AT&T California (AT&T) proposes to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network (the project). The City and County of San Francisco (the City) approved the project without requiring an environmental impact report (EIR) to be prepared pursuant to the California Environmental Quality Act (Pub. Resources Code,
AT&T applied for a categorical exemption for its "Lightspeed" project, which is intended to upgrade broadband speed and capabilities based on Internet protocol technology, using an expanded fiber-optic network. It would connect the fiber to electronic components located in 726 new utility cabinets
In 2007, AT&T sought a categorical exemption from CEQA review for an earlier version of the project, which would have included approximately 850 utility cabinets. The San Francisco Planning Department (Planning Department), in case No. 2007.1350E, determined the project was exempt pursuant to California Code of Regulations, title 14, section 15303, subdivision (d), part of the state CEQA guidelines. (Cal. Code Regs., tit. 14, § 15000 et seq.; Guidelines.)
The president of a neighborhood association appealed the Planning Department's decision to the City's board of supervisors (Board of Supervisors). The Board of Supervisors held a public hearing in 2008, at which counsel for the appellant and numerous members of the public expressed concern that the utility cabinets would be large and unsightly, would attract graffiti and public urination, would block pedestrian access to sidewalks and parked cars, and would create traffic hazards by reducing visibility. At the conclusion of the meeting, AT&T acknowledged that it needed to respond to public concerns, and withdrew its application.
After revising its proposal, AT&T submitted a new application for a categorical exemption in 2010. AT&T had reduced the number of proposed cabinets from 850 to 726, reduced the size of the proposed cabinets, increased the distance between the new cabinets and existing cabinets so as to provide more flexibility in cabinet location, eliminated the proposal to add new facilities within historic districts, promised to work with the City to screen the cabinets, promised to affix to each cabinet a 24-hour-a-day contact number for reporting graffiti directly to AT&T, and developed processes for members of the public to report graffiti through the City's "311" system and for AT&T personnel to report and remove graffiti. In its application materials, AT&T committed to adhering to certain limitations when choosing locations for the cabinets. Among them, the cabinets would not block pedestrian access and would maintain four feet of clearance, would not intrude on pedestrian
San Francisco Beautiful and another organization, the Planning Association for the Richmond, appealed the Planning Department's determination. Members of the public submitted comments arguing that the cabinets were too bulky, would be eyesores, would attract vandalism, urination, graffiti, and trash, and would block visibility for pedestrians and drivers. In a six-to-five vote, the Board of Supervisors affirmed the Planning Department's determination. During this process, AT&T provided a memorandum of understanding (MOU) to the City in which it "voluntarily" agreed, inter alia, to provide notice to neighbors and conduct community meetings for each cabinet site; maintain a public Web site with information about the upgrade and contact information for public inquiries; place cabinets in alleys or non-sidewalk public rights-of-way where possible; consider options for screening cabinets; attempt to hire San Francisco residents for the project; and reimburse the City for the cost of graffiti removal.
Plaintiffs then brought this action in the trial court, seeking a writ of mandate ordering the City to set aside its approval and refrain from further approvals unless an EIR was prepared and feasible mitigation measures were adopted. The trial court denied the petition.
The Guidelines also establish exceptions to the exemptions. (Guidelines, § 15300.2.) "Even if a project falls within the description of one of the exempt classes, it may nonetheless have a significant effect on the environment based on factors such as location, cumulative impact, or unusual circumstances." (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 689 [46 Cal.Rptr.3d 387] (Save Our Carmel River).) Among the exceptions are the following: "(b) Cumulative impact. All exemptions for these classes are inapplicable when the cumulative impacts of successive projects of the same type in the same place, over time is significant. [¶] (c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable
"In considering a petition for writ of mandate in a CEQA case, `[o]ur task on appeal is "the same as the trial court's." [Citation.] Thus, we conduct our review independent of the trial court's findings.' [Citation.] Accordingly, we examine the City's decision, not the trial court's." (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 257 [42 Cal.Rptr.3d 537] (Banker's Hill).)
The City concluded that the project fell within the terms of Class 3 of the categorical exemptions. Plaintiffs contend this conclusion was wrong as a matter of law. To the extent this contention "turns only on an interpretation of the language of the Guidelines or the scope of a particular CEQA exemption, this presents `a question of law subject to de novo review by this court.'" (Save Our Carmel River, supra, 141 Cal.App.4th at p. 693.) However, "[w]here the record contains evidence bearing on the question whether the project qualifies for the exemption, such as reports or other information submitted in connection with the project, and the agency makes factual determinations as to whether the project fits within an exemption category, we determine whether the record contains substantial evidence to support the agency's decision." (Id. at p. 694.)
As relevant here, Class 3 establishes exemptions for "[(1)] construction and location of limited numbers of new, small facilities or structures" and "[(2)] installation of small new equipment and facilities in small structures." (Guidelines, § 15303.) Among the examples of this exemption are "[w]ater main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction." (Guidelines, § 15303, subd. (d).) This exemption has been interpreted to apply "when the project consists of a small construction project and the utility and electrical work necessary to service that project." (Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1109 [147 Cal.Rptr.3d 480].)
Plaintiffs contend the project does not fall into clause [(1)] because 726 new structures are not a "limited number[]," and it does not fall within clause [(2)] because the project does not involve simply "installation" of equipment in previously constructed small structures, but also "construction and location" of the structures in which that equipment will be located. The problem with plaintiffs' argument about clause (2) of the exemption is that the terms of that provision do not limit "installation of small new equipment and facilities" to installation in existing small structures. If such a limitation had
Plaintiffs' reliance on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950 [146 Cal.Rptr.3d 1] (Robinson) does not persuade us that clause (2) is limited to installing equipment in existing structures. In Robinson, this division concluded a project to install wireless telecommunications equipment on existing utility poles fell within the Class 3 exemption. (Id. at p. 956.) In doing so, the court stated, "Residents have not identified any authority under which a similar or analogous project — i.e., the installation of small new equipment on numerous existing small structures in scattered locations — was held not categorically exempt under the Class 3 exemptions." (Ibid.) The fact that the project in Robinson involved existing structures, however, does not meant that this project does not fall within the Class 3 exemptions.
We are satisfied that this project proposes the "installation" of the utility cabinets for purposes of clause (2) of the Class 3 exemption. This commonsense interpretation is confirmed by the language of the City's Order No. 175,566, "Regulations for Issuing Excavation Permits for the Installation of Surface-Mounted Facilities in the Public Rights-Of-Way" (the Public Works Order), issued in 2005, which defines "Surface-Mounted Facilit[ies]" to mean "any Utility facility (physical element or structure) that [is] installed, attached, or affixed in the Public Rights-of-Way on a site that is above the surface of the street ...." (Italics added.) "Utility," in turn, includes "telecommunications, high-speed Internet, voice over Internet protocol, video over Internet Protocol ... or other services that require the provider to install facilities in the Public Rights-of-Way to serve its customers."
Accordingly, we need not consider whether 726 utility cabinets, dispersed throughout the City's 122 million square feet of sidewalks, qualify as a "limited number[]" of small structures for purposes of clause (1) of the Class 3 exemption. (Guidelines, § 15303.)
Plaintiffs also argue that, even if the project falls within the Class 3 exemption, an EIR is necessary because there is evidence the project will have significant environmental impacts.
As explained in Robinson, there is a split of authority regarding the standard of proof and the standard of review applicable to an agency's determination of whether a project falls within an exception to the categorical exemptions. "Some courts hold that a party seeking to apply an exception must `"produce substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the project from the categorically exempt class. [Citations.]" [Citations.]' [Citation.] Under this approach, `a court will uphold an agency's decision if there is any substantial evidence in the record that there will be no significant effect on the environment.' [Citation.] [¶] Other courts hold that the government agency tasked with CEQA review of a project `must apply a fair argument approach in determining whether, under Guidelines section 15300.2[, subdivision ](c), there is no reasonable possibility of a significant effect on the environment' so as to bring the project within the scope of an exception. [Citations.] Courts that apply this standard `independently review the agency's determination under Guidelines section 15300.2[, subdivision ](c) to determine whether the record contains evidence of a fair argument of a significant effect on the environment.'" (Robinson, supra, 208 Cal.App.4th at p. 957.)
Plaintiffs have not identified any way in which the utility boxes would create impacts that would "`differ from the general circumstances of the projects covered by'" the Class 3 exemption, or, for that matter, in which any circumstances "`create an environmental risk that does not exist for the general class of exempt projects.'" (CBE, supra, 103 Cal.App.4th at p. 129.) The record indicates that the City has, at a minimum, tens of thousands of street-mounted facilities; these include 1,100 bus shelters, 13,000 MUNI-maintained poles, 132 cabinets to support MUNI operations, 33 advertising kiosks, 5,800 signalized intersections, 25 automatic toilets, 113 kiosks, 744 news racks, 5,151 trolley poles, 21,891 street lights, and five street light controllers, for a total of 47,994 such facilities. This number, however, does not include mail boxes, PG&E surface facilities, water department surface facilities, fire hydrants, or street trees. There is no basis to conclude the addition of 726 additional utility cabinets would be "unusual" in the context of the City's urban environment, which is already replete with facilities mounted on the public rights-of-way.
Plaintiffs contend, however, that there is a fair argument the project has the potential for significant impacts on aesthetics and pedestrian safety, and that the potential for these impacts itself constitutes an unusual circumstance calling for the preparation of an EIR. Berkeley Hillside Preservation v. City of Berkeley, review granted May 23, 2012, S201116), currently pending before our high court, raises the question of whether the "significant effect" exception of Guidelines section 15300.2, subdivision (c), is limited to circumstances in which there are "unusual circumstances" that are independent of a project's potential to have a significant environmental effect; that is, whether the unusual circumstances exception applies whenever there is a reasonable possibility of a significant effect on the environment. Whatever the outcome of that case, however, we are not persuaded that there is a fair argument of significant impacts here.
The evidence that plaintiffs contend supports a fair argument of significant impacts is found primarily in statements of a number of residents of San Francisco, as well as members of the Board of Supervisors, to the effect that the utility boxes would be unsightly, they would attract graffiti and public urination, they would impede pedestrians, and they would block driver's views. In particular, plaintiffs point to testimony and communications from San Francisco residents stating that the current boxes were "graffiti magnets," that people urinated on them, that garbage collected around them, that residents or the City had to remove graffiti from the existing boxes because
Plaintiffs also draw our attention to statements made by a planning commissioner and members of the City's Board of Supervisors. Ron Miguel, the vice-president of the planning commission, stated in an April 2011 letter that the project "reverses the impressive work which has been done in the past year to develop standards for our public streets. The Planning Department and the Board of Supervisors are in accord with the Better Streets legislation — and work in many areas of our city is already reflective of the advantages which follow from proper consideration to areas of public access, ADA requirements, and overall beautification. It enhances not only property values, but quality of life for both San Franciscans and visitors. The installation of 726 large intrusions on the public right-of-way by a private company is completely inconsistent with the direction the Board of Supervisors has given to Planning and DPW." Supervisor Chu stated in a July 2008 hearing that she had called "311" to report graffiti, paper cups, and litter around boxes, and that in the "stark environment" of the Sunset district, additional boxes would have a significant effect on the beauty of the community. At the same hearing, Supervisor McGoldrick urged the Board of Supervisors to examine the aesthetic and cumulative impacts of the utility boxes. Moreover, as plaintiffs point out, the Board of Supervisors approved the project by only a six-to-five vote.
"The significance of an environmental impact is ... measured in light of the context where it occurs. The Guidelines confirm that `the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area.' [Citations.] To conclude that replacement of a virgin hillside with a housing project constitutes a significant visual impact says little about the environmental significance of the appearance of a building in an area that is already highly developed." (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 589 [18 Cal.Rptr.3d 814]
Bearing these standards in mind, we conclude plaintiffs did not "produce evidence showing that [the significant impact exception] applie[d] to take the project out of the exempt category." (Save Our Carmel River, supra, 141 Cal.App.4th 677, 694.) The City is an urban environment. Its rights-of-way already contain, at a minimum, tens of thousands of structures. In its exemption from environmental review, the Planning Department stated: "The project sponsor proposes to deploy up to 726 Lightspeed cabinets in a dispersed manner within public right-of-way. The profile of these cabinets would be visible to passersby and observers from nearby buildings, but may not be noticed by the casual observer. The visual impacts of the cabinets would be confined to the immediate area in which the cabinets are located. Utility-related facilities in the public right-of-way are common throughout the City's urbanized environment (e.g., traffic control cabinets and other utility cabinets). AT&T's cabinet installations would generally be viewed in the context of the existing urban background, and the incremental visual effect of the proposed cabinets would be minimal."
The Planning Department went on: "Pursuant to the submitted project proposal, the proposed cabinets would be located in a manner that would not obstruct pedestrian access, would not intrude on pedestrian `clear zones' at street corners, and would not obstruct the view of any traffic sign, way-finding sign or traffic signal.[] AT&T's cabinet placement considerations include setback distances from corners, fire hydrants, transit shelters, kiosks, certified street artist designated areas, and public art work under the jurisdiction of the Arts Commission, except for art on kiosks. If necessary, AT&T would conduct site visits with neighborhood groups to consider location options. Landscaping and screening are also available options for consideration in placing new cabinets. The proposed Lightspeed cabinets would have a graffiti resistant finish and would display a sticker with a toll-free number so that AT&T could proactively remove graffiti. If required for safety, bollards would also be installed."
Against this conclusion, plaintiffs rely on cases in which residents or public officials presented fact-based evidence to support a fair argument that a project would have significant environmental effects. In Architectural Heritage Assn. v. County of Monterey, supra, 122 Cal.App.4th 1095, a county planned to demolish an old jail building, and prepared a mitigated negative declaration. (Id. at pp. 1099-1100, 1106.) The record included a recommendation of the county's Historic Resources Review Board taking the position that the jail was a historic resource, based on a subcommittee's investigation indicating that the jail's structure was "`a rare type,'" and that historically significant people, including Cesar Chavez, were associated with the jail. (Id. at p. 1115.) In addition, members of the public, including an architect and a certified historian serving on the jail subcommittee, commented on the jail's association with notable historic figures and its architectural significance. (Id. at pp. 1116-1117.) This, the court concluded, constituted fact-based evidence to support a fair argument that the demolition would have a significant impact to a historic resource. (Id. at pp. 1108, 1115-1118.) Similarly, in Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144 [39 Cal.Rptr.2d 54], a county's planning department, air pollution control district, and one planning commission member had recognized the probable growth-inducing effect of a golf course project; the planning department noted that experience showed that often such a project acted as a catalyst triggering requests for residential development, and relied for its conclusions on consideration of similar projects elsewhere. (Id. at pp. 153, 155.) The court concluded that the county had improperly adopted a negative declaration for the project rather than preparing an EIR. (Id. at p. 160.)
These cases are inapposite to the matter before us. Here, the Planning Department concluded the utility cabinets would be dispersed, that their impacts would be confined to their immediate vicinity and might not be noticed by causal observers, that such facilities are common in the City's urbanized environment, that they would not block pedestrian access or obstruct drivers' views, and that the cabinets would have a graffiti-resistant finish and a sticker with a toll-free number so AT&T could remove graffiti. In
The cases in which residents' views on a project's aesthetic effects were held to be substantial evidence of a significant impact do not lead us to any other conclusion. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 [21 Cal.Rptr.3d 791] (Pocket Protectors), the court concluded that a public entity's approval of a mitigated negative declaration was inappropriate where another official body and members of the public had presented evidence that a project would violate zoning regulations and would have an adverse aesthetic effect. The project was a development of detached single family homes on a strip of undeveloped land that was zoned "R-1A" (single-family alternative zone) as part of a planned unit development (PUD). (Id. at pp. 908-909, 911.) The PUD included a variety of housing types, including, "`Townhouse (or similar development),' zoned R-1A." (Id. at pp. 908-909.) The planning commission had rejected an earlier version of the project because it did not comply with the PUD, and city planning staff admitted the project would violate the PUD's objectives. (Id. at pp. 931-932.) Based on this evidence, the Court of Appeal concluded there was substantial evidence that the project conflicted with the objectives of the PUD. (Id. at p. 931.) As to aesthetic impacts, the court noted that "the opinions of area residents, if based on direct observation, may be relevant as to aesthetic impact and may constitute substantial evidence in support of a fair argument; no special expertise is required ...." (Id. at p. 937.) Such evidence was found in testimony by residents of the area and an architect that the project would create a "`tunnel or canyoning effect of wide houses on small lots,'" that it would be difficult to install adequate landscaping, and that some of the houses would open their front doors onto a greenbelt. (Id. at pp. 920, 937.)
Aesthetic concerns were also at issue in Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402 [10 Cal.Rptr.3d 451] (Ocean View). The Court of Appeal there concluded a water district was required to consider aesthetic impacts in an EIR before approving a project to cover a four-acre reservoir with a semireflective aluminum roof. (Id. at pp. 398, 401.) The roof would be visible from public trails, and the county had urged the water district to develop appropriate mitigation if the roof could be seen from the trails. (Id. at pp. 401-402.) The court concluded that this evidence, along with residents' observations about the aesthetic effects of the alteration of the view — from one with a "`striking and unique visual feature'" of "`clear blue water in a densely vegetated area'" — could constitute substantial evidence to support a fair argument that the aluminum roof might have a significant adverse aesthetic impact. (Id. at pp. 401-403.)
Nor are we persuaded by plaintiffs' argument that the project's impacts are shown by purported inconsistencies with the Public Works Order and the City's Better Streets Plan, adopted in 2010. The Public Works Order recites that the Department of Public Works was "concerned that the installation of surface-mounted facilities in the public rights-of-way will impede travel on public streets, inconvenience property owners, create visual blight, or otherwise incommode the use of the public rights-of-way by the public." Therefore, the Public Works Order explained, "it is the Department's policy to require that such surface-mounted facilities be installed on private property or be placed underground to the extent either of these options is technologically or economically feasible. At the very least, the Department has required that applicants minimize the impact that the placement of any surface-mounted facilities will have on use of the public rights-of-way." Under the Public Works Order, before applicants are permitted to install surface-mounted facilities in public rights-of-way, they must show they have tried to place the facilities on private property or underground. The Public Works Order also provides that in selecting appropriate locations for surface-mounted facilities in rights-of-way, the applicant must minimize the impacts of the placement in a variety of ways; among them, the applicant must place the facilities in a manner that does not unreasonably impede pedestrians, particularly people with disabilities; provide four feet of pedestrian clearance; not intrude on pedestrian "`clear zones'" at street corners; provide specified setbacks from crosswalks, curbs, fire hydrants, driveways, transit shelters, curb ramps, blue zone parking spaces, street lights, parking meters, and trees; place the facilities so they do not obstruct the view of any traffic sign or traffic signal; place them on streets with minimal pedestrian travel; limit the height and footprint of the facilities; either use stainless steel or paint the facilities in the colors used by City structures in the vicinity; include a graffiti-proof coating; and screen the facilities by landscaping or camouflaging. The order also provides for notice to the public of proposed sites, for a hearing before the Public Works Department if there are nonfrivolous objections, and for an appeal of the department's approval or denial of a permit to install a surface-mounted facility.
Thus, both the Public Works Order and the Better Streets Plan envision that utility boxes will be installed on the public rights-of-way, and require applicants to locate and design the structures in a way that minimizes effects on pedestrian and driver safety and on aesthetics. There is no basis to conclude the project will not comply with these requirements, and plaintiffs have not persuaded us that the project is inconsistent with these enactments.
Plaintiffs also contend the project's environmental effects were improperly mitigated by the July 19, 2011 MOU, in which AT&T agreed to provide additional public notice for each cabinet site, maintain a public Web site, consider nonsidewalk locations for cabinets, consider various screening options consistent with the Public Works Order and the Better Streets Plan, provide information about the feasibility of "undergrounding" its equipment, try to hire a local workforce, and pay the cost of permit processing, graffiti removal, and any necessary cabinet relocation. Although members of the Board of Supervisors expressed approval of AT&T's agreement to increase public outreach, the record does not show that agreement was the basis for the board's conclusion that the project qualified for a categorical exemption from CEQA review, or that it constituted a mitigation measure for a significant effect on the environment.
The judgment is affirmed.
Ruvolo, P. J., and Humes, J., concurred.