by William W. Abbott

One person’s innovative, edgy infill development is another person’s significant impact. Or is it? This is the issue recently addressed in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. The developer in Bowman proposed an infill project in the City of Berkeley. The project involved an existing, single story vacant building of no architectural significance. The developer proposed to demolish the existing building and construct a four floor retail and a senior residential project of 40 units. The project went through multiple design changes as it proceeded with City review. In response to City and public review, the developer modified the building height where the site shared a property line with residential properties. City staff supported the project and recommended a negative declaration.

Neighbors complained of the aesthetic impacts on adjacent residential properties. Opponents submitted a twenty page “Citizens Report.” After numerous ZA and City Council hearings, with numerous speakers in opposition to the project, the City Council affirmed the negative declaration and approved the project. The neighbors filed suit alleging, among other issues, that an EIR was required.

The pivotal issue for the Court was whether or not the project opponents had met the burden of the “fair agreement” test. Friends of “B” Street v. City of Hayward (1980) 106.Cal.App.3rd 988. Under the “fair argument” test, an EIR is required if there is substantial evidence of a fair argument that the project may have a significant effect on the environment.

While the case wrestles with several claims, the issue of real interest to lead agencies and applicants, was the court’s handling of aesthetics, focusing on appendix G of the CEQA Guidelines: “would the project have a substantial adverse effect on a scenic vista” and “would the project substantially degrade the existing usual character on quality of the site and its surroundings.” Staff and the City Council answered both of these questions in the negative. The final resolution of approval contained detailed findings as to how the existing building and lot were underutilized and of poor visual character and that the proposed building would not degrade existing views and or impact adjacent buildings.

The opponents mainly criticized project scale and shadow impacts. The appellate court reviewed the existing CEQA and NEPA decisions, and found little precedent on these subjects. Ultimately, the appellate did not reject these concerns as matters outside the scope of CEQA, but noted that:”…we do not believe that our Legislature… intended to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area.” The appellate court then ruled for the City and applicant, finding that despite extensive adverse testimony including that of architects, there was insufficient evidence to require preparation of an EIR.

This case cannot be read as a blatant exception from CEQA for design considerations. Rather, it suggests a sliding scale test that as to infill sites, design considerations remain planning concerns, but not necessary CEQA considerations warranting by themselves the preparation of an EIR. The case also illustrates the tremendous benefit of detailed findings where the land use permit is contested on CEQA grounds.

William W. Abbott is a partner with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.