Creed-21 v. City of San Diego
| Decision Date | 29 January 2015 |
| Docket Number | D064186 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CREED–21, Plaintiff and Respondent, v. CITY OF SAN DIEGO, Defendant and Appellant. |
Jan I. Goldsmith, City Attorney, Donald R. Worley, Daniel F. Bamberg, Assistant City Attorneys, Andrea M. Contreras and Jana Mickova, Deputy City Attorneys, for Defendant and Appellant.
Briggs Law Corporation, San Diego, Cory J. Briggs and Mekaela M. Gladden for Plaintiff and Respondent.
Defendant City of San Diego (City) appeals a judgment granting the petition of plaintiff CREED-21 (CREED) for injunctive and other relief for violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq. )1 relating to emergency storm drainage repair and revegetation projects in La Jolla. On appeal, City contends (1) the trial court erred by setting the CEQA baseline for the revegetation project as of 2007 prior to the issuance of a 2010 emergency permit for the emergency storm drain repair project; (2) the court erred by finding CREED had standing to challenge the prior CEQA emergency exemption for the emergency storm drain repair project; (3) City submitted substantial evidence to support its finding the regular permits for the revegetation project were exempt from CEQA; (4) CREED did not carry its burden to show an exception applied to the exemption for the revegetation project; (5) the court erred by finding CREED was denied due process of law when City did not timely disclose a document requested under the California Public Records Act (CPRA) (Gov. Code § 6250 et seq. ); and (6) the court erred by denying City's request for judicial notice and finding its appeal fee was unauthorized.
In June 2007, City's engineering and capital projects department applied for an assessment by City's development services department of a public project known as the 7435 Via Rialto Storm Drain Replacement near 7435 Caminito Rialto in La Jolla. That project was described as the installation of 135 feet of storm drain pipe, cutout walls, and a headwall, and the repair of the failed slope. In August 2007, a limited geotechnical investigation report was completed for the project. In April 2008, a biological resources report was completed for the project by Rocks Biological Consulting (RBC). The report described the project as the replacement of 135 feet of damaged storm drain pipe and construction of two new cleanout boxes, several new cutout walls, and a headwall within City's existing easement. RBC created a vegetation map and performed general surveys for flora and fauna on the site. No endangered, threatened, or other rare species were found on the site. However, temporary impacts to sensitive vegetation would occur because of the project, including impacts on 0.3 acres of Diegan coastal sage scrub and chaparral and 0.4 acres of southern mixed chaparral.
In or about June 2009, the Via Rialto storm drain failed, causing significant erosion along the adjacent steep slopes and undermining the hillside on which single-family residences were located. City's engineer concluded that if the erosion were allowed to continue, it would present an imminent threat to public safety. He requested City issue an emergency exemption from CEQA to allow reconstruction of the failed storm drain. In so doing, he noted that since the April 2008 biological report, the 2007 replacement project had been modified to eliminate the use of mechanized equipment, resulting in a reduced work area and less impact on sensitive vegetation. He described the proposed emergency work as including the replacement of the failed pipes, construction of a concrete headwall, a modified cleanout, and a storm drain rack, rehabilitation of the remaining pipes with cast-in-place pipe, and revegetation of the area with appropriate hydroseed mix and jute matting pursuant to the biological resources report.
On June 19, 2009, City issued a determination of environmental exemption, finding the proposed emergency work was exempt from CEQA pursuant to section 15269, subdivision (b) of the CEQA guidelines (Cal.Code of Regs., tit. 14, § 15000 et seq. ; hereafter Guidelines). That determination described the proposed work as the replacement and upgrading of the failed storm drain pipes with approximately 135 feet of new high-density polyethylene pipes and construction of two new cleanout boxes, new cutout walls, and a new headwall. City based the emergency exemption on its engineer's finding that deterioration of the storm drain and metal support systems presented an imminent risk to public health and safety. It found that if the storm drain was not immediately repaired, its existing condition may result in further erosion of the slope and could result in slope failure.
On January 15, 2010, City issued a notice of exemption for the emergency storm drain repair project that had been modified from its June 2009 description. The notice described the work as the installation of a concrete headwall, replacement of about 50 to 55 feet of existing pipe starting from the headwall to where the pipe separation occurred, installation of a modified cleanout, application of about 310 square feet of shotcrete to the exposed slope, rehabilitation of the remaining pipe using cast-in-place pipe, and installation of a storm drain rack. The notice also stated the impacted areas would be revegetated with appropriate hydroseed mix and jute and a restoration plan would be submitted to the City Manager after completion of the emergency work. The notice stated the reason for the CEQA exemption was that the combination of the very steep slope and resulting erosion caused by the failed pipe was continuously undermining the hillside below single-family homes on Caminito Rialto, and that if the erosion continued unabated, it would present an imminent threat to public safety.
Also on January 15, City issued an emergency permit (No. 133188) approving the requested emergency work, described as:
“Reconstruct failed storm drain, replacement will include the replacement of failed pipes; upgrade the remaining pipes on the steep slopes, and installation of a new headwall to dissipate the energy of the water flow.”
The emergency permit included the express condition that within 60 days City's engineering department 2
Also on January 15, City's engineering and capital projects department issued an updated biological letter report modifying RBC's April 2008 report to reflect the revised scope of work. The update letter stated that the use of only hand tools and the elimination of mechanized equipment would avoid direct impact to sensitive biological resources. The letter revised the type of vegetation communities impacted by the project, the project impact analysis, and the biological resources map. The revised project area was about 2,835 square feet, or about 0.065 acres. The letter stated that during three recent site visits no rare, endangered, or threatened plant or animal species were observed. The letter stated that the project would directly impact only “disturbed habitat (Tier IV)” and would no longer impact Diegan coastal sage scrub (Tier II) or southern mixed chaparral (Tier III). As described in the April 2008 report, “Tier IV” or “disturbed” habitat, also known as “ruderal” vegetation, The update letter stated that under City's biological guidelines, “impacts to lands classified as Tier IV upland habitat are not considered significant. ...” (Italics added.)
In May 2010, the emergency storm drain repair work was completed. In October, City filed an application for a regular coastal development permit and site development permit. In November, a notice of application for the permits was posted. In June 2011, a revegetation/restoration planting plan was prepared by Merkel & Associates, Inc., for City's project. The revegetation plan noted that the storm drain repair work had been completed and City's applications for regular permits for that work would include the revegetation plan for restoration of the impacted area. The goal of the plan was to restore the area entirely with native vegetation (i.e., Diegan coastal sage scrub and southern mixed chaparral) and thereby biologically improve on the current postimpact conditions of the site. The plan stated the areas impacted by the storm drain repair work were “mostly devoid of vegetation.” The plan provided that the site would be revegetated with a combination of native container plantings and an application of native seed mix hydroseed slurry, with specific species set forth in tables based on the native habitat immediately adjacent to the site. In September, the La Jolla Community Planning Association approved the project.
On November 29, 2011, City issued a notice of exemption (NOE) for the project, describing it as follows:
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