Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 885

November 21st, 2019

By: Johannah Kramer

Hills Watershed Coalition v. City of Berkeley
 (2019) 31 Cal.App.5th 880, 885

The City
of Berkeley approved development of three single-family homes on adjacent
parcels. The landowner submitted applications for use permits, including two
geotechnical and geological hazard reports. These reports, though they recommended
approval, revealed that the western portion of the site was within an earthquake
fault zone and potential earthquake-induced landslide area. The zoning
adjustments board approved the permits, finding them categorically exempt from
CEQA under the class 3 categorical exemption for new construction of small
structures, which includes up to three single-family residences in urbanized

Hills Watershed Coalition (“Coalition”) filed a petition for writ of mandate alleging
two exceptions to the class 3 exemption applied: the “location” exception under
Guidelines section 15300.2(a), and the “unusual circumstances” exception under
Guidelines section 15300.2(c). The trial court denied the petition, and this appeal
followed. The First District affirmed the trial court on both counts, holding
that the Coalition did not meet its burden showing that the exception to the
exemption applied.

Court noted that Courts of Appeal have historically disagreed on the applicable
standard of review applied to the exceptions to categorical exemptions enumerated
in CEQA Guidelines section 15300.2(a)-(c). The Court stated that confusion regarding
the unusual circumstances exception to the exemption was resolved by the
Supreme Court in Berkeley Hillside.
There, the Supreme Court held that a bifurcated approach applies to the evaluation
of an agency’s decision: (1) determine, under section 21168.5’s substantial
evidence standard of review, if there are unusual circumstances (a factual
inquiry deferential to the agency’s determination); and (2) if the agency finds
unusual circumstances, determine if there is a reasonable possibility that the
unusual circumstances would produce a significant effect on the environment
under the fair argument standard. In Aptos
Residents Assn. v. County of Santa Cruz
(2018) 20 Cal.App.5th 1039—decided
after Berkeley Hillside but before Berkeley Hills Watershed Coalition—the
Court noted that the standard of review applicable to cumulative impact and
location exceptions was not as well-settled, but concluded that a similar
standard of judicial review applies to all three exceptions. Aptos
implicated the cumulative impacts exception, and held that cumulative impacts
must contain more than mere speculation.

The First District extended this
interpretation, and held that the Berkeley Hillside
bifurcated standard of review applies to the “location” exception to a class 3 categorical
exemption, as well.

With the standard of review established, the Court examined
Coalition’s claim that, under the plain language of the location exception, earthquake-induced
landslide areas were “environmental resources of hazardous or
critical concern.” The Court stressed that the plain meaning of “environmental resource”
in the location exception does not encompass possible earthquake or landslide
zones. Instead, a “resource” is a “natural source of wealth or revenue,” or a
“natural feature or phenomenon that enhances the quality of human life.” Earthquakes
and landslides are geologic events that—while hazardous—are not “resources.” In
giving plain meaning to the phrase “environmental resource,” the Court found the
location exception does not cover all areas subject to potential natural
disasters as a matter of law. The Court found the guideline “clear and
unambiguous”, and stated that the location exception does not apply based
solely on Coalition’s “undisputed” claim that the project’s location rests on a
potential earthquake and landslide zone. Instead, the Court granted deference
to the City’s determination that the site is not located in an environmentally
sensitive area.

To satisfy the first prong of the extended Berkeley
bifurcated approach, the Court upheld the City’s determination
that the project is not in an environmentally sensitive area, and noted that the
determination was properly supported by substantial evidence. Accordingly, the
Court declined to address the second prong of the location exception involving
the determination of whether substantial evidence supports a “fair argument”
that the project “may impact” the environment. The Court stated that even if
they did reach the second prong, they would still affirm the agency’s location
exemption finding, based on the Coalition’s failure to identify substantial
evidence to support a fair argument that the project would exacerbate existing
hazardous conditions or harm the environment.