Berkeley Hills Watershed Coalition v. City of Berkeley: No Really, When the City of Berkeley Finds a Project Exempt from CEQA, it Really Is Exempt
In Berkeley Hills Watershed Coalition v. City of Berkeley, the First Appellate District applied the standard of review from Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 to find that substantial evidence supported the City’s determination that a 3-house project qualified for a Class 3 exemption because the “location” exception did not apply.
The City approved 3 single-family homes on three contiguous and steep parcels. The City applied the Class 3 exemption from CEQA Guideline 151303(a) for “up to three single-family residences” in “urban areas.” The neighbors complained, arguing that the location exception and the unusual circumstances exception prevented the use of the Class 3 exemption. They extended this argument in their petition for writ of mandate, arguing that since a portion of the parcels was located in an Alquist-Priolo Earthquake Fault Zone, the location exception applied.
The location exception requires CEQA review of otherwise exempt projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal state, or local agencies.” CEQA Guideline 15300.2(a). The court reasoned that an earthquake fault zone is not an “environmental resource” and so the location exception does not apply in fault zones. “[T]he fact that the project site falls within mapped areas reflects governmental concern about damage to property and loss of human lives, not protection of a sensitive environmental resource.” 31 Cal.App.5th 880, 892. The Court continued that, “[t]he plain language in the exception reflects concern with the effect of the project on the environment, not the impact of existing environmental conditions (such as seismic and landslide risks) on the project or its future residents.” Id.
The Court applied the substantial evidence test from the Supreme Court in Berkeley Hillside and found that the City’s determination that the site’s location was not in an environmentally sensitive location was supported by substantial record evidence. Petitioners presented no evidence as to the environmentally sensitive location or how the project would harm an environmental resource. Their only evidence related to how an earthquake might affect the projects and sites. This was not enough for the exception to the exemption to apply.
Finally, the Court rejected petitioners’ claims that the City had violated its own ordinance by approving more than 5 bedrooms on a parcel. The Court deferred to the City’s interpretation of its own ordinance and held that the City had not abused its discretion.
This decision reminds practitioners of the fundamental tenets of statutory interpretation and confirms that yes, small projects really can be exempt from CEQA.Or maybe it simply says that when an agency that is as careful and protective of the democratic process as the City of Berkeley is relies on a CEQA exemption, the applicant can sleep well knowing that the exemption is well-founded.