By William Abbott and Kristen Kortick
Real parties filed for approvals to construct three homes on contiguous parcels in Berkeley hills. The City Board of Zoning Adjustment found that the proposed construction qualified for a Class 3 exemption (new construction of small structures.) Appellants contested the Board’s decision granting a categorical exemption citing the following causes of action: “1) the location exception under CEQA, 2) the unusual circumstances exception under the Guidelines, and 3) the City’s violation of the zoning requirements when they failed to require additional permits for a fifth bedroom on one of the parcels.” The trial court denied the petition for writ of mandate in its entirety.
A Class 3 exemption under CEQA allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. Guidelines, § 15303. The location exception to the Class 3 exemption states that a project location in a particularly sensitive location, subject to impacting an environmental resource of hazardous or critical concern, must go through environmental review. Guidelines, §15300.2, subd. (a).
While reviewing Plaintiffs first and second cause of action, the court applied to Supreme Court’s standard of review in Berkeley Hillside 1, 60 Cal.4th at pg. 1093, holding that the City’s actions must display an abuse of discretion where there was no ‘reasonable possibility that the activity will have a significant effect on the environment.’ Guidelines, §15300.2, subd. (c).
The Court further bifurcated its standard of review for the location exception into two separate prongs. 1) Unusual circumstances create an exemption to CEQA exception, and 2) the location is “an environmental resource of hazardous or critical concern.” Guidelines, § 15300.2(a). As part of their review of the “unusual circumstances” argued by Plaintiffs, the Court reviewed whether the project’s location along a faultline with the potential to create an earthquake triggered landslides requiring full CEQA analysis.
Plaintiffs allege that the mere existence of a potential landslide is sufficient evidence to make all landslide areas “environmental resources of hazardous or critical concern.” The Court disagreed with Plaintiffs premise in its entirety holding that a potential for landslide does not provide clear and convincing evidence that an unusual circumstance exists. The Court’s plain understanding of the language written in the Guidelines alleged that potential earthquakes and landslides are “geological events…. and not resources.” The Court further reasoned that the geotechnical report reflects a concern for economic loss to property and human lives, but not a sensitive resource. The Court also held that the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473. stated, “despite [CEQA’s evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment.” The Court lastly held that because the Legislature did not provide an exception to Class 3 projects for landslides or earthquakes, the Court would not further extrapolate on law that does not exist.
The Court upheld the trial court’s dismissal of Plaintiffs third cause of action alleging the project required a new permit because of the addition of a fifth bedroom. The Court agreed with the City’s reasoning that that a new use permit was already issued on the project for new construction. Requiring an additional permit for the project because of the addition of a single bedroom would be redundant. The Court examined the plain language of the mini-dorm ordinance and held that the Planning Commission crafted the ordinance to be interpreted as broadly as possible. The City interpreted their Ordinance for the addition of a single room to one of the 3 parcel properties to be applied broadly since the project conforms with pre-existing zoning and insignificant impact. The Court reasoned that greater deference should be given to the City to interpret its own ordinances.
Further, the Court held regardless of deference to the City’s interpretation of its ordinance, a plain read of the ordinance would still favor dismissal of the third cause of action. The plain language of the ordinance implies a fifth bedroom would be in addition to a preexisting structure. Since this project is a new building, there would be nothing to build as an addition to the property. As such, the Court of Appeal held that the trial court rightly dismissed the third cause of action.
The Court of Appeal affirmed the trial court’s judgment in its entirety and awarded costs to the City for the appeal.
William Abbott is an attorney at Abbott & Kindermann, LLP. Kristen Kortick is a law clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.