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CREED-21 v. City of San Diego

ELR Citation: 45 ELR 20041
Nos. D064186, (Cal. App. 4th Dist., 01/29/2015)

A California appellate court ordered the dismissal of an environmental group's California Environmental Quality Act (CEQA) lawsuit against a city in connection with emergency storm drain repair and revegetation projects. Following a storm drain failure in 2009 that caused significant erosion along a hillside where single-family residences were located, the city issued an emergency exemption from CEQA to allow immediate reconstruction of the drain. The work was completed in May 2010, and in October, the city filed an application for a regular coastal development permit and site development permit, in part to allow it to restore the area with native vegetation. The city concluded the project was again exempt from CEQA, as the only physical change associated with the project was the revegetation plan. An environmental group appealed, the city's planning commission denied the appeal, and the permits were subsequently issued. The group then filed a petition in state court, which ruled in the group's favor and declared the permits invalid. The trial court concluded the project was not exempt from CEQA based on its finding that the project's baseline consisted of the physical conditions existing at the site in 2007, when storm drain repair work was initially proposed by city. But the appellate court held that the emergency storm drain repair work completed in 2010 was an intervening and superseding event that changed the physical environment without any requirement for CEQA review. In addition, the only activity to be performed—the "project" under CEQA—was implementation of the revegetation plan. Therefore, the CEQA baseline for the revegetation project should have been set after the 2010 emergency work was completed. Here, it is undisputed that the existing physical conditions of the site after the emergency work had been completed consisted primarily of bare dirt. Because the revegetation plan indisputably would improve the site's physical conditions, that plan would not result in any adverse change in its physical conditions. The court, therefore, upheld the city's determination that the revegetation project was exempt from CEQA. The court also held that the group was denied its right to due process and a fair hearing.