Infill Exemption Upheld for 8-Unit Project

Cities are using infill exemptions from CEQA more often, and citizen groups are fighting the exemptions around the state. But as a new appellate ruling from St. Helena reinforces, when the citizens group challenge the infill exemptions in court, they usually lose.

The St. Helena case revolved around the use of a Class 32 infill exemption under the California Environmental Quality Act guidelines, which exempts infill projects from CEQA assuming they generate no traffic, noise, air quality, or water quality impacts. This is the exemption that was used, for example, by the City of Berkeley in the Berkeley Hillside case.

In the case from St. Helena, the city had amended its housing element and zoning ordinance to require only review of design aspects only for projects included in a “high-density residential” area. Landowner Joe McGrath proposed an eight-unit project that meet the city’s requirements in the zone. The city conducted design review on the project but otherwise invoked the infill exemption. Nearby residents called for an environmental impact report during the approval process, and then organized as McCorkle Eastside Neighborhood Group in order to sue.

The case generated considerable local controversy, with the developer accusing the lawyer for the neighbors of a cozy relationship with one of the city council members and also offering to donate funds to a nonprofit housing group if the lawsuit were dropped.

But the city prevailed in both the trial court and the appellate court.

On appeal, the neighbors made several arguments, including (1) that the city council had impermissibly delegated CEQA actions to the planning commission; and (2) that the fact that the city conducted a discretionary design review process meant the entire project approval process was discretionary, opening up CEQA.

The appellate court dispatched both these arguments quickly. On the first argument, the court wrote: “he unelected Planning Commission found the project exempt and appellants took an appeal to the full elected City Council. The City Council held a full hearing and issued findings on this appeal. There was no improper delegation of the City’s authority under CEQA.” The court added: “he City Council in this case did act—just not in the way that appellants had hoped.”

On the second argument, the court ruled that previous case law does, in fact, require that any discretionary action opens up the whole project to CEQA – in some circumstances. Specifically, “only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts,” which was not the case here.

The Case:

McCorkle Eastside Neighborhood Group v. City of St. Helena, A153238 (January 10, 2019).

The Lawyers:

For McCorkle Eastside Neighborhood Group: Mathew D. Hinks, Jeffer Mangels Butler & Mitchell, MHinks@jmbm.com

For City of St. Helena: Thomas B. Brown, Burke, Williams & Sorensen, tbrown@bwslaw.com