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Appellate Court Rules on CA Supreme Court’s Seminal CEQA “Unusual Circumstances Exception” Case

In Berkeley Hillside Preservation v. City of Berkeley (Oct. 15, 2015), __ Cal.App.4th __, the First District of the California Courts of Appeal applied the Supreme Court’s landmark decision on remand, and found that substantial evidence supported the City of Berkeley’s finding that a project was categorically exempt from further CEQA review.  Earlier this year, the Supreme Court clarified that a potentially significant environmental effect is not alone sufficient to trigger the unusual circumstances exception; instead, there must be a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances for the exception to apply.  The Court then provided detailed guidance on the standards of review in a challenge to an unusual circumstances exception determination.  The Court then remanded to the First District to apply these principles.

In applying these principles on remand, the First District affirmed the trial court’s decision that the single family home project at issue did not trigger the unusual circumstances exception and was, therefore, categorically exempt.  At least four issues in the opinion are worth highlighting.  First, the Court reiterated the “stringent standard of review that [the Supreme Court] directs us to apply at this stage of the proceedings.”  A court must resolve all evidentiary conflicts in the City’s favor, indulge in all legitimate and reasonable inferences to uphold the City’s finding, and affirm the finding if there is any substantial evidence, even if contradicted, to support it.  The First District also emphasized the Supreme Court’s instruction that agencies have discretion to consider conditions in the vicinity of a proposed project in determining whether an unusual circumstance exists.  Third, a court may not consider an expert’s opinion as to the potential effects of unapproved activities, even if the expert believes that these activities would be necessary because the project, as approved, could not be built as described.  Lastly, the Court found that the traffic-management plan at issue in the case was not a mitigation measure that precludes the application of a categorical exemption.  The Court reasoned that managing traffic during the construction of a home is a common and typical concern in any urban environment.

Although not originally certified for publication, the Court of Appeal ordered the case published on October 15, 2015.

Amrit Kulkarni and Julia Bond represented Real Parties in Interest, Mitch Kapor and Freada Kapor-Klein, the proponents of the single family home at issue in this matter.