McCann v. City of San Diego, D077568
| Decision Date | 08 October 2021 |
| Docket Number | D077568 |
| Citation | 70 Cal.App.5th 51,285 Cal.Rptr.3d 175 |
| Parties | Margaret MCCANN, Plaintiff and Appellant, v. CITY OF SAN DIEGO et. al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Law Office of Todd T. Cardiff and Todd T. Cardiff, Encinitas, for Plaintiff and Appellant.
Mara W. Elliot, City Attorney, George Schaefer, Assistant City Attorney, and Jana Mickova Will, Deputy City Attorney, for Defendants and Respondents.
Plaintiff Margaret McCann appeals a judgment in favor of defendant City of San Diego (City) on McCann's petition for writ of mandate and an order denying her request for a preliminary injunction. McCann challenges the City's environmental review process related to its decision to approve two sets of projects which would convert overhead utility wires to an underground system in several neighborhoods. McCann's primary concern is the need for the underground system to be supplemented with several above-ground transformers, which would be housed in three-foot-tall metal boxes in the public right-of-way.
According to McCann, the City violated the California Environmental Quality Act (CEQA), ( Pub. Resources Code, § 21000 et seq. )1 by failing to properly consider the environmental impact of these projects. The City determined one set of projects was exempt from CEQA, and adopted a mitigated negative declaration (MND) for the second set of projects. McCann asserts that the significant impact on the environment caused by the above-ground transformer boxes, and the projects as a whole, required the City to prepare an environmental impact report (EIR) for both sets of projects.
We conclude McCann's claims are barred as to the first set of projects because she failed to exhaust her administrative remedies to challenge the City's determination that the projects were exempt from CEQA. To further the goal that environmental issues be resolved in an expeditious manner, the San Diego Municipal Code (Municipal Code) creates a specific procedure for interested parties to file an administrative appeal of an exemption determination before a project is submitted for approval. McCann did not avail herself of that procedure and she may not now raise that issue for the first time in this legal action. Her challenge to the trial court's order denying a preliminary injunction related to those projects necessarily fails.
Regarding the MND adopted for the other set of projects, McCann contends the City violated CEQA by segmenting the citywide undergrounding project into smaller projects; not defining the location of each transformer box before considering the environmental impact of the plan; and failing to consider the significant impact on aesthetics caused by the projects. We reject these assertions and conclude the City complied with CEQA.
However, we find merit in McCann's argument the City's finding that the projects would not have a significant environmental impact due to greenhouse gas emissions is not supported by substantial evidence. As we shall explain, although CEQA provides agencies with a mechanism to conduct a streamlined review of a project's greenhouse gas emissions by analyzing a project's consistency with a broader greenhouse gas emission plan, such as the City's "Climate Action Plan," the record shows the City never completed the required analytical process. Thus, remand is necessary to allow the City to conduct a further review to determine if the greenhouse gas emissions are consistent with the City's Climate Action Plan. We therefore reverse the judgment in part, but otherwise affirm.
In 1970, the City began its decades-long effort to convert its overhead utility systems, suspended on wooden poles, to an underground system. The local effort mirrored a shift across the state arising from the California Public Utilities Commission's decisions to require (1) new construction to install utility lines underground, and (2) utilities to allocate funds to convert existing overhead utility lines to underground. Constrained by the limits of this funding, the City established a separate "Surcharge Fund" in 2002 to provide for increased utility undergrounding.2
By the end of fiscal year 2016, the City had completed 406 miles of utility undergrounding, but still had to convert approximately 1,000 miles of overhead lines. As part of its new Utilities Undergrounding Program Master Plan (Master Plan), adopted in 2017, the City set a goal of undergrounding 15 miles of overhead lines each year.
Given the small scope of projects that could be completed in any one year due to the limited funding, the Master Plan and accompanying Municipal Code section developed a process to manage the selection and prioritization of undergrounding projects in any given year. The Master Plan divided the portions of the City with existing overhead utility lines into discrete "blocks" for "surcharge projects" and corridors for "20A projects" and provided a rough estimate of the cost to complete the undergrounding projects in each block.3
Following the process set forth in the Master Plan and Municipal Code, the City Council each year approves a "project allocation" to select blocks to be completed based on the available funding. Once the allocation is approved, City staff begins its initial work, including environmental review pursuant to CEQA, for each block.
Subsequently, the City Council creates an "Underground Utility District" including the selected blocks for projects to be completed with that year's funding. All residents and property owners within the proposed district are mailed a notice of public hearing and a map of the proposed area for the undergrounding projects. Any member of the public may attend and comment on the proposal. The City Council then holds a public hearing and, assuming no insurmountable issues arise, approves the creation of the Underground Utility District.
Thereafter, the City begins a detailed design process that takes one to two years to complete. During community meetings, residents and property owners are given an opportunity to discuss the projects, including the placement of utility boxes and streetlights. Throughout the design process, community members are notified of upcoming construction and invited to attend a community forum as the design is finalized.
During the construction phase, workers dig trenches or drill tunnels within the public right-of-way (i.e., streets and alleys) to accommodate the underground wires and cables. Lateral lines to individual buildings are completed via boring or trenching to the location of the current electrical meter. Workers then install underground conduit, fill in the soil, and then pull cable through the conduit.
At the same time, new transformers, cable boxes, and pedestals are installed above ground as needed. These transformers, the central focus of the claims raised in this case, are required for every 8 to 14 homes. The cube-shaped boxes are roughly three feet in each dimension, painted green, and placed on a short concrete pad measuring four feet by four feet.4
When construction is complete, the new system is energized and properties are switched to the new system. Thereafter, the existing overhead wires and utility poles are removed. As part of the utility undergrounding projects, the City also commits to install new streetlights, install curb ramps for sidewalks at intersections, repave streets after trenching, and plant trees.
This appeal involves McCann's challenge to the approval of two sets of undergrounding projects. Given the different circumstances arising from their different locations, one set was found to be exempt from CEQA and the other set required the preparation of an MND. For sake of simplicity, we refer to these two groups as the "Exempt Projects" and the "MND Projects."5
In 2016 the City Council approved a project allocation identifying 11 blocks for undergrounding districts. That same year, McCann began her involvement in the undergrounding process for her neighborhood. In a series of e-mails to City staff, McCann discussed her concerns regarding the procedures relating to the inclusion of her neighborhood in the undergrounding plans.
On July 10, 2018, City staff made an environmental determination the 11 blocks were exempt from CEQA. On the same day, the City issued a "Notice of Right to Appeal Environmental Determination" (Notice of Right to Appeal) identifying these 11 blocks. The Notice of Right to Appeal included a description revealing that the projects would involve the construction of an "Underground Utility System," which would consist of trenching, "installing conduit and substructures such as transformers on concrete pads," installing cable through the conduits, providing individual customer connections, removing overhead utility lines and poles, and installing new streetlights. The description also discussed the potential need to install new utility poles at the boundaries of each district and it noted the projects included installation of curb ramps, sidewalk repairs, and street resurfacing. The description stated that "[a]ny street tree removal, relocation, and/or trimming would be done under the supervision of the City Arborist."
The Notice of Right to Appeal stated that the City had determined the projects were categorically exempt from CEQA pursuant to section 15302, subdivision (d) of the Guidelines. The City maintains this exemption "allows for the replacement or reconstruction of existing structures and facilities, including the conversion of overhead electric utility distribution system facilities to underground when the surface is restored to the existing condition, and where the new structure will be located on the same site and have substantially the same purpose and capacity."
The Notice of Right to Appeal further stated that this environmental determination "is...
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