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California Appeals Court Approves Class 3 Exemption to CEQA Over Landslide Concerns

building house on blueprints with worker - construction project

A California appellate court governing the city of Berkeley recently issued a decision favorable to developers looking for ways to get outside of the purview of the California Environmental Quality Act (CEQA). As we have previously discussed, CEQA can pose a serious burden to real estate developers. The law requires state and local agencies to identify the environmental impacts of proposed real estate developments and work towards mitigating any such impacts. CEQA can complicate or delay development projects, almost inevitably raises the costs, and may even preclude the project entirely. Finding an exemption under CEQA can be the difference between a project falling through and a project going forward without a hitch, and a knowledgeable San Diego real estate attorney can help you find your exemption. The recent California appeals court opinion is a step in the right direction, strengthening one of the CEQA exemptions and limiting CEQA’s appropriate purview.

Court upholds CEQA exemption over neighbors’ objections

In the matter of Berkeley Hills Watershed Coalition v. City of Berkeley, property owners filed for approvals to construct three homes on adjacent parcels of land in Berkeley Hills. There were concerns that the parcels were on steep slopes and thus posed a geologic hazard of landsliding and fault rupture. The City Board of Zoning Adjustment (Board) granted the use permits, finding that the proposed developments were exempt from CEQA under the Class 3 categorical exemption for new construction of small structures. A group of 24 neighbors challenged the Board’s ruling, citing the location exception under CEQA, that there were sufficient “unusual circumstances” under the Guidelines, and that the Board failed to require additional permits despite a City ordinance restricting “the addition of a fifth bedroom to a parcel.”

Class 3 Exemption

The Class 3 exemption allows development of “up to three single-family residences” in “urbanized areas” without environmental review. The location exception, cited by the objecting neighbors, requires that a project in a particularly sensitive location (i.e., “environmental resources of hazardous or critical concern”) must still go through environmental review. The Court disagreed with the neighbors’ argument that the mere existence of a potential landslide was sufficient to trigger the exception. According to the court, earthquakes and landslides are “geological events” rather than “resources.” The Court emphasized that CEQA is more about environmental concerns than danger to human lives, which has its own safety regulations. The Court heavily emphasized deference to City decision-making in its opinion.

The Court also rejected the contention regarding the fifth bedroom because the new use permit already issued for the new construction was sufficient despite the addition of a fifth bedroom, further noting that the ordinance applied to additions to existing buildings, rather than new developments.

If you’re a real estate investor facing a legal issue in California, get help from seasoned and professional legal counsel by contacting San Diego real estate attorney Jon Alan at 619-421-3956.

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