Exception To The Infill Exemption Gets Harder

In an ongoing dispute among commercial neighbors in Lafayette, a condominium developer appears to be besting an adjacent office building owner. Most recently the city got the go-ahead from an appellate court to use the infill exemption contained in the California Environmental Quality Act because the site doesn’t qualify for – in CEQA parlance – an exception to the exemption. Building on the Berkeley Hillside case and other cases, the ruling appears to make it more difficult for project opponents to use the "unusual circumstance" exception to the infill exemption. The case came down to the dueling biologists – and which biologist made a more convincing legal argument to the appallate court. The case was originally unpublished but has now been published by the appellate court. A developer known as 3721 Land LLC obtained approval from the City of Lafayette to tear down a rehabilitation center on Mount Diablo Boulevard and replace it with a 12-unit condominium project. (During the approval process, one unit was shaved off of the original 13-unit proposal.) The city used a Class 32 infill exemption from CEQA on the project.

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