What is the standard of judicial review of a question of fact when the issue is whether a project that would otherwise be found categorically exempt is subject to one of the exceptions?

California, United States of America


The following excerpt is from Wilson v. City of Laguna Beach, G045933 (Cal. App. 2013):

"There is a split of authority on the appropriate standard of judicial review of a question of fact when the issue is whether a project that would otherwise be found categorically exempt is subject to one of [the]. . . exceptions . . . . 'Some courts . . . hold[] that a finding of categorical exemption cannot be sustained if there is a "fair argument" based on substantial evidence that the project will have significant environmental impacts, even where the agency is presented with substantial evidence to the contrary. [Citation.] Other courts apply an ordinary substantial evidence test . . ., deferring to the express or implied findings of the local agency that has found a categorical exemption applicable. [Citations.]'" (Hines v. California Coastal Com., supra, 186 Cal.App.4th at pp. 855-856.)

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