Lewis v. Seventeenth District Agricultural Ass'n

BLEASE, J.

I concur in the judgment of the court affirming the issuance of an extraordinary writ. I differ expressly with the majority opinion because it offers no reasons for its conclusion that the project comes within an exception to the categorical exemption.

The majority opinion holds that the auto racing project requires an EIR because it comes within CEQA and within an exception, for unusual cir *836 cumstances, to the categorical exemption (from the EIR process) for projects which are part of the normal operations of existing public facilities designed and historically used for such operations. With this much I agree. But the majority bottom their determination that the auto racing project is within the exception wholly upon an assumption. They say that “there is no question of the existence of unusual circumstances—the adjacency of residential areas to the racetrack.” But there is a question. What does the exception mean? How does it apply in this case? As to these questions, there is no answer. I will supply one.

Public Resources Code section 21084 authorizes the adoption of regulations which list classes of projects which have been determined not to have a significant effect on the environment. These are made exempt from the EIR guidelines. Section 21068 defines a “[significant effect on the environment” as “a substantial, or potentially substantial, adverse change in the environment.” (Italics added; cf. Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 204-207 [ 132 Cal.Rptr. 377 , 553 P.2d 537 ].) That makes the conditions of the environment which preceded the project the baseline against which to measure the adverse environmental change. (See County of Inyo v. City of Los Angeles (1981) 124 Cal.App.3d 1, 9-14 [ 177 Cal.Rptr. 479 ].) The exemption is thereby addressed to the categories of projects of which it can be said that they normally do not work an adverse change in the environmental conditions preceding the project.

Title 14 of the California Administrative Code implements this authority. Former section 15123 (now 15323) includes within the categorical exemptions “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 kind of purpose.” (Former § 15123; Cal. Admin. Register 78, No. 5.) This provision depends, for its regulatory life, upon the determination that the “classes of projects” subsumed within the exemption categorically do not “have a significant effect on the environment . . . .” (Pub. Resources Code, § 21084.) Since a “project” includes any activity for which a permit is required (see Pub. Resources Code, § 21065), former section 15123 exempts from CEQA the “normal operations” of an existing public facility used for public gatherings which require a permit. The measure of the exemption is whether the operation (as to which the permit is sought) is one “for which the facilities were designed, where there is a past history of the facility being used for the same kind of purpose.” Since this regulation seeks to implement CEQA it must be read to carry out its purposes. I turn to them.

The requirement that the facility must have been designed for the operation (“activity”) for which the permit is sought ties in with the role that *837 CEQA plays in the review of the facility itself. CEQA requires that in the evaluation of the environmental effects of a facility, the effects of the uses (“operations,” “activities”) to which the facility is to be put must be evaluated. Thus if a permit is sought for a facility designed, as here, to be used as an automobile racetrack, CEQA requires that the environmental effects of the noise, traffic and other effects of that intended usage be evaluated. The purpose of the categorical exemption in former section 15123 now becomes apparent. It is aimed at preventing a duplication in evaluations. If there is no change in the uses to which the facility is put and which were evaluated at the time the permit for the facility was obtained, there can be no adverse environmental change which requires an evaluation. Thus when former Administrative Code section 15123 exempts from CEQA the “normal operations” of the facility for which it was designed and historically used, it exempts uses which have already been evaluated in the review of the permit for the facility. The additional requirement of former section 15123 that there be a “past history of the facility being used for the same kind of purpose” appears addressed to a lapse in the uses for which the facility was designed. Thus, notwithstanding that the environmental effects of the use were evaluated in the evaluation of the facility, if the uses have significantly ceased and there is no such “history” the categorical exemption does not apply. If the environmental effects of high speed automobile racing were evaluated at the time the facility, designed for such use, was authorized, and those uses have continued, there is no sensible purpose in duplicating the environmental evaluation on each occasion that the facility is similarly used.

However, former section 15123 does not express the policy which justifies its existence. Standing alone, its language conflicts with CEQA. However, it does not stand alone. There is an exception broad enough to encompass the CEQA policy. Title 14, section 15300.2, subdivision (c) of the California Administrative Code says there can be no categorical exemption “for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” I take that to mean that the unusual circumstances must be of the kind that would produce an adverse change in the environment from that encompassed within the evaluation of the designed uses of the facility. That dovetails with the requirement that the exempted activity be a “normal operation” of the facility, i.e. one for which it was designed and historically so used. The “unusual” thus predicates a change in the effects of the “normal operations” as evaluated in an EIR which involve an adverse change in the environmental impact of the operations of the facility. It follows that the claim of categorical exemption must be supported by a showing that the project for which the exemption is sought was of the kind included within the EIR issued at the time the facility was evaluated for its designed uses. *838 Otherwise, the usual circumstances which justify the categorical exemption would not obtain.

That brings us to this case. The facility was designed in 1958 for automobile racing. It was modified in 1973 to permit the kind of high powered “modified stock” car racing which is the subject under review. The pertinent question to ask is not whether that racing is “unusual” given the present environment but whether the facility, as built or modified, was designed and historically used for such racing, was the subject of environmental review of that use at the time it was reconstructed and whether there has been an adverse change in the environmental circumstances following the construction of the facility. I note that CEQA was in effect in 1973 when the track was banked for high speed racing. That should have subjected the project to environmental review of the uses for which the racing permits are now sought. There is nothing in the record to show that this was done. It is the burden of the applicant for the exemption to show that the conditions for the exemption have been met. Since the uses of the facility were not evaluated at the time the facility was reconstructed for high speed racing in 1973, the categorical exemption for such subsequent uses cannot be applied.

Appellants’ petition for review by the Supreme Court was denied May 29, 1985.