Wollmer v. City of Berkeley (Ct. App. 1st App. Dist., Div. 4, filed Mar. 11, 2011; cert. for publ. Mar. 30, 2011) No. A128121, available at CourtWebsite
A court recently certified a decision that held that the City of Berkeley properly applied a categorical exemption under CEQA during its approval of an in-fill project. This case highlights some interesting intricacies regarding the use of categorical exemptions.
In the case, a developer submitted an application for a mixed-use affordable housing project. The city determined the project was exempt from CEQA pursuant to a categorical exemption for in-fill developments (CEQA Guidelines § 15332) and approved a conditional use permit. The developer then requested -- and obtained -- a CUP modification to either proceed with the original affordable housing project or an affordable senior housing project -- which the city also found was exempt as an in-fill project. A plaintiff sued the city, arguing that by approving a density bonus for the project, the city could not have found that the project was consistent with the city’s general plan and zoning code -- a prerequisite for using the in-fill exemption. However, the court held that the city had to grant the density bonus, because the Density Bonus Law required granting it when the developer made its proper application under the city's zoning code. The city also waived certain building requirements pursuant to the Density Bonus Law; however, the court found this did not render the proposed project inconsistent with the general plan or zoning code.
The plaintiff also argued that the location of the project and the traffic studies prepared were “unusual circumstances” that should have made the categorical exemption not apply under CEQA Guidelines section 15300.2. But, the court held these were merely lay opinions, and that contrary substantial evidence had not been shown that could invalidate the city’s determination. Also, the court found that the developer’s dedication of land for a left turn lane was merely a component of the project -- not a mitigation measure -- and thus the City did not impermissibly "mitigate" the project into a categorical exemption. The court concluded that the exemption was properly applied.
