In March 2012, we posted an article reviewing the First Appellate District’s determination in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656.
On March 7, 2012, the First Appellate District issued an order denying the City of Berkeley and Real Parties’ request for rehearing. The City and Real Parties filed a petition for review on March 26, 2012. Multiple groups filed requests for depublication, including the Building Industry Association, the League of California Cities, the Bay Area Council, and the California Infill Building Association. Oppositions to those requests were also filed. Yesterday, May 23, 2012, the California Supreme Court granted review of the case. Key issues the Court will look at include:
- Will the two-part test in Banker’s Hill Hillcrest v. City of San Diego be upheld?
- What is the appropriate standard of review to determine whether the significant effects exception to a categorical exemption applies?
- If an expert opines that a project cannot be built pursuant to the approved project plans and, instead, that it would require construction which would result in significant environmental effects, does this equate to substantial evidence of a fair argument of significant environmental effects or is it expert opinion unsupported by fact?
- In determining whether there are unusual circumstances relating to a project may a court consider the particular neighborhood in which it is proposed to be located or should it be judged relative to a “typical exempt project” statewide?
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.