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Berkeley Hillside Preservation v. City of Berkeley

ELR Citation: 45 ELR 20042
Nos. S201116, (Cal., 03/02/2015)

The California Supreme Court reversed a lower court decision that a developer's proposal to demolish an existing home and build a 10,000 square-foot single-family home on the lot may not be categorically exempt from environmental review under the California Environmental Quality Act (CEQA). After the city approved the permit request, an environmental group filed suit. The trial court upheld the permit, but an appellate court reversed, holding that a potentially significant environmental effect itself constitutes an "unusual circumstance" that renders CEQA's categorical exemption inapplicable. The state's highest court, however, disagreed. To establish the unusual circumstances exception, it is not enough for a challenger 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. On the other hand, evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual. An agency presented with such evidence must determine whether there is an unusual circumstance that justifies removing the project from the exempt class. A challenging party invoking the exception may establish an unusual circumstance by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance. If substantial evidence supports a fair argument that the unusual circumstances would cause a significant effect, that evidence necessarily establishes a reasonable possibility that the activity will have a significant effect on the environment. The case was therefore reversed and remanded for further review.