Wollmer v. City of Berkeley
122 Cal. Rptr. 3d 781
Cal. Ct. App.2011Background
- Site at 1200 Ashby Ave in Berkeley is 0.79 acres with a proposed mixed-use affordable housing project; 98 units with 15 affordable units and 8 very-low-income units proposed under density bonus; City approved a use permit and adopted a density bonus plan including Section 8-based rents; Wollmer challenged density bonus compliance and CEQA exemptions; trial court initially ruled on rent subsidy issue and ultimately denied petition; two project variants were authorized: Affordable Housing Project and Senior Affordable Housing Project; both were deemed CEQA-exempt; City applied waivers of height, setbacks, and other standards to enable the density bonus; decision upheld on appeal; the matter concerns interpretation of density bonus law, inclusionary ordinance, and CEQA exemptions; appellate review affirmed the trial court’s decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Condition 68 violates the density bonus law | Wollmer argues Section 8 rents exceed affordable rents cap | City properly treats affordable rent as tenant payment, not developer subsidy | No; affordable rent is tenant contribution, not developer subsidy; condition valid under §65915(c)(1). |
| Whether amenities waivers were permissible to grant a density bonus | Waivers for height/setbacks to accommodate amenities are improper without showing preclusion | Statute allows waivers that physically preclude density-bonus housing; amenities may be accommodated | Permissible; waivers needed only to avoid precluding density-bonus housing; amenities can be accommodated. |
| How the density bonus was calculated | City miscalculated by using zoning density instead of general plan density | General plan density prevails when inconsistent; city used correct approach | City complied with §65915; density bonus correctly calculated. |
| CEQA exemption and 15332 applicability | Projects did not qualify for in-fill exemption due to zoning waivers | Waivers are not “applicable” standards; class 32 exemption applies when consistent with general plan and zoning | Exemption properly applied; projects fit in-fill class 32; no unusual circumstances. |
| Whether there were unusual CEQA circumstances and traffic modeling issues | Intersections and traffic model create unusual risk requiring scrutiny | No substantial evidence of unusual circumstances; model supported; no mitigation turning point | No unusual circumstances; traffic model acceptable; no CEQA mitigation turning exemption into non-exemption. |
Key Cases Cited
- Wollmer v. City of Berkeley, 179 Cal.App.4th 933 (Cal. App. Dist. 1, 2009) (context for administrative mandamus and review standard)
- Friends of Lagoon Valley v. City of Vacaville, 154 Cal.App.4th 807 (Cal. App. Dist. 5, 2007) (density bonus incentives should not be weighed against excessive costs to developers)
- Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, 52 Cal.App.4th 1165 (Cal. App. Dist. 2, 1997) (unusual circumstances analysis for CEQA exemptions)
- Harroman Co. v. Town of Tiburon, 235 Cal.App.3d 388 (Cal. App. Dist. 1, 1991) (definition of applicable general plan in CEQA context)
- Salmon Protection & Watershed Network v. County of Marin, 125 Cal.App.4th 1098 (Cal. App. Dist. 1, 2004) (reliance on mitigation measures and CEQA exemption validity)
- Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego, 139 Cal.App.4th 249 (Cal. App. Dist. 4, 2006) (exemption and substantial evidence standard for CEQA challenges)