Berkeley 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 areas.
Berkeley 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.
The 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 Hillside 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.