Reversing itself on remand, the First District Court of Appeal has ruled in the Berkeley Hillside case that the proposed home of computer pioneer Mitch Kapor and his wife does not, in and of itself, represent an "unusual circumstances" under the CEQA Guidelines and therefore the  City of Berkeley acted properly in applying a CEQA exemption to the project. 

In so doing, the court did not need to move on to the second half of the analysis laid out earlier this year by the California Supreme Court in the appeal of the Berkeley Hillside case, Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, which was decided in May. 

In 2012, the First District ruled that the city could not apply two different categorical exemptions under the California Environmental Quality Act to the Kapors' proposed home, which would include 6,400 square feet of living space and a 10-car garage on a three-quarter-acre lot located on a steep hillside accessed by a narrow road. Berkeley Hillside Preservation v. City of Berkeley, 203 Cal.Appl.4th 656, Berkeley contains very few homes and garages of comparable size. 

In that ruling, the First District agreed with a local citizen group that the mere size of the project was an "unusual circumstances" that fell under CEQA Guidelines Section 15300.2, which says that a categorical exemption cannot be applied "where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances."  The city had attempted to apply a Class 3 exemption, which applies to single-family homes in urban areas, and a Class 32 exemption, which applies to infill development. 

On appeal, the Supreme Court laid out a two-step process for lead agencies in interpreting Section 15300.2. First, the court said, when lead agency decides that unusual circumstances exist, the substantial evidence rule applies - that is, a reviewing court must find substantial evidence of the agency's decision. In addition, concluded that once the unusual circumstance decision has been made, the 

the categorical exemption can be defeated by a "fair argument" that supports a reasonable possibility that significant environmental effects will result from the "unusual circumstances." The court remanded the case to the First District.

Writing for a three-judge panel of the First District on remand, Justice Jon Streeter gave great deference to the city's application of the categorical exemptions. He noted that instead of arguing that the Kapors' home does not meet the requirements for a categorical exemption, the appellants argued instead that it should be subject to Section 15300.2 because of its size. 

"What their argument boils down to-here again on remand-is that they presented evidence the proposed home will be "unusual" in the sense it will not be -typical', he wrote. "Even assuming they met their burden of production with this argument, they fail to come to terms with the stringent standard of review that Berkeley Hillside directs us to apply at this stage of the proceedings." Streeter noted. He pointed out that the Supreme Court ordered the First District to "resolve all evidentiary conflicts in the City's favor, indulge in all legitimate and reasonable inferences to uphold the City's finding, and affirm that finding if there is any substantial evidence, even if contradicted, to support it."

"To be sure," he added, "Kapor and Kapor-Klein propose to build a home that certainly could be considered unusually large, as that term is generally understood by a layperson.  Our concerns about the size and scale of the proposed project are partially what led us to conclude originally that the dimensions of the proposed structure presented unusual circumstances. But we may not substitute our judgment on this point.  Following the Supreme Court's guidance in Berkeley Hillside, we conclude that the size and scale of the home do not present unusual circumstances, as that term is used in Guidelines, section 15300.2, subdivision (c)."

"Having concluded that there are no unusual circumstances," he concluded, "we need not reach the next step in the Supreme Court's analysis."

Streeter did devote part of the ruling to the appellants' argument that the city's conditions on the project amounted to traffic mitigations under CEQA and therefore the city could not apply a categorical exemption, The Supreme Court had flagged this issue in the appeal and the appellants devoted a third of their brief in the remanded case to this issue. However, Streeter quoted a memo from the city manager's office specifically stating that the traffic requirements were standard conditions for any single-family project of this type and not CEQA mitigations.

This last portion of the ruling may be important as the state implements SB 743, which will mean that future "level of service" traffic analyses will take places outside the powerful legal context of CEQA.


The Case:

Berkeley Hillside Preservation v. City of Berkeley 


The Lawyers:

For Berkeley Hillside Preservation: Susan Brandt-Hawley, Brandt-Hawley Law Group, 

For City of Berkeley: Zach Cowan, City Attorney, 

For the Kapors: Amrit Kulkarni, Meyers, Nave, Riback, Silver & Wilson, 

The First District's 2012 ruling was written by Justice Patricia Sepulveda. Justice Streeter was not appointed to the appellate court until 2014. However, the other two members of the three-judge panel were the same.