On June 27, 2024, the California First District Court of Appeal affirmed the denial of a writ petition challenging the City of Lafayette’s (City) determination that a 12-unit residential condominium building qualified for the Class 32 infill development exemption under the California Environmental Quality Act (CEQA). (See Nassiri v. City of Lafayette, et al. (2024) ___ Cal.App.5th ___.) Specifically, the court determined the project was exempt from CEQA because no evidence confirmed the project site had value as habitat for rare or threatened species.

CEQA categorical exemptions are applicable to “classes” of projects as defined in the CEQA Guidelines (Cal. Code Regs. tit. 14, §§15300-15333) that have been determined not to have a significant effect on the environment and, as such, are exempt from the provisions of CEQA requiring the preparation of environmental documents. CEQA’s Class 32 exemption applies to an “urban infill” development project so long as the project: (a) is consistent with applicable general plans and zoning designations, (b) is located within city limits on a site five acres or less and bordered by urban uses, (c) has “no value as habitat for endangered, rare or threatened species,” and (d) does not significantly impact traffic, noise, air quality, or water quality. (Id. at § 15332)

In Nassiri, a project developer sought entitlements to demolish an existing vacant building on a mostly developed parcel in the City and build a new 4-story, 12-unit residential condominium. After a lengthy public review and hearing process, the City approved project entitlements, and deemed the project exempt from CEQA as a Class 32 infill development. The neighboring office building owner (Nassiri) and her technical consultants challenged the project’s exemption status, asserting that (in part) no substantial evidence supported the City’s finding that the project site lacked habitat value for endangered, rare or threatened species, as required under CEQA Guidelines § 15332(c).

Specifically, appellants claimed that a creek and adjacent trees running along the project site’s southern property line serve as habitat to oak titmouse and Nuttall’s woodpecker species of birds, and that both species are “rare” under CEQA since, although not listed on either the federal Endangered Species Act (ESA) or the California Endangered Species Act (CESA), the species were classified as “Bird Species of Conservation Concern” by the United States Fish and Wildlife Service. This “special concern” designation means that without further conservation efforts, the species are likely to become candidates for listing under the ESA. (See 16 U.S.C. § 2912(a)(3).)

Under the CEQA Guidelines, a species is defined as “rare” when: (1) although not presently threatened with extinction, the species exists in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens, or (2) the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered “threatened” as defined by the ESA. (Cal. Code Regs. tit. 14, § 15380(b)(2).) A species is presumed to be endangered, rare, or threatened if it is listed under either the ESA or CESA (Id. § 15380(c)), though a species not formally listed under the ESA or CESA may nevertheless be deemed “rare” should it meet the above criteria.

The court disagreed with appellants, finding that a “special concern” designation is not equivalent to being deemed “rare” under CEQA’s Class 32 exemption. In rejecting appellant’s claims, the court stated that there was nothing in the administrative record supporting a claim that the two bird species were likely to be candidates for listing under the ESA/CESA, nor rare or unique to the region, nor existing in such small numbers throughout all or a significant portion of their ranges that they may become endangered. 

Rather, the City’s biological consultant’s technical reports concluded that the project site did not contain any habitat value for “rare” species. Therefore, in confirming the applicability of the Class 32 Exemption, the court held that the City properly relied upon evidence confirming that the two species were not “rare.” The court further noted that the appellant’s scientific expert never asserted that either bird species was “rare” under CEQA at all.

One important takeaway from this case is how the court clarified the definition of “rare” as applied to a CEQA exemption. A federal agency’s mere designation of a species as a “species of conservation concern” is not equivalent to being deemed “rare.” So long as a lead agency has evidence that a species is not listed under the CESA or ESA and is not (1) rare or unique in the area or (2) imminently at risk of endangerment, a project may be exempted from CEQA as a qualifying urban infill development, assuming it satisfies the other requirements for a Class 32 exemption. Additionally, Nassiri confirms the importance that project proponent experts address every relevant factual issue and base th