Project That Violated City’s Conditions When Built Does Not Violate California Environmental Quality Act If Conditions Are Later Changed

In Eureka Citizens for Responsible Government v. City of Eureka, (07 Cal. Daily Op. Serv. 1221, Cal.App. 1 Dist., Jan. 8, 2007), a California Court of Appeal considered a challenge to a city’s approval of an Environmental Impact Report (“EIR”) on a school’s playground that had originally been built in violation of the conditions set by the city for the operation of the school, but was later made legal after the city amended its conditions.

The court found that in spite of the earlier illegality, the development of the playground did not significantly affect the existing environment after the city chose to allow it and therefore the city’s approval of the EIR was proper.


In 1980, the City of Eureka (“City”) approved a conditional use permit (“CUP”) for the Redwood Christian Church (“Church”) to operate a school on its property. A condition of approval was that all school related activities be conducted “within the buildings or at neighborhood playgrounds.”

In 2002, volunteers at the school, unaware of that condition, built an outdoor playground on the site. Neighbors complained to the City, which in turn notified the Church that its playground was illegal. The Church applied for modifications to the 1980 CUP to allow for the new playground.

The City planning commission approved the changes and neighbors appealed to the City Council (“Council”). The Council ordered an EIR to be prepared. In 2005, the Council approved both the EIR and the project with a zoning variance, along with certain other mitigating conditions, to allow the playground to continue operating.

Opponents filed a lawsuit seeking to set aside the EIR and the approvals based on its certification claiming that the City had acted contrarily to its own land use regulations in approving the amended CUP. The court ruled in favor of the City and the opponents appealed.


The court first dismissed the opponents’ use of the California Environmental Quality Act (“CEQA”) to seek relief from a prior illegal action of a project applicant because “environmental impacts should be examined in light of the environment as it exists when a project is approved.” The court said because the playground existed at the time the Council considered the environmental impact of amending its CUP to allow it to continue, the prior illegal act may have been relevant to the City’s consideration of the variance, however, it was not a CEQA issue.

The court further noted the opponents offered no evidence that allowing the playground to exist affected the noise levels, historical significance, aesthetic values, or safety of the surrounding area. The EIR was therefore sufficient for its required purpose and the opponents failed to meet their burden to prove otherwise.

Finally, the court ruled that the opponents failed to show City abused its discretion in approving the variance that allowed the playground to remain. Absent the repealed 1980 restriction, the court said, the playground would have been a permitted use for the school. Noting the City’s finding that playgrounds and similar facilities were “prolific” in residentially zoned areas of the City, the court found such a use was “normal, reasonable, and appropriate,” and did not grant any special privilege to the applicant. As substantial evidence supported the City’s decision, no abuse of discretion occurred.

The trial court’s ruling was affirmed.

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