Court Weakens Use of CEQA’s Categorical Exemptions


In a case involving the City of Berkeley’s approval of a single home, the First District Court of Appeal’s decision in Berkeley Hillside Preservation v. City of Berkeley 203Cal.App.4th 656 (February 15, 2012, as modified March 7, 2012) could dramatically curtail the use of categorical exemptions under the California Environmental Quality Act (CEQA).

The case involved the approval of a use permit to demolish and construct a single-family home in the Berkeley Hills. The proposed home featured a 6,500 square foot residence with a 3,400 square foot, 10-car attached garage on a lot with an approximately 50% slope. The City approved the proposal and determined that the project was categorically exempt from CEQA under exemptions for new construction/conversion of small structures and infill development, as is often the case in private residence projects. 14 Cal. Code Regs §§ 15303(a), 15332. A citizen’s group – “Berkeley Hillside Preservation” – contested the project and a trial court upheld the approval. The court of appeal reversed the trial court’s decision.

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