The premise behind the categorical exemptions in the California Environmental Quality Act for infill and single-family projects is that projects in relatively dense, established urban areas are unlikely to create major impacts. According to a recent decision, this premise has its limits.  

The City of Berkeley is not known for lavish hillside homes the way that, say, Beverly Hills is. And yet, recently the city's Board of Zoning Adjustment had granted a categorical the construction of what can only be described as a mansion. Community members fought the project, filing Berkeley Hillside Preservation v. City of Berkeley. 

Property owners had applied for permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394-square foot, 10-car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. 

The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the City Council, claiming that the CEQA exemption was granted inappropriately. A geotechnical engineer, Dr. Lawrence Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. In the letter, Karp contended that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating that the project would likely have significant impacts during construction and operationally due to seismic risk. 

Two engineers submitted letters on behalf of the applicants (at least one was a geotechnical engineer). They argued in part that Karp misread the plans and that the project was appropriate for the site. The City Council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The City Council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed again.

The key issue on appeal was whether or not the city appropriately applied a CEQA exemption in light of all of the evidence. The appellate court indicated that judicial review requires a two-step inquiry. First, the court determines if there are unusual circumstances. As applied here, the appellate court found that the evidence was that the construction was unusual based upon size. The evidence most favorable to the city was that less than .4% of existing homes in the city were larger (although the record included less favorable evidence as well). The city argued that the relevant consideration in determining unusual circumstances was the vicinity of the proposed construction, and from this perspective, the proposed size was not unusual. Rejecting this approach, the appellate court directed that the proper point of focus was the broader category of similar structures for which the exemption was intended, not just those in the vicinity. 

Once this test is satisfied, the inquiry shifts to whether "there is a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual circumstances of its size." The appellate court found that the opponents had made the requisite showing of a fair argument through the Karp letter. The fact that there was evidence in favor of the city's decision was not conclusive under the fair argument test. Accordingly, the appellate court determined that an EIR was required.

Comment: 

The issue at hand is not whether or not a property owner has an inalienable right to build a ten-car garage or a 7,000-square foot house. What is important about this decision is that it highlights the barrier that CEQA poses to infill and to the revitalization of existing urban areas. CEQA prioritizes the status quo over change. If we are serious about creating vibrant urban communities, then we need vigorous CEQA reform. It's not rocket science to figure out why development steadily marches onward at the suburban fringe: defenders of the status quo file CEQA lawsuits, cows rarely do. 

The Case: 

Berkeley Hillside Preservation v. City of Berkeley (February 15, 2012, A131254) 203Cal.App.4th 656.

The Attorneys: 

For Appellants: Susan Brandt-Hawley

For Respondents City of Berkeley: Zach Cowan, City Attorney, Laura McKinney, Deputy City Attorney

For Respondents and Real Parties in Interest Mitchell  Kapor, Freada Kapor-Klein, and Donn Logan: Myers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond

William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.