“Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case”



On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12 ___ Cal.App.4th ___, Case No. A131254), which held that substantial evidence of a fair argument of a potentially significant environmental impact automatically satisfies the “unusual circumstances” exception, and thus precludes reliance on a CEQA categorical exemption.  (See “CEQA Categorical Exemptions Defeated By Mere “Fair Argument” of Impact, First District Holds”, 2/23/12 post by Arthur F. Coon and Nadia L. Costa.)  The First District’s decision, requiring an EIR for construction of a large single-family home in the Berkeley hills, was controversial and sharpened a split of authority regarding the proper standard of review for categorical exemptions and interpretation of the “unusual circumstances” exception to categorical exemptions.  CEQA practitioners and stakeholders will continue to follow this matter with interest.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit www.msrlegal.com.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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