CEQA Hits Home - Berkeley Hillside Preservation v. City of Berkeley

CEQA (the California Environmental Quality Act) was enacted to provide the fullest possible protection of the environment when governmental entities make decisions that have the potential of adversely affecting the environment. Historically, and in the context of my professional experience, CEQA issues tend to pop up in large commercial and residential projects. Typically, CEQA petitions are not asserted to stop the construction of a single-family residence.

The reason for this is simple. Single-family residences are relatively small constructions and applying CEQA every time someone wants to build or remodel a single home, would gum up the works, so to speak. Single-family residences fit within an exemption for CEQA review set forth in the California Code of Regulations. However, there are exceptions to the exemptions and the Court of Appeal recently held that the City of Berkeley California violated CEQA by approving the construction of a 10,000 foot home without CEQA review by ruling that it was categorically exempt under CEQA.

In Berkeley Hillside Preservation v. City of Berkeley (Mar. 7, 2012) No. A131254, the Court of Appeal for the First District held that the circumstances particular to the construction of the subject home, fit within one of the exceptions to the exemption for single-family residences, namely, that there were “unusual circumstances” which create “a reasonable possibility” that the activity will result in an adverse impact on the environment. In this case, the activity entailed the construction of a very large home on steep slope near a wooded area.

The significance of the Berkeley Hillside Preservation is more practical than legal. CEQA has broad applications based on the wording of the applicable Statutes and Codes. However, developers and municipalities alike sometimes fail to realize the breadth of the Act when they do their planning. Berkeley Hillside Preservation teaches us to mindful of the possibility of a CEQA issue even on projects that are not typically challenged. In this case, it is highly likely that the property owner seeking to build the 10,000 square foot mansion will receive an unanticipated cost increase for the project…the challengers’ attorneys fees.