Construction of Enormous House on Hillside is “Unusual Circumstances” Not Entitled to Infill Exemption from CEQA

A Court of Appeal recently held that a city erred in finding a categorical exemption under the California Environmental Quality Act (“CEQA”) for a project involving the construction of a 9,872 square foot single-family dwelling on a lot with alleged geotechnical issues.  (Berkeley Hillside Preservation v. City of Berkeley (— Cal.Rptr.3d —-, Cal.App. 1 Dist., February 15, 2012).  The court found that the extremely large size of the house constituted an “unusual circumstance” which made the project ineligible for the infill and single family home exemptions from CEQA. 


Landowners sought to demolish a residence on their 29,714 square foot lot in Berkeley, California, and construct a 6,478 square foot home with an attached 3,394 foot garage.  The Zoning Adjustment Board (“Board”) of the City of Berkeley (“City”) approved a use permit for the proposed construction finding that it was categorically exempt from CEQA pursuant to CEQA Guidelines because it is an in-fill development project and the construction involves a single-family residence.  The Board found the proposed construction does not trigger any of the exceptions to exemptions found in the Guidelines and the construction “would not have any significant effects on the environment due to unusual circumstances.”

Thirty-four Berkeley residents filed an appeal with the City Council asserting that the proposed 9,872 square foot structure would be one of the largest houses in Berkeley.  Of the more than 17,000 single family homes in the City, only 17 exceed 6,000 square feet and only one exceeds 9,000 square feet.  The appeal challenged the Board’s determination that construction of the residence is categorically exempt from CEQA.  The residents argued the project may have a significant impact on its surroundings due to its “unusual size, location, nature and scope.”

A geotechnical engineer sent letters to the City Council asserting that massive grading would be required for the project, all vegetation would need to be removed, and the lot was located within a state designated earthquake induced landslide zone.  The engineer opined the project is likely to have a significant impact on the environment.  Another geotechnical engineer submitted a response to the letters and claimed no “side-hill fill” would be needed, the current vegetation could be maintained, and no landslide hazard was present. 

The City Council dismissed the appeal.  The City Planning Department filed a notice stating that the proposed construction was categorically exempt from CEQA and that it would not trigger any exceptions to the exemptions.  A Berkeley resident and Berkeley Hillside Preservation (collectively, “Berkeley Hillside”) filed a lawsuit seeking review of the City’s decision.  The trial court found in favor of the City.  The court concluded that although “there was substantial evidence of a fair argument that the proposed construction would cause significant environmental impacts,” the proposed construction of the residence “did not trigger the exception to the exemptions set forth in Guidelines section 15300.2, subdivision (c), because the possible significant impacts were not due to “unusual circumstances.” 


The court of appeal reversed the decision of the trial court finding that the proposed construction was not categorically exempt under CEQA and that the environmental concerns must be reviewed in an environmental impact report (“EIR”).

If a public agency determines that a proposed activity is exempt from CEQA and that no exceptions apply, it can file a notice of exemption and no further environmental review is needed.  Here, City concluded the proposed construction was exempt under the exceptions for an “urban in-fill development,” and for construction of one single-family residence. 

If an agency determines a project is exempt, a party challenging the exemption may bring forth evidence that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.  The exception that is most commonly raised is the “unusual circumstances” exception “which provides that an activity which would otherwise be categorically exempt is not exempt if there are ‘unusual circumstances’ which create a ‘reasonable possibility’ that the activity will have a significant effect on the environment.” Berkeley Hillside asserted the “unusual circumstance” exception applies here, and the court agreed.

The court concluded as a matter of law that construction of the 6,478 square-foot home and attached 3,394 square foot garage “is ‘unusual’ within the meaning of the applicable CEQA exception, because the circumstances of the project differ from the typical circumstances related to an otherwise typically exempt single-family residence.  Furthermore, the engineer’s letters to the City Council amount to substantial evidence of a fair argument that the proposed construction would result in significant environmental impacts.  This is true even though other experts found no significant impacts.  If experts disagree about the significance of an environmental effect, the agency must treat the effect as significant and prepare an EIR. 


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Jeffrey L. Massey or Daniel J. O’Hanlon | 916.321.4500 

Jon E. Goetz | 805.786.4302