1

Filed 3/26/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CITIZENS FOR ENVIRONMENTAL 

RESPONSIBILITY et al.,

Plaintiffs and Appellants,

v.

STATE OF CALIFORNIA ex rel. 14TH DISTRICT 

AGRICULTURAL ASSOCIATION et al.,

Defendants and Respondents;

STARS OF JUSTICE, INC., 

Real Party in Interest and Respondent.

C070836

(Super. Ct. No. 

34201180000902CUWMGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G. 

Connelly, Judge. Affirmed.

Lozeau|Drury, Michael R. Lozeau, Richard T. Drury, Christina Caro and 

Douglas J. Chermak, for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney 

General, Randy L. Barrow and Matthew J. Goldman, Deputy Attorneys General, for 

Defendants and Respondents.

No appearance by Real Party in Interest and Respondent Stars of Justice, Inc.
2

The trial court denied a petition for writ of mandate and complaint for declaratory 

and injunctive relief filed by appellants Citizens for Environmental Responsibility, Stop 

The Rodeo, and Eric Zamost, under the California Environmental Quality Act or CEQA. 

(Pub. Resources Code, § 21000 et seq.)

1

 Appellants claim the 14th District Agricultural 

Association and its Board of Directors (collectively District) violated CEQA by 

approving a notice of exemption (NOE) from environmental review for a rodeo held by 

real party in interest Stars of Justice, Inc. at the Santa Cruz County Fairground

(Fairground) in Watsonville in October 2011.

2 The exemption was pursuant to CEQA’s

regulatory guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.; hereafter Guidelines) for 

a Class 23 categorical exemption for “normal operations of existing facilities for public 

gatherings.” (Guidelines, § 15323).

3

 Appellants contend the exemption is inapplicable 

because (1) the rodeo project expressly included mitigation measures in the form of a 

Manure Management Plan, in effect acknowledging potential environmental effects, and 

(2) the unusual circumstances exception to categorical exemptions applies because 

 

1

 Undesignated statutory references are to the Public Resources Code.

2

 Since the rodeo has already taken place, the appeal is moot, but we exercise our 

discretion to address the appeal anyway, because it presents an issue of broad public 

interest that is likely to recur and capable of evading review. (Cucamongans United for 

Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-

480.)

3

 “Class 23 consists of 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 or similar kind of purpose. For the purposes of this section, ‘past 

history’ shall mean that the same or similar kind of activity has been occurring for at least 

three years and that there is a reasonable expectation that the future occurrence of the 

activity would not represent a change in the operation of the facility. Facilities included 

within this exemption include, but are not limited to, racetracks, stadiums, convention 

centers, auditoriums, amphitheaters, planetariums, swimming pools, and amusement 

parks.” (Guidelines, § 15323.)
3

stormwater runoff flows over the fairground where cattle and horses defecate and into an

already polluted creek. (Guidelines, § 15300.2, subd. (c).)

4

 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Fairground and the Salsipuedes Creek

The District administers the Fairground which, since 1941, has been the venue for

various events, including equestrian and livestock events and the annual county fair. The 

Fairground is zoned as a public and community facility. It is bordered on three sides by 

land zoned for agricultural use. On the eastern side it is bordered by land zoned for 

residential use. The Fairground has three livestock barns and a livestock arena in the 

southeastern area. In the north/northeastern area, it has a horse barn, cattle and horse 

stalls, and three horse arenas. The Fairground is located in the Corralitos/Salsipuedes 

watershed. The Corralitos Creek is a tributary to Salsipuedes Creek. The Salsipuedes 

Creek flows adjacent to and through a portion of the north/northeast area of the 

Fairground where the horse and cattle stalls, horse barn and horse arenas are located. 

The First Rodeo Proposal

In the fall of 2009, the Santa Cruz County Deputy Sheriff’s Association, acting 

through its nonprofit corporation Stars of Justice, proposed a three-day “ProRodeo” for 

October 2010 to raise funds to support programs for children. The application proposed 

improvements to the Fairground facilities and contemplated future rodeos. Some citizens 

opposed the ProRodeo on various grounds, including CEQA and cruelty to animals. The 

District’s board of directors initially approved the ProRodeo in June 2010, concluding the 

 

4

 Guidelines section 15300.2, subdivision (c) provides, “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.” (Italics 

added.) 
4

project was exempt from CEQA review under Class 23, normal operations of 

facilities for public gatherings, but the contract was later revoked in July 2010 due 

to disagreements between the Fair manager and the Stars of Justice. 

Creek Contamination and Fairground Monitoring

In 2009, unrelated to the first proposed rodeo, the California Regional Water 

Quality Control Board for the Central Coast Region (Regional Water Board) determined 

the water quality of both the Corralitos and Salsipuedes Creeks was impaired by human 

and animal fecal coliform discharged into the creeks from storm drains, homeless 

persons’ encampments, pet waste, sanitary sewer systems (septic tanks), and farm 

animals and livestock operations -- including Fairground activities. When visiting the 

Fairground, Regional Water Board “staff did not see management practices in place that 

would keep runoff from the manure area from entering surface waters.” However, no 

event was happening at the time, and staff saw only one horse at the Fairground. 

To restore the water quality, the Regional Water Board established and allocated 

responsibilities for achieving a total maximum daily load for fecal coliform in the creeks 

and imposed prohibitions on the discharge of animal and human fecal material, approved 

by the State Water Resources Control Board (the State Board) and the United States

Environmental Protection Agency (EPA). The Regional Water Board required owners 

and/or operators to use specific management practices to control discharges containing 

fecal matter and to monitor and report their progress. The resolution adopted by the 

Regional Water Board did not specify the Fairground but instead allocated responsibility 

to “Owners of Land Used for/Containing Farm Animals/Livestock.” 

In December 2010, the Fairground began a voluntary stream water monitoring 

program to identify contaminants in Salsipuedes Creek flowing from upstream, through 

the Fairground property, and leaving the property flowing downstream. “Grab samples” 

showed that the amount of E. coli in the water leaving the Fairground and flowing 

downstream was substantially less than the amount of E. coli entering the Fairground 
5

from upstream. Routine testing of drinking water from a Fairground well in the 

equestrian area showed no contamination by coliform or E. coli. 

Ongoing Manure Management Practices at the Fairground

The Fairground had taken steps to manage manure produced during its equestrian 

and livestock events. Beginning in the 1960’s, the Fairground removed manure and 

livestock bedding immediately after each event and collected it in a wooden bunker on a 

cement aggregate slab partially covered by a barn roof and, during the dry season, on a 

flat section of equestrian area. A contracted company hauled it to a composting facility. 

Since the early 1990’s, the manure has been hauled away on a daily basis during 

equestrian and livestock events. These practices were not formalized in a written 

document until July 19, 2010, after appellants objected to the earlier, grander-scale 

rodeo proposed by Stars of Justice that ultimately did not take place. The written 

formalization of these past practices -- the Manure Management Plan or MMP -- calls 

for bunkers to be cleaned at the end of the event or when close to capacity.5 The MMP 

also indicates, in addition to the storage and hauling provisions, that earth berms separate 

the drainage way in the equestrian area from the surroundings to prevent contamination 

from washing into the drainage way. Contamination is further minimized by harrowing 

or tilling the soil to promote filtration of rain water and by planting vegetation on areas 

with a slope of 15 percent or more, to prevent erosion and promote filtration of surface 

contaminants. The formal MMP was written approximately six months before Stars of 

Justice proposed the rodeo project that is the subject of this appeal.

 

5

 The District cites other documents indicating daily pickup, including a letter from a 

person associated with the Fairground and an informational handout for facility users 

with a memorandum suggesting that it be attached to the MMP. 
6

The Rodeo Project and the Notice of Exemption

In January 2011, Stars of Justice proposed a scaled-down version of the rodeo 

for two days, October 1 and 2, 2011. Appellants opposed the project on environmental 

and other grounds, and the District’s board scheduled a public hearing for April 2011. 

At that hearing, the board, out of an “abundance of precaution” and fear of lawsuits, 

considered whether to have an environmental review for the rodeo project conducted 

by environmental consultant Strelow Consulting, which was working on an unrelated 

project for the District. The board ultimately voted to have the consultant consider 

applicability of the Class 23 categorical exemption to the rodeo. The consultant’s 

analysis supported the exemption. 

In May 2011, the board adopted the Class 23 NOE and approved the rental 

agreement for the rodeo. As described in the NOE, the event was to take place over 

the course of two days and was expected to attract about 1,500 spectators, involve a 

maximum of 500 horses but only 100 on the grounds at any given time, and involve

a maximum of 250 cattle/stock with only 50 on the grounds at any given time. 

The NOE said the project was categorically exempt under Guidelines

section 15323 -- the Class 23 exemption for “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 or similar kind of purpose,” meaning similar activity 

has been occurring for at least three years and there is a reasonable expectation that the 

project would not represent a change in operation of the facility. The NOE said the 

Fairground is an existing facility designed for public gatherings, primarily the annual 

county fair, but other public events are held throughout the year, including equestrian and 

livestock events. The county fair was established in 1885, and the District bought the 

current 105-acre fairground property with state funds in 1941. The first annual fair 

opened the same year and included a horse show. The Fairground includes three 

equestrian/livestock arenas and barns, most of which were constructed in 1941 with 
7

subsequent improvements. In 1971, a five-year plan for improvements of the horse show 

area was instituted, with construction of more stalls and cattle holding pens. The existing 

equestrian facilities have been in existence for at least 50 years, and equestrian and 

livestock events have always been accommodated at the Fairground. On average, the 

facility has sponsored two to four equestrian or livestock shows per month for the past 

25 to 30 years. In the 1970’s, the Fairground hosted at least eight annual rodeos. More 

recently, in each of the last three years, about two dozen equestrian and/or livestock 

events have been held annually at the Fairground, in addition to the annual county fair. 

These events include horse shows and performances and livestock events, with 

attendance of 100 to 500 spectators for smaller events, 1,000 to 1,200 spectators for 

larger events, and 1,500 to 3,500 spectators for equestrian and livestock events held 

during the annual county fair. The smaller equestrian events have 50 to 400 horses. 

The annual cutting horse show at the Fairground has about 500 horses, 800 cattle, and 

1,000 people -- similar to the proposed rodeo project. 

The NOE noted the inapplicability of any of the regulatory exceptions to a 

categorical exemption. “The event will utilize existing arenas, horse barns and

other facilities; no construction or physical alterations of the grounds are proposed. 

The proposed event would not result in impacts on a resource of critical concern 

(section 15300.2(a)).6 A narrow segment of Salsipuedes Creek flows through the 

Fairground and the arena area and is mostly an earthen-channel devoid of vegetation 

within the arena location; a short segment flows through an underground pipeline 

culvert. Horse and livestock manure is strictly managed in accordance with the 

District’s ‘Manure Management Plan.’ Manure is collected, contained in enclosed 

bunkers and hauled offsite, and animal washdown areas flow to the existing sanitary 

 

6

 This subdivision actually addresses only specified classes not including Class 23.
8

sewer. These required operations and management of the animals will prevent non-point 

source pollution into the creek and indirect impacts to the aquatic species that may be 

present. There are no known significant cumulative impacts to which the project would 

contribute, i.e. successive projects of the same type in the vicinity (section 15300.2(b)). 

As there is no planned construction or alteration of the Fairgrounds facilities or grounds, 

and with implementation of animal and manure management, no significant impacts are 

anticipated (section 15300(c)). Similarly, the project site is not adjacent to a designated 

scenic highway, and the project would not damage scenic resources (section 15300.2(d)). 

The site is not a hazardous waste site (section 15300.2(e)). No historical resources would 

be affected by the project (section 15300.2(f)).” 

The Petition for Writ of Mandate and the Trial Court’s Rulings

On June 29, 2011, appellants filed in the trial court their petition for writ of 

mandate and complaint for injunctive and declaratory relief. On September 27, 2011, the 

trial court heard argument, took the matter under submission, and subsequently declined 

to prevent the rodeo from going forward the following week. 

The rodeo took place, as planned, in October 2011.

On January 24, 2012, the trial court issued its statement of decision. The trial 

court ruled that the evidence supported the factual findings that the rodeo project --

which was similar to the horse and livestock events -- was a normal activity of the 

Fairground, the Fairground is a facility for public gatherings designed for such activity, 

the Fairground has a past history of use for such activity, and the rodeo would not change 

the operation of the Fairground. The trial court said the MMP did not represent a new 

activity or operation requiring CEQA evaluation. “Rather, the [MMP] incorporated 

unwritten and ongoing practices evolved by Fairground staff since the 1960s to deal with 

a normal aspect of all the horse and livestock events historically held at the Fairground to 

avoid surface water contamination, control parasite and fly breeding, and protect public 

health. . . . Whether the practices described in the [MMP] are viewed as an integral 
9

component of those horse and livestock events or as an ongoing activity of the 

Fairground necessitated by the horse and livestock events, the plan practices constituted 

a standard part of normal Fairground operations.” The court added that the MMP did 

not constitute a newly proposed mitigation measure precluding the Class 23 exemption. 

The MMP has been part and parcel of normal Fairground operations for decades. The 

court said that mention of the MMP in the portion of the NOE explaining the reasons 

for exempting the rodeo project, rather than in the portion describing the project, did not 

impermissibly split the project into separate pieces to evade review. 

The trial court ruled inapplicable the exception to exemption involving situations

where there is a reasonable possibility that the activity will have a “significant effect” on 

the environment due to “unusual circumstances.” (Guidelines, § 15300.2, subd. (c); see 

fn. 4, ante.) The trial court found no “unusual circumstances” under a substantial 

evidence standard. The trial court rejected appellants’ arguments that proximity to 

Salsipuedes Creek, proximity to residential and agricultural land, or a public safety 

risk of bull riding constituted unusual circumstances. The trial court continued that, 

even if there were unusual circumstances, appellants had failed to show a “significant 

effect” on the environment under the “fair argument” standard favorable to appellants. 

The trial court also ruled inapplicable the exception to exemption involving 

situations where “the cumulative impact of successive projects of the same type in the 

same place, over time is significant.” (Guidelines, § 15300.2, subd. (b).) The court 

reasoned that appellants’ reliance on vague plans of the Deputy Sheriff’s Association to 

hold five future rodeos at unspecified times and unspecified locations was speculative. 

The trial court also rejected appellants’ invocation of the exception to exemption 

for projects on sites included in a list of hazardous waste sites (the Cortese list). 

(Guidelines, § 15300.2, subd. (e), citing Gov. Code, § 65962.5.) The Fairground had 

been on the list because of a 1991 leak of an underground gasoline tank. The trial 

court noted the Fairground’s inclusion on that list was “annulled” in 1993 when the 
10

Health Services Agency determined from soil samples that no further assessment was 

needed. 

On February 3, 2012, the trial court entered judgment in favor of the District and 

Stars of Justice. 

DISCUSSION 

I. CEQA Overview and Standard of Review

“CEQA is a comprehensive scheme designed to provide long-term protection 

to the environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 

16 Cal.4th 105, 112.) It is to be interpreted “ ‘to afford the fullest possible protection to 

the environment within the reasonable scope of the statutory language.’ ” (Ibid.) The 

Legislature has directed the secretary of the Resources Agency to promulgate a list of 

classes of projects that have no significant effect on the environment. (Id. at p. 124.) 

A project falling within such a categorical exemption is not subject to CEQA. (Ibid.) 

“Categorical exemptions may be provided only for ‘classes of projects which have 

been determined not to have a significant effect on the environment.’ ” (Azusa Land 

Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 

1192 (Azusa), quoting section 21084, subd. (a).)

“The Guidelines establish a three-step process to assist a public agency in 

determining which document to prepare for a project subject to CEQA. (Guidelines, 

§ 15002, subd. (k).) In the first step, the lead public agency preliminarily examines the 

project to determine whether the project is statutorily exempt from CEQA, falls within a 

Guidelines categorical exemption or if ‘ “it can be seen with certainty” that [the] project 

will not have a significant effect on the environment. [Citations.]’ [Citation.] If so, no 

further agency evaluation under CEQA is required. The agency may prepare a notice of 

exemption. (Guidelines, §§ 15002, subd. (k)(1), 15062 . . . .) If, however, the project 

does not fall within an exemption and it cannot be seen with certainty that the project will 

not have a significant effect on the environment, the agency takes the second step and 
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conducts an initial study to determine whether the project may have a significant effect on 

the environment. [Citations.] If the initial study shows there is no substantial evidence 

the project may have a significant effect on the environment or revisions to the project 

would avoid such an effect, the lead agency prepares a negative declaration. [Citations.] 

If the initial study shows ‘there is substantial evidence . . . that the project may have a 

significant effect on the environment,’ the lead agency must take the third step and 

prepare an environmental impact report (EIR).” (California Farm Bureau Federation v. 

California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 184 (Cal. Farm 

Bureau).) 

“Judicial review of an agency’s compliance with CEQA where no administrative 

hearing at the agency level was required is governed by section 21168.5, which limits 

judicial inquiry to whether there was a prejudicial abuse of discretion. (§ 21168.5 . . . .) 

[Fn. omitted.] ‘Abuse of discretion is established if the agency has not proceeded in a 

manner required by law or if the determination or decision is not supported by substantial 

evidence.’ (§ 21168.5.) We apply this same standard on appeal, reviewing the agency’s 

action, not the trial court’s decision. [Citation.]” (Cal. Farm Bureau, supra, 

143 Cal.App.4th at p. 185.)

In assessing whether an agency correctly determined a project fell within a 

categorical exemption, “we must first determine as a matter of law the scope of the 

exemption and then determine if substantial evidence supports the agency’s factual 

finding that the project fell within the exemption. [Citations.] The lead agency has the 

burden to demonstrate such substantial evidence. [Citations.] [¶] . . . [¶] Once the 

agency meets this burden to establish the project is within the categorically exempt class, 

‘the burden shifts to the party challenging the exemption to show that the project is not 

exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.’ 

[Citation.]” (Cal. Farm Bureau, supra, 143 Cal.App.4th at pp. 185-186.) 
12

II. The Manure Management Program

Appellants argue the MMP constitutes a mitigation measure for the rodeo project, 

precluding the Class 23 categorical exemption. We disagree.

“ ‘An agency should decide whether a project is eligible for a categorical 

exemption as part of its preliminary review of the project without reference to or reliance 

upon any proposed mitigation measures.’ ” (Salmon Protection & Watershed Network v. 

County of Marin (2004) 125 Cal.App.4th 1098, 1106 (SPAWN), italics added; see also 

Azusa, supra, 52 Cal.App.4th at p. 1199.) 

Under the Guidelines, “mitigation” includes: “(a) Avoiding the impact altogether 

by not taking a certain action or parts of an action. [¶] (b) Minimizing impacts by 

limiting the degree or magnitude of the action and its implementation. [¶] (c) Rectifying 

the impact by repairing, rehabilitating, or restoring the impacted environment. [¶] 

(d) Reducing or eliminating the impact over time by preservation and maintenance 

operations during the life of the action. [¶] (e) Compensating for the impact by 

replacing or providing substitute resources or environments.” (Guidelines, § 15370.)

Appellants argue the MMP falls squarely within this definition because it reduces 

or eliminates the impact over time by preservation and maintenance operations during 

the life of the action. Appellants note the NOE relies on the MMP to “prevent” nonpointsource pollution into the creek and indirect impacts to aquatic species and finds no 

significant impacts with implementation of the MMP. 

However, the MMP is not a new measure proposed for or necessitated by the 

rodeo project. Rather, it is a preexisting measure previously implemented to address a 

preexisting concern, which was formalized in writing before the rodeo project was 

proposed. Thus, the MMP is actually part of the ongoing “normal operations” of the 

Fairground. Use of this measure does not disqualify the rodeo project from Class 23 

exemption.
13

Appellants rely on SPAWN to make their point, but their reliance is misplaced. In 

SPAWN, a county determined that the proposed construction of a home was categorically 

exempt from CEQA under an exemption for single family homes (see fn. 23, post), even 

though the home was adjacent to a protected anadromous fish stream and within a stream 

conservation area which the county conceded was of “critical concern.” (SPAWN, supra, 

125 Cal.App.4th at p. 1106.) In arriving at the conclusion that there was no reasonable 

possibility of significant environmental impacts that would preclude the exemption, the 

county relied on proposed mitigation measures attached to the grant of the categorical 

exemption. The landowner’s engineering consultant acknowledged runoff from new 

rooftops and driveways could erode stream banks but proposed dozens of drainage 

features for erosion and sediment control. (Id. at pp. 1106-1107.) 

The SPAWN court affirmed the trial court’s order to set aside the county’s

approval of the project, stating, “Reliance upon mitigation measures (whether included 

in the application or later adopted) involves an evaluative process of assessing those 

mitigation measures and weighing them against potential environmental impacts, and 

that process must be conducted under established CEQA standards and procedures for 

EIRs [environmental impact reports] or negative declarations.” (SPAWN, supra,

125 Cal.App.4th at p. 1108.) The court further stated, “there are sound reasons for 

precluding reliance upon mitigation measures at the preliminary stage of determining 

eligibility for a categorical exemption. Regulatory guidelines dealing with the 

environmental review process under CEQA ‘contain elaborate standards--as well as 

significant procedural requirements--for determining whether proposed mitigation will 

adequately protect the environment and hence make an EIR unnecessary; in sharp 

contrast, the Guidelines governing preliminary review do not contain any requirements 

that expressly deal with the evaluation of mitigation measures.’ [Citation.] An agency 

should not be permitted to evade standards governing the preparation of a mitigated 

negative declaration ‘by evaluating proposed mitigation measures in connection with the 
14

significant effect exception to a categorical exemption.’ [Citation.]” (Id. at p. 1108, 

italics added.)

Here, unlike SPAWN, the NOE did not refer to or rely upon any “proposed” 

mitigation measures. Rather, as we have noted, the MMP predated this rodeo project 

and formalized practices that had been implemented for decades. Nothing in the NOE 

suggests the MMP was created for this project. Quite the contrary, the NOE reads: 

“Horse and livestock manure is strictly managed in accordance with the District’s 

‘Manure Management Plan.’ Manure is collected, contained in enclosed bunkers and 

hauled offsite, and animal washdown areas flow to the existing sanitary sewer. These 

required operations and management of the animals will prevent non-point source 

pollution into the creek and indirect impacts to aquatic species that may be present.” 

Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329 (Wollmer) is illustrative. 

In Wollmer, an individual challenged the city’s approval of a mixed-use building the 

City found exempt under the exemption for in-fill development. (Wollmer, supra, 

193 Cal.App.4th at pp. 1336-1337; see fn. 18, post.) The City had preexisting traffic 

issues at the intersection where the proposed building was to be constructed. Wollmer 

contended that the City evaded CEQA by “cutting a deal” with the developers whereby 

the developers would dedicate land for a left-turn lane on a street at the intersection 

where the developers planned to construct the building, thereby reducing traffic impacts 

to less than significant, a necessary condition for the categorical exemption. (Id. at 

p. 1352.) The Wollmer court rejected the argument, agreeing with the trial court that the 

city did not mitigate the project into qualifying for a categorical exemption. Rather, the 

city properly exercised discretion to find the project would not cause a significant traffic 

impact. (Ibid.) The dedication of the right-of-way, enabling the city to improve the 

intersection, “was not a CEQA mitigation measure for project impacts, but a component 

of the project that assisted the City with an existing traffic issue.” (Ibid.) The appellate 

court said it was true “that by the time of the final traffic study, the Developers had made 
15

the dedication offer and that reality was included in the traffic analysis. Our response is, 

so what? The point is, the offer of dedication did become part of the project design, 

improving an existing traffic concern. This is no secret. . . . [¶] Wollmer offers no 

authority for the proposition that a positive effort between developers and a municipality 

to improve the project for the benefit of the community and address existing traffic 

concerns somehow becomes an evasion of CEQA.” (Id. at p. 1353.) The Wollmer court 

reasoned, “Unlike the situation in [SPAWN], the traffic situation improved by the 

Developers’ dedication preexisted the proposed project. The dedication became part of

the project design--it was never a proposed mitigation measure.” (Ibid., first italics 

added.) 

Similarly, here the problem of manure management at the Fairground and the 

Fairground’s MMP preexisted the rodeo project. The MMP was not proposed as a 

mitigation measure for the rodeo. It was part of the “normal operations” of the 

Fairground, and we see no reason why the implementation of a public gathering 

facility’s preexisting program that is part of the facility’s normal operations and 

designed to address ongoing issues should preclude Class 23 exemption.

Appellants claim Wollmer is distinguishable because it dealt with an existing

concern independent of the project, whereas here the concern stemmed from the rodeo 

project itself. We disagree. Given the nature and number of the other equestrian and 

livestock events, manure management was an ongoing concern at the Fairground. Here, 

even more so than Wollmer, the MMP was never a proposed mitigation measure for this 

rodeo project. Indeed, unlike Wollmer, evidence in the record supports a finding that the 

so-called mitigation measure here was in place for decades. While the aborted first rodeo 

project may have provided an impetus for the District to formalize the MMP by putting it 

in writing, it was not the initial rodeo plan or this rodeo project that created a need for the 

MMP or the procedures reflected in the plan that had long since been implemented.
16

In their reply brief, appellants make a factual argument, contending for the 

first time that the MMP was not an ongoing policy for decades. Appellants point to 

documents from a May 24, 2011 District meeting showing complaints from a horse 

show operator, Bud Thoman, who complained of problems his horse show encountered 

with “changes recently made to the facility and operations of the arena including . . . 

the change in manure removal strategy” which assertedly created a hazard during horse 

show operations. He said, “The proposed handling of manure I was advised that manure 

was to be, be taken from in front of each stall on the day, uh, as opposed to using a local 

pile method that we had in the past.” Appellants also refer to the minutes of that same 

meeting showing comments by Horse Show Committee member Blanca Boyd that “the 

manure trailers that Mr. Thoman objected to previously as interfering with the flow of 

traffic during his horse shows are indeed part of the manure management practices on the 

Fairgrounds and are here to stay. She further noted that due to these practices, as of this 

last year, there is currently no manure stored on the Fairgrounds whatsoever and [it] is 

hauled away by trailer on an as needed basis. . . .” Ms. Boyd said no one liked manure 

management interfering with the events, but it was “part of the . . . future picture. We no 

longer tolerate manure all over the ground. It’s picked up after every single horse show, 

it is put up, it is put into the trailers, the trailers are hauled away [and] a new trailer is 

brought in its place. This is an ongoing thing. So this manure on the ground, uh, going 

into the creek, maybe it did, many years ago, it didn’t do it this year.” 

These new points do not change our analysis.7 At most, they suggest contrary 

evidence indicating the change to daily hauling of manure, as opposed to hauling after the 

 

7

 Appellants’ opening brief did not contain this factual argument. Appellants simply 

argued, “just because the trial court found that manure management measures have 

ostensibly been available and used at other events at the Fairgrounds for many years 

does not detract from the Manure Plan’s qualification as a mitigation measure . . . .” 

While we may disregard factual points raised for the first time in the reply brief 
17

events, may have been a recent change that applies to all events, which of course means 

the change applies to and is part of the ongoing preexisting operations of the Fairground. 

Thus, even assuming daily hauling was a recent change as of Mr. Thoman’s May 2011 

comment, the change was already in place when the District issued the NOE in May 2011 

for this October 2011 rodeo. The critical point is that the MMP preexisted the NOE for 

this rodeo project and was directed toward a preexisting concern. It was not proposed for

or created by this rodeo project. 

We conclude the MMP was not a mitigation measure precluding the categorical 

exemption. We next consider the categorical exemption and the applicability of the 

unusual circumstances exception that would disqualify the rodeo project from exemption.

III. Class 23 Categorical Exemption

Appellants contend the unusual circumstance exception, which applies when there 

are “significant effects on the environment” “due to unusual circumstances” (Guidelines, 

§ 15300.2, subd. (c); see fn. 4, ante), precludes application of the Class 23 exemption for 

normal operations of public gathering facilities to the rodeo project. 

A. Normal Operations 

Before determining the applicability of the unusual circumstances exception to the 

exemption, we must determine the scope of the exemption and whether the rodeo project 

qualifies. (Cal. Farm Bureau, supra, 143 Cal.App.4th at p. 185.) As will be seen, this 

determination informs our review of whether the proposed project presents unusual 

circumstances. We read the Class 23 categorical exemption for “normal operations” of 

public gathering facilities as consisting of three elements. The exemption applies to 

projects that: (1) are normal operations of existing facilities for public gatherings for 

which the facilities were designed, (2) where there is a past history of the facility being 

 

(Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8), we 

exercise our discretion to address these new points on the merits.
18

used for the same or similar purpose within at least the past three years, and (3) there is a 

reasonable expectation that the future occurrence of the activity would not represent a 

change in the operation of the facility. (Guidelines, § 15323, fn. 3, ante.) 

The “normal operations” of the Fairground are the public events and activities it 

puts on and the internal operations it employs to facilitate the production of those events. 

The rodeo project is indistinguishable from other livestock and equestrian events held at 

the Fairground for many, many years. It involves the presence of no more cattle and/or 

horses in Fairground facilities than have been present for prior events. These facilities 

are designed to house those animals, and no changes to the facility or facility operations 

are necessary for the rodeo project. We conclude that the Class 23 categorical exemption 

applies to the proposed rodeo project. 

B. The Unusual Circumstances Exception8

1. Unusual Circumstances

In Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 

1096, 1107 (Voices), this court said two questions are at issue in reviewing an agency’s 

determination that a project did not trigger the exception for unusual circumstances that 

have a significant effect on the environment. “ ‘First, we inquire whether the [p]roject 

presents unusual circumstances.9 Second, we inquire whether there is a reasonable 

 

8

 This exception “is sometimes called either the “significant effects” exception or 

the “unusual circumstances” exception.” (San Lorenzo Valley Community Advocates 

for Responsible Education v. San Lorenzo Valley Unified School District (2006) 

139 Cal.App.4th 1356, 1381 (San Lorenzo).) We will refer to the exception as the 

“unusual circumstances exception.”

9

 At oral argument, appellant asserted that the mere fact there is a reasonable possibility 

of an environmental effect is an unusual circumstance and implied that nothing more 

need be shown. We reject that argument as inconsistent with current published authority 

and the language of Guidelines section 15300.2, subdivision (c), which states that the 

environmental impact must be “due to” an unusual circumstance. (See fn. 4, ante.) 

Appellants do not challenge the validity of the guideline in this appeal. 
19

possibility of a significant effect on the environment due to the unusual circumstances. 

[Citation.]’ ”

10 (Voices, supra, 209 Cal.App.4th at pp. 1107-1108, citing Banker’s Hill,

Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 

139 Cal.App.4th 249, 278 (Banker’s Hill).) “ ‘A negative answer to either question 

means the exception does not apply.’ ” (Bankers Hill, supra, 139 Cal.App.4th at p. 278.) 

“The first question, whether the project for which a categorical exemption is being 

claimed involves unusual circumstances, is an issue of law we review de novo. 

[Citation.]” (Voices, supra, 209 Cal.App.4th at p. 1108.) 

As this court observed in Voices, the Guidelines do not define the term “unusual 

circumstances.” (Voices, supra, 209 Cal.App.4th at p. 1109.) Courts view circumstances 

as unusual within the meaning of the exemption when “the circumstances of the project [] 

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

exemption.” (Azusa, supra, 52 Cal.App.4th at p. 1207, italics added; accord, Voices,

supra, 209 Cal.App.4th at p. 1109 [“ ‘whether a circumstance is “unusual” is judged 

relative to the typical circumstances related to an otherwise typically exempt project’ ”];

San Lorenzo, supra, 139 Cal.App.4th at p. 1381 [an unusual circumstance refers to some 

feature of the project that distinguishes it from others in the exempt class].) Thus, as we 

will discuss in more detail, when determining whether the circumstances of the project

differ from the general circumstances of the projects covered by the Class 23 categorical 

exemption for the normal operations of a public gathering facility, it is appropriate to 

look to the facility’s other projects, i.e., events or operations that comprise the normal 

operations of that facility and compare those circumstances against those presented by the 

proposed project.

 

10 As we discuss post, it is unnecessary for us to reach the issue of whether there is a 

reasonable possibility of a significant effect on the environment because we conclude 

there are no unusual circumstances.
20

Appellants contend that we must not compare the rodeo project to other 

Fairground events in determining whether it presents unusual circumstances, but rather 

we must compare the rodeo project to activities held at other facilities that would be 

exempt under the Class 23 exemption. According to appellants, we must compare the 

circumstances presented by a proposed project to all public gathering facilities in general, 

including “racetracks, stadiums, convention centers, auditoriums, amphitheaters, 

planetariums, swimming pools, and amusement parks” (see Guidelines, § 15323, fn. 3, 

ante) and apparently all other public gathering facilities not expressly listed in the 

Class 23 exemption. Appellants also, apparently as an alternative argument, narrow the 

comparison, contending that we must compare the Fairground facility to other “normal” 

fairground facilities. Focusing on a comparison to the universe of public gathering 

facilities or the universe of “normal” fairgrounds, appellants then look to circumstances 

related to the Fairground facility that are different from other public gathering facilities 

and/or other fairgrounds. They contend the impaired status of the Salsipuedes Creek is a 

circumstance that is different from “normal facilities” for which a Class 23 exemption is 

provided and is thus an unusual circumstance within the meaning of the unusual 

circumstance exception. 

We reject appellants’ argument for two reasons specific to the Class 23 exemption 

for the normal operations of public gathering facilities. First, looking to public gathering 

facilities generally covered by the exemption may not produce an apples-to-apples 

comparison from which courts could determine whether a circumstance is usual or 

unusual. Racetracks, stadiums, convention centers, auditoriums, amphitheaters, 

planetariums, swimming pools, and amusement parks are so different in general that a 

comparison of circumstances could be suspect. For example, it would be extremely 

unusual to have horses or cattle and manure anywhere near a public swimming pool;

thus, any comparison of the operations of public swimming pools to fairground facilities 

for usual and unusual circumstances could be unfair. Second, even if courts were 
21

required to look to the universe of all Class 23 exempt public gathering facilities or the

smaller universe of all fairgrounds11 for comparison of the usual circumstances related to 

their normal operations, appellants have offered no proof of the circumstances related to 

other public gathering facilities or “normal” fairgrounds against which the comparison of 

the unusual and usual should be made. And appellants have the burden of establishing 

the exception. (Wollmer, supra, 193 Cal.App.4th at p. 1350; Committee to Save the 

Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186 

(Hollywoodland); Cal. Farm Bureau, supra, 143 Cal.App.4th at p. 186.) 

Appellants rely primarily on Azusa for the proposition that we must compare the 

Fairground to all other public gathering facilities in general and that proximity to a water 

source could be an unusual circumstance. Azusa did not involve a Class 23 exemption 

for “normal operations” of public gathering facilities. That case involved a Class 1 

exemption for the “operation . . . or minor alteration of existing . . . facilities” 

(Guidelines, § 15301),

12 referred to as the “existing facilities” exception (Azusa, supra, 

 

11 Appellants do not describe a “normal” fairground, and they have not established that 

there is such a thing. In our geographically diverse state, fairgrounds are located in cities,

suburbs, and rural areas. They vary in size, nature and scope of events, the number of 

spectators and visitors, the number and type of livestock on site and the time of the year 

when livestock events are held, which may or may not be in a rainy season. They also 

differ in proximity to water sources -- some are likely nearer to water sources than others. 

Moreover, there are likely differences in drainage systems and stormwater runoff which 

may involve runoff into storm drains, groundwater, and/or nearby bodies of water. 

Assuming such a comparison was appropriate in determining whether the rodeo event at 

the Fairground and the potential stormwater runoff were public gathering facility 

operations that presented an unusual circumstance relative to other fairgrounds, we need 

not attempt to make this comparison here because, as we discuss post, appellants have 

provided no evidence for us to compare.

12 “Class 1 consists of the operation, repair, maintenance, permitting, leasing, licensing, 

or minor alteration of existing public or private structures, facilities, mechanical 

equipment, or topographical features, involving negligible or no expansion of use 

beyond that existing at the time of the lead agency's determination. The types of 
22

52 Cal.App.4th at p. 1193). In Azusa, unlike here, the “facility” and the project were 

essentially one and the same.

The project in Azusa was the reopening of an 80-acre unlined municipal solid 

waste landfill located in an empty sand and gravel pit which was situated on top of the 

Main San Gabriel Groundwater Basin, an underground reservoir that supplied the water 

needs of approximately one million people. (Azusa, supra, 52 Cal.App.4th at pp. 1175-

1176, 1178.) Previously, the State Board had rescinded the landfill’s permit allowing the 

disposal of municipal solid waste, and the landfill closed. (Id. at pp. 1175-1176.) The 

plan for the reopened landfill was that 3.2 million tons of municipal solid waste would be 

deposited over a seven-year period. (Id. at p. 1176.) The State Board refused to stand in 

the way. The Regional Water Board declared the project exempt under the Class 1 

existing facilities exemption (id. at pp. 1176, 1192-1193), notwithstanding that the Basin 

was polluted, it was on the EPA’s superfund list, and the contamination problem had 

been previously characterized by the Legislature as “urgent” (id. at p. 1178). On appeal, 

the court concluded that the language of the Class 1 categorical exemption for the 

operation and minor alteration of existing facilities should not be construed to include a 

large, municipal waste landfill. The court reasoned: the landfill was not a “facility” 

within the meaning of the guideline for existing facilities13 (Azusa, supra, 52 Cal.App.4th 

 

‘existing facilities’ itemized below are not intended to be all-inclusive of the types of 

projects which might fall within Class 1. The key consideration is whether the project 

involves negligible or no expansion of an existing use.” (Guidelines, § 15301, italics 

added.) A nonexclusive list of examples in the guideline includes: Plumbing and 

electrical conveyances, public and private utilities, highways, streets, sidewalks, gutters, 

bicycle and pedestrian trails, water supply reservoirs, fish screens fish ladders, wildlife 

habitat areas, artificial wildlife waterway devices, artificial wildlife waterway devices, 

stream channels to protect fish and wildlife resources, multiple and single-family 

residences. (Guidelines, § 15301.)

13 The court noted that the concept of “facility” is vague. The court then cited a 

dictionary definition, noted that a landfill is excavated and observed that a landfill does 
23

at pp. 1193-1194); the layering of 3.2 million tons of solid waste over time was not a 

“minor alteration” within the meaning of the exemption14 (id. at p. 1194); there had 

been a legislative determination that some of the state’s existing landfills posed a threat 

to groundwater, air quality and public health (id. at p. 1195); and the rationale for the 

existing facility exemption (that the environmental effects of the facility operation had 

already been considered) does not apply to landfills that, like the one at issue, had not 

been reclassified pursuant to legislative directive (id. at pp. 1195-1996). Thus, the 

Azusa court essentially held that large, municipal waste landfills cannot be exempt under 

Class 1. 

The Azusa court then went on to criticize the regional water board’s implied 

finding that the unusual circumstances exception15 did not preclude the categorical 

exemption. (Azusa, supra, 52 Cal.App.4th at pp. 1197-1209.) In looking at the first 

question in determining the applicability of the exception -- the existence of an unusual 

circumstance -- the court noted numerous circumstances that were unusual in comparison 

with “existing facilities in general” (id. at p. 1207), including the circumstance that large 

scale landfilling with municipal waste was not entitled to any exemption; waste 

disposal landfills differ from other types of existing facilities in that the Legislature 

had determined that such landfills posed a threat to the environment, and required that 

they be reevaluated and reclassified; the landfill did not have the safeguards needed to 

 

not necessarily fit the dictionary definition of “facility,” and further noted that landfills 

are not included in the list of examples set forth in Guidelines section 15301. (Azusa, 

supra, 52 Cal.App.4th at pp. 1193-1194.)

14 The court reasoned that, “neither ‘existing facilities’ nor the ‘operation’ of such 

facilities should be construed to include landfills where the proposed dumping will 

exceed the ‘minor alteration’ that the Guidelines permit.” (Azusa, supra, 52 Cal.App.4th 

at p. 1194.)

15 The court referred to the exception by its synonym, the “significant effect” exception. 

(Azusa, supra, 52 Cal.App.4th at p. 1197.)
24

protect the environment from the types of pollutants that landfills are likely to produce; 

and there has been an increasing awareness of the environmental hazards posed by 

landfills, and the hazards posed by this landfill in particular (id. at pp. 1207-1208). In 

addition to these unusual circumstances, the court noted that the landfill differed from 

“existing waste disposal landfills in general” in that it overlay a major drinking water 

aquifer in highly permeable sands and gravel that provide a direct pathway for landfill 

pollutants to move to ground water. (Id. at p. 1208.) Thus, given the nature of the 

facility and the claimed exemption, the focus of comparison was between the Azusa 

landfill facility to other existing Class 1 facilities “in general” and other landfill facilities, 

not specific activities of the facility that could be considered individual projects for 

CEQA purposes.16 Indeed, the project and facility in Azusa were indistinguishable 

because landfills engage in only one activity -- the deposit of municipal waste. Here, the 

Fairground facility involves operations other than those involving horses and cattle and 

the exemption relates to the normal operations of the facility. Consequently, we focus 

not on the facility itself, but on the specific operations of the facility involving horses and 

cattle.

Appellants also rely on Hollywoodland for support of their contention that we 

must look to other facilities in general covered by the exemption when determining 

whether the proposed project has unusual circumstances. In Hollywoodland, the 

petitioners sought to compel the City of Los Angeles to rescind approval of a wooden 

fence a homeowner had constructed atop one of the historic granite walls in the 

Hollywoodland community. (Hollywoodland, supra, 161 Cal.App.4th at p. 1172.) 

 

16 Guidelines section 15378, subdivision (a) broadly defines a “project” to mean “the 

whole of an action, which has a potential for resulting in either a direct physical change 

in the environment, or a reasonably foreseeable indirect physical change in the 

environment . . . .” 
25

On appeal, the court rejected the city’s position that the fence was categorically exempt 

under Class 5 because it represented a “ ‘minor alteration in land use limitations.’ ”

17

 

(Id. at p. 1180.) The court further held that even if the fence were exempt, the unusual 

circumstances exception precluded the exemption because there was a strong possibility 

of an adverse impact upon a historical monument. (Id. at p. 1185.) In making the 

latter determination, the court reasoned that the city failed to consider whether the 

circumstances of the fence differed from the general circumstances of projects covered by 

the exemption. The fence was different from the typical “ ‘minor land use alteration’ ” 

contemplated by the exemption because the alteration was to a historical resource. The 

stone walls were old and unique, and any change to them could significantly alter their 

physical composition. (Id. at p. 1187.) Thus, the court impliedly determined the 

circumstances were unusual compared to other minor land use alterations. 

The Class 23 exemption for the normal operations of public gathering facilities 

is different from the Class 5 exemption for minor land use alterations. Because the 

gravamen of the Class 5 exemption is an alteration to a land use, the focus of comparison 

is appropriately on other minor land use alterations in general. The Class 23 exemption,

on the other hand, involves the various activities that are “normal operations” of a public 

gathering facility, and the focus of comparison should, therefore, be on those activities 

that make up the facility’s normal operations. Hollywoodland does not support 

appellants’ position.

Appellants also find support for their argument in Wollmer. We do not. In 

Wollmer, the city determined that the proposed mixed-use building project was exempt 

 

17 The Class 5 exemption consists in pertinent part of “minor alterations in land use 

limitations in areas with an average slope of less than 20%, which do not result in any 

changes in land use or density, including but not limited to: [¶] (a) Minor lot line 

adjustments, side yard, and set back variances not resulting in the creation of any new 

parcel . . . .” (Guidelines, § 15305.)
26

under the Class 32 exemption for in-fill development.18 The appellant argued that the 

location of the project at the intersection of two major thoroughfares, and his view of the 

city’s traffic modeling, qualified as unusual circumstances. (Wollmer, supra, 

193 Cal.App.4th at pp. 1351-1352.) Appellants here focus on the Wollmer court’s 

holding regarding the location argument, quoting the court’s statement that “locating an 

in-fill project at the intersection of two major city streets that also happen to serve as state 

highway routes is well within the range of characteristics one would except for class 32 

projects and precisely what the law encourages.” (Id. at p. 1351.) We fail to see how this 

advances appellants’ position here. The quote relates solely to the Wollmer court’s 

observation that the location was not an unusual circumstance because the location fit the 

criteria of the in-fill exemption. (Ibid.) 

Appellants rely on Myers v. Board of Supervisors (1976) 58 Cal.App.3d 413 

(Myers) for the proposition that a nearby water source is an unusual circumstance. Like 

Azusa, Myers did not involve the Class 23 exemption for normal operations. Myers

involved a county’s interpretation of a CEQA Class 4 exemption for “minor alterations in 

the condition of land.”19 (Myers, supra, at p. 423, italics added.) Appellants sought a 

 

18 “Class 32 consists of projects characterized as in-fill development meeting the 

conditions described in this section. [¶] (a) The project is consistent with the applicable 

general plan designation and all applicable general plan policies as well as with 

applicable zoning designation and regulations. [¶] (b) The proposed development occurs 

within city limits on a project site of no more than five acres substantially surrounded by 

urban uses. [¶] (c) The project site has no value, as habitat for endangered, rare or 

threatened species. [¶] (d) Approval of the project would not result in any significant 

effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be 

adequately served by all required utilities and public services.” (Guidelines, § 15332.)

19 “Class 4 consists of minor public or private alterations in the condition of land, water, 

and/or vegetation which do not involve removal of healthy, mature, scenic trees except 

for forestry and agricultural purposes.” (Guidelines, § 15304, italics added.) Various 

examples are listed in the exemption, including: Grading on a slope of less than 

10 percent, with certain specified exceptions (Guidelines, § 15304, subd. (a)); New or 
27

writ of mandate ordering a county board of supervisors to rescind a resolution granting a 

request for minor land division to subdivide property into three new parcels for use as 

home sites. (Id. at pp. 417-419.) The board had interpreted the Class 4 exemption as 

including a “minor land division.” (Id. at pp. 418, 422.) The appellate court held the 

county had misconstrued the Class 4 exemption, and a land division was not a “minor 

alteration in the condition of land,” but rather it was an alteration in the “use” of land. 

(Id. at pp. 423-425.) The Myers court then went on to determine whether the land 

division was exempt under Guidelines former section 15060, which at the time provided 

in pertinent part, “Where it can be seen with certainty that there is no possibility that the 

activity in question may have a significant effect on the environment, the activity is not 

covered by the requirements set forth in CEQA, and these Guidelines concerning the 

evaluation of projects and the preparation and review of environmental documents do not 

apply.”20 (Myers, supra, at p. 425, some italics added; see id. at pp. 425-427.) It was in 

the context of determining whether it was certain there was no possibility of a significant 

environmental effect that the court noted the appellant’s claim that there was a danger of 

 

replacement gardening or landscaping (Guidelines, § 15304, subd. (b)); Filling of earth 

into previously excavated land with material compatible to natural features of the site; 

(Guidelines, § 15304, subd. (c)); Minor alterations in land, water, and vegetation on 

designated wildlife management areas or fish production facilities which result in 

improvement of the habitat or greater fish production (Guidelines, § 15304, subd. (d)); 

Minor temporary use of land having negligible or no permanent effects on the 

environment, including carnivals, sales of Christmas trees, etc. (Guidelines, § 15304, 

subd. (e)); Minor trenching and backfilling where the surface is restored (Guidelines, 

§ 15304, subd. (f)); Maintenance dredging where the spoil is deposited in an authorized 

spoil area (Guidelines, § 15304, subd. (g)); The creation of bicycle lanes on existing 

rights-of-way (Guidelines, § 15304, subd. (h)); and Certain fuel management activities to 

reduce the volume of flammable vegetation (Guidelines, § 15304, subd. (i)).

20 This exemption can now be found in Guidelines section 15061, subdivision (b)(3), 

which states, “Where it can be seen with certainty that there is no possibility that the 

activity in question may have a significant effect on the environment, the activity is not 

subject to CEQA.” (Italics added.) 
28

sewage from the necessary septic lines seeping into a nearby stream and polluting it. (Id. 

at pp. 426-427.) The court reasoned that even if this and other claims made by the 

appellant were exaggerated or untrue, they were “sufficient to remove the subject project 

from the class ‘Where it can be seen with certainty that there is no possibility that the 

activity in question may have a significant effect on the environment . . . .’ ” (Id. at 

p. 427, italics added.) Myers did not involve application of the “unusual circumstances” 

exception, so it has no application here. 

Appellants also misplace reliance on Meridian Ocean Systems, Inc. v. State Lands 

Com. (1990) 222 Cal.App.3d 153 (Meridian) for the proposition that proximity to a water 

source is an unusual circumstance. In Meridian, three companies engaged in the business 

of conducting seismic research in the Pacific Ocean sued the State Lands Commission 

after the Commission ordered preparation of an EIR before acting on applications to 

renew the companies’ permits. (Meridian, supra, 222 Cal.App.3d at pp. 162-163.) 

Meridian is obviously distinguishable. There, the water source was not merely in close 

proximity; rather, the project activities took place in the water source. Moreover, the 

Meridian court did not actually hold that the water source was the unusual circumstance. 

The court determined that the unusual circumstance was the fact that new scientific 

evidence showing a possible significant effect on the environment was not available 

when a previous exemption was granted. (Id. at p. 164.) Meridian does not support 

appellants’ contention.

Without analysis, appellants cite McQueen v. Board of Directors (1988) 

202 Cal.App.3d 1136 (disapproved on other grounds in Western States Petroleum 

Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2 (Western States)), for the 

proposition that “[w]here the location of a project is endowed with contamination that 

relates to the project, then unusual circumstances exist as to both the project and the 

facility.” Appellants overstate the holding of that case. In McQueen, the project 

involved the purchase of two parcels by a regional open space district from the federal 
29

government. The parcels formerly had been an Air Force station and a ground air 

transmitter site that adjoined the district’s open space preserve. (McQueen, supra, 

202 Cal.App.3d at pp. 1140.) The property was polluted. (Id. at pp. 1140-1141.) The 

McQueen court first held that the district’s description of the project was misleading 

because it described the project as “acquisition of named surplus federal property for 

public open space” (id. at p. 1144), when the project not only involved acquisition but 

also maintenance of hazardous waste known to be on the property (id. at pp. 1143-1147). 

After concluding that the project was not exempt under the exemptions asserted by the 

district (including the Class 25 exemption for transfers of ownership of interests in land 

in order to preserve open space), the McQueen court held that the exemptions were 

precluded for the additional reason that the unusual circumstance exemption applied. (Id. 

at pp. 1148-1149.) The court reasoned, “the known existence of PCB [polychlorinated 

biphenyls] and other hazardous wastes on property to be acquired is an unusual 

circumstance” threatening the environment. (Id. at p. 1149, italics added.) 

McQueen is distinguishable from the instant case. McQueen did not involve a 

proposed project related to the operations at an ongoing facility, let alone the normal 

operations of a public gathering facility. The project in McQueen was the purchase of 

polluted property and the necessary maintenance of the hazardous waste on the property 

after the purchase. In the context of the exemption for transfer of land to preserve open 

space, the fact that the land to be transferred was contaminated and required ongoing 

measures to deal with the hazardous waste on site was unusual compared to other land 

transfers for open space. McQueen does not advance appellants’ position here, where the 

focus is on the operations of the facility.

Appellants suggest the court in SPAWN also found an “unusual circumstance” in 

a project’s proximity to a creek. Not so. SPAWN did not involve application of the 

unusual circumstances exception at all. As we discussed ante, the court in SPAWN held 

that the project was not exempt because the County relied upon proposed mitigation 
30

measures to grant a categorical exemption. (SPAWN, supra, 125 Cal.App.4th at 

pp. 1106-1108.)

There are only two published cases involving the Class 23 exemption for 

the normal operation of public gathering facilities, both from this court. Appellants 

rely upon one, Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d 

823 (Lewis), and ignore the other, Campbell v. Third Dist. Agricultural Assn. (1987) 

195 Cal.App.3d 115 (Campbell), which distinguished Lewis. 

On first blush, Lewis seems supportive of the notion that proximity of a 

neighborhood to the public facility activity could be an unusual circumstance. But a 

closer look at Lewis reveals that it was actually the activity in question, made possible 

by a change in the facility, which presented the unusual circumstance. The public 

gathering facility in Lewis was a modified racetrack at a county fairground situated less 

than a mile from a residential neighborhood. For some 15 years, a flat dirt racetrack 

had been used for auto races until a banked track was constructed in 1973. (Lewis, 

supra, 165 Cal.App.3d at p. 826.) The new track allowed for higher powered “modified 

stock” car races. (Ibid.) Residents complained about the noise and dust generated from 

the modified stock car races, and in 1980, the district association undertook a study. In 

the meantime, a resident sought mandamus and injunctive relief, complaining that the 

modified stock car races had been conducted without environmental review and seeking

cancellation of the contract between the agricultural district association and the promoter 

of the races. (Id. at pp. 826-827.) Thereafter, the district association filed a notice of 

exemption, relying on the Class 23 exemption for normal operations of public gathering 

facilities. (Id. at pp. 827-828.) This court held that the district association abused its 

discretion by finding modified stock car racing events categorically exempt under 

Class 23 because there was a reasonable possibility of a significant effect on the 

environment due to unusual circumstances. (Guidelines, § 15300.2.) 
31

It does not appear that the unusual circumstances prong of the exception was 

a matter of active dispute in Lewis as there was substantive analysis only on the 

significant effect prong. The key unusual circumstance that differentiated the project 

from other auto racing events that had been held prior to the modification of the track 

was that the modified stock car racing was noisier and created more dust. (Lewis, supra, 

165 Cal.App.3d at p. 829.) However, while this court stated it was limiting its analysis 

to the application of the normal operations exemption to the “ ‘unusual circumstances’ 

in [the] case, those concerning neighboring residences,” it also said “there is no question 

of the existence of unusual circumstances--the adjacency of residential areas to the 

racetrack.” (Lewis, supra, at p. 829, italics added; see id. at pp. 828-829.) Yet, the 

adjacency of the residences existed before the track was banked, and it was actually 

the characteristics of the modified stock car races -- more noise and dust -- that were 

the unusual circumstances concerning the nearby residences that made the modified 

stock car race project different from events that had taken place at the fairground prior 

to the modification of the track.21 Thus, although the court called the adjacency of the 

residences an unusual circumstance, without the added noise and dust, the project 

presented no circumstances that were different from the preexisting normal operations 

of the fairground, including previous auto races. 

Here, the issue is not noise and dust permeating nearby neighborhoods, but rather 

the horse and cattle manure and the potential impact on the nearby creek.22 Appellants 

 

21 In discussing the significant effect prong of the exception, the Lewis court noted, 

“The evidence clearly shows a major change in the scope and degree of racing at the 

fairgrounds occurred after 1970, specifically in 1973, when the construction of a banked 

racetrack permitted auto racing at higher speeds and with greater noise and dust.” 

(Lewis, supra, 165 Cal.App.3d at p. 829, italics added.)

22 Appellants here expressly state in their reply brief that they “have not advanced 

any claims on appeal that inconsistency with existing residential uses creates unusual 
32

show no change in the facility, nor a change in the use of the facility relative to the 

temporary housing of cattle and horses, nor any other change in operations, let alone 

changes that could constitute unusual circumstances. Thus, Lewis, where there was a 

significant change in the operation which resulted in unusual circumstances compared 

to previous operations, is of no help to appellants.

This court considered Lewis in Campbell, the only other published case involving 

the Class 23 exemption. Campbell also involved auto racing at a county fairground 

adjacent to a residential area. The racetrack in Campbell was constructed before the 

enactment of CEQA, but unlike the racetrack in Lewis, it was not modified or operated 

differently than it had been since its construction in 1962. This court distinguished Lewis

on the ground that there was no change in the normal operations. Thus, there was no 

adverse change in the environment, and the continued operation of the racetrack in 1986 

was categorically exempt from CEQA. (Campbell, supra, 195 Cal.App.3d at pp. 118-

119.) Likewise, here, the rodeo event does not represent a change in the operation of the 

Fairground. 

Here, the rodeo project had no unusual circumstances to distinguish it from others 

in the exempt class, e.g., other “normal operations” of the Fairground. Normal operations 

of the Fairground included about two dozen equestrian and/or livestock events each year 

for at least the last three years before the rodeo. The proposed rodeo did not involve 

more horses or livestock than were used for the other events and no changes to the 

facility or the operations were necessary. 

In determining the existence of unusual circumstances, it is also appropriate to 

look to whether additional environmental risks are presented by the proposed project. In 

Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720 (Ukiah), 

 

circumstances for the Rodeo Project. [Fn. omitted.] [Appellants] have maintained that 

unusual circumstances in this matter result from the proximity of the Project to the 

degraded creek.” 
33

the appellate court did just that in rejecting a neighborhood association’s challenge to 

a city’s determination that a project for a single-family residence was categorically 

exempt under the Class 3 exemption for the construction of single-family dwellings.23 

A member of the association, who lived next door to the lot where the home was to be 

constructed, stated that for many years, he had observed a substantial amount of water 

drain off of the lot and onto his property. (Ukiah, supra, 2 Cal.App.4th at pp. 735-736.) 

The appellate court held that this circumstance was not unusual, reasoning that the runoff 

“is not evidence of an adverse impact from the construction of the [subject] house. There 

was no evidence that construction of the house would have any additional effect on runoff 

from the lot. [Citation.] . . . Surface and groundwater runoff are common and typical 

concerns with sloping lots and in this context on the evidence presented cannot be 

considered unusual circumstances.” (Id. at pp. 735-736, second italics added.) The 

appellate court added that neither the size of the house, nor its height, nor its hillside site 

was “so unusual in the vicinity as to constitute the type of unusual circumstance required 

to support application of the exception.” (Id. at p. 736.) Likewise, the rodeo project here 

was the same or similar kind of activity of the same or similar size with the same or 

similar environmental risk as other Fairground activities. 

We may also look to whether the project is consistent with the surrounding zoning 

and land uses to determine whether a circumstance is unusual. In City of Pasadena v. 

State of California (1993) 14 Cal.App.4th 810 (City of Pasadena) (disapproved on other 

grounds in Western States, supra, 9 Cal.4th at p. 570, fn. 2), a city tried to void a lease 

between the state and a private landowner for the state to operate a parole office in a 

 

23 “Class 3 consists of construction and location of limited numbers of new, small 

facilities or structures” including “[o]ne single-family residence, or a second dwelling 

unit in a residential zone. In urbanized areas, up to three single-family residences may 

be constructed or converted under this exemption.” (Guidelines, § 15303, subd. (a).)
34

building located in the city. (City of Pasadena, supra, at p. 814.) The state invoked 

a categorical exemption for “ ‘the leasing of existing office space which has been 

determined not to have a significant effect upon the environment.’ ” (Id. at p. 820.) 

The city argued the exemption was rendered inapplicable by the exception for unusual 

circumstances, because the building was located next door to the library, a historic 

building of cultural significance, and residential development was in progress nearby. 

(Id. at p. 826.) The appellate court held the lease of the building for use as a parole office 

“does not constitute an ‘unusual circumstance’ within the meaning of CEQA in light of 

the presence of . . . other custodial and criminal justice facilities in the immediate area.” 

(Id. at pp. 826-827.)

In Bloom v. McGurk (1994) 26 Cal.App.4th 1307 (Bloom), an individual sought a 

writ of mandate to set aside permits issued for the continued operation of a medical waste 

treatment facility. The agency had determined that the facility was exempt under the 

Class 1 exemption for existing facilities. (Bloom, supra, 26 Cal.App.4th at pp. 1309, 

1312.) In rejecting the appellant’s claim that the proximity of residences presented an 

unusual circumstance, the Bloom court noted that the area was zoned for heavy industry. 

The court further noted that the facility’s operations were comparable to those of 

surrounding businesses, and citing City of Pasadena, held that the presence of 

comparable facilities in the immediate area adequately supported an implied finding 

that there were no “ ‘unusual circumstances’ ” precluding a categorical exemption. (Id. 

at pp. 1315-1316.)

Here, the rodeo was consistent with the surrounding zoning, which was 

commercial agricultural, permitting the commercial raising of animals, including 

grazing and livestock production, and residential agricultural, permitting animalkeeping and farming. Compared to the activities in the surrounding area, the rodeo 

presented no unusual circumstances. 
35

We may also look to the scope and size of the project as a potential unusual 

circumstance. Voices is an example. There, this court held that the unusual 

circumstances exception applied to an irrigation district’s agreement to provide water to 

a tribal casino and hotel project. (Voices, supra, 209 Cal.App.4th at pp. 1108-1114.) 

The project involved relocating the existing three-inch water meter and installing a short 

section of pipeline linking the meter to an existing water main, both of which would 

occur on tribal land. (Id. at p. 1103.) The district determined the project was exempt 

under the Class 3 categorical exemption for new construction or conversion of small 

structures.24 (Id. at p. 1104.) This court concluded, “the MOU [memorandum of 

understanding] project presents circumstances that are unusual for this categorical 

exemption. The proposed project’s scope, providing 216 additional EDU’s [equivalent 

dwelling units] of water to a casino and hotel project so large it brings with it its own 

freeway interchange instead of providing one or four EDU’s of water as contemplated 

by the class 3 categorical exemption is an unusual circumstance under that exemption. 

The sheer amount of water to be conveyed under the MOU obviously is a fact that 

distinguishes the project from the types of projects contemplated by the class 3 

categorical exemption.” (Id. at p. 1109.) 

Here, perhaps appellants evade comparison of the rodeo project to other 

Fairground events because they have no answer for the fact that the similarity is 

clear. Unlike in Voices, where the nature and scope of the project were unusual, the 

 

24 In addition to small facilities and structures such as single-family residences (see 

fn. 23, ante), the Class 3 exemption also applies to construction of motels, restaurants or 

similar structures not exceeding 2,500 square feet in floor area (Guidelines, § 15303, 

subd. (c)) and the “[w]ater main, sewage, electrical, gas, and other utility extensions, 

including street improvements, of reasonable length to serve such construction” 

(Guidelines, § 15303, subd. (d)). In Voices, the trial court determined there was 

sufficient evidence to establish the project was subject to the Class 3 categorical 

exemption. (Voices, supra, 209 Cal.App.4th at p. 1104.)
36

project at issue here is no different in nature and scope from previous Fairground events. 

And appellants have not challenged the other livestock and equestrian events held at the 

Fairground now or in the past. Indeed, they insist they are not challenging the other 

events at the Fairground. Yet, were we to employ appellants’ analysis, other equestrian 

and livestock events that historically have been within the normal operations of the 

Fairground would not be exempt.

We conclude there were no “unusual circumstances” taking this rodeo project out 

of the categorical exemption for “normal operations” of the Fairground.

2. Proof of Unusual Circumstances

Assuming we are required to compare the Fairground to other fairgrounds and 

further assuming the creek could be considered an unusual circumstance compared to 

other fairgrounds, appellants’ asserted comparison to other facilities is not supported by 

evidence in the record. Appellants argue that, “[a]lthough most fairgrounds include 

livestock and animal events, the normal fairground does not have documented discharges 

of stormwater [sic] from corral areas directly to a creek” (italics added), but appellants 

cite no evidence to support this factual contention. Without supporting evidence, 

we must regard their assertion as speculative. Indeed, we could just as easily speculate 

that there are other county fairgrounds that have similar issues related to stormwater 

runoff into nearby water sources or runoff into storm drains that flow into water sources, 

so the circumstances at the Fairground here are not necessarily unusual. As we have 

noted, once an agency meets its burden of establishing that a project is categorically 

exempt, the burden shifts to the party challenging the exemption to show the project 

falls within an exception (Hollywoodland, supra, 161 Cal.App.4th at p. 1186; Cal. 

Farm Bureau, supra, 143 Cal.App.4th at pp. 185-186), including establishing the 

existence of “unusual circumstances” (Wollmer, supra, 193 Cal.App.4th at pp. 1350-

1351). Appellants cannot satisfy this burden by speculation. They must provide 

evidence. 
37

3. Significant Effect on Environment

Since there were no unusual circumstances in this case, there can be no significant 

environmental effect “ ‘due to the unusual circumstances.’ ” (Voices, supra, 

209 Cal.App.4th at p. 1107.) The unusual circumstances exception to a categorical 

exemption does not apply unless the potential impacts of a project will constitute changes 

or alterations in the baseline environmental conditions as they exist at the time the project 

is approved and such changes or alterations are due to unusual circumstances. (Bloom,

supra, 26 Cal.App.4th at p. 1315.) Because a negative answer as to the question of 

whether there are unusual circumstances means the exception does not apply (Bankers 

Hill, supra, 139 Cal.App.4th at p. 278), we need not address appellants’ arguments about 

significant environmental effects. 

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1)-(2).)

 MURRAY , J.

We concur:

 MAURO , Acting P. J.

 DUARTE , J.