CEQA Categorical Exemptions Defeated by Mere “Fair Argument” of Impact, First District Holds


In a CEQA challenge to the City of Berkeley’s approvals to demolish an existing single-family home and replace it with a larger one and an attached 10-car garage, Division 4 of the First District Court of Appeal held in an opinion filed February 15, 2012, and certified for publication, that the proposed project was not categorically exempt from CEQA. (Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12) ___ Cal.App.4th ___, Case No. A131254.)  Applying the “fair argument” standard to its review of the City’s and trial court’s contrary conclusion, the Court held that whenever there is substantial evidence of a fair argument that a significant environmental impact may occur, this automatically satisfies the “unusual circumstances” exception and therefore precludes reliance on a categorical exemption.

The project at issue in Berkeley Hillside involved demolition of an existing single-family home and construction of a new 6,478 square foot single-family residence with an attached 3,394 square-foot, 10-car garage, situated on property with a relatively steep slope.  The City concluded the project was categorically exempt pursuant to the In-fill exemption (CEQA Guidelines § 15332) and the “New Construction or Conversion of Small Structures” exemption (CEQA Guidelines § 15303(a)).  

Project opponents alleged reliance on the categorical exemptions was improper given that (1) the combined size of the residence and garage, (2) the “massive grading” that would be required given the steep slopes, and (3) the potential “seismic lurching” given its purported location near a major earthquake trace and within a State-designated landslide hazard zone, would result in the project having significant environmental impacts.  Accordingly, they contended such evidence demonstrated the “unusual circumstances” exception of Guidelines § 15300.2 applied, and further environmental review was warranted.  In support of their claims, the opponents submitted information regarding the relative size of “typical” homes in Berkeley as well as expert testimony from a geotechnical engineer.  The City and the applicants submitted evidence to the contrary, including, of particular note, expert testimony concluding that the geotechnical engineer’s opinion was based on a misreading of the project plans and that further investigation documented that no landslide risk was present from construction of the project as actually approved.

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