Ruling Complicated Use of CEQA’s Categorical Exemptions

March 16, 2015

San Francisco Daily Journal

Categorical exemptions from environmental review under the California Environmental Quality Act, or CEQA, do not apply to projects involving a reasonable possibility of a significant effect on the environment due to unusual circumstances.

But what exactly is an “unusual circumstance”? Is the potential for a significant effect enough to trigger this exception?

These questions bedeviled appellate courts and lawyers for decades, resulting in a conflicting and confusing body of case law. But no more.

In its March 2 decision in Berkeley Hillside Preservation v. City of Berkeley, S201116, the state Supreme Court put the issue to rest – but did so in a manner that leaves the future viability of categorical exemptions for controversial projects in question.

The case involved a challenge to the city of Berkeley’s approval of a permit application to build an approximately 6,500 square-foot house and 3,400 square-foot 10-car garage without conducting full CEQA review of the project. In approving the application, the city relied on two of CEQA’s categorical exemptions: (1) a categorical exemption that includes “construction and location of limited numbers of new, small facilities or structures,” including “[o]ne single-family residence, or a second dwelling unit in a residential zone” and (2) an exemption which “consists of projects characterized as in-fill development” meeting certain requirements.

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