Court Provides Needed Guidance on CEQA Infill Exemption
The Infill Exemption[1] of the California Environmental Quality Act (“CEQA”) is often used to streamline the approval process of infill projects by exempting them from environmental review. Residential developers often seek to rely upon the Infill Exemption in combination with many of the state’s recent housing laws to entitle housing development projects, thereby providing the state with much needed housing.
To use the Infill Exemption, a local government must find five conditions have been satisfied. The third of those conditions requires that the “project site has no value as habitat for endangered, rare or threatened species.” The fourth of those conditions requires that a project “would not result in any significant effects relating to traffic, noise, air quality, or water quality.” Because no published court decision had interpreted how these conditions are to be satisfied, they have been common targets for project opponents to attack the use of the Infill Exemption and delay infill development.
A new decision, Nassiri v. City of Lafayette et al. (First District Court of Appeal Case No. A165324, published July 18, 2024), provides welcome clarity on the meaning of “rare” species and on the evidence required to show significant air quality impacts, which should make the Infill Exemption more reliable.
Substantial Evidence Supported The City’s Determination That Two Bird Species Of Conservation Concern Are Not Rare And The Project Would Not Have An Adverse Air Quality Impact
The City approved a 12-unit residential condominium project and determined it was exempt from CEQA under the Infill Exemption. The neighboring property owner challenged that determination, arguing that the project site had value as habitat for two “rare” species, the oak titmouse and Nuttall’s woodpecker, and would have significant effects related to air quality, making it ineligible for the Infill Exemption.
The neighbor relied on a biologist’s report to claim that even though the oak titmouse and Nuttall’s woodpecker were not listed as endangered or threatened pursuant to the California Endangered Species Act of 1984 or the Federal Endangered Species Act of 1973 (collectively, the “Endangered Species Acts”[2]), they were rare because they were “Bird Species of Conservation Concern” according to the U.S. Fish and Wildlife Service. “Bird Species of Conservation Concern” include species likely to become a candidate for listing under the Federal Endangered Species Act of 1973 without additional conservation efforts.[3]
During the approval process, the City relied on its biologist, who concluded that the project site had no value as habitat for endangered, rare or threatened species and that the two species of bird at issue were “locally and regionally abundant” and “would not be considered rare.”
The Court of Appeal confirmed that the substantial evidence test governs review of an agency’s factual determination that a “project site has no value as habitat for endangered, rare or threatened species” and, in the case at hand, held that substantial evidence, namely, the evidence provided by the City’s biologist supported the City’s determination. The court noted that petitioner’s biologist never asserted that the two species of bird were “rare” under CEQA Guidelines section 15380, which provides that a species that is “not presently threatened with extinction” can still be considered “rare” if “the species is existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens.”[4] Petitioner’s failure to account for the definition of “rare” in the CEQA Guidelines precluded the opinion from being considered substantial evidence. The court also stated that even if the petitioner’s biological report supported a different conclusion, because there was substantial evidence through the City’s biological expert to support the City’s determination, that determination must be upheld.
In another portion of the decision, the court held that the neighbor’s air quality consultant failed to accurately reflect the scope of the project and therefore could not constitute substantial evidence of the effects of the project. Further, the court held that because that consultant’s opinion concluded that the project “may” result in significant air quality impacts, it could not constitute substantial evidence that the project “will” have adverse air quality impacts, as required to show that the project would be ineligible for the Infill Exemption.
Why This Decision Matters
The decision is the first to address what subdivision (c) of the Infill Exemption means when it says that a “project site has no value as habitat for endangered, rare or threatened species.” The decision clarifies that species listed as “Bird Species of Conservation Concern” are not “rare” within the meaning of the Infill Exemption without a more specific inquiry, which is important because many project opponents (and some agencies) have historically considered species of conservation concern as automatically “rare” under CEQA. The decision also clarifies that the substantial evidence test governs an agency’s determination that a project meets the Infill Exemption eligibility criteria, including that a project have no impact on air quality.
The court’s clarifications should help protect a local government’s reliance on the Infill Exemption when similar allegations are raised by project opponents.
If you have any questions regarding the use of the Infill Exemption, please contact an author of this Client Alert or another member of the Cox Castle Land Use & Natural Resources Team.
[1] Cal. Code Regs., tit. 14, § 15332.
[2] Under the CEQA Guidelines a species is presumed to be “endangered, rare or threatened” if listed under either of the Endangered Species Acts. (Cal. Code Regs., tit. 14, § 15380, subd. (c).)
[3] 16 U.S.C., § 2912, subd. (a)(3).
[4] Cal. Code Regs., tit. 14, § 15380, subds. (b)(1), (d).