Statutory Exemption Not Waived by Conducting EIR; Can be Invoked Even After Litigation Commences

In this case, the Court of Appeal for the Fourth District held that a city may defend itself against a California Environmental Quality Act challenge by invoking a statutory exemption even if the city has prepared an EIR for the project. The court also rejected the argument that because the exemption was written in the singular, it could not apply to a project involving multiple railway crossings. Section 21080.13 exempts from CEQA “any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation.” Finally, the petitioner’s non-CEQA claims that the City of Placentia (“City”) and Orange Country Transportation Authority (“OCTA”) were planning to possibly violate the City’s resolutions, were held not ripe for adjudication.

The EIR was prepared for the Orange County Gateway Project (“the Project”). The EIR specified the purpose of the Project was increasing public safety, improving traffic, increasing the efficiency of the local transportation system, reducing train noise and whistles, reducing emergency vehicle response time, and reducing air pollution from idling vehicles at rail crossings. Once the City approved the EIR it then approved an implementation alternative, which involved constructing six railway overcrossings and one undercrossing.

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