VI. California Environmental Quality Act (CEQA)

CEQA applies to discretionary projects to be carried out or approved by public agencies. Because the Commission must act on Applicant's request for a CPCN and issue a discretionary decision before the project can proceed, the Commission must act as either a lead or responsible Agency under CEQA. The lead agency is the public agency with the greatest responsibility for supervising or approving the project as a whole. (CEQA Guidelines Section 15151(b).) The Commission as the designated lead agency must consider what review is necessary under CEQA, and if appropriate, investigate alternatives, avoid adverse impacts and restore or enhance environmental quality to the fullest extent possible.

Applicant's initial Proponent's Environmental Statement (PEA) represented that it would use existing conduit, previously constructed by others, for its fiber optic cable, except that Applicant would construct limited facilities in the City of Chico that involve the laying of additional conduit from an existing AT&T tower and Applicant's Network Operations Center (NOC) as follows: (1) a single 4-inch conduit would be extended from the SBC manhole located on the s/w corner of the intersection of Nord Avenue and West 8^th Avenue (a commercial area in downtown Chico), approximately 770 feet where the conduit would cross West 8^th Avenue to the AT&T tower; and (2) a single 4-inch conduit would be extended approximately 80 feet across 3rd Street to the NOC from the SBC manhole located in the sidewalk midway on 3d Street between Salem Street and Normal Street, a mixed commercial/residential area. This construction would take place within public right-of-way and on the private property on which the tower and NOC are located.

On September 29, 2003 Appellant filed an amended Proponent's Environmental Assessment stating that the proposed project would use a different tower site and would consequently require the installation of 350 feet rather than 850 feet of new conduit. Applicant's revised project would use the California Water Company Tower instead of the AT&T tower. A single 1-3 inch conduit would be extended from SBC manhole #141 located at the intersection of Esplanade and 6^th Avenue and would run approximately 300 feet east from that intersection under W. 6^th Avenue to the California Water Company Tower. A single 1-3 inch conduit would be extended approximately 50 feet down an alley adjoining 6^th Avenue to the tower site. The new conduit would be placed by directional bore in accordance with an encroachment permit that must be issued by the City of Chico. The construction would take place within the public right-of-way and on the private property where the tower is located.

On October 29, 2003, Applicant filed a Second Supplement to Environmental Assessment of Zephyr Communications, LLC, stating that its proposed limited construction was exempt "under CEQA Guideline 15332" because it met the five criteria for that exemption. Staff review confirms that the project would meet the criteria.

Subsection (a) of Guideline 15332 requires that:

"[t]he project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations."

The City of Chico's Land Use and Development Regulations (Regulations)³ implements policies articulated in Chico's General Plan.⁴ Development that complies with the Regulations is "consistent with the General Plan."⁵ Section 19.01.050(j) of the Regulations provides that installation of underground conduit by telecommunications utilities "shall be permitted in any zoning district." The installation of the antenna on the California Water Tower is permitted and regulated by Chapter 19.78 of the Regulations. Accordingly, Zephyr's project would comply with zoning regulations and be consistent with Chico's General Plan.

Subsection (b) of Section 15332 requires that:

"[t]he proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses."

Maps submitted by the Applicant confirm that the project is located within Chico City limits. Review of those maps and photographs submitted by the Applicant confirm that it is on a site on fewer than five acres surrounded by urban uses.

Subsection (c) of Section 15332 requires that:

"[t]he project site has no value as habitat for endangered, rare or threatened species."

Staff concluded, based on its review of the photographs submitted by the Applicant, which show a disturbed urban environment, and a previously paved area where the installation of conduit will occur, that the project site would not be of value as habitat for endangered, rare or threatened species.

Subsection (d) of Section 15332 requires that:

"[a]pproval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality."

Applicant's Second Supplement to its PEA states that the 350 feet of directional boring is expected to take less than a day, and that the City of Chico would require an encroachment permit. Review of photographs provided by the Applicant as well as area maps show that the project is not near any streams. Accordingly, staff concluded that local construction impacts of such a limited duration would not result in significant impacts on traffic, noise, air or water quality.

Subsection (e) of Section 15332 requires that:

(b) "[t]he site can be adequately served by all required utilities and public services.'

Staff concluded that the nature of Zephyr's proposed project to provide wireless high speed data and phone service would not create the need for additional utility or public services.

CEQA Guideline 15332 exempts "projects characterized as in-fill development" that meet the five enumerated criteria from further CEQA review. We agree with staff that the project meets the Section 15332 criteria for exemption,⁶ and find that the project is appropriately characterized as "in-fill development, " -which encompasses "the construction of new housing, workplaces, shops and other facilities within existing urban or suburban areas." ⁷ Accordingly we find that it is exempt from further CEQA review. Any additional construction or changes to the project would require our review.

³ Title 19 of the Chico Municipal Code. ⁴ Section 19.01.020 C, D and E of Chico's Land Use and Development Regulations. ⁵ Id., Section 19.01.030 B. ⁶ Moreover, we are unaware of any unusual circumstances that would prevent us from applying this categorical exemption. CEQA Guideline Section 15300.2(c). ⁷ Steven M. Wheeler, Smart Infill: Creating More Livable Communities in the Bay Area, p. 9. (Greenbelt Alliance, 2002). The author explains the benefits of infill development: "Through infill, communities can increase their housing, jobs, and community amenities without expanding their overall footprint out into open space or otherwise undeveloped land." Id.