Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence

By William W. Abbott

Property owners in Berkeley applied for use permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394 square foot, 10 car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the city council. A geotechnical engineer, Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. The letter reflected his belief that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating his opinion that the project would likely have significant impacts during construction and operationally due to seismic risk. Two engineers submitted letters on behalf of the applicants' (at least one was a geotechnical engineer) submitted responses to Karp’s comments, which argued in part that Karp misread the plans, and that the project was otherwise appropriate for the site. The council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The city council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed.

The key issue on appeal was whether or not the city appropriately applied a CEQA exemption in light of all of the evidence. The appellate court indicated that judicial review requires a two-step inquiry. First, the court determines if there are unusual circumstances. As applied here, the appellate court found that the evidence was that the construction was unusual based upon size. The evidence most favorable to the city was that less than .4% of existing homes in the city were larger (although the record included less favorable evidence as well). The city argued that the relevant consideration in determining unusual circumstances was the vicinity of the proposed construction, and from this perspective, the proposed size was not unusual. Rejecting this approach, the appellate court directed that the proper point of focus was the broader category of similar structures for which the exemption was intended, not just those in the vicinity. Once this test is satisfied, the inquiry shifts to whether “there is a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual circumstances of its size.” The appellate court found that the opponents had made the requisite showing of a fair argument through the Karp letter. The fact that there was evidence in favor of the city’s decision was not conclusive under the fair argument test. Accordingly, the appellate court determined that an EIR was required.

Comment: Don’t get sidetracked by the issue of whether or not a property owner has an inalienable right to build a ten car garage or a 7,000 square foot house. What is important about this decision is that it highlights, in dramatic detail, the inherent barrier that CEQA poses to infill and the revitalization of our existing urban areas. CEQA prioritizes the status quo over change. If we are truly serious about creating vibrant urban communities, then we need vigorous CEQA reform. It’s not rocket science to figure out why development steadily marches onward at the suburban fringe: defenders of the status quo file CEQA lawsuits, cows rarely do. Berkeley Hillside Preservation v. City of Berkeley (February 15, 2012, A131254) ___Cal.App.4th ___.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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