Local Government’s Decision To Prepare An EIR Does Not Preclude It From Later Invoking A CEQA Exemption

In Del Cerro Mobile Estates v. City of Placentia, (— Cal.Rptr.3d —-, Cal.App. 4 Dist., June 7, 2011), a court of appeal considered the issue of whether a city was precluded from invoking an exemption provided for in the California Environmental Quality Act (“CEQA”) because the city had already prepared an environmental impact report (“EIR”) for the project. The court of appeal held the city did not waive its right to invoke the CEQA exemption when it prepared the EIR.


The City of Placentia (“City”) prepared an EIR for the Orange County Gateway Project (“Project”), which is a railroad grade separation project designed to eliminate vehicle-rail conflicts. According to the EIR, “the purpose of the project was to increase public safety, improve traffic, increase the efficiency of the local transportation system, reduce train noise and whistles, reduce emergency vehicle response times, and reduce air pollution from idling vehicles at rail crossings.” The same day the City Council approved and certified the EIR, it adopted a resolution that rejected some project alternatives and selected “Alternative D, which consisted of constructing six railway overcrossings and one undercrossing.”

Del Cerro Mobile Estates (“Del Cerro”) claimed that its mobile home park will be impacted by the Project. Del Cerro brought a lawsuit against City alleging that City’s approval of the Project violated CEQA. The Orange County Transportation Authority (“OCTA”) intervened in the lawsuit. The OCTA alleged that because the Project was a grade separation project, it was expressly exempt from CEQA requirements. This exemption was claimed for the first time approximately eight years after City first filed its notice of preparation of an EIR. The trial court found the grade separation exemption applied to the Project and granted judgment in favor of City and OCTA.


Del Cerro asserts that when City prepared and certified the EIR for the Project as if CEQA applied, it waived any right to later invoke an exemption under CEQA. The court of appeal rejected this argument and affirmed the decision of the trial court.

Public Resources Code section 21080.13 provides that CEQA “shall not apply to any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation.” Del Cerro claims City knew of section 21080.13 because it had invoked it in other projects and that City’s failure to invoke the exemption here was not inadvertent but motivated by a desire to make sure that environmental mitigation occurred if necessary. City claims it “conducted the EIR because it believed alternatives under consideration by the city council would not qualify for CEQA.” Del Cerro claims City did not make this argument until after OCTA joined in the lawsuit and asserts the Project was exempt from CEQA. Del Cerro asserts City should be estopped “from changing its original position that CEQA applied.”

The court found that “City’s change in position did not preclude it from invoking the exemption.” The doctrine of equitable estoppel provides that a party cannot later deny facts that it intentionally led another to believe. The CEQA exemption claimed here “is a statute, not a fact.” The preparation of the EIR by City did not waive the exemption under CEQA. “The grade separation exemption is embodied in a statute and nothing suggests estoppel should apply because the City somehow prevented Del Cerro from becoming aware of the exemption.” The court also explained that “estoppel cannot be applied against a governmental entity if it would nullify a policy adopted for the benefit of the public.”

The court rejected Del Cerro’s argument that City’s decision to prepare an EIR precludes it from later invoking a CEQA exemption. By preparing the EIR, City did not waive the exemption. When it adopted section 21080.13, the Legislature determined no environmental review was necessary for any railroad grade separation project.

Del Cerro asserts that when City failed to make a formal determination during the review process that the exemption applied, it impliedly concluded that the exemption did not apply. Del Cerro insists that “City is responsible for an asserted lack of facts to determine whether the [P]roject fits within the grade separation exemption.” The court rejected this argument finding that no factfinding hearing is required before it can be determined that the Project fell within the CEQA exemption. Furthermore, there were no facts in dispute and the question of the scope of the exemption was a question of law.

Del Cerro also asserts the exemption does not apply as a matter of law because it refers to the terms “grade separation” and “grade crossing” in the singular and the Project involves more than one crossing. The court rejected this argument finding the legislation specifically provides that a “singular number includes the plural, and the plural the singular.” The court also rejected Del Cerro’s argument that the court must construe the statutory exemption narrowly. The court found that when a project falls within a statutory exemption, it “is not subject to CEQA even if it has the potential to significantly affect the environment.”

Finally, the court found Del Cerro’s non-CEQA causes of action against City were not yet ripe for adjudication. These causes of action are based on Del Cerro’s anticipation that either OCTA or City will depart from the mitigation measures adopted by City in its resolutions. In making these arguments, Del Cerro asserted City’s resolutions, which include mitigation measures for Project, are binding on OCTA. Del Cerro’s claims are based on events that might or might not occur in the future. No actual controversy has yet to occur and therefore the court may not review Del Cerro’s claims.


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