Berkeley Hillside Preservation v. City of Berkeley
| Decision Date | 02 March 2015 |
| Docket Number | No. S201116.,S201116. |
| Citation | 184 Cal.Rptr.3d 643,60 Cal.4th 1086,343 P.3d 834 |
| Court | California Supreme Court |
| Parties | BERKELEY HILLSIDE PRESERVATION et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents; Donn Logan et al., Real Parties in Interest. |
Brandt–Hawley Law Group and Susan Brandt–Hawley, Glen Ellen, for Plaintiffs and Appellants.
Michael W. Graf for Center for Biological Diversity and High Sierra Rural Alliance as Amici Curiae on behalf of Plaintiffs and Appellants.
Chatten–Brown & Carstens, Jan Chatten–Brown, Douglas P. Carstens, Santa Monica; Law Offices of Michael W. Stamp, Michael W. Stamp, Monterey, and Molly Erickson for Planning and Conservation League, Endangered Habitats League, Inc., California Preservation Foundation, Save Our Heritage Organisation, Save Our Carmel River and The Open Monterey Project as Amici Curiae on behalf of Plaintiffs and Appellants.
Veneruso & Moncharsh and Leila H. Moncharsh, Oakland, for Berkeley Architectural Heritage Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Zach Cowan, City Attorney, and Laura McKinney, Deputy City Attorney, for Defendants and Respondents.
Perkins Coie, Stephen L. Kostka and Barbara J. Schussman, San Francisco, for Building Industry Association of the Bay Area as Amicus Curiae on behalf of Defendants and Respondents.
Downey Brand, Christian L. Marsh, San Francisco, Andrea P. Clark, Sacramento, and Graham St. Michel for Association of California Water Agencies as Amicus Curiae on behalf of Defendants and Respondents.
Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni and Julia L. Bond, Oakland, for Real Parties in Interest and Respondents.
Cox, Castle & Nicholson, Michael H. Zischke and Andrew B. Sabey, San Francisco, for California Building Industry Association, California Business Properties Association and Building Industry Legal Defense Foundation as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
Lozano Smith, Harold M. Freiman, Kelly M. Rem, Walnut Creek; Charles F. Robinson and Kelly L. Drumm, Oakland, for California School Boards Association's Education Legal Alliance, The Regents of the University of California and The Board of Trustee of the California State University as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
M. Reed Hopper, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
Holland & Knight, Amanda Monchamp, San Francisco, and Melanie Sengupta for League for California Cities and California State Association of Counties as Amici Curiae on behalf of Defendants and Respondents and Real Parties in Interest and Respondents.
Kamala D. Harris, Attorney General, Sally Magnani, Assistant Attorney General, Janill Richards and Catherine M. Wieman, Deputy Attorneys General, as Amici Curiae.
The California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. )1 establishes a comprehensive scheme to provide long-term protection to the environment. It prescribes review procedures a public agency must follow before approving or carrying out certain projects. For policy reasons, the Legislature has expressly exempted several categories of projects from review under CEQA. (See § 21080, subd. (b)(1)-(15).) By statute, the Legislature has also directed the Secretary of the Natural Resources Agency (Secretary) to establish “a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from” CEQA. (§ 21084, subd. (a).) “In response to that mandate,” the Secretary “has found” that certain “classes of projects ... do not have a significant effect on the environment” and, in administrative regulations known as guidelines, has listed those classes and “declared [them] to be categorically exempt from the requirement for the preparation of environmental documents.” (Cal.Code Regs., tit. 14, § 15300 ; see id., § 15000 et seq., Guidelines for Implementation of CEQA (Guidelines).) Respondent City of Berkeley (City), in approving a permit application to build a 6,478–square–foot house with an attached 3,394–square–foot 10–car garage, relied on two of the class exemptions the Secretary has established pursuant to the Legislature's mandate: (1) “Class 3,” which comprises the construction of “new, small facilities or structures,” including “[o]ne single-family residence, or a second dwelling unit in a residential zone” (Guidelines, § 15303); and (2) “Class 32,” which comprises “in-fill development” projects, i.e., projects that “occur[ ] within city limits on a project site of no more than five acres substantially surrounded by urban uses” and that meet other specified conditions (Guidelines, § 15332).
The Court of Appeal invalidated the permit approval, relying on Guidelines section 15300.2, subdivision (c), which provides: “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” In the Court of Appeal's view, that a proposed activity may have a significant effect on the environment is itself an unusual circumstance that renders the categorical exemptions inapplicable. Finding substantial evidence of a fair argument that the proposed project may have a significant environmental impact, the court held that the exemptions the City invoked do not apply, and it ordered the trial court to issue a writ of mandate directing the City to set aside the permit approvals and its finding of a categorical exemption, and to order preparation of an environmental impact report (EIR).
We granted review to consider the proper interpretation and application of Guidelines section 15300.2, subdivision (c). We reverse the Court of Appeal's decision.
Real parties in interest and respondents Mitchell Kapor and Freada Kapor–Klein (applicants) want to build a large house on their lot on Rose Street in Berkeley. The lot is on a steep slope (approximately 50 percent grade) in a heavily wooded area. In May 2009, their architect applied to the City for a use permit to demolish the existing house on the lot and to build a 6,478–square–foot house with an attached 3,394–square–foot 10–car garage. The residence would be built on two floors, would include an open-air lower level, and would cover about 16 percent of the lot.
In January 2010, the City's zoning adjustments board (Board), after holding a public hearing and receiving comments about the project, approved the use permit. It found the project exempt from CEQA review under Guidelines sections 15303, subdivision (a), and 15332. The former, which the Secretary has designated Class 3, includes “construction and location of limited numbers of new, small facilities or structures,” including “[o]ne single-family residence, or a second dwelling unit in a residential zone,” and “up to three single-family residences” “[i]n urbanized areas.” (Guidelines, § 15303, subd. (a).) The latter, which the Secretary has designated Class 32, applies to a project “characterized as in-fill development” meeting the following conditions: (1) it “is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations”; (2) it “occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses”; (3) its “site has no value[ ] as habitat for endangered, rare or threatened species” and “can be adequately served by all required utilities and public services”; and (4) its approval “would not result in any significant effects relating to traffic, noise, air quality, or water quality.” (Guidelines, § 15332.) The Board also found that Guidelines section 15300.2, subdivision (c), does not preclude use of these categorical exemptions because the project as proposed and approved will not have any significant effects on the environment due to unusual circumstances.
Several residents of the City, including appellant Susan Nunes Fadley, filed an appeal with the city council, arguing in part that CEQA's categorical exemptions do not apply because the proposed project's “unusual size, location, nature and scope will have significant environmental impact on its surroundings.” They asserted that the proposed residence would be “one of the largest houses in Berkeley, four times the average house size in its vicinity, and situated in a canyon where the existing houses are of a much smaller scale.” They submitted evidence that, of Berkeley's over 17,000 single-family residences, only 17 exceed 6,000 square feet, only 10 exceed 6,400 square feet, and only one exceeds 9,000 square feet. They also asserted that the proposed residence would exceed the maximum allowable height under Berkeley's municipal code and would be inconsistent with the policies of the City's general plan, and that an EIR is appropriate to evaluate the proposed construction's potential impact on noise, air quality, historic resources, and neighborhood safety. In response, the City's director of planning and development stated that 16 residences within 300 feet of the project have a greater floor-area-to-lot-area ratio and that 68 Berkeley “dwellings” exceed 6,000 square feet, nine exceed 9,000 square feet, and five exceed 10,000 square feet.
The city council received numerous letters and e-mails regarding the appeal, some in support and some in opposition. Among the appeal's supporters was Lawrence Karp, an architect and geotechnical engineer. In a letter dated April 16, 2010, Karp stated: (1) he had reviewed the architectural plans and topographical survey filed with the Board, and had visited the proposed construction site; (2) “[p]ortions of the major fill for the project...
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