The Supreme Court Grants Review of the Controversial CEQA Decision Berkeley Hillside Preservation v. City of Berkeley

The Supreme Court has voted unanimously to grant review of the First District Court of Appeal’s controversial decision in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The case involved the application of an exception to the use of categorical exemptions under CEQA for projects that could result in significant environmental impacts due to “unusual circumstances.”  The First District held that because a “fair argument” could be made that a residential project in the Berkeley hills could create significant environmental impacts based on evidence submitted by the project’s opponents, the City of Berkeley could not rely upon a categorical exemption under CEQA regardless of whether those impacts were in fact due to “unusual circumstances.”  This holding cast substantial doubt on the ability of agencies to continue to rely upon categorical exemptions any time a project opponent submits evidence of potentially significant impacts.  The First District also ignored well-settled precedent which requires both a finding that there is a reasonable possibility of significant environmental impacts and that the impacts would be due to unusual circumstances associated with the project. Now that the Supreme Court has granted review, the decision has been superseded which should come as welcome news for both public agencies and private developers alike.

Amrit Kulkarni and Julia Bond of Meyers Nave represent the Real Party in Interest in this case and were responsible for drafting the successful petition for review.