Berkeley Hillside Preservation v. City of Berkeley
60 Cal. 4th 1086
| Cal. | 2015Background
- Owners sought a use permit in Berkeley to demolish an existing house and build a large single‑family dwelling (≈6,478 sq ft) with a 10‑car garage on a steep, wooded hillside lot. The city’s Zoning Adjustments Board and city council approved the permit and issued a notice of categorical exemption under CEQA Guidelines §§15303 (Class 3 — small structures) and 15332 (Class 32 — in‑fill).
- Neighbors appealed, submitting geotechnical objections (Dr. Lawrence Karp) alleging steep fill, large retaining walls, significant grading, proximity to the Hayward Fault, and a reasonable probability of seismic lurching — i.e., potentially significant environmental effects.
- City relied on geotechnical reports finding no landslide hazard and on the fact the project fit the two categorical exemptions. The trial court upheld the City; the Court of Appeal reversed, holding the “unusual circumstances” exception (§15300.2(c)) applies whenever there is a fair argument the project may have significant environmental effects.
- The California Supreme Court granted review to resolve the proper interpretation of Guidelines §15300.2(c) (the “unusual circumstances” / “significant effect” exception) and the standard of judicial review for the City’s decision.
- The Supreme Court reversed the Court of Appeal and remanded: it held that (1) a mere showing that a project may have significant effects does not automatically trigger §15300.2(c); the significant effects must be "due to unusual circumstances" (i.e., an unusual feature that distinguishes the project from its exempt class), and (2) review is bifurcated — factual finding of unusualness is reviewed for substantial evidence, while determination whether unusual circumstances create a reasonable possibility of significant effects is governed by the fair‑argument standard as applied by the agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a showing that a project may have a significant environmental effect alone triggers the §15300.2(c) exception | Fadley: any fair argument of potential significant effect precludes use of a categorical exemption; potential effect itself is an "unusual circumstance" | City: §15300.2(c) requires that the significant effect be "due to unusual circumstances"; potential effect alone is insufficient | Held: A potential significant effect alone does not automatically trigger the exception; it must be a significant effect "due to unusual circumstances" that distinguish the project from its exempt class. |
| Burden and standard to invoke the exception (what a challenger must show) | Challenger: a fair‑argument showing (substantial evidence supporting a fair argument) suffices to preclude the exemption | City: challenger must show an unusual circumstance; agency’s unusualness finding reviewed for substantial evidence | Held: Challenger bears burden to produce evidence of an exception; unusualness is a factual question for the agency (substantial evidence), but if unusualness is shown then the agency must apply the fair‑argument standard to determine whether those unusual circumstances create a reasonable possibility of significant effects. |
| Standard of judicial review for the agency’s §15300.2(c) determination | Plaintiff: courts should apply the fair‑argument (No Oil) standard and overturn agency findings if a fair argument exists | City: traditional substantial evidence (abuse of discretion) review should govern | Held: Bifurcated review — (1) whether circumstances are unusual is reviewed for substantial evidence; (2) if unusualness established, whether those circumstances present a reasonable possibility of significant effect is subject to the fair‑argument inquiry and the court reviews whether the agency applied that standard properly under §21168.5. |
| Whether expert opinion based on unapproved or nonexistent plan elements can constitute substantial evidence of potential impacts | City: impacts must be tied to the project as actually approved; opinions premised on unapproved elements are legally insufficient | Opponents: expert relied on plans and site conditions to show likely impacts | Held: Opinions must relate to the project as approved; evidence premised on unapproved work (e.g., omitted plan sheets showing side‑hill fill) cannot by itself establish a fair argument or unusual circumstance. |
Key Cases Cited
- Friends of Mammoth v. Board of Supervisors, 8 Cal.3d 247 (Cal. 1972) (recognized most private projects are minor and, absent unusual circumstances, need not be subject to CEQA review)
- No Oil, Inc. v. City of Los Angeles, 13 Cal.3d 68 (Cal. 1974) (established the fair‑argument standard for deciding when an EIR must be prepared)
- Wildlife Alive v. Chickering, 18 Cal.3d 190 (Cal. 1976) (held exemptions authorized only for activities that do not have a reasonable possibility of significant environmental effects)
- Mountain Lion Foundation v. Fish & Game Comm., 16 Cal.4th 105 (Cal. 1997) (explained limits on categorical exemptions where regulation and other guidelines recognize potential significant effects)
- Muzzy Ranch Co. v. Solano County Airport Land Use Comm., 41 Cal.4th 372 (Cal. 2007) (addressed review under Guidelines §15061(b)(3) and agency determinations that no possibility of significant effects exists)
- Friends of "B" Street v. City of Hayward, 106 Cal.App.3d 988 (Cal. Ct. App.) (fair‑argument test applied and explained in judicial review context)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (Cal. 1988) (scope of EIR and when related future actions must be discussed)