The opinion
Filed 3/26/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CITIZENS FOR ENVIRONMENTAL C070836
RESPONSIBILITY et al.,
(Super. Ct. No.
Plaintiffs and Appellants, 34201180000902CUWMGDS)
v.
STATE OF CALIFORNIA ex rel. 14TH DISTRICT
AGRICULTURAL ASSOCIATION et al.,
Defendants and Respondents;
STARS OF JUSTICE, INC.,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G.
Connelly, Judge. Affirmed.
Lozeau|Drury, Michael R. Lozeau, Richard T. Drury, Christina Caro and
Douglas J. Chermak, for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney
General, Randy L. Barrow and Matthew J. Goldman, Deputy Attorneys General, for
Defendants and Respondents.
No appearance by Real Party in Interest and Respondent Stars of Justice, Inc.
1
The trial court denied a petition for writ of mandate and complaint for declaratory
and injunctive relief filed by appellants Citizens for Environmental Responsibility, Stop
The Rodeo, and Eric Zamost, under the California Environmental Quality Act or CEQA.
(Pub. Resources Code, § 21000 et seq.)1 Appellants claim the 14th District Agricultural
Association and its Board of Directors (collectively District) violated CEQA by
approving a notice of exemption (NOE) from environmental review for a rodeo held by
real party in interest Stars of Justice, Inc. at the Santa Cruz County Fairground
(Fairground) in Watsonville in October 2011.2 The exemption was pursuant to CEQA’s
regulatory guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter Guidelines) for
a Class 23 categorical exemption for “normal operations of existing facilities for public
gatherings.” (Guidelines, § 15323).3 Appellants contend the exemption is inapplicable
because (1) the rodeo project expressly included mitigation measures in the form of a
Manure Management Plan, in effect acknowledging potential environmental effects, and
(2) the unusual circumstances exception to categorical exemptions applies because
1 Undesignated statutory references are to the Public Resources Code.
2 Since the rodeo has already taken place, the appeal is moot, but we exercise our
discretion to address the appeal anyway, because it presents an issue of broad public
interest that is likely to recur and capable of evading review. (Cucamongans United for
Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-
480.)
3 “Class 23 consists of the normal operations of existing facilities for public gatherings
for which the facilities were designed, where there is a past history of the facility being
used for the same or similar kind of purpose. For the purposes of this section, ‘past
history’ shall mean that the same or similar kind of activity has been occurring for at least
three years and that there is a reasonable expectation that the future occurrence of the
activity would not represent a change in the operation of the facility. Facilities included
within this exemption include, but are not limited to, racetracks, stadiums, convention
centers, auditoriums, amphitheaters, planetariums, swimming pools, and amusement
parks.” (Guidelines, § 15323.)
2
stormwater runoff flows over the fairground where cattle and horses defecate and into an
already polluted creek. (Guidelines, § 15300.2, subd. (c).)4
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Fairground and the Salsipuedes Creek
The District administers the Fairground which, since 1941, has been the venue for
various events, including equestrian and livestock events and the annual county fair. The
Fairground is zoned as a public and community facility. It is bordered on three sides by
land zoned for agricultural use. On the eastern side it is bordered by land zoned for
residential use. The Fairground has three livestock barns and a livestock arena in the
southeastern area. In the north/northeastern area, it has a horse barn, cattle and horse
stalls, and three horse arenas. The Fairground is located in the Corralitos/Salsipuedes
watershed. The Corralitos Creek is a tributary to Salsipuedes Creek. The Salsipuedes
Creek flows adjacent to and through a portion of the north/northeast area of the
Fairground where the horse and cattle stalls, horse barn and horse arenas are located.
The First Rodeo Proposal
In the fall of 2009, the Santa Cruz County Deputy Sheriff’s Association, acting
through its nonprofit corporation Stars of Justice, proposed a three-day “ProRodeo” for
October 2010 to raise funds to support programs for children. The application proposed
improvements to the Fairground facilities and contemplated future rodeos. Some citizens
opposed the ProRodeo on various grounds, including CEQA and cruelty to animals. The
District’s board of directors initially approved the ProRodeo in June 2010, concluding the
4 Guidelines section 15300.2, subdivision (c) provides, “A categorical exemption shall
not be used for an activity where there is a reasonable possibility that the activity will
have a significant effect on the environment due to unusual circumstances.” (Italics
added.)
3
project was exempt from CEQA review under Class 23, normal operations of
facilities for public gatherings, but the contract was later revoked in July 2010 due
to disagreements between the Fair manager and the Stars of Justice.
Creek Contamination and Fairground Monitoring
In 2009, unrelated to the first proposed rodeo, the California Regional Water
Quality Control Board for the Central Coast Region (Regional Water Board) determined
the water quality of both the Corralitos and Salsipuedes Creeks was impaired by human
and animal fecal coliform discharged into the creeks from storm drains, homeless
persons’ encampments, pet waste, sanitary sewer systems (septic tanks), and farm
animals and livestock operations -- including Fairground activities. When visiting the
Fairground, Regional Water Board “staff did not see management practices in place that
would keep runoff from the manure area from entering surface waters.” However, no
event was happening at the time, and staff saw only one horse at the Fairground.
To restore the water quality, the Regional Water Board established and allocated
responsibilities for achieving a total maximum daily load for fecal coliform in the creeks
and imposed prohibitions on the discharge of animal and human fecal material, approved
by the State Water Resources Control Board (the State Board) and the United States
Environmental Protection Agency (EPA). The Regional Water Board required owners
and/or operators to use specific management practices to control discharges containing
fecal matter and to monitor and report their progress. The resolution adopted by the
Regional Water Board did not specify the Fairground but instead allocated responsibility
to “Owners of Land Used for/Containing Farm Animals/Livestock.”
In December 2010, the Fairground began a voluntary stream water monitoring
program to identify contaminants in Salsipuedes Creek flowing from upstream, through
the Fairground property, and leaving the property flowing downstream. “Grab samples”
showed that the amount of E. coli in the water leaving the Fairground and flowing
downstream was substantially less than the amount of E. coli entering the Fairground
4
from upstream. Routine testing of drinking water from a Fairground well in the
equestrian area showed no contamination by coliform or E. coli.
Ongoing Manure Management Practices at the Fairground
The Fairground had taken steps to manage manure produced during its equestrian
and livestock events. Beginning in the 1960’s, the Fairground removed manure and
livestock bedding immediately after each event and collected it in a wooden bunker on a
cement aggregate slab partially covered by a barn roof and, during the dry season, on a
flat section of equestrian area. A contracted company hauled it to a composting facility.
Since the early 1990’s, the manure has been hauled away on a daily basis during
equestrian and livestock events. These practices were not formalized in a written
document until July 19, 2010, after appellants objected to the earlier, grander-scale
rodeo proposed by Stars of Justice that ultimately did not take place. The written
formalization of these past practices -- the Manure Management Plan or MMP -- calls
for bunkers to be cleaned at the end of the event or when close to capacity.5 The MMP
also indicates, in addition to the storage and hauling provisions, that earth berms separate
the drainage way in the equestrian area from the surroundings to prevent contamination
from washing into the drainage way. Contamination is further minimized by harrowing
or tilling the soil to promote filtration of rain water and by planting vegetation on areas
with a slope of 15 percent or more, to prevent erosion and promote filtration of surface
contaminants. The formal MMP was written approximately six months before Stars of
Justice proposed the rodeo project that is the subject of this appeal.
5 The District cites other documents indicating daily pickup, including a letter from a
person associated with the Fairground and an informational handout for facility users
with a memorandum suggesting that it be attached to the MMP.
5
The Rodeo Project and the Notice of Exemption
In January 2011, Stars of Justice proposed a scaled-down version of the rodeo
for two days, October 1 and 2, 2011. Appellants opposed the project on environmental
and other grounds, and the District’s board scheduled a public hearing for April 2011.
At that hearing, the board, out of an “abundance of precaution” and fear of lawsuits,
considered whether to have an environmental review for the rodeo project conducted
by environmental consultant Strelow Consulting, which was working on an unrelated
project for the District. The board ultimately voted to have the consultant consider
applicability of the Class 23 categorical exemption to the rodeo. The consultant’s
analysis supported the exemption.
In May 2011, the board adopted the Class 23 NOE and approved the rental
agreement for the rodeo. As described in the NOE, the event was to take place over
the course of two days and was expected to attract about 1,500 spectators, involve a
maximum of 500 horses but only 100 on the grounds at any given time, and involve
a maximum of 250 cattle/stock with only 50 on the grounds at any given time.
The NOE said the project was categorically exempt under Guidelines
section 15323 -- the Class 23 exemption for “normal operations of existing facilities for
public gatherings for which the facilities were designed, where there is a past history of
the facility being used for the same or similar kind of purpose,” meaning similar activity
has been occurring for at least three years and there is a reasonable expectation that the
project would not represent a change in operation of the facility. The NOE said the
Fairground is an existing facility designed for public gatherings, primarily the annual
county fair, but other public events are held throughout the year, including equestrian and
livestock events. The county fair was established in 1885, and the District bought the
current 105-acre fairground property with state funds in 1941. The first annual fair
opened the same year and included a horse show. The Fairground includes three
equestrian/livestock arenas and barns, most of which were constructed in 1941 with
6
subsequent improvements. In 1971, a five-year plan for improvements of the horse show
area was instituted, with construction of more stalls and cattle holding pens. The existing
equestrian facilities have been in existence for at least 50 years, and equestrian and
livestock events have always been accommodated at the Fairground. On average, the
facility has sponsored two to four equestrian or livestock shows per month for the past
25 to 30 years. In the 1970’s, the Fairground hosted at least eight annual rodeos. More
recently, in each of the last three years, about two dozen equestrian and/or livestock
events have been held annually at the Fairground, in addition to the annual county fair.
These events include horse shows and performances and livestock events, with
attendance of 100 to 500 spectators for smaller events, 1,000 to 1,200 spectators for
larger events, and 1,500 to 3,500 spectators for equestrian and livestock events held
during the annual county fair. The smaller equestrian events have 50 to 400 horses.
The annual cutting horse show at the Fairground has about 500 horses, 800 cattle, and
1,000 people -- similar to the proposed rodeo project.
The NOE noted the inapplicability of any of the regulatory exceptions to a
categorical exemption. “The event will utilize existing arenas, horse barns and
other facilities; no construction or physical alterations of the grounds are proposed.
The proposed event would not result in impacts on a resource of critical concern
(section 15300.2(a)).6 A narrow segment of Salsipuedes Creek flows through the
Fairground and the arena area and is mostly an earthen-channel devoid of vegetation
within the arena location; a short segment flows through an underground pipeline
culvert. Horse and livestock manure is strictly managed in accordance with the
District’s ‘Manure Management Plan.’ Manure is collected, contained in enclosed
bunkers and hauled offsite, and animal washdown areas flow to the existing sanitary
6 This subdivision actually addresses only specified classes not including Class 23.
7
sewer. These required operations and management of the animals will prevent non-point
source pollution into the creek and indirect impacts to the aquatic species that may be
present. There are no known significant cumulative impacts to which the project would
contribute, i.e. successive projects of the same type in the vicinity (section 15300.2(b)).
As there is no planned construction or alteration of the Fairgrounds facilities or grounds,
and with implementation of animal and manure management, no significant impacts are
anticipated (section 15300(c)). Similarly, the project site is not adjacent to a designated
scenic highway, and the project would not damage scenic resources (section 15300.2(d)).
The site is not a hazardous waste site (section 15300.2(e)). No historical resources would
be affected by the project (section 15300.2(f)).”
The Petition for Writ of Mandate and the Trial Court’s Rulings
On June 29, 2011, appellants filed in the trial court their petition for writ of
mandate and complaint for injunctive and declaratory relief. On September 27, 2011, the
trial court heard argument, took the matter under submission, and subsequently declined
to prevent the rodeo from going forward the following week.
The rodeo took place, as planned, in October 2011.
On January 24, 2012, the trial court issued its statement of decision. The trial
court ruled that the evidence supported the factual findings that the rodeo project --
which was similar to the horse and livestock events -- was a normal activity of the
Fairground, the Fairground is a facility for public gatherings designed for such activity,
the Fairground has a past history of use for such activity, and the rodeo would not change
the operation of the Fairground. The trial court said the MMP did not represent a new
activity or operation requiring CEQA evaluation. “Rather, the [MMP] incorporated
unwritten and ongoing practices evolved by Fairground staff since the 1960s to deal with
a normal aspect of all the horse and livestock events historically held at the Fairground to
avoid surface water contamination, control parasite and fly breeding, and protect public
health. . . . Whether the practices described in the [MMP] are viewed as an integral
8
component of those horse and livestock events or as an ongoing activity of the
Fairground necessitated by the horse and livestock events, the plan practices constituted
a standard part of normal Fairground operations.” The court added that the MMP did
not constitute a newly proposed mitigation measure precluding the Class 23 exemption.
The MMP has been part and parcel of normal Fairground operations for decades. The
court said that mention of the MMP in the portion of the NOE explaining the reasons
for exempting the rodeo project, rather than in the portion describing the project, did not
impermissibly split the project into separate pieces to evade review.
The trial court ruled inapplicable the exception to exemption involving situations
where there is a reasonable possibility that the activity will have a “significant effect” on
the environment due to “unusual circumstances.” (Guidelines, § 15300.2, subd. (c); see
fn. 4, ante.) The trial court found no “unusual circumstances” under a substantial
evidence standard. The trial court rejected appellants’ arguments that proximity to
Salsipuedes Creek, proximity to residential and agricultural land, or a public safety
risk of bull riding constituted unusual circumstances. The trial court continued that,
even if there were unusual circumstances, appellants had failed to show a “significant
effect” on the environment under the “fair argument” standard favorable to appellants.
The trial court also ruled inapplicable the exception to exemption involving
situations where “the cumulative impact of successive projects of the same type in the
same place, over time is significant.” (Guidelines, § 15300.2, subd. (b).) The court
reasoned that appellants’ reliance on vague plans of the Deputy Sheriff’s Association to
hold five future rodeos at unspecified times and unspecified locations was speculative.
The trial court also rejected appellants’ invocation of the exception to exemption
for projects on sites included in a list of hazardous waste sites (the Cortese list).
(Guidelines, § 15300.2, subd. (e), citing Gov. Code, § 65962.5.) The Fairground had
been on the list because of a 1991 leak of an underground gasoline tank. The trial
court noted the Fairground’s inclusion on that list was “annulled” in 1993 when the
9
Health Services Agency determined from soil samples that no further assessment was
needed.
On February 3, 2012, the trial court entered judgment in favor of the District and
Stars of Justice.
DISCUSSION
I. CEQA Overview and Standard of Review
“CEQA is a comprehensive scheme designed to provide long-term protection
to the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997)
16 Cal.4th 105, 112.) It is to be interpreted “ ‘to afford the fullest possible protection to
the environment within the reasonable scope of the statutory language.’ ” (Ibid.) The
Legislature has directed the secretary of the Resources Agency to promulgate a list of
classes of projects that have no significant effect on the environment. (Id. at p. 124.)
A project falling within such a categorical exemption is not subject to CEQA. (Ibid.)
“Categorical exemptions may be provided only for ‘classes of projects which have
been determined not to have a significant effect on the environment.’ ” (Azusa Land
Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165,
1192 (Azusa), quoting section 21084, subd. (a).)
“The Guidelines establish a three-step process to assist a public agency in
determining which document to prepare for a project subject to CEQA. (Guidelines,
§ 15002, subd. (k).) In the first step, the lead public agency preliminarily examines the
project to determine whether the project is statutorily exempt from CEQA, falls within a
Guidelines categorical exemption or if ‘ “it can be seen with certainty” that [the] project
will not have a significant effect on the environment. [Citations.]’ [Citation.] If so, no
further agency evaluation under CEQA is required. The agency may prepare a notice of
exemption. (Guidelines, §§ 15002, subd. (k)(1), 15062 . . . .) If, however, the project
does not fall within an exemption and it cannot be seen with certainty that the project will
not have a significant effect on the environment, the agency takes the second step and
10
conducts an initial study to determine whether the project may have a significant effect on
the environment. [Citations.] If the initial study shows there is no substantial evidence
the project may have a significant effect on the environment or revisions to the project
would avoid such an effect, the lead agency prepares a negative declaration. [Citations.]
If the initial study shows ‘there is substantial evidence . . . that the project may have a
significant effect on the environment,’ the lead agency must take the third step and
prepare an environmental impact report (EIR).” (California Farm Bureau Federation v.
California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 184 (Cal. Farm
Bureau).)
“Judicial review of an agency’s compliance with CEQA where no administrative
hearing at the agency level was required is governed by section 21168.5, which limits
judicial inquiry to whether there was a prejudicial abuse of discretion. (§ 21168.5 . . . .)
[Fn. omitted.] ‘Abuse of discretion is established if the agency has not proceeded in a
manner required by law or if the determination or decision is not supported by substantial
evidence.’ (§ 21168.5.) We apply this same standard on appeal, reviewing the agency’s
action, not the trial court’s decision. [Citation.]” (Cal. Farm Bureau, supra,
143 Cal.App.4th at p. 185.)
In assessing whether an agency correctly determined a project fell within a
categorical exemption, “we must first determine as a matter of law the scope of the
exemption and then determine if substantial evidence supports the agency’s factual
finding that the project fell within the exemption. [Citations.] The lead agency has the
burden to demonstrate such substantial evidence. [Citations.] [¶] . . . [¶] Once the
agency meets this burden to establish the project is within the categorically exempt class,
‘the burden shifts to the party challenging the exemption to show that the project is not
exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.’
[Citation.]” (Cal. Farm Bureau, supra, 143 Cal.App.4th at pp. 185-186.)
11
II. The Manure Management Program
Appellants argue the MMP constitutes a mitigation measure for the rodeo project,
precluding the Class 23 categorical exemption. We disagree.
“ ‘An agency should decide whether a project is eligible for a categorical
exemption as part of its preliminary review of the project without reference to or reliance
upon any proposed mitigation measures.’ ” (Salmon Protection & Watershed Network v.
County of Marin (2004) 125 Cal.App.4th 1098, 1106 (SPAWN), italics added; see also
Azusa, supra, 52 Cal.App.4th at p. 1199.)
Under the Guidelines, “mitigation” includes: “(a) Avoiding the impact altogether
by not taking a certain action or parts of an action. [¶] (b) Minimizing impacts by
limiting the degree or magnitude of the action and its implementation. [¶] (c) Rectifying
the impact by repairing, rehabilitating, or restoring the impacted environment. [¶]
(d) Reducing or eliminating the impact over time by preservation and maintenance
operations during the life of the action. [¶] (e) Compensating for the impact by
replacing or providing substitute resources or environments.” (Guidelines, § 15370.)
Appellants argue the MMP falls squarely within this definition because it reduces
or eliminates the impact over time by preservation and maintenance operations during
the life of the action. Appellants note the NOE relies on the MMP to “prevent” nonpoint-
source pollution into the creek and indirect impacts to aquatic species and finds no
significant impacts with implementation of the MMP.
However, the MMP is not a new measure proposed for or necessitated by the
rodeo project. Rather, it is a preexisting measure previously implemented to address a
preexisting concern, which was formalized in writing before the rodeo project was
proposed. Thus, the MMP is actually part of the ongoing “normal operations” of the
Fairground. Use of this measure does not disqualify the rodeo project from Class 23
exemption.
12
Appellants rely on SPAWN to make their point, but their reliance is misplaced. In
SPAWN, a county determined that the proposed construction of a home was categorically
exempt from CEQA under an exemption for single family homes (see fn. 23, post), even
though the home was adjacent to a protected anadromous fish stream and within a stream
conservation area which the county conceded was of “critical concern.” (SPAWN, supra,
125 Cal.App.4th at p. 1106.) In arriving at the conclusion that there was no reasonable
possibility of significant environmental impacts that would preclude the exemption, the
county relied on proposed mitigation measures attached to the grant of the categorical
exemption. The landowner’s engineering consultant acknowledged runoff from new
rooftops and driveways could erode stream banks but proposed dozens of drainage
features for erosion and sediment control. (Id. at pp. 1106-1107.)
The SPAWN court affirmed the trial court’s order to set aside the county’s
approval of the project, stating, “Reliance upon mitigation measures (whether included
in the application or later adopted) involves an evaluative process of assessing those
mitigation measures and weighing them against potential environmental impacts, and
that process must be conducted under established CEQA standards and procedures for
EIRs [environmental impact reports] or negative declarations.” (SPAWN, supra,
125 Cal.App.4th at p. 1108.) The court further stated, “there are sound reasons for
precluding reliance upon mitigation measures at the preliminary stage of determining
eligibility for a categorical exemption. Regulatory guidelines dealing with the
environmental review process under CEQA ‘contain elaborate standards--as well as
significant procedural requirements--for determining whether proposed mitigation will
adequately protect the environment and hence make an EIR unnecessary; in sharp
contrast, the Guidelines governing preliminary review do not contain any requirements
that expressly deal with the evaluation of mitigation measures.’ [Citation.] An agency
should not be permitted to evade standards governing the preparation of a mitigated
negative declaration ‘by evaluating proposed mitigation measures in connection with the
13
significant effect exception to a categorical exemption.’ [Citation.]” (Id. at p. 1108,
italics added.)
Here, unlike SPAWN, the NOE did not refer to or rely upon any “proposed”
mitigation measures. Rather, as we have noted, the MMP predated this rodeo project
and formalized practices that had been implemented for decades. Nothing in the NOE
suggests the MMP was created for this project. Quite the contrary, the NOE reads:
“Horse and livestock manure is strictly managed in accordance with the District’s
‘Manure Management Plan.’ Manure is collected, contained in enclosed bunkers and
hauled offsite, and animal washdown areas flow to the existing sanitary sewer. These
required operations and management of the animals will prevent non-point source
pollution into the creek and indirect impacts to aquatic species that may be present.”
Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329 (Wollmer) is illustrative.
In Wollmer, an individual challenged the city’s approval of a mixed-use building the
City found exempt under the exemption for in-fill development. (Wollmer, supra,
193 Cal.App.4th at pp. 1336-1337; see fn. 18, post.) The City had preexisting traffic
issues at the intersection where the proposed building was to be constructed. Wollmer
contended that the City evaded CEQA by “cutting a deal” with the developers whereby
the developers would dedicate land for a left-turn lane on a street at the intersection
where the developers planned to construct the building, thereby reducing traffic impacts
to less than significant, a necessary condition for the categorical exemption. (Id. at
p. 1352.) The Wollmer court rejected the argument, agreeing with the trial court that the
city did not mitigate the project into qualifying for a categorical exemption. Rather, the
city properly exercised discretion to find the project would not cause a significant traffic
impact. (Ibid.) The dedication of the right-of-way, enabling the city to improve the
intersection, “was not a CEQA mitigation measure for project impacts, but a component
of the project that assisted the City with an existing traffic issue.” (Ibid.) The appellate
court said it was true “that by the time of the final traffic study, the Developers had made
14
the dedication offer and that reality was included in the traffic analysis. Our response is,
so what? The point is, the offer of dedication did become part of the project design,
improving an existing traffic concern. This is no secret. . . . [¶] Wollmer offers no
authority for the proposition that a positive effort between developers and a municipality
to improve the project for the benefit of the community and address existing traffic
concerns somehow becomes an evasion of CEQA.” (Id. at p. 1353.) The Wollmer court
reasoned, “Unlike the situation in [SPAWN], the traffic situation improved by the
Developers’ dedication preexisted the proposed project. The dedication became part of
the project design--it was never a proposed mitigation measure.” (Ibid., first italics
added.)
Similarly, here the problem of manure management at the Fairground and the
Fairground’s MMP preexisted the rodeo project. The MMP was not proposed as a
mitigation measure for the rodeo. It was part of the “normal operations” of the
Fairground, and we see no reason why the implementation of a public gathering
facility’s preexisting program that is part of the facility’s normal operations and
designed to address ongoing issues should preclude Class 23 exemption.
Appellants claim Wollmer is distinguishable because it dealt with an existing
concern independent of the project, whereas here the concern stemmed from the rodeo
project itself. We disagree. Given the nature and number of the other equestrian and
livestock events, manure management was an ongoing concern at the Fairground. Here,
even more so than Wollmer, the MMP was never a proposed mitigation measure for this
rodeo project. Indeed, unlike Wollmer, evidence in the record supports a finding that the
so-called mitigation measure here was in place for decades. While the aborted first rodeo
project may have provided an impetus for the District to formalize the MMP by putting it
in writing, it was not the initial rodeo plan or this rodeo project that created a need for the
MMP or the procedures reflected in the plan that had long since been implemented.
15
In their reply brief, appellants make a factual argument, contending for the
first time that the MMP was not an ongoing policy for decades. Appellants point to
documents from a May 24, 2011 District meeting showing complaints from a horse
show operator, Bud Thoman, who complained of problems his horse show encountered
with “changes recently made to the facility and operations of the arena including . . .
the change in manure removal strategy” which assertedly created a hazard during horse
show operations. He said, “The proposed handling of manure I was advised that manure
was to be, be taken from in front of each stall on the day, uh, as opposed to using a local
pile method that we had in the past.” Appellants also refer to the minutes of that same
meeting showing comments by Horse Show Committee member Blanca Boyd that “the
manure trailers that Mr. Thoman objected to previously as interfering with the flow of
traffic during his horse shows are indeed part of the manure management practices on the
Fairgrounds and are here to stay. She further noted that due to these practices, as of this
last year, there is currently no manure stored on the Fairgrounds whatsoever and [it] is
hauled away by trailer on an as needed basis. . . .” Ms. Boyd said no one liked manure
management interfering with the events, but it was “part of the . . . future picture. We no
longer tolerate manure all over the ground. It’s picked up after every single horse show,
it is put up, it is put into the trailers, the trailers are hauled away [and] a new trailer is
brought in its place. This is an ongoing thing. So this manure on the ground, uh, going
into the creek, maybe it did, many years ago, it didn’t do it this year.”
These new points do not change our analysis.7 At most, they suggest contrary
evidence indicating the change to daily hauling of manure, as opposed to hauling after the
7 Appellants’ opening brief did not contain this factual argument. Appellants simply
argued, “just because the trial court found that manure management measures have
ostensibly been available and used at other events at the Fairgrounds for many years
does not detract from the Manure Plan’s qualification as a mitigation measure . . . .”
While we may disregard factual points raised for the first time in the reply brief
16
events, may have been a recent change that applies to all events, which of course means
the change applies to and is part of the ongoing preexisting operations of the Fairground.
Thus, even assuming daily hauling was a recent change as of Mr. Thoman’s May 2011
comment, the change was already in place when the District issued the NOE in May 2011
for this October 2011 rodeo. The critical point is that the MMP preexisted the NOE for
this rodeo project and was directed toward a preexisting concern. It was not proposed for
or created by this rodeo project.
We conclude the MMP was not a mitigation measure precluding the categorical
exemption. We next consider the categorical exemption and the applicability of the
unusual circumstances exception that would disqualify the rodeo project from exemption.
III. Class 23 Categorical Exemption
Appellants contend the unusual circumstance exception, which applies when there
are “significant effects on the environment” “due to unusual circumstances” (Guidelines,
§ 15300.2, subd. (c); see fn. 4, ante), precludes application of the Class 23 exemption for
normal operations of public gathering facilities to the rodeo project.
A. Normal Operations
Before determining the applicability of the unusual circumstances exception to the
exemption, we must determine the scope of the exemption and whether the rodeo project
qualifies. (Cal. Farm Bureau, supra, 143 Cal.App.4th at p. 185.) As will be seen, this
determination informs our review of whether the proposed project presents unusual
circumstances. We read the Class 23 categorical exemption for “normal operations” of
public gathering facilities as consisting of three elements. The exemption applies to
projects that: (1) are normal operations of existing facilities for public gatherings for
which the facilities were designed, (2) where there is a past history of the facility being
(Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8), we
exercise our discretion to address these new points on the merits.
17
used for the same or similar purpose within at least the past three years, and (3) there is a
reasonable expectation that the future occurrence of the activity would not represent a
change in the operation of the facility. (Guidelines, § 15323, fn. 3, ante.)
The “normal operations” of the Fairground are the public events and activities it
puts on and the internal operations it employs to facilitate the production of those events.
The rodeo project is indistinguishable from other livestock and equestrian events held at
the Fairground for many, many years. It involves the presence of no more cattle and/or
horses in Fairground facilities than have been present for prior events. These facilities
are designed to house those animals, and no changes to the facility or facility operations
are necessary for the rodeo project. We conclude that the Class 23 categorical exemption
applies to the proposed rodeo project.
B. The Unusual Circumstances Exception8
1. Unusual Circumstances
In Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th
1096, 1107 (Voices), this court said two questions are at issue in reviewing an agency’s
determination that a project did not trigger the exception for unusual circumstances that
have a significant effect on the environment. “ ‘First, we inquire whether the [p]roject
presents unusual circumstances.9 Second, we inquire whether there is a reasonable
8 This exception “is sometimes called either the “significant effects” exception or
the “unusual circumstances” exception.” (San Lorenzo Valley Community Advocates
for Responsible Education v. San Lorenzo Valley Unified School District (2006)
139 Cal.App.4th 1356, 1381 (San Lorenzo).) We will refer to the exception as the
“unusual circumstances exception.”
9 At oral argument, appellant asserted that the mere fact there is a reasonable possibility
of an environmental effect is an unusual circumstance and implied that nothing more
need be shown. We reject that argument as inconsistent with current published authority
and the language of Guidelines section 15300.2, subdivision (c), which states that the
environmental impact must be “due to” an unusual circumstance. (See fn. 4, ante.)
Appellants do not challenge the validity of the guideline in this appeal.
18
possibility of a significant effect on the environment due to the unusual circumstances.
[Citation.]’ ”10 (Voices, supra, 209 Cal.App.4th at pp. 1107-1108, citing Banker’s Hill,
Hillcrest, Park West Community Preservation Group v. City of San Diego (2006)
139 Cal.App.4th 249, 278 (Banker’s Hill).) “ ‘A negative answer to either question
means the exception does not apply.’ ” (Bankers Hill, supra, 139 Cal.App.4th at p. 278.)
“The first question, whether the project for which a categorical exemption is being
claimed involves unusual circumstances, is an issue of law we review de novo.
[Citation.]” (Voices, supra, 209 Cal.App.4th at p. 1108.)
As this court observed in Voices, the Guidelines do not define the term “unusual
circumstances.” (Voices, supra, 209 Cal.App.4th at p. 1109.) Courts view circumstances
as unusual within the meaning of the exemption when “the circumstances of the project []
differ from the general circumstances of the projects covered by a particular categorical
exemption.” (Azusa, supra, 52 Cal.App.4th at p. 1207, italics added; accord, Voices,
supra, 209 Cal.App.4th at p. 1109 [“ ‘whether a circumstance is “unusual” is judged
relative to the typical circumstances related to an otherwise typically exempt project’ ”];
San Lorenzo, supra, 139 Cal.App.4th at p. 1381 [an unusual circumstance refers to some
feature of the project that distinguishes it from others in the exempt class].) Thus, as we
will discuss in more detail, when determining whether the circumstances of the project
differ from the general circumstances of the projects covered by the Class 23 categorical
exemption for the normal operations of a public gathering facility, it is appropriate to
look to the facility’s other projects, i.e., events or operations that comprise the normal
operations of that facility and compare those circumstances against those presented by the
proposed project.
10 As we discuss post, it is unnecessary for us to reach the issue of whether there is a
reasonable possibility of a significant effect on the environment because we conclude
there are no unusual circumstances.
19
Appellants contend that we must not compare the rodeo project to other
Fairground events in determining whether it presents unusual circumstances, but rather
we must compare the rodeo project to activities held at other facilities that would be
exempt under the Class 23 exemption. According to appellants, we must compare the
circumstances presented by a proposed project to all public gathering facilities in general,
including “racetracks, stadiums, convention centers, auditoriums, amphitheaters,
planetariums, swimming pools, and amusement parks” (see Guidelines, § 15323, fn. 3,
ante) and apparently all other public gathering facilities not expressly listed in the
Class 23 exemption. Appellants also, apparently as an alternative argument, narrow the
comparison, contending that we must compare the Fairground facility to other “normal”
fairground facilities. Focusing on a comparison to the universe of public gathering
facilities or the universe of “normal” fairgrounds, appellants then look to circumstances
related to the Fairground facility that are different from other public gathering facilities
and/or other fairgrounds. They contend the impaired status of the Salsipuedes Creek is a
circumstance that is different from “normal facilities” for which a Class 23 exemption is
provided and is thus an unusual circumstance within the meaning of the unusual
circumstance exception.
We reject appellants’ argument for two reasons specific to the Class 23 exemption
for the normal operations of public gathering facilities. First, looking to public gathering
facilities generally covered by the exemption may not produce an apples-to-apples
comparison from which courts could determine whether a circumstance is usual or
unusual. Racetracks, stadiums, convention centers, auditoriums, amphitheaters,
planetariums, swimming pools, and amusement parks are so different in general that a
comparison of circumstances could be suspect. For example, it would be extremely
unusual to have horses or cattle and manure anywhere near a public swimming pool;
thus, any comparison of the operations of public swimming pools to fairground facilities
for usual and unusual circumstances could be unfair. Second, even if courts were
20
required to look to the universe of all Class 23 exempt public gathering facilities or the
smaller universe of all fairgrounds11 for comparison of the usual circumstances related to
their normal operations, appellants have offered no proof of the circumstances related to
other public gathering facilities or “normal” fairgrounds against which the comparison of
the unusual and usual should be made. And appellants have the burden of establishing
the exception. (Wollmer, supra, 193 Cal.App.4th at p. 1350; Committee to Save the
Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186
(Hollywoodland); Cal. Farm Bureau, supra, 143 Cal.App.4th at p. 186.)
Appellants rely primarily on Azusa for the proposition that we must compare the
Fairground to all other public gathering facilities in general and that proximity to a water
source could be an unusual circumstance. Azusa did not involve a Class 23 exemption
for “normal operations” of public gathering facilities. That case involved a Class 1
exemption for the “operation . . . or minor alteration of existing . . . facilities”
(Guidelines, § 15301),12 referred to as the “existing facilities” exception (Azusa, supra,
11 Appellants do not describe a “normal” fairground, and they have not established that
there is such a thing. In our geographically diverse state, fairgrounds are located in cities,
suburbs, and rural areas. They vary in size, nature and scope of events, the number of
spectators and visitors, the number and type of livestock on site and the time of the year
when livestock events are held, which may or may not be in a rainy season. They also
differ in proximity to water sources -- some are likely nearer to water sources than others.
Moreover, there are likely differences in drainage systems and stormwater runoff which
may involve runoff into storm drains, groundwater, and/or nearby bodies of water.
Assuming such a comparison was appropriate in determining whether the rodeo event at
the Fairground and the potential stormwater runoff were public gathering facility
operations that presented an unusual circumstance relative to other fairgrounds, we need
not attempt to make this comparison here because, as we discuss post, appellants have
provided no evidence for us to compare.
12 “Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing,
or minor alteration of existing public or private structures, facilities, mechanical
equipment, or topographical features, involving negligible or no expansion of use
beyond that existing at the time of the lead agency's determination. The types of
21
52 Cal.App.4th at p. 1193). In Azusa, unlike here, the “facility” and the project were
essentially one and the same.
The project in Azusa was the reopening of an 80-acre unlined municipal solid
waste landfill located in an empty sand and gravel pit which was situated on top of the
Main San Gabriel Groundwater Basin, an underground reservoir that supplied the water
needs of approximately one million people. (Azusa, supra, 52 Cal.App.4th at pp. 1175-
1176, 1178.) Previously, the State Board had rescinded the landfill’s permit allowing the
disposal of municipal solid waste, and the landfill closed. (Id. at pp. 1175-1176.) The
plan for the reopened landfill was that 3.2 million tons of municipal solid waste would be
deposited over a seven-year period. (Id. at p. 1176.) The State Board refused to stand in
the way. The Regional Water Board declared the project exempt under the Class 1
existing facilities exemption (id. at pp. 1176, 1192-1193), notwithstanding that the Basin
was polluted, it was on the EPA’s superfund list, and the contamination problem had
been previously characterized by the Legislature as “urgent” (id. at p. 1178). On appeal,
the court concluded that the language of the Class 1 categorical exemption for the
operation and minor alteration of existing facilities should not be construed to include a
large, municipal waste landfill. The court reasoned: the landfill was not a “facility”
within the meaning of the guideline for existing facilities13 (Azusa, supra, 52 Cal.App.4th
‘existing facilities’ itemized below are not intended to be all-inclusive of the types of
projects which might fall within Class 1. The key consideration is whether the project
involves negligible or no expansion of an existing use.” (Guidelines, § 15301, italics
added.) A nonexclusive list of examples in the guideline includes: Plumbing and
electrical conveyances, public and private utilities, highways, streets, sidewalks, gutters,
bicycle and pedestrian trails, water supply reservoirs, fish screens fish ladders, wildlife
habitat areas, artificial wildlife waterway devices, artificial wildlife waterway devices,
stream channels to protect fish and wildlife resources, multiple and single-family
residences. (Guidelines, § 15301.)
13 The court noted that the concept of “facility” is vague. The court then cited a
dictionary definition, noted that a landfill is excavated and observed that a landfill does
22
at pp. 1193-1194); the layering of 3.2 million tons of solid waste over time was not a
“minor alteration” within the meaning of the exemption14 (id. at p. 1194); there had
been a legislative determination that some of the state’s existing landfills posed a threat
to groundwater, air quality and public health (id. at p. 1195); and the rationale for the
existing facility exemption (that the environmental effects of the facility operation had
already been considered) does not apply to landfills that, like the one at issue, had not
been reclassified pursuant to legislative directive (id. at pp. 1195-1996). Thus, the
Azusa court essentially held that large, municipal waste landfills cannot be exempt under
Class 1.
The Azusa court then went on to criticize the regional water board’s implied
finding that the unusual circumstances exception15 did not preclude the categorical
exemption. (Azusa, supra, 52 Cal.App.4th at pp. 1197-1209.) In looking at the first
question in determining the applicability of the exception -- the existence of an unusual
circumstance -- the court noted numerous circumstances that were unusual in comparison
with “existing facilities in general” (id. at p. 1207), including the circumstance that large
scale landfilling with municipal waste was not entitled to any exemption; waste
disposal landfills differ from other types of existing facilities in that the Legislature
had determined that such landfills posed a threat to the environment, and required that
they be reevaluated and reclassified; the landfill did not have the safeguards needed to
not necessarily fit the dictionary definition of “facility,” and further noted that landfills
are not included in the list of examples set forth in Guidelines section 15301. (Azusa,
supra, 52 Cal.App.4th at pp. 1193-1194.)
14 The court reasoned that, “neither ‘existing facilities’ nor the ‘operation’ of such
facilities should be construed to include landfills where the proposed dumping will
exceed the ‘minor alteration’ that the Guidelines permit.” (Azusa, supra, 52 Cal.App.4th
at p. 1194.)
15The court referred to the exception by its synonym, the “significant effect” exception.
(Azusa, supra, 52 Cal.App.4th at p. 1197.)
23
protect the environment from the types of pollutants that landfills are likely to produce;
and there has been an increasing awareness of the environmental hazards posed by
landfills, and the hazards posed by this landfill in particular (id. at pp. 1207-1208). In
addition to these unusual circumstances, the court noted that the landfill differed from
“existing waste disposal landfills in general” in that it overlay a major drinking water
aquifer in highly permeable sands and gravel that provide a direct pathway for landfill
pollutants to move to ground water. (Id. at p. 1208.) Thus, given the nature of the
facility and the claimed exemption, the focus of comparison was between the Azusa
landfill facility to other existing Class 1 facilities “in general” and other landfill facilities,
not specific activities of the facility that could be considered individual projects for
CEQA purposes.16 Indeed, the project and facility in Azusa were indistinguishable
because landfills engage in only one activity -- the deposit of municipal waste. Here, the
Fairground facility involves operations other than those involving horses and cattle and
the exemption relates to the normal operations of the facility. Consequently, we focus
not on the facility itself, but on the specific operations of the facility involving horses and
cattle.
Appellants also rely on Hollywoodland for support of their contention that we
must look to other facilities in general covered by the exemption when determining
whether the proposed project has unusual circumstances. In Hollywoodland, the
petitioners sought to compel the City of Los Angeles to rescind approval of a wooden
fence a homeowner had constructed atop one of the historic granite walls in the
Hollywoodland community. (Hollywoodland, supra, 161 Cal.App.4th at p. 1172.)
16 Guidelines section 15378, subdivision (a) broadly defines a “project” to mean “the
whole of an action, which has a potential for resulting in either a direct physical change
in the environment, or a reasonably foreseeable indirect physical change in the
environment . . . .”
24
On appeal, the court rejected the city’s position that the fence was categorically exempt
under Class 5 because it represented a “ ‘minor alteration in land use limitations.’ ”17
(Id. at p. 1180.) The court further held that even if the fence were exempt, the unusual
circumstances exception precluded the exemption because there was a strong possibility
of an adverse impact upon a historical monument. (Id. at p. 1185.) In making the
latter determination, the court reasoned that the city failed to consider whether the
circumstances of the fence differed from the general circumstances of projects covered by
the exemption. The fence was different from the typical “ ‘minor land use alteration’ ”
contemplated by the exemption because the alteration was to a historical resource. The
stone walls were old and unique, and any change to them could significantly alter their
physical composition. (Id. at p. 1187.) Thus, the court impliedly determined the
circumstances were unusual compared to other minor land use alterations.
The Class 23 exemption for the normal operations of public gathering facilities
is different from the Class 5 exemption for minor land use alterations. Because the
gravamen of the Class 5 exemption is an alteration to a land use, the focus of comparison
is appropriately on other minor land use alterations in general. The Class 23 exemption,
on the other hand, involves the various activities that are “normal operations” of a public
gathering facility, and the focus of comparison should, therefore, be on those activities
that make up the facility’s normal operations. Hollywoodland does not support
appellants’ position.
Appellants also find support for their argument in Wollmer. We do not. In
Wollmer, the city determined that the proposed mixed-use building project was exempt
17 The Class 5 exemption consists in pertinent part of “minor alterations in land use
limitations in areas with an average slope of less than 20%, which do not result in any
changes in land use or density, including but not limited to: [¶] (a) Minor lot line
adjustments, side yard, and set back variances not resulting in the creation of any new
parcel . . . .” (Guidelines, § 15305.)
25
under the Class 32 exemption for in-fill development.18 The appellant argued that the
location of the project at the intersection of two major thoroughfares, and his view of the
city’s traffic modeling, qualified as unusual circumstances. (Wollmer, supra,
193 Cal.App.4th at pp. 1351-1352.) Appellants here focus on the Wollmer court’s
holding regarding the location argument, quoting the court’s statement that “locating an
in-fill project at the intersection of two major city streets that also happen to serve as state
highway routes is well within the range of characteristics one would except for class 32
projects and precisely what the law encourages.” (Id. at p. 1351.) We fail to see how this
advances appellants’ position here. The quote relates solely to the Wollmer court’s
observation that the location was not an unusual circumstance because the location fit the
criteria of the in-fill exemption. (Ibid.)
Appellants rely on Myers v. Board of Supervisors (1976) 58 Cal.App.3d 413
(Myers) for the proposition that a nearby water source is an unusual circumstance. Like
Azusa, Myers did not involve the Class 23 exemption for normal operations. Myers
involved a county’s interpretation of a CEQA Class 4 exemption for “minor alterations in
the condition of land.”19 (Myers, supra, at p. 423, italics added.) Appellants sought a
18 “Class 32 consists of projects characterized as in-fill development meeting the
conditions described in this section. [¶] (a) The project is consistent with the applicable
general plan designation and all applicable general plan policies as well as with
applicable zoning designation and regulations. [¶] (b) The proposed development occurs
within city limits on a project site of no more than five acres substantially surrounded by
urban uses. [¶] (c) The project site has no value, as habitat for endangered, rare or
threatened species. [¶] (d) Approval of the project would not result in any significant
effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be
adequately served by all required utilities and public services.” (Guidelines, § 15332.)
19 “Class 4 consists of minor public or private alterations in the condition of land, water,
and/or vegetation which do not involve removal of healthy, mature, scenic trees except
for forestry and agricultural purposes.” (Guidelines, § 15304, italics added.) Various
examples are listed in the exemption, including: Grading on a slope of less than
10 percent, with certain specified exceptions (Guidelines, § 15304, subd. (a)); New or
26
writ of mandate ordering a county board of supervisors to rescind a resolution granting a
request for minor land division to subdivide property into three new parcels for use as
home sites. (Id. at pp. 417-419.) The board had interpreted the Class 4 exemption as
including a “minor land division.” (Id. at pp. 418, 422.) The appellate court held the
county had misconstrued the Class 4 exemption, and a land division was not a “minor
alteration in the condition of land,” but rather it was an alteration in the “use” of land.
(Id. at pp. 423-425.) The Myers court then went on to determine whether the land
division was exempt under Guidelines former section 15060, which at the time provided
in pertinent part, “Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
covered by the requirements set forth in CEQA, and these Guidelines concerning the
evaluation of projects and the preparation and review of environmental documents do not
apply.”20 (Myers, supra, at p. 425, some italics added; see id. at pp. 425-427.) It was in
the context of determining whether it was certain there was no possibility of a significant
environmental effect that the court noted the appellant’s claim that there was a danger of
replacement gardening or landscaping (Guidelines, § 15304, subd. (b)); Filling of earth
into previously excavated land with material compatible to natural features of the site;
(Guidelines, § 15304, subd. (c)); Minor alterations in land, water, and vegetation on
designated wildlife management areas or fish production facilities which result in
improvement of the habitat or greater fish production (Guidelines, § 15304, subd. (d));
Minor temporary use of land having negligible or no permanent effects on the
environment, including carnivals, sales of Christmas trees, etc. (Guidelines, § 15304,
subd. (e)); Minor trenching and backfilling where the surface is restored (Guidelines,
§ 15304, subd. (f)); Maintenance dredging where the spoil is deposited in an authorized
spoil area (Guidelines, § 15304, subd. (g)); The creation of bicycle lanes on existing
rights-of-way (Guidelines, § 15304, subd. (h)); and Certain fuel management activities to
reduce the volume of flammable vegetation (Guidelines, § 15304, subd. (i)).
20 This exemption can now be found in Guidelines section 15061, subdivision (b)(3),
which states, “Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.” (Italics added.)
27
sewage from the necessary septic lines seeping into a nearby stream and polluting it. (Id.
at pp. 426-427.) The court reasoned that even if this and other claims made by the
appellant were exaggerated or untrue, they were “sufficient to remove the subject project
from the class ‘Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment . . . .’ ” (Id. at
p. 427, italics added.) Myers did not involve application of the “unusual circumstances”
exception, so it has no application here.
Appellants also misplace reliance on Meridian Ocean Systems, Inc. v. State Lands
Com. (1990) 222 Cal.App.3d 153 (Meridian) for the proposition that proximity to a water
source is an unusual circumstance. In Meridian, three companies engaged in the business
of conducting seismic research in the Pacific Ocean sued the State Lands Commission
after the Commission ordered preparation of an EIR before acting on applications to
renew the companies’ permits. (Meridian, supra, 222 Cal.App.3d at pp. 162-163.)
Meridian is obviously distinguishable. There, the water source was not merely in close
proximity; rather, the project activities took place in the water source. Moreover, the
Meridian court did not actually hold that the water source was the unusual circumstance.
The court determined that the unusual circumstance was the fact that new scientific
evidence showing a possible significant effect on the environment was not available
when a previous exemption was granted. (Id. at p. 164.) Meridian does not support
appellants’ contention.
Without analysis, appellants cite McQueen v. Board of Directors (1988)
202 Cal.App.3d 1136 (disapproved on other grounds in Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2 (Western States)), for the
proposition that “[w]here the location of a project is endowed with contamination that
relates to the project, then unusual circumstances exist as to both the project and the
facility.” Appellants overstate the holding of that case. In McQueen, the project
involved the purchase of two parcels by a regional open space district from the federal
28
government. The parcels formerly had been an Air Force station and a ground air
transmitter site that adjoined the district’s open space preserve. (McQueen, supra,
202 Cal.App.3d at pp. 1140.) The property was polluted. (Id. at pp. 1140-1141.) The
McQueen court first held that the district’s description of the project was misleading
because it described the project as “acquisition of named surplus federal property for
public open space” (id. at p. 1144), when the project not only involved acquisition but
also maintenance of hazardous waste known to be on the property (id. at pp. 1143-1147).
After concluding that the project was not exempt under the exemptions asserted by the
district (including the Class 25 exemption for transfers of ownership of interests in land
in order to preserve open space), the McQueen court held that the exemptions were
precluded for the additional reason that the unusual circumstance exemption applied. (Id.
at pp. 1148-1149.) The court reasoned, “the known existence of PCB [polychlorinated
biphenyls] and other hazardous wastes on property to be acquired is an unusual
circumstance” threatening the environment. (Id. at p. 1149, italics added.)
McQueen is distinguishable from the instant case. McQueen did not involve a
proposed project related to the operations at an ongoing facility, let alone the normal
operations of a public gathering facility. The project in McQueen was the purchase of
polluted property and the necessary maintenance of the hazardous waste on the property
after the purchase. In the context of the exemption for transfer of land to preserve open
space, the fact that the land to be transferred was contaminated and required ongoing
measures to deal with the hazardous waste on site was unusual compared to other land
transfers for open space. McQueen does not advance appellants’ position here, where the
focus is on the operations of the facility.
Appellants suggest the court in SPAWN also found an “unusual circumstance” in
a project’s proximity to a creek. Not so. SPAWN did not involve application of the
unusual circumstances exception at all. As we discussed ante, the court in SPAWN held
that the project was not exempt because the County relied upon proposed mitigation
29
measures to grant a categorical exemption. (SPAWN, supra, 125 Cal.App.4th at
pp. 1106-1108.)
There are only two published cases involving the Class 23 exemption for
the normal operation of public gathering facilities, both from this court. Appellants
rely upon one, Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d
823 (Lewis), and ignore the other, Campbell v. Third Dist. Agricultural Assn. (1987)
195 Cal.App.3d 115 (Campbell), which distinguished Lewis.
On first blush, Lewis seems supportive of the notion that proximity of a
neighborhood to the public facility activity could be an unusual circumstance. But a
closer look at Lewis reveals that it was actually the activity in question, made possible
by a change in the facility, which presented the unusual circumstance. The public
gathering facility in Lewis was a modified racetrack at a county fairground situated less
than a mile from a residential neighborhood. For some 15 years, a flat dirt racetrack
had been used for auto races until a banked track was constructed in 1973. (Lewis,
supra, 165 Cal.App.3d at p. 826.) The new track allowed for higher powered “modified
stock” car races. (Ibid.) Residents complained about the noise and dust generated from
the modified stock car races, and in 1980, the district association undertook a study. In
the meantime, a resident sought mandamus and injunctive relief, complaining that the
modified stock car races had been conducted without environmental review and seeking
cancellation of the contract between the agricultural district association and the promoter
of the races. (Id. at pp. 826-827.) Thereafter, the district association filed a notice of
exemption, relying on the Class 23 exemption for normal operations of public gathering
facilities. (Id. at pp. 827-828.) This court held that the district association abused its
discretion by finding modified stock car racing events categorically exempt under
Class 23 because there was a reasonable possibility of a significant effect on the
environment due to unusual circumstances. (Guidelines, § 15300.2.)
30
It does not appear that the unusual circumstances prong of the exception was
a matter of active dispute in Lewis as there was substantive analysis only on the
significant effect prong. The key unusual circumstance that differentiated the project
from other auto racing events that had been held prior to the modification of the track
was that the modified stock car racing was noisier and created more dust. (Lewis, supra,
165 Cal.App.3d at p. 829.) However, while this court stated it was limiting its analysis
to the application of the normal operations exemption to the “ ‘unusual circumstances’
in [the] case, those concerning neighboring residences,” it also said “there is no question
of the existence of unusual circumstances--the adjacency of residential areas to the
racetrack.” (Lewis, supra, at p. 829, italics added; see id. at pp. 828-829.) Yet, the
adjacency of the residences existed before the track was banked, and it was actually
the characteristics of the modified stock car races -- more noise and dust -- that were
the unusual circumstances concerning the nearby residences that made the modified
stock car race project different from events that had taken place at the fairground prior
to the modification of the track.21 Thus, although the court called the adjacency of the
residences an unusual circumstance, without the added noise and dust, the project
presented no circumstances that were different from the preexisting normal operations
of the fairground, including previous auto races.
Here, the issue is not noise and dust permeating nearby neighborhoods, but rather
the horse and cattle manure and the potential impact on the nearby creek.22 Appellants
21 In discussing the significant effect prong of the exception, the Lewis court noted,
“The evidence clearly shows a major change in the scope and degree of racing at the
fairgrounds occurred after 1970, specifically in 1973, when the construction of a banked
racetrack permitted auto racing at higher speeds and with greater noise and dust.”
(Lewis, supra, 165 Cal.App.3d at p. 829, italics added.)
22Appellants here expressly state in their reply brief that they “have not advanced
any claims on appeal that inconsistency with existing residential uses creates unusual
31
show no change in the facility, nor a change in the use of the facility relative to the
temporary housing of cattle and horses, nor any other change in operations, let alone
changes that could constitute unusual circumstances. Thus, Lewis, where there was a
significant change in the operation which resulted in unusual circumstances compared
to previous operations, is of no help to appellants.
This court considered Lewis in Campbell, the only other published case involving
the Class 23 exemption. Campbell also involved auto racing at a county fairground
adjacent to a residential area. The racetrack in Campbell was constructed before the
enactment of CEQA, but unlike the racetrack in Lewis, it was not modified or operated
differently than it had been since its construction in 1962. This court distinguished Lewis
on the ground that there was no change in the normal operations. Thus, there was no
adverse change in the environment, and the continued operation of the racetrack in 1986
was categorically exempt from CEQA. (Campbell, supra, 195 Cal.App.3d at pp. 118-
119.) Likewise, here, the rodeo event does not represent a change in the operation of the
Fairground.
Here, the rodeo project had no unusual circumstances to distinguish it from others
in the exempt class, e.g., other “normal operations” of the Fairground. Normal operations
of the Fairground included about two dozen equestrian and/or livestock events each year
for at least the last three years before the rodeo. The proposed rodeo did not involve
more horses or livestock than were used for the other events and no changes to the
facility or the operations were necessary.
In determining the existence of unusual circumstances, it is also appropriate to
look to whether additional environmental risks are presented by the proposed project. In
Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720 (Ukiah),
circumstances for the Rodeo Project. [Fn. omitted.] [Appellants] have maintained that
unusual circumstances in this matter result from the proximity of the Project to the
degraded creek.”
32
the appellate court did just that in rejecting a neighborhood association’s challenge to
a city’s determination that a project for a single-family residence was categorically
exempt under the Class 3 exemption for the construction of single-family dwellings.23
A member of the association, who lived next door to the lot where the home was to be
constructed, stated that for many years, he had observed a substantial amount of water
drain off of the lot and onto his property. (Ukiah, supra, 2 Cal.App.4th at pp. 735-736.)
The appellate court held that this circumstance was not unusual, reasoning that the runoff
“is not evidence of an adverse impact from the construction of the [subject] house. There
was no evidence that construction of the house would have any additional effect on runoff
from the lot. [Citation.] . . . Surface and groundwater runoff are common and typical
concerns with sloping lots and in this context on the evidence presented cannot be
considered unusual circumstances.” (Id. at pp. 735-736, second italics added.) The
appellate court added that neither the size of the house, nor its height, nor its hillside site
was “so unusual in the vicinity as to constitute the type of unusual circumstance required
to support application of the exception.” (Id. at p. 736.) Likewise, the rodeo project here
was the same or similar kind of activity of the same or similar size with the same or
similar environmental risk as other Fairground activities.
We may also look to whether the project is consistent with the surrounding zoning
and land uses to determine whether a circumstance is unusual. In City of Pasadena v.
State of California (1993) 14 Cal.App.4th 810 (City of Pasadena) (disapproved on other
grounds in Western States, supra, 9 Cal.4th at p. 570, fn. 2), a city tried to void a lease
between the state and a private landowner for the state to operate a parole office in a
23 “Class 3 consists of construction and location of limited numbers of new, small
facilities or structures” including “[o]ne single-family residence, or a second dwelling
unit in a residential zone. In urbanized areas, up to three single-family residences may
be constructed or converted under this exemption.” (Guidelines, § 15303, subd. (a).)
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building located in the city. (City of Pasadena, supra, at p. 814.) The state invoked
a categorical exemption for “ ‘the leasing of existing office space which has been
determined not to have a significant effect upon the environment.’ ” (Id. at p. 820.)
The city argued the exemption was rendered inapplicable by the exception for unusual
circumstances, because the building was located next door to the library, a historic
building of cultural significance, and residential development was in progress nearby.
(Id. at p. 826.) The appellate court held the lease of the building for use as a parole office
“does not constitute an ‘unusual circumstance’ within the meaning of CEQA in light of
the presence of . . . other custodial and criminal justice facilities in the immediate area.”
(Id. at pp. 826-827.)
In Bloom v. McGurk (1994) 26 Cal.App.4th 1307 (Bloom), an individual sought a
writ of mandate to set aside permits issued for the continued operation of a medical waste
treatment facility. The agency had determined that the facility was exempt under the
Class 1 exemption for existing facilities. (Bloom, supra, 26 Cal.App.4th at pp. 1309,
1312.) In rejecting the appellant’s claim that the proximity of residences presented an
unusual circumstance, the Bloom court noted that the area was zoned for heavy industry.
The court further noted that the facility’s operations were comparable to those of
surrounding businesses, and citing City of Pasadena, held that the presence of
comparable facilities in the immediate area adequately supported an implied finding
that there were no “ ‘unusual circumstances’ ” precluding a categorical exemption. (Id.
at pp. 1315-1316.)
Here, the rodeo was consistent with the surrounding zoning, which was
commercial agricultural, permitting the commercial raising of animals, including
grazing and livestock production, and residential agricultural, permitting animal-
keeping and farming. Compared to the activities in the surrounding area, the rodeo
presented no unusual circumstances.
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We may also look to the scope and size of the project as a potential unusual
circumstance. Voices is an example. There, this court held that the unusual
circumstances exception applied to an irrigation district’s agreement to provide water to
a tribal casino and hotel project. (Voices, supra, 209 Cal.App.4th at pp. 1108-1114.)
The project involved relocating the existing three-inch water meter and installing a short
section of pipeline linking the meter to an existing water main, both of which would
occur on tribal land. (Id. at p. 1103.) The district determined the project was exempt
under the Class 3 categorical exemption for new construction or conversion of small
structures.24 (Id. at p. 1104.) This court concluded, “the MOU [memorandum of
understanding] project presents circumstances that are unusual for this categorical
exemption. The proposed project’s scope, providing 216 additional EDU’s [equivalent
dwelling units] of water to a casino and hotel project so large it brings with it its own
freeway interchange instead of providing one or four EDU’s of water as contemplated
by the class 3 categorical exemption is an unusual circumstance under that exemption.
The sheer amount of water to be conveyed under the MOU obviously is a fact that
distinguishes the project from the types of projects contemplated by the class 3
categorical exemption.” (Id. at p. 1109.)
Here, perhaps appellants evade comparison of the rodeo project to other
Fairground events because they have no answer for the fact that the similarity is
clear. Unlike in Voices, where the nature and scope of the project were unusual, the
24 In addition to small facilities and structures such as single-family residences (see
fn. 23, ante), the Class 3 exemption also applies to construction of motels, restaurants or
similar structures not exceeding 2,500 square feet in floor area (Guidelines, § 15303,
subd. (c)) and the “[w]ater main, sewage, electrical, gas, and other utility extensions,
including street improvements, of reasonable length to serve such construction”
(Guidelines, § 15303, subd. (d)). In Voices, the trial court determined there was
sufficient evidence to establish the project was subject to the Class 3 categorical
exemption. (Voices, supra, 209 Cal.App.4th at p. 1104.)
35
project at issue here is no different in nature and scope from previous Fairground events.
And appellants have not challenged the other livestock and equestrian events held at the
Fairground now or in the past. Indeed, they insist they are not challenging the other
events at the Fairground. Yet, were we to employ appellants’ analysis, other equestrian
and livestock events that historically have been within the normal operations of the
Fairground would not be exempt.
We conclude there were no “unusual circumstances” taking this rodeo project out
of the categorical exemption for “normal operations” of the Fairground.
2. Proof of Unusual Circumstances
Assuming we are required to compare the Fairground to other fairgrounds and
further assuming the creek could be considered an unusual circumstance compared to
other fairgrounds, appellants’ asserted comparison to other facilities is not supported by
evidence in the record. Appellants argue that, “[a]lthough most fairgrounds include
livestock and animal events, the normal fairground does not have documented discharges
of stormwater [sic] from corral areas directly to a creek” (italics added), but appellants
cite no evidence to support this factual contention. Without supporting evidence,
we must regard their assertion as speculative. Indeed, we could just as easily speculate
that there are other county fairgrounds that have similar issues related to stormwater
runoff into nearby water sources or runoff into storm drains that flow into water sources,
so the circumstances at the Fairground here are not necessarily unusual. As we have
noted, once an agency meets its burden of establishing that a project is categorically
exempt, the burden shifts to the party challenging the exemption to show the project
falls within an exception (Hollywoodland, supra, 161 Cal.App.4th at p. 1186; Cal.
Farm Bureau, supra, 143 Cal.App.4th at pp. 185-186), including establishing the
existence of “unusual circumstances” (Wollmer, supra, 193 Cal.App.4th at pp. 1350-
1351). Appellants cannot satisfy this burden by speculation. They must provide
evidence.
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3. Significant Effect on Environment
Since there were no unusual circumstances in this case, there can be no significant
environmental effect “ ‘due to the unusual circumstances.’ ” (Voices, supra,
209 Cal.App.4th at p. 1107.) The unusual circumstances exception to a categorical
exemption does not apply unless the potential impacts of a project will constitute changes
or alterations in the baseline environmental conditions as they exist at the time the project
is approved and such changes or alterations are due to unusual circumstances. (Bloom,
supra, 26 Cal.App.4th at p. 1315.) Because a negative answer as to the question of
whether there are unusual circumstances means the exception does not apply (Bankers
Hill, supra, 139 Cal.App.4th at p. 278), we need not address appellants’ arguments about
significant environmental effects.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1)-(2).)
MURRAY , J.
We concur:
MAURO , Acting P. J.
DUARTE , J.
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