce an apples-to-apples comparison from which courts could determine whether a circumstance is usual or unusual."  Second, Appellants did not carry their burden to demonstrate the normal circumstances against which the comparison of the unusual or usual should be made.  The court found the project did not represent a change in the operation of the Fairground and thus, the exception did not apply. The court further found that since there were no unusual circumstances, there could be no significant environmental effect due to the unusual circumstances and the exception did not apply to make the exemption inapplicable.


The application of the unusual circumstances exception is currently before the Supreme Court in the case of Berkeley Hillside Preservation v. City of Berkeley, Supreme Court No. S201116.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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