1

Filed 4/30/14 San Franciso Beautiful v. City of San Francisco CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

SAN FRANCISCO BEAUTIFUL et al., 

 Plaintiffs and Appellants, 

v. 

CITY AND COUNTY OF SAN 

FRANCISCO et al., 

 Defendants and Respondents; 

AT&T CALIFORNIA, 

 Real Party in Interest. 

 A136546 

 (San Francisco County 

 Super. Ct. No. CPF11511535) 

 AT&T California (AT&T) proposes to install 726 metal utility boxes housing 

telecommunications equipment on San Francisco sidewalks in order to expand its fiberoptic network (the project). The City and County of San Francisco (the City) approved 

the project without requiring an environmental impact report (EIR) to be prepared 

pursuant to the California Environmental Quality Act (Pub. Resources Code,1

 § 21000 et 

seq.) (CEQA), based on its conclusion that the project fell within a categorical 

exemption. Plaintiffs2

 sought a petition for writ of mandate, which the trial court denied. 

We shall affirm the judgment. 

 1

 All undesignated statutory references are to the Public Resources Code. 

2

 Plaintiffs and appellants are San Francisco Beautiful, San Francisco Tomorrow, 

Dogpatch Neighborhood Association, Potrero Boosters Neighborhood Association, and 

Duboce Triangle Neighborhood Association. 
2

I. BACKGROUND 

 AT&T applied for a categorical exemption for its “Lightspeed” project, which is 

intended to upgrade broadband speed and capabilities based on internet protocol 

technology, using an expanded fiber-optic network. It would connect the fiber to 

electronic components located in 726 new utility cabinets on public sidewalks. The 

majority of the cabinets would be approximately 48 inches high, 51.7 inches wide, and 26 

inches deep. The new cabinets would be “paired” with—or placed within 300 feet of—

existing AT&T utility cabinets. AT&T has not yet determined precisely where the new 

utility cabinets will be located.3

 

 In 2007, AT&T sought a categorical exemption from CEQA review for an earlier 

version of the project, which would have included approximately 850 utility cabinets. 

The San Francisco Planning Department, in case number 2007.1350E, determined the 

project was exempt pursuant to section 15303(d) of the State CEQA Guidelines. (Cal. 

Code Regs., tit. 14, § 15000 et seq. (Guidelines).)4

 

 The president of a neighborhood association appealed the Planning Department’s 

decision to the City’s Board of Supervisors. The Board of Supervisors held a public 

hearing in 2008, at which counsel for the appellant and numerous members of the public 

expressed concern that the utility cabinets would be large and unsightly, would attract 

graffiti and public urination, would block pedestrian access to sidewalks and parked cars, 

and would create traffic hazards by reducing visibility. At the conclusion of the meeting, 

AT&T acknowledged that it needed to respond to public concerns, and withdrew its 

application. 

 3

 Public Utilities Code section 7901 provides that telephone corporations may 

construct telephone lines along any public road or highway, as well as “necessary fixtures 

of their lines, in such manner and at such points as not to incommode the public use of 

the road.” 

4

 “The CEQA Guidelines, promulgated by the state’s Resources Agency, are 

authorized by Public Resources Code section 21083. In interpreting CEQA, we accord 

the Guidelines great weight except where they are clearly unauthorized or erroneous.” 

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 

40 Cal.4th 412, 428, fn. 5.) 
3

 After revising its proposal, AT&T submitted a new application for a categorical 

exemption in 2010. AT&T had reduced the number of proposed cabinets from 850 to 

726, reduced the size of the proposed cabinets, increased the distance between the new 

cabinets and existing cabinets so as to provide more flexibility in cabinet location, 

eliminated the proposal to add new facilities within historic districts, promised to work 

with the City to screen the cabinets, promised to affix to each cabinet a 24-hour-a-day 

contact number for reporting graffiti directly to AT&T, and developed processes for 

members of the public to report graffiti through the City’s “311” system and for AT&T 

personnel to report and remove graffiti. In its application materials, AT&T committed to 

adhering to certain limitations when choosing locations for the cabinets. Among them, 

the cabinets would not block pedestrian access and would maintain four feet of clearance, 

would not intrude on pedestrian “clear zones” at street corners, would have minimum 

setbacks at corners, curbs, fire hydrants, and other above-ground structures, and would 

not obstruct views of traffic signs, wayfinding signs, or traffic signals. AT&T also 

committed to use a graffiti-resistant coating on the cabinets and to work with the City, 

property owners, and community groups to install screening and allow for trees and 

shrubs to be planted next to the cabinets. In case number 2010.0944E, the City’s 

Planning Department again determined the project was categorically exempt from 

environmental review. 

 San Francisco Beautiful and another organization, the Planning Association for the 

Richmond, appealed the Planning Department’s determination. Members of the public 

submitted comments arguing that the cabinets were too bulky, would be eyesores, would 

attract vandalism, urination, graffiti, and trash, and would block visibility for pedestrians 

and drivers. In a six-to-five vote, the Board of Supervisors affirmed the Planning 

Commission’s determination. During this process, AT&T provided a memorandum of 

understanding (MOU) to the City in which it “voluntarily” agreed, inter alia, to provide 

notice to neighbors and conduct community meetings for each cabinet site; maintain a 

public web site with information about the upgrade and contact information for public 

inquiries; place cabinets in alleys or non-sidewalk public rights-of-way where possible; 
4

consider options for screening cabinets; attempt to hire San Francisco residents for the 

project; and reimburse the City for the cost of graffiti removal. 

 Plaintiffs then brought this action in the trial court, seeking a writ of mandate 

ordering the City to set aside its approval and refrain from further approvals unless an 

EIR was prepared and feasible mitigation measures were adopted. The trial court denied 

the petition. 

II. DISCUSSION 

A. CEQA Overview 

 “CEQA embodies our state’s policy that ‘the long-term protection of the 

environment . . . shall be the guiding criterion in public decisions.’ ” (Architectural 

Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1100; § 21001, 

subd. (d).) To implement this policy, CEQA and the Guidelines issued by the State 

Resources Agency have established a three-tiered process. (Davidon Homes v. City of 

San Jose (1997) 54 Cal.App.4th 106, 112 (Davidon Homes).) In the first step, an agency 

conducts a preliminary review to determine whether CEQA applies to a proposed 

activity. (Ibid.) If the project is exempt from CEQA, either because it is not a “project” 

as defined in section 15378 of the Guidelines or because it falls within one of several 

exemptions to CEQA, “no further environmental review is necessary. The agency may 

prepare and file a notice of exemption, citing the relevant section of the Guidelines and 

including a brief ‘statement of reasons to support the finding.’ (Guidelines, §§ 15061, 

subd. (d), 15062, subd. (a)([4]).) If, however, the project does not fall within any 

exemption, the agency must proceed with the second tier and conduct an initial study. 

(Guidelines, § 15063.) If the initial study reveals that the project will not have a 

significant environmental effect, the agency must prepare a negative declaration, briefly 

describing the reasons supporting the determination. (Guidelines, §§ 15063, subd. (b)(2), 

15070.) Otherwise, the third step in the process is to prepare a full environmental impact 

report (EIR) on the proposed project. (Guidelines, §§ 15063, subd. (b)(1), 15080; Pub. 

Resources Code, §§ 21100, 21151.)” (Davidon Homes, supra, 54 Cal.App.4th at p. 113.) 
5

 In addition to establishing certain exemptions by statute (see, e.g., §§ 21080, 

21080.01 through 21080.07, 21080.8 through 21080.42), CEQA requires the Guidelines 

to “include a list of classes of projects that have been determined not to have a significant 

effect on the environment and that shall be exempt from this division. In adopting the 

guidelines, the Secretary of the Natural Resources Agency shall make a finding that the 

listed classes of projects referred to in this section do not have a significant effect on the 

environment.” (§ 21084, subd. (a).) In response to that mandate, the Guidelines include 

a number of classes of projects that the Secretary for Natural Resources found did not 

have a significant effect on the environment, and that were therefore declared to be 

categorically exempt from the preparation of environmental documents. (Guidelines, 

§ 15300 et seq.) “Class 3” of these categorical exemptions “consists of construction and 

location of limited numbers of new, small facilities or structures; installation of small 

new equipment and facilities in small structures; and the conversion of existing small 

structures from one use to another where only minor modifications are made in the 

exterior of the structure. The number of structures described in this section are the 

maximum allowable on any legal parcel.” (Guidelines, § 15303.) 

 The Guidelines also establish exceptions to the exemptions. (Guidelines, 

§ 15300.2.) “Even if a project falls within the description of one of the exempt classes, it 

may nonetheless have a significant effect on the environment based on factors such as 

location, cumulative impact, or unusual circumstances.” (Save Our Carmel River v. 

Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 689 (Save 

Our Carmel River).) Among the exceptions are the following: “(b) Cumulative impact. 

All exemptions for these classes are inapplicable when the cumulative impacts of 

successive projects of the same type in the same place, over time is significant. [¶] (c) 

Significant Effect. 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.” (Guidelines, § 15300.2.) 

 “In considering a petition for writ of mandate in a CEQA case, ‘[o]ur task on 

appeal is “the same as the trial court’s.” [Citation.] Thus, we conduct our review 
6

independent of the trial court’s findings.’ [Citation.] Accordingly, we examine the 

City’s decision, not the trial court’s.” (Banker’s Hill, Hillcrest, Park West Community 

Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 257 (Banker’s 

Hill).) 

B. Does the Project Fit into a Categorical Exemption? 

 The City concluded that the project fell within the terms of Class 3 of the 

categorical exemptions. Plaintiffs contend this conclusion was wrong as a matter of law. 

To the extent this contention “turns only on an interpretation of the language of the 

Guidelines or the scope of a particular CEQA exemption, this presents ‘a question of law 

subject to de novo review by this court.’ ” (Save Our Carmel River, supra, 141 

Cal.App.4th at p. 693.) However, “[w]here the record contains evidence bearing on the 

question whether the project qualifies for the exemption, such as reports or other 

information submitted in connection with the project, and the agency makes factual 

determinations as to whether the project fits within an exemption category, we determine 

whether the record contains substantial evidence to support the agency’s decision.” (Id. 

at p. 694.) 

 As relevant here, Class 3 establishes exemptions for “[1] construction and location 

of limited numbers of new, small facilities or structures” and “[2] installation of small 

new equipment and facilities in small structures.” (Guidelines, § 15303.) Among the 

examples of this exemption are “[w]ater main, sewage, electrical, gas, and other utility 

extensions, including street improvements, of reasonable length to serve such 

construction.” (Guidelines, § 15303, subd. (d).) This exemption has been interpreted to 

apply “when the project consists of a small construction project and the utility and 

electrical work necessary to service that project.” (Voices for Rural Living v. El Dorado 

Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1109.) 

 Plaintiffs contend the project does not fall into clause [1] because 726 new 

structures are not a “limited number[],” and it does not fall within clause [2] because the 

project does not involve simply “installation” of equipment in previously constructed

small structures, but also “construction and location” of the structures in which that 
7

equipment will be located. The problem with plaintiffs’ argument about clause [2] of the 

exemption is that the terms of that provision do not limit “installation of small new 

equipment and facilities” to installation in existing small structures. If such a limitation 

had been intended, it could easily have been included. Indeed, the clause that 

immediately follows includes that limitation, when it refers to “the conversion of existing 

small structures from one use to another . . . .” (Guidelines, § 15303.) 

 Plaintiffs’ reliance on Robinson v. City and County of San Francisco (2012) 208 

Cal.App.4th 950 (Robinson) does not persuade us that clause [2] is limited to installing 

equipment in existing structures. In Robinson, this division concluded a project to install 

wireless telecommunications equipment on existing utility poles fell within the Class 3 

exemption. (Id. at p. 956.) In doing so, the court stated, “Residents have not identified 

any authority under which a similar or analogous project—i.e., the installation of small 

new equipment on numerous existing small structures in scattered locations—was held 

not categorically exempt under the Class 3 exemptions.” (Ibid.) The fact that the project 

in Robinson involved existing structures, however, does not meant that this project does 

not fall within the Class 3 exemptions. 

 We are satisfied that this project proposes the “installation” of the utility cabinets 

for purposes of clause [2] of the Class 3 exemption. This common-sense interpretation is 

confirmed by the language of the City’s Order No. 175,566, “Regulations for Issuing 

Excavation Permits for the Installation of Surface-Mounted Facilities in the Public 

Rights-Of-Way” (the Public Works Order), issued in 2005, which defines “SurfaceMounted Facilit[ies] to mean “any Utility facility (physical element or structure) that [is] 

installed, attached, or affixed in the Public Rights-of-Way on a site that is above the 

surface of the street . . . .” (Italics added.) “Utility,” in turn, includes 

“telecommunications, high-speed Internet, voice over Internet protocol, video over 

Internet Protocol . . . or other services that require the provider to install facilities in the 

Public Rights-of-Way to serve its customers.” 

 Accordingly, we need not consider whether 726 utility cabinets, dispersed 

throughout the City’s 122 million square feet of sidewalks, qualify as a “limited 
8

number[]” of small structures for purposes of clause [1] of the Class 3 exemption. 

(Guidelines, § 15303.) 

C. Does the Project Fall Within an Exception? 

 Plaintiffs also argue that, even if the project falls within the Class 3 exemption, an 

EIR is necessary because there is evidence the project will have significant environmental 

impacts. 

 “An agency’s determination that a project falls within a categorical exemption 

includes an implied finding that none of the exceptions identified in the Guidelines is 

applicable. The burden then shifts to the challenging party to produce evidence showing 

that one of the exceptions applies to take the project out of the exempt category.” (Save 

Our Carmel River, supra, 141 Cal.App.4th 677, 694.) 

 One of the exceptions to the categorical exemptions arises “where there is a 

reasonable possibility the activity will have a significant environmental effect ‘due to 

unusual circumstances.’ (Guidelines, § 15300.2, subd. (c).) The Guidelines do not 

define ‘unusual circumstances.’ That requirement was presumably adopted to enable 

agencies to determine which specific activities—within a class of activities that does not 

normally threaten the environment—should be given further environmental evaluation 

and hence excepted from the exemption.” (Azusa Land Reclamation Co. v. Main San 

Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1206 (Azusa).) “[T]he question 

whether a particular circumstance exists would normally be a factual issue, whereas the 

question whether that circumstance is ‘unusual’ within the meaning of the significant 

effect exception would normally be an issue of law that this court would review de 

novo.” (Id. at p. 1207.) 

 As explained in Robinson, there is a split of authority regarding the standard of 

proof and the standard of review applicable to an agency’s determination of whether a 

project falls within an exception to the categorical exemptions. “Some courts hold that a 

party seeking to apply an exception must ‘ “produce substantial evidence showing a 

reasonable possibility of adverse environmental impact sufficient to remove the project 

from the categorically exempt class. [Citations.]” [Citations.]’ [Citation.] Under this 
9

approach, ‘a court will uphold an agency’s decision if there is any substantial evidence in 

the record that there will be no significant effect on the environment.’ [Citations.] 

[¶] Other courts hold that the government agency tasked with CEQA review of a project 

‘must apply a fair argument approach in determining whether, under Guidelines section 

15300.2[, subdivision ](c), there is no reasonable possibility of a significant effect on the 

environment’ so as to bring the project within the scope of an exception. [Citations.] 

Courts that apply this standard ‘independently review the agency’s determination under 

Guidelines section 15300.2[, subdivision ](c) to determine whether the record contains 

evidence of a fair argument of a significant effect on the environment.’ ” (Robinson, 

supra, 208 Cal.App.4th at p. 957.)5

 We need not resolve this issue, because, as set forth below, we would reach the 

same result whether we reviewed the record for substantial evidence to support the City’s 

determination or for evidence to support a fair argument of a significant impact. 

 “The application of Guidelines section 15300.2[, subdivision ](c) involves two 

distinct inquiries. First, we inquire whether the Project presents unusual circumstances. 

Second, we inquire whether there is a reasonable possibility of a significant effect on the 

environment due to the unusual circumstances.” (Banker’s Hill, supra, 139 Cal.App.4th 

at p. 278; see also Voices for Rural Living v. El Dorado Irrigation Dist., supra, 209 

Cal.App.4th at pp. 1107–1108.) The court in Azusa explained that the “unusual 

circumstances” test “is satisfied where the circumstances of a particular project (i) differ 

from the general circumstances of the projects covered by a particular categorical 

 5

 In Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1350 (Wollmer),

this division stated that in reviewing the question of whether a challenger has shown that 

one of the Guidelines section 15300.2 exceptions applies, “[o]ur job is to ask if the record 

reveals substantial evidence of a fair argument that there could be a significant effect on 

the environment.” In Robinson, this division noted the split of authority on the proper 

standard, but concluded that on the facts of that case, the result would be the same under 

either standard. (Robinson, supra, 208 Cal.App.4th at pp. 957–958.) The question of the 

correct standard is raised in a case currently pending before our Supreme Court. 

(Berkeley Hillside Preservation v. City of Berkeley, S201116, rev. granted May 23, 

2012.) 
10

exemption, and (ii) those circumstances create an environmental risk that does not exist 

for the general class of exempt projects.” (Azusa, supra, 52 Cal.App.4th at p. 1207; see 

also Wollmer, supra, 193 Cal.App.4th at p. 1350.)6

 “[W]hether a circumstance is 

‘unusual’ is judged relative to the typical circumstances related to an otherwise typically 

exempt project.” (Santa Monica, supra, 101 Cal.App.4th at p. 801.) 

 The court in Communities for a Better Environment v. California Resources 

Agency (2002) 103 Cal.App.4th 98, 129 (CBE), framed the test somewhat differently, 

stating, “An important exception to categorical exemptions, based on [Wildlife Alive v. 

Chickering (1976) 18 Cal.3d 190, 205–206], provides that a ‘categorical exemption shall 

not be used for a[] [particular] activity where there is a reasonable possibility that the 

activity will have a significant effect on the environment due to unusual circumstances.’[]

 

These other environmental effects that CBE mentions would constitute ‘unusual 

circumstances’ under this exception for a project that otherwise meets the Guidelines 

section 15332 [in-fill development project exemption] criteria. This is because a project 

that does meet the comprehensive environmentally protective criteria of section 15332 

normally would not have other significant environmental effects; if there was a 

reasonable possibility that the project would have such effects, those effects would be 

‘unusual circumstances’ covered by the [Guidelines] section 15300.2, subdivision (c) 

exception. In this way, these other effects would fall within the concept of unusual 

circumstances set forth in Azusa.” 

 Plaintiffs have not identified any way in which the utility boxes would create 

impacts that would “differ from the general circumstances of the projects covered by” the 

Class 3 exemption, or, for that matter, in which any circumstances “create an 

environmental risk that does not exist for the general class of exempt projects.” (CBE, 

supra, 103 Cal.App.4th at p. 129.) The record indicates that the City has, at a minimum, 

 6

 Citing Santa Monica Chamber of Commerce v. City of Santa Monica (2002) 101 

Cal.App.4th 786, 800 (Santa Monica), the court in Banker’s Hill added, “ ‘A negative 

answer to either question means the exception does not apply.’ ” (Banker’s Hill, supra, 

139 Cal.App.4th at p. 278.) 
11

tens of thousands of street-mounted facilities; these include 1,100 bus shelters, 13,000 

MUNI-maintained poles, 132 cabinets to support MUNI operations, 33 advertising 

kiosks, 5,800 signalized intersections, 25 automatic toilets, 113 kiosks, 744 news racks, 

5,151 trolley poles, 21,891 street lights, and five street light controllers, for a total of 

47,994 such facilities. This number, however, does not include mail boxes, PG&E 

surface facilities, water department surface facilities, fire hydrants, or street trees. There 

is no basis to conclude the addition of 726 additional utility cabinets would be “unusual” 

in the context of the City’s urban environment, which is already replete with facilities 

mounted on the public rights-of-way. 

 Plaintiffs contend, however, that there is a fair argument the project has the 

potential for significant impacts on aesthetics and pedestrian safety, and that the potential 

for these impacts itself constitutes an unusual circumstance calling for the preparation of 

an EIR. Berkeley Hillside Preservation v. City of Berkeley (S201116, rev. granted May 

23, 2012), currently pending before our high court, raises the question of whether the 

“significant effect” exception of Guidelines section 15300.2, subdivision (c), is limited to 

circumstances in which there are “unusual circumstances” that are independent of a 

project’s potential to have a significant environmental effect; that is, whether the unusual 

circumstances exception applies whenever there is a reasonable possibility of a 

significant effect on the environment. Whatever the outcome of that case, however, we 

are not persuaded that there is a fair argument of significant impacts here. 

 The evidence that plaintiffs contend supports a fair argument of significant 

impacts is found primarily in statements of a number of residents of San Francisco, as 

well as members of the Board of Supervisors, to the effect that the utility boxes would be 

unsightly, they would attract graffiti and public urination, they would impede pedestrians, 

and they would block driver’s views. In particular, plaintiffs point to testimony and 

communications from San Francisco residents stating that the current boxes were “graffiti 

magnets,” that people urinated on them, that garbage collected around them, that 

residents or the City had to remove graffiti from the existing boxes because AT&T failed 

to do so, that although AT&T had promised to use graffiti-resistant coverings, the boxes 
12

were still marked with graffiti, and that the new boxes would attract more of such 

behavior, could serve as part of homeless encampments, and would block visibility for 

pedestrians and drivers using their driveways. 

 Plaintiffs also draw our attention to statements made by a planning commissioner 

and members of the City’s Board of Supervisors. Ron Miguel, the Vice President of the 

Planning Commission, stated in an April 2011 letter that the project “reverses the 

impressive work which has been done in the past year to develop standards for our public 

streets. The Planning Department and the Board of Supervisors are in accord with the 

Better Streets legislation—and work in many areas of our city is already reflective of the 

advantages which follow from proper consideration to areas of public access, ADA 

requirements, and overall beautification. It enhances not only property values, but 

quality of life for both San Franciscans and visitors. The installation of 726 large 

intrusions on the public right-of-way by a private company is completely inconsistent 

with the direction the Board of Supervisors has given to Planning and DPW.” Supervisor 

Chu stated in a July 2008 hearing that she had called “311” to report graffiti, paper cups, 

and litter around boxes, and that in the “stark environment” of the Sunset district, 

additional boxes would have a significant effect on the beauty of the community. At the 

same hearing, Supervisor McGoldrick urged the Board to examine the aesthetic and 

cumulative impacts of the utility boxes. Moreover, as plaintiffs point out, the Board of 

Supervisors approved the project by only a six-to-five vote. 

 Public controversy in itself does not require an EIR to be prepared “when there is 

no substantial evidence in the record that the project as designed and approved will fall 

within the requirements of [CEQA].” (Running Fence Corp. v. Superior Court (1975) 51 

Cal.App.3d 400, 424; see also Perley v. Board of Supervisors (1982) 137 Cal.App.3d 

424, 435–436 [difference of opinion between planning commission and board of 

supervisors does not establish serious public controversy]; § 21082.2, subd. (b).) 

 “The significance of an environmental impact is . . . measured in light of the 

context where it occurs. The Guidelines confirm that ‘the significance of an activity may 

vary with the setting. For example, an activity which may not be significant in any urban 
13

area may be significant in a rural area.’ [Citations.] To conclude that replacement of a 

virgin hillside with a housing project constitutes a significant visual impact says little 

about the environmental significance of the appearance of a building in an area that is 

already highly developed.” (Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 

589 (Bowman); see also Clover Valley Foundation v. City of Rocklin (2011) 197 

Cal.App.4th 200, 243–244 [upholding EIR’s conclusion that visual impact of new homes 

was not significant because area was already residential]; compare Citizens for 

Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 

1337–1338 [EIR necessary where project would “create[] a change in the aesthetic 

environment and interfere[] with scenic views of the public in general by introducing into 

the primarily single-family, residential neighborhood a large, high-density, residential 

building . . .”].) As to the sort of aesthetic impacts asserted here, the Guidelines show 

that the relevant inquiry is whether a project would “[s]ubstantially degrade the existing

visual character or quality of the site or its surroundings.” (Guidelines, appendix G, 

italics added.) 

 Bearing these standards in mind, we conclude plaintiffs did not “produce evidence 

showing that [the significant impact exception] applie[d] to take the project out of the 

exempt category.” (Save Our Carmel River, supra, 141 Cal.App.4th 677, 694.) The City 

is an urban environment. Its rights-of-way already contain, at a minimum, tens of 

thousands of structures. In its exemption from environmental review, the Planning 

Department stated: “The project sponsor proposes to deploy up to 726 Lightspeed 

cabinets in a dispersed manner within public right-of-way. The profile of these cabinets 

would be visible to passersby and observers from nearby buildings, but may not be 

noticed by the casual observer. The visual impacts of the cabinets would be confined to 

the immediate area in which the cabinets are located. Utility-related facilities in the 

public right-of-way are common throughout the City’s urbanized environment (e.g., 

traffic control cabinets and other utility cabinets). AT&T’s cabinet installations would 

generally be viewed in the context of the existing urban background, and the incremental 

visual effect of the proposed cabinets would be minimal.” 
14

 The Planning Department went on: “Pursuant to the submitted project proposal, 

the proposed cabinets would be located in a manner that would not obstruct pedestrian 

access, would not intrude on pedestrian ‘clear zones’ at street corners, and would not 

obstruct the view of any traffic sign, way-finding sign or traffic signal.[] AT&T’s cabinet 

placement considerations include setback distances from corners, fire hydrants, transit 

shelters, kiosks, certified street artist designated areas, and public art work under the 

jurisdiction of the Arts Commission, except for art on kiosks. If necessary, AT&T would 

conduct site visits with neighborhood groups to consider location options. Landscaping 

and screening are also available options for consideration in placing new cabinets. The 

proposed Lightspeed cabinets would have a graffiti resistant finish and would display a 

sticker with a toll-free number so that AT&T could proactively remove graffiti. If 

required for safety, bollards would also be installed.” 

 Thus, under the project, the additional 726 cabinets will be placed in an urban 

environment that already contains large numbers of structures on the sidewalks, and they 

will not be permitted to obstruct pedestrian access, “clear zones” at street corners, or 

traffic signs. We recognize the concern that the new cabinets will become targets for 

graffiti or public urination. However, given the presence of numerous other structures on 

the rights-of-way, there is no basis to conclude people are more likely to engage in those 

anti-social behaviors in the presence of the cabinets than in their absence—that is, that 

the cabinets will bring about an increase in this behavior in a way that would rise to a 

significant impact. On the facts of this case, there is no fair argument they will create a 

significant environmental impact. 

 Against this conclusion, plaintiffs rely on cases in which residents or public 

officials presented fact-based evidence to support a fair argument that a project would 

have significant environmental effects. In Architectural Heritage Assn. v. County of 

Monterey, supra, 122 Cal.App.4th 1095, a county planned to demolish an old jail 

building, and prepared a mitigated negative declaration. (Id. at. pp. 1099–1100, 1106.) 

The record included a recommendation of the county’s Historic Resources Review Board 

taking the position that the jail was a historic resource, based on a subcommittee’s 
15

investigation indicating that the jail’s structure was “ ‘a rare type,’ ” and that historically 

significant people, including Cesar Chavez, were associated with the jail. (Id. at p. 1115.) 

In addition, members of the public, including an architect and a certified historian serving 

on the jail subcommittee, commented on the jail’s association with notable historic 

figures and its architectural significance. (Id. at pp. 1116–1117.) This, the court 

concluded, constituted fact-based evidence to support a fair argument that the demolition 

would have a significant impact to a historic resource. (Id. at pp. 1108, 1115–1118.) 

Similarly, in Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 

Cal.App.4th 144, a county’s planning department, air pollution control district, and one 

planning commission member had recognized the probable growth-inducing effect of a 

golf course project; the planning department noted that experience showed that often such 

a project acted as a catalyst triggering requests for residential development, and relied for 

its conclusions on consideration of similar projects elsewhere. (Id. at pp. 153, 155.) The 

court concluded that the county had improperly adopted a negative declaration for the 

project rather than preparing an EIR. (Id. at p. 160.) 

 These cases are inapposite to the matter before us. Here, the Planning 

Commission concluded the utility cabinets would be dispersed, that their impacts would 

be confined to their immediate vicinity and might not be noticed by causal observers, that 

such facilities are common in the City’s urbanized environment, that they would not 

block pedestrian access or obstruct drivers’ views, and that the cabinets would have a 

graffiti-resistant finish and a sticker with a toll-free number so AT&T could remove 

graffiti. In this context, the concerns raised by certain officials and members of the 

public do not rise to the level of substantial evidence of a significant impact on aesthetics 

or pedestrian safety. 

 The cases in which residents’ views on a project’s aesthetic effects were held to be 

substantial evidence of a significant impact do not lead us to any other conclusion. In 

Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket 

Protectors), the court concluded that a public entity’s approval of a mitigated negative 

declaration was inappropriate where another official body and members of the public had 
16

presented evidence that a project would violate zoning regulations and would have an 

adverse aesthetic effect. The project was a development of detached single family homes 

on a strip of undeveloped land that was zoned “R-1A” (single-family alternative zone) as 

part of a Planned Unit Development (PUD). (Id. at pp. 908–909, 911.) The PUD 

included a variety of housing types, including, “ ‘Townhouse (or similar development),’ 

zoned R-1A.” (Id. at pp. 908–909.) The Planning Commission had rejected an earlier 

version of the project because it did not comply with the PUD, and City planning staff 

admitted the project would violate the PUD’s objectives. (Id. at pp. 931–932.) Based on 

this evidence, the Court of Appeal concluded there was substantial evidence that the 

project conflicted with the objectives of the PUD. (Id. at p. 931.) As to aesthetic 

impacts, the court noted that “the opinions of residents, if based on direct observation, 

may be relevant as to aesthetic impact and may constitute substantial evidence in support 

of a fair argument; no special expertise is required.” (Id. at p. 937.) Such evidence was 

found in testimony by residents of the area and an architect that the project would create a 

“ ‘tunnel or canyoning effect of wide houses on small lots,’ ” that it would be difficult to 

install adequate landscaping, and that some of the houses would open their front doors 

onto a greenbelt. (Id. at pp. 920, 937.) 

 Aesthetic concerns were also at issue in Ocean View Estates Homeowners Assn., 

Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402 (Ocean View). The Court 

of Appeal there concluded a water district was required to consider aesthetic impacts in 

an EIR before approving a project to cover a four-acre reservoir with a semi-reflective 

aluminum roof. (Id. at pp. 398, 401.) The roof would be visible from public trails, and 

the county had urged the water district to develop appropriate mitigation if the roof could 

be seen from the trails. (Id. at pp. 401–402.) The court concluded that this evidence, 

along with residents’ observations about the aesthetic effects of the alteration of the 

view—from one with a “ ‘striking and unique visual feature’ ” of “ ‘clear blue water in a 

densely vegetated area’ ”—could constitute substantial evidence to support a fair 

argument that the aluminum roof might have a significant adverse aesthetic impact. (Id. 

at pp. 401–403.) 
17

Pocket Protectors and Ocean View are both characterized by a clear change to the 

existing environment. In Pocket Protectors, the residential project was to be built on 

undeveloped land, in a manner inconsistent with zoning. The aluminum roof proposed to 

cover a four-acre reservoir in Ocean View would alter the views from public trails. These 

cases do not consider the sort of impact present here—the addition of new small 

structures to urban streets in which such structures are already a ubiquitous feature of the 

environment. Neither the concerns expressed by residents nor those raised by members 

of the Planning Commission or the Board of Supervisors rise to the level of fact-based 

evidence that the utility cabinets will substantially degrade the existing visual character of 

the urban environment in which they will be placed. 

 This division reached a similar conclusion in Bowman, stating, “[W]e do not 

believe that our Legislature in enacting CEQA . . . intended to require an EIR where the 

sole environmental impact is the aesthetic impact of a building in a highly developed 

area. [Citations.] To rule otherwise would mean that an EIR would be required for every 

urban building project that is not exempt under CEQA if enough people could be 

marshaled to complain about how it will look. While there may be situations where it is 

unclear whether an aesthetic impact like the one alleged here arises in a ‘particularly 

sensitive’ context (Guidelines, § 15300.2) where it could be considered environmentally 

significant, this case does not test that boundary. The aesthetic difference between a 

four-story and a three-story building on a commercial lot on a major thoroughfare in a 

developed urban area is not a significant environmental impact, even under the fair 

argument standard.” (Bowman supra, 122 Cal.App.4th at p. 592.) 

 Plaintiffs also argue that the project will cause cumulative impacts that take it out 

of the Class 3 exemption. Guidelines section 15300.2, subdivision (b) provides: “All 

exemptions for these classes are inapplicable when the cumulative impact of successive 

projects of the same type in the same place, over time is significant.” As explained in 

Robinson, an argument that an agency must consider the cumulative impact of all similar 

equipment that had been or would be installed throughout the City “ignores the language 

in the Guidelines limiting the cumulative impact exception to ‘successive projects of the 
18

same type in the same place . . . .’ (Guidelines, § 15300.2, subd. (b), italics added.) This 

limitation makes sense, because without a limitation as to the location of the projects 

whose cumulative impact must be considered, agencies deciding whether the exception 

applies to a project would be required, in every instance, to consider the cumulative 

environmental impact of all successive similar projects in their jurisdictions, at least, and 

perhaps regionally or even statewide. If this were the case, the exception would swallow 

the rule, and the utility of the Class 3 exemption would be vitiated.” (Robinson, supra, 

208 Cal.App.4th at p. 958.) 

 Plaintiffs have not drawn our attention to any evidence showing that the utility 

boxes will create significant cumulative impacts in the individual locations in which they 

are placed. They point to comments made in opposition to the 2008 version of the 

project, in which an opponent stated that at some of the locations AT&T had identified 

there would be two new boxes. This is not evidence that AT&T is currently planning to 

locate more than one box in close proximity, nor that the cumulative impacts of such a 

placement would be significant. Plaintiffs did not meet their burden to show the 

cumulative effects exception applied. 

 Nor are we persuaded by plaintiffs’ argument that the project’s impacts are shown 

by purported inconsistencies with the Public Works Order and the City’s Better Streets 

Plan, adopted in 2010. The Public Works Order recites that the Department of Public 

Works was “concerned that the installation of surface-mounted facilities in the public 

rights-of-way will impede travel on public streets, inconvenience property owners, create 

visual blight, or otherwise incommode the use of the public rights-of-way by the public.” 

Therefore, the Public Works Order explained, “it is the Department’s policy to require 

that such surface-mounted facilities be installed on private property or be placed 

underground to the extent either of these options is technologically or economically 

feasible. At the very least, the Department has required that applicants minimize the 

impact that the placement of any surface-mounted facilities will have on use of the public 

rights-of-way.” Under the Public Works Order, before applicants are permitted to install 

surface-mounted facilities in public rights-of-way, they must show they have tried to 
19

place the facilities on private property or underground. The Public Works Order also 

provides that in selecting appropriate locations for surface-mounted facilities in rights-ofway, the applicant must minimize the impacts of the placement in a variety of ways; 

among them, the applicant must place the facilities in a manner that does not 

unreasonably impede pedestrians, particularly people with disabilities; provide four feet 

of pedestrian clearance; not intrude on pedestrian “ ‘clear zones’ ” at street corners; 

provide specified setbacks from crosswalks, curbs, fire hydrants, driveways, transit 

shelters, curb ramps, blue zone parking spaces, street lights, parking meters, and trees; 

place the facilities so they do not obstruct the view of any traffic sign or traffic signal; 

place them on streets with minimal pedestrian travel; limit the height and footprint of the 

facilities; either use stainless steel or paint the facilities in the colors used by City 

structures in the vicinity; include a graffiti-proof coating; and screen the facilities by 

landscaping or camouflaging. The order also provides for notice to the public of 

proposed sites, for a hearing before the Public Works Department if there are nonfrivolous objections, and for an appeal of the department’s approval or denial of a permit 

to install a surface-mounted facility. 

 The Better Streets Plan likewise acknowledges that surface-mounted facilities will 

be installed on City rights-of way, stating: “Surface-mounted utilities are often bulky and 

unattractive elements in the streetscape. Where possible, they should be located outside 

of the right-of-way and screened within private parcels. However, in many cases, they 

will be located in the public right-of-way. To that end, they should minimize their 

negative visual impact.” The plan notes that surface-mounted utilities must comply with 

the Public Works Order, and provides that they should be screened by being painted 

either in a neutral color or with public art, and should, where possible, be buffered by 

sidewalk planters, walls, artistic screens, or other elements. 

 Thus, both the Public Works Order and the Better Streets Plan envision that utility 

boxes will be installed on the public rights-of-way, and require applicants to locate and 

design the structures in a way that minimizes effects on pedestrian and driver safety and 

on aesthetics. There is no basis to conclude the project will not comply with these 
20

requirements, and plaintiffs have not persuaded us that the project is inconsistent with 

these enactments. 

D. Does the Categorical Exemption Rely on Mitigation Measures? 

 Finally, plaintiffs contend the City improperly relied on mitigation measures in 

concluding the project was categorically exempt from CEQA. As explained by this 

division in Salmon Protection & Watershed Network v. County of Marin (2004) 125 

Cal.App.4th 1098, 1102, “Only those projects having no significant effect on the 

environment are categorically exempt from CEQA review. [Citation.] If a project may 

have a significant effect on the environment, CEQA review must occur and only then are 

mitigation measures relevant. [Citation.] Mitigation measures may support a negative 

declaration but not a categorical exemption.” 

 Plaintiffs contend the Notice of Exemption shows the project approval was 

improperly based on mitigation measures requiring the City to review the utility cabinets 

to evaluate their potential to impede travel, inconvenience property owners, or otherwise 

disturb use of the right-of-way. The notice of exemption stated in pertinent part: “The 

proposed project is subject to the requirements for excavations permits in Article 2.4 of 

the Public Works Code and the requirements of Department of Public Works (DPW) 

Order No. 175,566 concerning placement of surface-mounted facilities (SMF) in the 

public right-of-way.[] DPW reviews each application on an individual basis and 

evaluates the potential for the proposed facilities to impede travel on public streets, 

inconvenience property owners, or otherwise disturb the use of the public right-of-way by 

the public.” We disagree with plaintiffs’ argument that this review constitutes a 

mitigation measure. Rather, the review is required by the Public Works Order, which is 

generally applicable to excavation permits for surface-mounted facilities. An agency 

may rely on generally applicable regulations to conclude an environmental impact will 

not be significant and therefore does not require mitigation. (Tracy First v. City of Tracy

(2009) 177 Cal.App.4th 912, 932–934; Association for Protection Etc. Values v. City of 

Ukiah (1991) 2 Cal.App.4th 720, 734–736 [categorical exemption].) 
21

 Plaintiffs also contend the project’s environmental effects were improperly 

mitigated by the July 19, 2011 MOU, in which AT&T agreed to provide additional public 

notice for each cabinet site, maintain a public web site, consider non-sidewalk locations 

for cabinets, consider various screening options consistent with the Public Works Order 

and the Better Streets Plan, provide information about the feasibility of “undergrounding” 

its equipment, try to hire a local workforce, and pay the cost of permit processing, graffiti 

removal, and any necessary cabinet relocation. Although members of the Board of 

Supervisors expressed approval of AT&T’s agreement to increase public outreach, the 

record does not show that agreement was the basis for the Board’s conclusion that the 

project qualified for a categorical exemption from CEQA review, or that it constituted a 

mitigation measure for a significant effect on the environment. 

III. DISPOSITION 

 The judgment is affirmed. 

 _________________________ 

 Rivera, J. 

We concur: 

_________________________ 

Ruvolo, P.J. 

_________________________ 

Humes, J.