Parker Shattuck Neighbors v. Berkeley City Council CA1/4
222 Cal. App. 4th 768
| Cal. Ct. App. | 2013Background:
- City of Berkeley approved a mixed-use project (three buildings, 155 units) on parcels long used for auto sales/repair; historical underground storage tanks and some soil/groundwater VOCs were identified.
- Owner commissioned Phase I/II environmental assessments (2005–2006); suspected tanks located and removed; tests found VOCs, petroleum hydrocarbons, arsenic, and cobalt in spots; Regional Board issued a closure letter in 2007 and the site retained a "case closed" status on the Cortese list.
- City initially treated the project as infill-exempt, then in a second round prepared a mitigated negative declaration (MND) in 2011 addressing hazards; MND concluded prior investigation/remediation and mitigation would avoid significant hazards.
- Parker Shattuck Neighbors challenged the MND, arguing CEQA required an EIR because disturbing contaminated soil could harm construction workers and future residents (relying on expert Matthew Hagemann and EBMUD comments).
- Trial court denied the writ; on appeal the Court of Appeal affirmed, holding plaintiffs failed to cite substantial evidence supporting a fair argument that disturbed contamination would have a significant environmental effect.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disturbing contaminated soil may be a CEQA-cognizable physical change requiring an EIR | Disturbing contaminated soil can physically change the environment and may create health risks to workers and residents, so an EIR is required | Project disturbance either will not significantly change the environment or prior remediation/mitigation and regulatory closure show no significant effects | Disturbing contaminated soil can be a physical change cognizable under CEQA, but here plaintiffs failed to show substantial evidence of a significant effect |
| Whether health risks limited to workers and future residents can render an effect "significant" under CEQA | Health risks from VOCs and hydrocarbons (vapor intrusion, inhalation, dermal contact) to those who build/live there make the impact significant | CEQA is meant to address effects on the environment/public generally; risks confined to project occupants/workers typically do not trigger an EIR; the record shows remediation/mitigation and separation measures | Court did not decide the general rule but held the record lacked substantial evidence that identified health risks would cause a significant environmental impact to require an EIR |
| Sufficiency of expert evidence (Hagemann) to create a fair argument for significance | Hagemann’s observations about VOC and petroleum levels, and recommendation for further vapor-intrusion study, show potential significant risk | Hagemann’s call for further study is speculation; contaminant levels did not exceed relevant nonpotable screening thresholds; prior reports found no need for cleanup; mitigation would reduce risks | Hagemann’s opinions recommending further study were insufficient to constitute substantial evidence supporting a fair argument of significance |
| Effect of site’s Cortese-list status on CEQA review | Presence on Cortese list signals potential significant hazard, requiring EIR rather than mere MND | Cortese-list inclusion triggers scrutiny (prevents categorical exemption) but does not automatically establish a significant environmental effect | Being on the Cortese list requires investigation but does not by itself establish a significant effect; here the record (closure letter, case-closed status) undercut a fair-argument of significance |
Key Cases Cited
- Laurel Heights Improvement Assn. v. Regents of Univ. of Cal., 6 Cal.4th 1112 (CEQA fair-argument standard and EIR as central CEQA document)
- Citizens for Responsible Equitable Environmental Development v. City of Chula Vista, 197 Cal.App.4th 327 (disturbance of contaminated soils can present cognizable CEQA impacts)
- Baird v. County of Contra Costa, 32 Cal.App.4th 1464 (CEQA protects the environment from projects, not projects from preexisting conditions when project does not change conditions)
- South Orange County Wastewater Authority v. City of Dana Point, 196 Cal.App.4th 1604 (lead agency decision reviewed in light of whole administrative record; checklist items alone insufficient)
- City of Long Beach v. Los Angeles Unified School Dist., 176 Cal.App.4th 889 (effects of existing environment on project occupants generally not the aim of CEQA review)
- Association for a Cleaner Environment v. Yosemite Community College Dist., 116 Cal.App.4th 629 (disturbance/spread of existing contamination can be a physical environmental change under CEQA)