BERKELEY HILLSIDE PRESERVATION v. CITY OF BERKELEYAppellants’ Answer to Petition for ReviewCal.April 17, 2012 No. 8201116 IN THE SUPREME COURT OF CALIFORNIA BERKELEY HILLSIDE PRESERVATION and SUSAN NUNESFADLEY, Plaintiffs and Appellants Vv. SUPREME COURT CITY OF BERKELEY and CITY COUNCIL F | L E D OF THE CITY OF BERKELEY, APR 17 2012 Defendants and Respondents, Frederick K. Ohlrich Clerk Deputy DONN LOGAN,et al., Defendants and Respondents. From a Published Decision by The Court ofAppeal First Appellate District, Division Four Civil Number A131254 Reversing the Ruling by the Honorable Frank Roesch Alameda County Superior Court Case No. RG10517314 ANSWER TO PETITION FOR REVIEW Susan Brandt-Hawley/SBN 75907 Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, CA95442 707.938.3900, fax 707.938.3200 , Attorney for Appellants “A e: Table of Contents 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Trtroduction oo... eeseeecsseceseeseseseceseseseseseseesecsesessssesesessesessencsesesecesevssacscassesassssssessvacaeenss 1 Summary Of ANSWEYL..........:ceecesessssesessessceeessatessecscsesssecuscssecssecsscssessessessssssseossaersuceres2 Issues Presented by the Petition... ccecccesesseessecessecscsessceecscseseessssssecsesecsssesaeasensens 5 Statement Of Facts oeseeseeecesesesesceseseseeseesesessecesessesesseseseesesesesscscsesesssssssesaseasaeeeees 6 Why Review Should Be Denied ..00.......ccccecccceesssseesseeseeseeeseesestesessesecssesssscessseesssensevsaeeas 10 CONCLUSION oo... eee eeeeeeessseeeescsesessecesecsessesesesesecsesessesessnsesssesscsesesesesesenecsescseseessecsessesseaees 16 Table ofContents Table of Authorities California Cases Page Banker’s Hill v. City ofSan Diego (2006) 139 Cal.App.4” 249 oooeccceccssccsssssssessessssseessessssarssessesseseesseesesstesseesen 3 Berkeley Hillside Preservation v. City ofBerkeley (2012) 203 Cal.App.4™ 656 v.cccccscescssessessssecssessssesssesssussavesevecarsavessucaneessecsaveens 6 Centinela Hospital Association v. City ofInglewood (1990) 225 Cal.App.3d 1586 o....cccccccccescesscsseseeseesesssessessesseceecesssssvessreseaseaeees 2 Communitiesfor a Better Environmentv. Cal. Resources Agency (2002) 103 Cal.App.4™ 98 vocccccccccssscsssessesssessssesssssssssevesessecssteassusesusseseseeseneeaes 4 Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4™ 105 voeeesessesssssssseccesseccsssssccssnssesssssesscsssesssssesssecsssesesssnenessn 13 Muzzy Ranch v. Solano County Airport Commission (2007) AV Cal.4 372 o.eccsssssecssssssssssssssssscesssesssessusssecesssccessieeesseessesneessseensey 11 Planning and Conservation League v. Dept of Water Resources (2000) 83 Cal.App.4™ 892 o.ceccccsccessssssessssesessssssssvsssiessessessesssessssneceassasessecsseens 2 Wildlife Alive v. Chickering (1976) 18 Cal.3d 190 ooceeceesseescseeseseesssssseseeseecssseeseeesssessecssseseseees 3,4,5,13,14,15 Wollmerv. City ofBerkeley (2011) 193 Cal.App.4™ 1329,that ...cccccccccceccssscssseessesseesssseeseesecssecanesseeesees 11 Public Resources Code Q2O183 woeeeeeccccescssssccesseessscessesesstecsssesescssseuseccsecsssecesssessuceseusnseeserseesecsasensuvens 14 QZOB4 ooo eeeeccceesesesssceeecseaecesecessecesseesesssssececccseecsssavesteseeneceeesssecerenass 2,3,5,14,15 CEQA Guidelines LS5300.2(C) ....eeecessccsseecessessceesscecenecscsssusssccecsssceaeessassusscecessssceceusuesessacenss 3,12 T5061 oncecesseesseecessesereecsseessuscecsssssssececeassssueecessceneaacersrecceeeessseeesauenseeess 11 il Introduction The public-interest appellants Berkeley Hillside Preservation et al. seek environmental review for a decidedly atypical residence: a combined 10,000 square-foot home/10-car garage that requires special use permits. The homeis proposed on a steep slope along a narrow roadwayin the East Bayhills and would be oneofthe twolargest out of 17,000 in Berkeley. Both the trial court and the appellate court acknowledged expert evidence that the house/garage may havesignificant environmental impacts. Dr. Lawrence B. Karp, a geotechnical engineer and architect with fifty years of Bay Area construction experience (he “taught foundation engineering at [UC] Berkeley and at Stanford”) conducted an on-site independent engineering study. Dr. Karp’s fact-based technical report concluded that the proposed mansion in the context ofits constrainedsite “*... in my professional opinion... is likely to have very significant environmental impacts not only during construction, but in service ...” (Administrative Record (AR)2:449, 530; Slip Opinionat 5.) Based on Dr. Karp’s analysis, the First District’s Division Four ruled that Berkeley’s consideration of three discretionary use permits was not categorically exempt from the California Environmental Quality Act, because environmental review must always precede approval of discretionary projects that have potentially significant impacts. In navigating CEQA’s evolving categorical exemption landscape, the scholarly Slip Opinion now provides cogent guidance for agencies, project applicants, and the public. The Petition for Review, on the other hand, misrepresents the state of the law and the facts and urges this Court to address new issues notraised in either of the lower courts. The Petition does not meet criteria for review and should be denied. Summary of Answer Appellants’ goal has always beento effect the City ofBerkeley’s compliance with the mandates of CEQA,a citizen-enforced statute. Respondents City ofBerkeley and Mitchell Kapor and Freada Kapor-Klein (the Kapors) contend that no environmental review is required for the 10,000 square foot mansion proposed on its steep Rose Streetsite. After reviewing fact-based expert opinion ofpotentially significant environmental impacts, the Court of Appeal correctly found to the contrary and reversedthetrial court based on well-settled authority. “CEQA compels process.It is a meticulous process designed to ensure that the environmentis protected ... the EIR is the heart and soul of CEQA.” (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4” 892,911.) Following remandto thetrial court, environmental review for the Kapors’ project can expeditiously occur as is routine for thousandsof California projects each year. The Kapors may then build their substantial new homeon RoseStreet in Berkeley — with its environmental issues publicly addressed and mitigated. The Public Resources Code allows “categorical exemption” from CEQAforclasses ofprojects that “do not have a significant effect on the environment.” (Pub. Resources Code § 21084(a).) Decades ago there was a split in judicial authority as to the standard of review applicable to the enumerated “exceptions” to such exemptions. However, while recent cases continue to note theprior split, CEQA’s “fair argument” standard has been applied to categorical exemption exceptions since 1990. Thelast case to rely on the substantial evidence standard to uphold an exemption was Centinela Hospital Associationv. City ofInglewood (1990) 225 Cal.App.3d 1586 — over twenty years ago. And Centinela did not discuss why the substantial evidence standard applied; it was notat issue. (/d. at 1601.) Post-Centinela, in Banker’s Hill v. City ofSan Diego (2006) 139 Cal.App.4"249, the Court of Appeal explained whythe fair argument standard must be applied to consider exceptions to proposed categorical exemptions:it is because the underlying statutory authority limits such exemptions to projects without any potentially significant environmental effects. (Pub. Resources Code § 21084(a).) Banker’s Hill explained that ... where there is any reasonable possibility that a project or activity may havea significant effect on the environment, an exemption would be improper.” (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205-206 ...) This importantlimitation ... is best upheld by disallowing an exemption ... where the recordreflects a fair argument that there may be a significant effect on the environment due to unusual circumstances. (id. at 265-266, italics added; see Pub. Resources Code § 21084(a).) Banker’s Hill reiterated that the statutory authority only allows categorical exemptions from CEQAforprojects that have no significant environmental effects, and “no statutory policy exists in favor of applying categorical exemptions wherea fair argument can be madethat a project will create a significant effect on the environment.” (Jd. at 266.) Appellants have provided the Court of Appeal with the Resources Agency’s rule-makingfile relevant to the adoption ofthe categorical exemption exception in CEQA Guidelines [14 Cal.Code Regs. §§ 15000et. seq] section 15300.2 (c). The rule-makingfile reflects that the categorical exemption exception that is now codified in Guideline section 15300.2(c) wassolely grounded in Public Resources Code section 21084 and Wildlife Alive v. Chickering, supra, 18 Cal.3d 190, 205-206. (Slip Opinion at 12, n.9, Appellants’ Opening Brief at 18-19, 40-41, Appellants’ Reply Briefat 18-19, Appellants’ Request for Judicial Notice, Ex. 4 at 18; attached.) Siceen, Kapor-Klein House, Zoning Submittal (AR1:169.) Here, the First District correctly applied the fair argument standard based on unambiguousstatutory authority, the rulings of this Court, and other consistent precedent. (E.g., Communitiesfor a Better Environmentv. California Resources Agency (2002) 103 Cal.App.4" 98, 129; Slip Opinion at 12, 14-15.) In doing so, the Court provided helpful guidancein the application of exceptions to categorical exemptions from CEQA.The inquiry turns on evidence of potentially significant environmental impacts. Issues Presented by the Petition 1. For a project that is categorically exempt from review under [CEQA], does the significant effects exception to the exemption in CEQA Guideline section 15300.2 require both a finding that there is a reasonable possibility of significant effect and a finding that the potentially significant effect is due to “unusual circumstances’? Answer: No. Neither the relevant statutory authority nor the Supreme Court case upon which Guideline section 15300.2 subdivision (c) wasdirectly based references “unusual circumstances.” (Pub. Resources Code § 21084(a); Wildlife Alive v. Chickering, supra, 18 Cal.3d 190, 205- 206.) Unusual circumstancesare inherent in a project that may have significant environmental impacts despite fitting into a generic categorical exemptionclass. (Slip Opinion at 13-15.) 2. Whatis the appropriate standard ofreview of[sic] whether the significant effects exception to a categorical exemption applies? Answer: The “fair argument” standard ofreview applies, consistent with categorical exemption cases decided during the last twenty years. (Slip Opinion at 15-16; Appellants’ Reply Brief at 11-14.) Thereis no current conflict amongthe appellate districts. 3. Whendetermining whetherthe significant effect [sic] exception applies, must a public agency consideralleged effects of activities that are not included in the project as proposed and approved? Answer: N/A. This question assumesfacts not present and so cannot trigger review. The proposed Kaporresidence is well-defined asto its size and placementon the steep slope of its Rose Street site, but geotechnical experts disagree both about the amountof fill required to build the 10,000 square-foot structure and whethersignificant environmental effects may result. (Slip Opinion at 4-6, 18-19; Appellants’ Reply Brief at 23-40.) Statement of Facts Appellants adopt the Factual and Procedural Backgroundin the published opinion of the Court ofAppeal. (Slip Opinion at 1-8; Berkeley Hillside Preservation v. City ofBerkeley (2012) 203 Cal.App.4" 656, 661- 667; California Rule of Court 8.500 (c)(2).) A few clarifications are in order. Asin the trial court and the Court of Appeal, the City and the Kapors(collectively, the City) do notfairly describe the Kapors’ proposed project. While it would be a single building that includes living space and a 10-car garage totaling 9870 square feet (referred to as 10,000 square feet), the City describes the project as iftwo separate structures. (AR1:3; Petition for Review at 8.) Also, the analysis by Dr. Lawrence Karp supporting the categorical exemption exception is not based on a misconception of “what the project wasin thefirst instance.” (Petition for Review at 27.) The Slip Opinion accurately recounts the various opinions and reports prepared by Dr. Karp, along with the Kapors’ experts’ contrary opinions. (Slip Opinion at 4-7.) The City contends in vain that Dr. Karp’s opinions should be disregarded because Kapors’ experts contended that Dr. Karp misread the architectural plans. (Respondents’ Opposition Brief at 36.) But all that is demonstrated is a dispute among experts that requires resolution in an EIR. Dr. Karp had an opportunity to review all of the letters critiquing his opinions before the City Council appeal meeting on April 27, 2011, and so testified. (AR4:1089, 2:530-531 [transcript].) He explained to the Council that he had not misread the plans. Further, based on his independent analysis he continued to disagree with the Kapors’ engineers’ opinions: I conducted an independentfeasibility study. I now concludethat there is potential for very significant environmental impacts from construction and seismic lurching in service. J reviewed the City Planning’s index andthe entire file, including all plans ... The structure seemed inappropriate for the steep site so I did a reality check of the architectural drawings. The recent reports from the applicants’ experts say I do not know howto read architectural drawings, but I have been a licensed architect for many years and I do know. Their reports have not changed myopinion.I cut and matched prints and conclude that the depicted elevations typically misrepresentthe relationships between the steep site and the floor plans ... Project grading and tree removal, including removal of significant protected oak trees, will therefore be much more extensive than represented by the City, just as noted in myletter- reports and showngraphically on the Grading Section drawing you now have.This project has potential for very significant environmental impacts that should be studied and mitigated. (AR4:1089; 2:530-532 [transcript of Karp testimony before the Council.]) The City contendsthat “although [Dr.] Karp protested that he did not misread the plans, the City disagreed andproperly disregardedhis opinion.” (Respondents’ Opposition Briefat 36, italics added.) But the City Council did not disregard Dr. Karp’s opinion. The Council never questionedhis credibility, as would indeed have been pointless to do so in light of his stellar credentials. The City Council’s discussion at the appeal meeting never even touched on geotechnical issues. (AR2: 541-591.) Dr. Karp has unassailable professional credentials as an eminent geotechnical engineer and architect whohas taught at Stanford and Cal. His assertion that he reviewedthe criticisms of the Kapors’ engineers and disagreed with their opinions that he misread the plans was neverrefuted. Kapors’ attorney Rena Rickles acknowledged Dr. Karp’s “excellent credentials.” And unlike the Kapors’ engineers, Dr. Karp has “been a licensed architect for many years.” (AR2:531.) The Kapors’ architects that drew the mansion plans never expressed an opinion regarding Dr. Karp’s interpretation of their plans. The Kapors’ geotechnical expert, Alan Kropp, provided a conflicting opinion that although both he and Dr. Karp had reviewed the same architectural plans and he did not question Dr. Karp’s credentials, he “believe[d] there has been a misunderstanding of the plans” and “does not believe there will be grading necessary downhill of the lower backyard.” (AR2:538.) Such statements were couched as Mr. Kropp’s “beliefs” and he underscored that he was offering opinions, not stating facts. (/bid.) Asa basis for Dr. Karp’s opinion, he visited the Rose Street site on several occasions, reviewedall ofthe plans, reviewed the outdated 2009 . geotechnical report prepared for the separate house and carport as well as the later Planning Department submittals on the project as finally conceived, and created his own grading section drawing to determine the extent of earthwork and excavation necessary to support the 10,000 square foot house onits hillside site. (AR2:448-449.) Those professional tasks were well within Dr. Karp’s extensive education and decades of experience in the Berkeley Hills. From those efforts, Dr. Karp developed a fact-based professional opinion as to the excavation and grading required for an adequate foundation and anchorage for the proposed large building. His independent evaluation provided the basis for his opinions regarding significant environmental impacts. (AR2;448-449; 4:1085,1089.) Aswasdiscussedat the trial court hearing on the writ, plans for the massive Kapor house show it perched on steep hillside “like little hat.” (RT:46.) Appellants summarized Dr. Karp’s opinion that the building ... can’t just sit there. They’ll have to do benchesandfills and all kinds of retaining wall to do that work ... he did his own evaluation of this house on this site and indicated where he thought the | -benched-fill locations would needto be. He said the slopes were different than had been represented ... there would be significantly morefill required. The ... trees [would need to be] removedto get the equipmentin to do that ... no one refutedthis ... (RT:46-47, italics added.) Dr. Karp also explained that “although the site as now configured appears stable, the Rose Steps and the concrete ofthe elevated part ofLa Loma[overpass] are cracked from fault creep ...” bid.) He recommended “an alternative project ... to avoid grading with massive excavations and fills as well as the shoring and retaining walls necessary”for the project, concludingthat in his professional opinion the 10,000 square-foot project had potentially significant impacts. (AR2:448-449.) Dr. Karp did not assume that every homein the Berkeley Hills presents significant geotechnical hazards. He concludedthatthis particular homeat the size proposed onits sloped lot required excavation for side-hill fills resulting in a “probability of seismic lurching.” (AR2:448-449.) WhyReview Should Be Denied There is no need for this Court’s review to “secure uniformity of decision or to settle an important question of law.” (Rule of Court 8.500 (b)(1).) The City’s “sky is falling” rhetoric is without substance. As explained in the Summary of Answer,infra at 2-5, the applicability of the “fair argument” standard of review to consider an exception to a claimed categorical exemption is widely-accepted in the case law andthere is no justification for a different standard. Ironically, what would have caused conflict in case law would have been a different result in the Slip Opinion. No case has ever upheld a categorical exemption whenthere is evidence of a project’s potentially significant environmental impacts. (Appellants’ Opening Brief at 45-51 [catalogue of cases].)' Here,the trial court recognizedthat the fair argument standard should be applied but nonetheless upheld the exemption because of confusion about “unusual circumstances”as an independentstep.(Slip Opinion at 12-13.) The Slip Opinion’s scholarly discussion ofthe statutory, regulatory, and Supreme Court case underpinnings of categorical "Not “all courts” addressing the 15300.2 (c) exception “conducted the two-part inquiry employed bythetrial court.”(Petition at 3.) 10 exemptions will prevent such a result in the future, explaining why the “2- step” approach can be helpful but is not required. (/d. at 10-15.) If potentially significant environmental impacts are present, categorical exemption is insupportable.It is simple. Appellants will not here try to improve on the Slip Opinion’s excellent analysis, and note that cases applying the so-called two-step test did not yet have the benefit of the legislative history judicially noticed by the Court ofAppeal. (Slip Opinion at 12, n.9.) Division Four’s earlier ruling in Wollmer v. City ofBerkeley (2011) 193 Cal.App.4™ 1329 was consistent with an integrated approach to unusual circumstances/significant impacts, as the Court considered unusual circumstancesto be inextricably tied to the potential for significant effect. In Wollmer, no unusual circumstancestriggered any potentially significant environmental impacts and so a categorical exemption was upheld. (/d. at 1352.) The City’s odd reliance on the separate “commonsense exemption” reviewed by this Court in Muzzy Ranch v. Solano County Airport Commission (2007) 41 Cal.4” 372 (a case that this Court modified following a request by the undersigned counsel and other non-parties regarding its references to the substantial evidence standard inapplicable to categorical exemptions) is improper and irrelevant. First, the claimed relevance of the commonsense exemption and the Muzzy Ranch case have only nowsurfaced in the Petition for Review. The commonsense exemption was not even raised in the City’s recent Petition for Rehearing. Rule of Court 8.500 (c)(1) provides as a policy matterthat review is limited to issues timely raised on appeal. Second, the analogy is without merit. There is a material difference between Guideline section 15061(b)(3)’s commonsense exemption, where 1] it “can be seen with certainty that there is no possibility that an activity in question may havea significant effect on the environment,” andits converse: Guideline section 15300.2 (c)’s exceptions to categorical exemptionsfor projects with a “reasonable possibility” of significant effect. (Italics added.) Projects described by the 33 classes of categorical exemptionsare not equivalent to commonsense exemption projects that have “no possibility” of impacts. They instead encompass minorprojects that are generally not expected to have significant impacts. Projects within the 33 classes are not “seen with certainty” to have no impacts;in fact, when competent evidenceofpotentially significant impacts surfaces, the categorical exemptionfails. Finally, the City rationalizes that “unusual circumstances” must be assessed as an independentcriterion of section 15300.2 (c) because otherwise “no project that satisfies the criteria under the exemption could ever be found to be exempt.” (Respondents’ Opposition Brief at 20.) Thisis illogical. To meet the exception, substantial evidence must support a fair argumentthat a project may have a significant environmental impact. This is the same low-threshold standard that applies to overturn negative declarations and mitigated negative declarations in favor of environmental impact reports. (Guideline § 15064 (f).) While the City essentially presumesthatit is always possible to meet the fair argument standard,ifthat were true no negative declaration or mitigated negative declaration could withstand challenge.’ After 40 years * A “single neighbor who complained that he did notlike the look of a new houseorthat it would increasetraffic” as posited by the City below would not qualify as substantial evidence defeating categorical exemption and would also beinsufficient to defeat a negative declaration. 12 with CEQA, we knowbetter. Negative declarations exponentially outnumber EIRs. The simple premise to both categorical exemptions and negative declarations is that they are disallowed by CEQAin the presence of a qualified fair argumentofpotentially significant environmentaleffects. To summarize, the “unusual circumstances” referenced in Guideline section 15300.2 (c) inform the quality of evidence required to except a project from an exemption category. But they do notrise to the level of a separate-but-equalcriterion. It cannot be overstated that CEQA’s statutory authority does not allow categorical exemptions for any project that may have a significant impact on the environment; that simple premise remains the overarching rule and allows no separate unusual circumstancesinquiry. This Court ruled in Wildlife Alive, supra, 18 Cal.3d 190, that ° The Public Resources Code empowers the Secretary of the Resources Agency to adopt regulations to categorically exempt projects from CEQAonly for projects that will not have a significant environmentaleffect. * No regulation may exceed the scope ofthe enabling statute. ¢ Use ofa categorical exemption is improper for any project that may havea significant impact, since otherwise the subject regulations (the CEQA Guidelines for categorical exemptions) would exceed the statutory authority of the Public Resources Code. (Ud. at 205-206; see also Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4™ 105, 124.) We now know that when adopted in 1980 the categorical exemption exception Guideline cited only four elements as its underlying authority: 13 Public Resources Code section 21083 Public Resources Code section 21084 Public Resources Code section 21085 Wildlife Alive v. ChickeringP W N P (Requestfor Judicial Notice, Ex.4 at 18, Slip Opinion at 12, n.9; attached.) First, Public Resources Code sections 21083 and [former] section 21085 provide general authority for the adoption of regulations (aka the CEQA Guidelines) to implement CEQA. Next, Public Resources section 21084 is specific to categorical exemptions:it allows CEQAguidelines to be prepared and adopted to “includea list of classes of projects which have been determined not to have significant effect on the environment and which shall be exempt.” TheJast authority relied upon for adoption of section 15300.2 (c) is the Wildlife Alive case, which disallows categorical exemption for any project that may havea significant impact. With all of this authority in hand, the Slip Opinionis the very opposite of the “sea change” decried by the City and the Kaporsin an attempt to gain this Court’s review. (Petition at 7.) It will not “eviscerate the very concept of categorical exemptions.” (/d. at 4.) It will not “vitiate the whole concept of categorical exemption.” (/d. at 20.) And it will not require EJRs in matters not previously required. There is no “long-standing split in the standard of review”that remains unresolved. (/d.at 7.) The City worries that an agency may not be ableto rely ona categorical exemption from CEQA “when faced with any reasonable possibility of a significant impact — even an impacttypical of an exempt class of projects.” (Petition at 21.) Yet in creating classes ofprojects eligible for categorical exemptions, the powerofthe Secretary ofthe 14 Resources Agencyis restricted to projects that have no environmental impacts. (Pub. Resources Code §21084 (a).) A typical project within the class necessarily has no significant environmental impacts, and projects that have such impacts are inherently unusual. The City appears to argue that some ofthe 33 categorical exemption classes include projects that typically may havesignificant environmental impacts. At best, such a stance would concedethat the class is overly broad and exceedsits statutory authority. Appellants concede no such thing. Many thousands of California homes are approved each year throughoutthe state without need for environmental review nor even any permits except for ministerial building permits. The exemption class for single-family homesis appropriate. However, the proposed 10,000 square foot Kapor residence/garageis not a typical run-of-the-mill single-family home appropriate for categorical exemption. It requires three use permits. And while one could imagine a comparably-sized home ona less-constrained site without adverse effects, the Kaporproject has potentially significant environmental impacts relating to its size in the context ofits steep site on a narrow roadwayin the seismically active Berkeley Hills. Such a project warrants environmental analysis and mitigation in a prescribed and public CEQA process. The Slip Opinionbrilliantly follows Wildlife Alive and other Supreme Court precedentinterpreting the statutory authority for CEQA categorical exemptions.It clarifies the application of the significant effects exception based on substantial evidence that supports afair argument of significant environmental effects. No separate finding of “unusual circumstances”is authorized by any statutory or regulatory authority. 15 The Petition should be denied. Counsel’s Certificate of Word Count per Word:mac””"’: 3768 April 16, 2012 Respectfully submitted, Susan PIN. Attorney for Appellants 16 BL TITLE ld (Rogister 80, No. 19-—6-10-80) §$ 15100.1 RESOURCES AGENCY (p. 322 18) In response to that mandate, the Secretary for Resources has found that the following classes of projects lis!e? ‘4 thie article do not have a sianificant effect on the environment anu Uiey ase weelu.cu lo be Guiegorically eacmpl trom the requirement for the preparation of environmental documents, HISTORY: : 1. Amendmentfiled 1-3-75; designated effective 4-1-75 (Register 75, No. 1), 15100.1. Relation to Ministerial Projects. Section 21080 of the Public Resources Code exempts from the application of CEQAthose projects over which public agencies exercise only ministerial au- thority. Since ministerial projects are exempt under Section 15073 of these guidelines, Categorical Exemptions should be applied only where a projectis not ministerial under a public agency's statutes and ordinances. The inclusion of activities which may be ministeria) within the classes and examples contained in this article shall not be construed as a finding by the Secretary for Resources that such an activity is discretionary. NOTE: Authority cited: Sections 21083 and 21088, Public Resources Code. Reference: sections 21000 through 21174, Public Resources Code. . HISTORY; 1. New section filed 1-3-75, designated effective 4-1-75 (Register 75, No, 1). 15100.2. Exceptions, {a) Location. Classes 8, 4, 5, 6, and 11 are qualified by consideration of where the project is to be located—a project that is ordinarily insignificant in its impact on the environment mayin a particularly sensitive environment be _ Significant. Therefore, these classes are considered to apply in all instances, except where the project may impact on an environmental resource of hazard- ous or critical concern where designated, precisely mapped, and officially adopted pursuant to law byfederal, state or local agencies. (b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant—for example, annual additions to an existing uilding under Class 1. {c) Significant Effect. A categorical exemption shall not be used for an activity where there is u reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. NOTE: Authority cited: Sections 21043 and 21088, Public Resources Code, Reference: Sections 21000-21174, Public Resources Code and Wildlife Alive v, Chickering, 18 Cal. 3d 190, HISTORY: 1, New section filed 1-3-75; designated effective 4-1-75 (Register 75, No. 1). re new subsection (c) filed 5-8-80, effective thirtieth day thereafter (Register 80, 0. 39), 151003, Revisions to List of Categorical Exemptions. Any public agency may, at any time, request that a newclass of Categorical Exemptions be added, or an existing one amended or deleted. This request must be made in writing to the Office of Planning and Research and shall contain detailed information to support the request. The granting of such re- quest shall be by amendment to these guidelines. NOTE. Authority cited. Sections 21083 and 2108%, Public Resources Code, Beference: Sections 248) through 2174, Pubhe Resources Code. ‘ HISTORY, 1 Newsevtion filed 1-9-78; designated effective 4-1-75 (Register 75, No. 1). 2 w.3,64/ LEGISLATIVE INTENT SERVICE Fons d eg 3 § 15101RESOURCES ACENCY (p. 322.19) TITLE 14 (Fpgistor 80, No. 19-—-6-10-80) 5100.4. Applicalion by Public Agencies, ach public agency shall in the course of establishing its own procedures,list those specific activities whichfall within eachof the exempt classes, subject to the qualification that theselists must be consistent with boththeletter and the intent expressed in'the classes. Public agencies mayomit fromtheir implement: ing proceduresclasses and examplesthat do not apply to their activities, but they may not require EIR’s for projects describedin the classes and examples in this article except under the provisions of Section 15100.2 NOTE: Authority cited: Sections 21083 and 21088, Public Resources Code. Reference: Sections 21000 through 21174, Public Resources Code. HISTORY: | a 1, New section fildd 1-83-75; designated effective 4-1-75 (Register 75, No, 1), 15101. Class 1: Existing Facilities. ; Class 1 consists of the’operation, repair, maintenance or minor alteration of existing public or ‘private structures, facilities, mechanical equipment,or topo- graphical features! involving negligible or no expansion of use beyond that previously existing, including ‘but not limited to: ; a (a) Interior or exterior alterations involving such things as interior parti- tions, plumbing, and electrical conveyances; . a 4 : (b) Existing facilities of both investor and publicly ownedutilities used to provide electric power, natural gas, sewerage, or other public utility services (c) Existing highways andstreets, sidewalks, gutters,bicycle and pedestrian trails, and similarfacilities except where the activity will involve removalofa scenic resource including a stand of trees, a rock outcropping, or an historic building. (d) Restoration! or rehabilitation of deteriorated or damaged structures, facilities or mechanical equipment to meet current standardsof public health andsafety, unless it is determined that the damage was substantial and resulted from an environmental hazard such a8 earthquake, landslide or flood; (e} Additionstq existing structures provided thatthe addition will not result in an increase of more than: (1) 50 percentof the floor area of the structures before the addition or 2,500 square feet, whicheveris less; or (2) 10,000 square feet if: ; ; nee. (A) The project is in ah area whereall public services and facilities are available to allowfor maximum developmentpermissible in the General Plan and as (B) The area inl which the projectis locatedis not environmentallysensitive, (f) Addition of|safety or health protection devices for use during construc- tion of or in conjunction with existing structures, facilities or mechanical equip- ment, or topographical features including navigational devices, (g) New copy'on existing on and off-premise signs; (h) Maintenance of existing landscaping, native growth and water supply reservoirs (excluding the use of economic poisons, as defined in Division 7, - Chapter2, Califurnia Agricultural Code); ; ; a. (i) Maintenance of fish screens, fish ladders, wildlife habitat areas, artificial wildlife waterway devices, streamflows, springs and waterholes, and stream channels (clearing of debris) to protect fish and wildlife resources; —wTT8 (800) 666-1917 E31GG/7/ 153001. RELATION TO MINISTERIAL PROJECTS, Section 21030 of the Public Resources Code exempts from the application of CEQA those projects over which public agencies exercise only ministerial authority. Since ministerial projects are already exempt, ddddée/Séc¢t1dd/VIO73/d7/HAsEd gusdeaTAde/ Categorical Exemptions should be. applied only where a project js not ministerial under.a public agency's statutes and ordinances. The inclusion of activities which may be ministerial within the classes land examples contained in this article shall not be construed as a find Secretary for Resources that such an activity is discretionary. | NOTE: Authority cited: Sections 21083 and 21087, Public Resources Code; Reference: Section 21084, Public Resotrces Code. Discussion of Section 15300.1 This séction is renumbered with only a technical, clarifying change. - ¥SY0G/Z/ 15300.2.. EXCEPTIONS.: (a) ‘Location.. Classes 3, 4,5, 6, and 11 are qualified-by consideration of where the project is to be located me a project that is ordinarily insignificant in-its impact on the environment may—in—a-particularly—sensitive—env-ironment-be—significant.—Therefore;—these .. Classes aré considered to apply in’all instances, except where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant .to Taw by Federal, state, or local agencies. ° . (b) Cumulative Impact. All’exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant -- for example, annual " additions to an existing building under Class 1. (c) Significant Effect. A categorical exemption shal} not be used for. - an activity where there is a reasonable possibility that the activity will have.a significant effect en the environment due to unusual circumstances. NOTE: Authority cited: Sections 21083 and 21087, Public Resources Code’: . Reference: Section 21084, Public Resources Code; Wildlife Alive v. Chickering(1977) 18 Cal. 3d 190. - Discussion of Section 15300.2 The only changes with this section are the numbering and the addition of’. titles for the subparagraphs. —- | ¥IVOG/3/ - 15300.3. REVISIONS. TO LIST.OF CATEGORICAL EXEMPTIONS. Any public agency may, at any time, request that a new class of CategoricalExemptions be added, or an existing one amended or deleted. shall be by amendment to these guidelines. 150 33 ng by the ) This request must .be made in writing to the. Office of Planning and.Research and shall contain - detailed information to support the request. The gfanting of such request id — BD — 1 wo co o —_ 2a oa co = Ly © L E G I S L A T I V E I N T E N T S & x Berkeley Hillside Preservation, et al. v. City ofBerkeley, etal. Alameda County Superior Court Case No. RG10517314 Court of Appeal No. A131254 Supreme Court No. 8201116 PROOF OF SERVICE J am a citizen of the United States and a resident ofthe County of Sonoma. I am overthe age of eighteen years and not a party to the within entitled action; my business address is P.O. Box 1659, Glen Ellen, CA 95442. On April /b , 2012, I served one true copy of: Answerto Petition for Review Byplacing a true copy enclosed in a sealed envelope with prepaid postage in the United States mail in Glen Ellen, California, to addresses listed below. x Zachary D. Cowan x Alameda County Superior Court Laura McKinney Attention: Clerk of the Court Deputy City Attorney 1225 Fallon Street City of Berkeley Oakland CA 94612 2180 Milvia Street, 4" Floor Berkeley CA 94704 Attorney for Defendants & x California Court ofAppeal Respondents First Appellate District, Division 4 Attention: Clerk ofthe Court x ‘Amrit Kulkarni 350 McAllister Street Meyers Nave San Francisco CA 94102 555 12" Street, Suite 1500 Oakland CA 94607 Attorney for Defendants & Respondents 1 declare under penalty ofperjury that the foregoing is true and correct and is executed on April /6, 2012, at Glen Ellen, California. ae Susan Brandt-Hawley
