Berkeley Hillside Preservation v. City of Berkeley

In a major victory for the rights of property owners throughout the state, on March 2 the California Supreme Court in Berkeley Hillside Preservation v. City of Berkeley held that the construction of a single family home is categorically exempt from the requirement of the preparation of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA), which is typically reserved for major projects with substantial environmental impacts.

The practical, real world benefit for Californians cannot be overestimated, as the cost of preparing an EIR can be hundreds of thousands of dollars, not to mention the protracted delays and mental stress of battling the environmental lobby.

In an unusual twist, several years ago the City of Berkeley actually approved the construction of a home. Normally, the construction of a home results in what is called a “categorical exemption” from the EIR process, as the legislature no doubt understood the enormous EIR financial burden on average property owners who simply want to build a home. However, Berkeley’s approval was appealed by an area resident, who claimed that there is an “exception” to this categorical exemption if there is a “reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Although the trial court rejected this argument, the Court of Appeal agreed with it, and ordered Berkeley to rescind its permit approval. The Court of Appeal concluded that there could be geotechnical issues based upon the opinion of an engineer, and that the size of the proposed home was unusually large.

The California Supreme Court, however, rejected the idea that the categorical exemption can be overridden on such flimsy grounds. First, the Court emphasized that potential environmental effects are not enough to override the exemption. Indeed, the geotechnical engineer had been referring to an early version of the building plans that was never actually adopted as the final plan.  Second, Berkeley was correct in concluding that the size of homes in the surrounding area was relevant in determining whether the proposed home was unusually large, and that there were numerous similarly sized homes in the area. By contrast, the Court of Appeal had held that local conditions were legally irrelevant.  As the Supreme Court stated:

“…[T]o establish the unusual circumstances exception, it is not enough for a challenger merely to provide substantial evidence that the project may have a significant effect on the environment, because that is the inquiry CEQA requires absent an exemption. (§ 21151.) Such a showing is inadequate to overcome the Secretary‘s determination that the typical effects of a project within an exempt class are not significant for CEQA purposes.”

The Supreme Court’s decision is welcome relief to property owners who are already drowning in excessive and needless red tape and bureaucratic fees.  As the Court concluded, “rules regulating the protection of the environment must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development and advancement.”