In Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, California Supreme Court held that the “unusual circumstances” exception to CEQA’s categorical exemptions literally requires unusual circumstances, and that agency decisions as to whether or not unusual circumstances exist are reviewed under the deferential substantial evidence standard.

In this case, the City of Berkeley approved a project to construct a 6,458 square foot house with an attached 3,394 square foot, 10-car garage on a wooded, steep slope in a residential neighborhood without an environmental impact report or negative declaration.  In so doing, the City found that the project was categorically exempt from CEQA under the “new, small structures” exemption and the “in-fill development” exemption.  The trial court affirmed the City’s approval.  The court of appeal then reversed the trial court and invalidated the City’s approval, relying on the “usual circumstances” exception, which provides:

In Citizens Against Airport Pollution v. City of San Jose, (6th Dist. 2014) 173 Cal.Rptr.3d 794, the court affirmed the City of San Jose’s approval of the eighth addendum to the San Jose International Airport Master Plan EIR, adopted in 2007 (“Master Plan”), which was prepared Master Plan amendments that the City adopted in 2010. The amendments included changes to the size and location of cargo facilities, the replacement of air cargo with general aviation facilities, and the modification of two taxiways. The petitioners first argued that a new EIR was required because these changes constituted a new project, but the court rejected this argument.

In Masonite Corporation v. County of Mendocino, (1st Dist. 2013) 218 Cal.App.4th 230, the First District Court of Appeal struck down the County of Mendocino’s certification of an environmental impact report (“EIR”) prepared for a use permit for Granite Construction’s Kunzler Terrace Mines project, which will be a sand and gravel quarry on 65 acres of land north of Ukiah near the Russian River (“Project”). Forty-five out of 65 acres of the Project site was vineyard land that the California Department of Conservation had designated as “prime farmland,” which would be lost as a result of the Project.

This month’s Land Use Update features: 1) a CEQA case clarifying several issues about what must be included in an administrative record, including attorney-client privilege issues; 2) a CEQA case focused on parking issues; 3) an unusual case involving the public nuisance exception to Coastal Commission jurisdiction under the Coastal Act.

1. In Citizens for Ceres v. Superior Court of Stanislaus County (2013) (5^th 2013) Case No. F065690, –Cal.Rptr.2d–, a case challenging an EIR prepared for a shopping center and Wal-Mart store under the California Environmental Quality Act,