Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. 

By William W. Abbott

The history of the controversial home in the Berkeley Hills is well documented. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (The California Supreme Court Tackles CEQA’s Gordian Knot: Unusual Circumstances and CEQA Exemptions [http://blog.aklandlaw.com/2015/03/articles/ceqa/the-california-supreme-court-tackles-ceqas-gordian-knot-unusual-circumstances-and-ceqa-exemptions/] Admittedly, it is no ordinary residence: a two story home of 6,478 square feet with a 3,394 square foot 10-car garage, located on a hillside. The new home construction necessitated demolition of an existing dwelling. It is at the end of the day, a single family home nonetheless. The architect filed plans with the City in 2009, and the application was approved in early 2010. In approving the plans, the City relied upon a categorical exemption. The ensuing legal challenges eventually made it to the California Supreme Court, resulting in the Court’s decision addressing the required analysis for the use of CEQA exemptions, including the limitations of the “unusual circumstances” exception. Following the Supreme Court’s decision (BH1), the matter was remanded to apply the Supreme Court’s guidance to the remaining claims.

Although the appellate court had sided with the opponents in BH1, the appellate court rigorously followed the Supreme Court’s strictures on remand. In BH2, the court noted that the opponents had conceded that there was substantial evidence in the record to support the use of an exemption, so the legal debate on remand centered on the alleged unusual circumstances. In asserting unusual circumstances, the opponents focused on two issues: size of the home and the setting. The opponents also argued that the City had improperly mitigated its way into an exemption by using a traffic mitigation plan. As to home size, the evidence in support of the City’s decision was that the proposed home was not unusual when evaluated in the context of the surrounding homes.  As to the claim based upon setting, there was no evidence of a geological fault onsite, or that the house was visible from the public right of way (and therefore would have no effect on the aesthetic values of the neighborhood.) (The appellate court also concluded that any argument based upon geotechnical issues was foreclosed in BH1.) The final issue of note was the traffic mitigation plan. The opponents relied upon Salmon Protection & Watershed Network (2004) 125 Cal.App.4th 1098, in which the appellate court concluded that a lead agency could not mitigate its way into an exemption. In BH2, the court after reviewing the record agreed with the City that the traffic mitigation plan was a standard development condition and was not intended as specific mitigation. Therefore, Salmon Protection was not controlling and the use of the exemption was proper.

The applicants still have one more potential hurdle to cross. Will the Supreme Court take this case up? After six years, what is the hurry?

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.