Berkeley Hillside Preservation v. City of Berkeley (Cal. Ct. App. February 15, 2012) No. A131254, available at CourtWebsite
In this case, the court held that "once it is determined that there is a reasonable possibility that a specific activity may have significant effects …, application of a categorical exemption no longer is appropriate, because such a project is different from activity that generally does not have environmental effects." This ruling is certain to impact agencies' application of categorical exemptions.
The case centered around a 6,478 square-foot single-family residence, with an attached 3,394 square-foot 10-car garage (to address lack of street parking) in a hilly Berkeley neighborhood -- substantially larger than the average Berkeley home. The local zoning board found the project was categorically exempt from CEQA under the in-fill exemption (CEQA Guidelines section 15332) and single-family exemption (section 15303, subdivision (a)), and it did not trigger any exceptions to the exemptions (section 15300.2). A group of citizens argued that the project may have a significant impact due to its "unusual size, location, nature and scope" and two geotechnical engineers offered differing opinions as to whether the project would have significant seismic and geotechnical-related impacts. The city council approved the project.
The trial court upheld the categorical exemption, finding that although there was "substantial evidence of a fair argument that the proposed construction would cause significant environmental impacts," the possible impacts were not due to "unusual circumstances" and thus did not create an exception to the categorical exemption. However, on appeal, the court disagreed, finding that the categorical exemption did not apply because of the “unusual circumstances” exception. (Guidelines § 15300.2, subd. (c).) The court stated that "a categorical exemption does not apply where there is any reasonable possibility that proposed activity may have a significant effect on the environment " because "the fact that proposed activity may have an effect on the environment is itself an unusual circumstance, because such action would not fall 'within the class of activities that does not normally threaten the environment,' and thus should be subject to further environmental review." Thus, "the unusual circumstances exception does not apply whenever there is substantial evidence of a fair argument of a significant environmental impact…."
Reviewing whether the circumstance of the house's size was "unusual", the court found as a matter of law that the large house was "unusual" within the meaning of the exception because it differed from the general circumstances of projects covered by the single-family residence exemption--due the house's size and scope. The court also found that the conflicting geotechnical reports showed substantial evidence of a fair argument that the project would result in significant environmental impacts. Thus, the court ordered that a writ of mandate be issued directing the city to set aside its approval and that an EIR be prepared.