Berkeley Hillside Preservation v. City of Berkeley

The California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 establishes a comprehensive scheme to provide long-term protection to the environment. It prescribes review procedures a public agency must follow before approving or carrying out certain projects. For policy reasons, the Legislature has expressly exempted several categories of projects from review under CEQA. (See § 21080, subd. (b)(1) — (15).) By statute, the Legislature has also directed the Secretary of the Natural Resources Agency (Secretary) to establish “a list of classes of projects that have been determined not to have a significant effect on the environment and that shall be exempt from” CEQA. (§ 21084, subd. (a).) “In response to that mandate,” the Secretary “has found” that certain “classes of projects ... do not have a significant effect on the environment” and, in administrative regulations known as guidelines, has listed those classes and “declared [them] to be categorically exempt from the requirement for the preparation of environmental documents.” (Cal. Code Regs., tit. 14, § 15300; see id., § 15000 et seq., Guidelines for Implementation of CEQA (Guidelines).)…

Concurring. — I agree with today’s opinion that “a finding of environmental impacts must be based on the proposed project as actually approved and may not be based on unapproved activities that opponents assert will be necessary because the project, as approved, cannot be built.” (Maj. opn., ante, at p. 1119.) This rule will not lead to evasion of the environmental review requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because presumably a *1123 developer’s failure to build the project as approved will be remedied by the local agency that approved the project. Where opponents of a project make a credible argument that it cannot be built as approved, a trial court may exercise its discretion to retain continuing jurisdiction after rendering a judgment in order to ensure CEQA compliance. (See 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 420, pp. 1070-1071; City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 936 [ 207 P.2d 17 ] [court reserves jurisdiction to modify water rights judgment “ ‘in the event material change be found or any such abandonment or forfeiture be established’ ”].) In this case, because the…

I. FACTUAL BACKGROUND

Real parties in interest and respondents Mitchell Kapor and Freada Kapor- Klein (applicants) want to build a large house on their lot on Rose Street in Berkeley. The lot is on a steep slope (approximately 50 percent grade) in a heavily wooded area. In May 2009, their architect applied to the City for a use permit to demolish the existing house on the lot and to build a 6,478-square-foot house with an attached 3,394-square-foot 10-car garage. The residence would be built on two floors, would include an open-air lower level, and would cover about 16 percent of the lot. In January 2010, the City‘s zoning adjustments board (Board), after holding a public hearing and receiving comments about the project, approved the use permit. It found the project exempt from CEQA review under Guidelines sections 15303, subdivision (a), and 15332. The former, which the Secretary has designated Class 3, 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 ―up to three single-family residences‖ ―[i]n urbanized areas.‖ (Guidelines, § 15303,…