31 Cal. App. 5th 880
Cal. Ct. App. 5th2019Background
- Owners sought permits to build three single-family homes on three contiguous, steeply sloped parcels in Berkeley; geotechnical reports noted parts of the site lie within mapped Hayward-fault/Seismic Hazard areas.
- City staff retained a peer reviewer; after supplementary analyses and mitigation recommendations the reviewer recommended approval addressing landslide/seismic concerns.
- The Zoning Adjustments Board approved the three use permits and found the projects categorically exempt under CEQA Class 3 (up to three single-family residences in urbanized areas); neighbors appealed to city council and lost.
- Petitioners (neighborhood groups) sued in superior court arguing the Class 3 exemption was disqualified by the CEQA "location" (and earlier raised "unusual circumstances") exceptions and that the City misapplied its "mini-dorm" (bedroom‑addition) ordinance; trial court denied the petition.
- On appeal the court reviewed whether the projects fell within the location exception to categorical exemption and whether the City misinterpreted Berkeley Municipal Code §23D.16.050 (addition of a fifth bedroom), and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CEQA Class 3 exemption is defeated by the "location" exception because site lies in Alquist‑Priolo/Seismic Hazard zones | Mapped fault/landslide zones are "environmental resources of hazardous or critical concern," so location exception applies and CEQA review required | "Environmental resource" in the guideline refers to resources (habitat, species, sensitive environmental features), not geologic hazards; substantial evidence supports City's finding site is not an environmentally sensitive area | Court held the location exception does not automatically apply; earthquakes/landslides are not "environmental resources" and City's determination is supported by substantial evidence; exemption affirmed |
| Whether substantial evidence/fair argument support that construction would impact an environmental resource | Geotechnical reports show risk of activating/exacerbating landslide that could harm environmental resources (e.g., oak trees) | Reports evaluate impacts of hazards on the project and recommend mitigations; petitioners submitted no contrary technical evidence and failed to administratively raise some contentions | Court held petitioners failed to identify substantial evidence to support a fair argument that the projects would harm environmental resources; did not reach second‑prong in detail but would affirm |
| Whether City misapplied Berkeley Municipal Code §23D.16.050 (AUP/UPPH for addition of fifth bedroom) | Each new house has >4 bedrooms so ordinance requires AUP/UPPH or specific nondetriment findings | Ordinance targets additions of bedrooms to existing parcels/buildings (to address "mini‑dorms"); new construction already requires a use permit, so the mini‑dorm rule does not apply to new builds | Court gave deference to city's interpretation and independently found the ordinance's plain language and purpose apply to additions to existing structures, not to new construction; City interpretation upheld |
Key Cases Cited
- Berkeley Hillside Preservation v. City of Berkeley, 60 Cal.4th 1086 (California Supreme Court) (standard of review and bifurcated approach for CEQA categorical‑exemption exceptions)
- Aptos Residents Assn. v. County of Santa Cruz, 20 Cal.App.5th 1039 (Cal. Ct. App.) (discussion of exceptions to categorical exemptions)
- California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369 (California Supreme Court) (CEQA focuses on project impacts on the environment, not environment's effects on users)
- Ballona Wetlands Land Trust v. City of Los Angeles, 201 Cal.App.4th 455 (Cal. Ct. App.) (EIR purpose is to identify project effects on environment)
- Berkeley Hillside Preservation v. City of Berkeley, 241 Cal.App.4th 943 (Cal. Ct. App.) (distinguishing mitigation measures that are project design vs. mitigation precluding exemption)
- Hines v. California Coastal Com., 186 Cal.App.4th 830 (Cal. Ct. App.) (prior discussion of standards for exceptions)
- Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (California Supreme Court) (deference factors for agency interpretations)
- Save the Plastic Bag Coalition v. City and County of San Francisco, 222 Cal.App.4th 863 (Cal. Ct. App.) (when design/building‑code measures do not defeat categorical exemptions)