The fact that a three-unit development in the Berkeley hills is in an earthquake zone doesn’t disqualify the project from an exemption under the California Environmental Quality Act, the First District Court of Appeal has ruled.

The case involved a parcel of land on Shasta Road in Berkeley, deep in the city’s hillside neighborhood near Tilden Regional Park. The landowners sought use permits from the city to build three units on three steeply sloped contiguous parcels. A geotechnical report concluded that part of the sites was in the Alquist-Priolo Earthquake Fault Zone along the Hayward Fault and part of the site was in an “earthquake-induced landslide area” as mapped by the California Geologic Survey.

However, the city found the project subject to the CEQA exemption applying to new construction of small structures. After the city approved the project, a group of 24 neighbors sued to stop construction – challenging, among other things, the CEQA exemption.

On appeal, the First District noted that because the neighbors did not dispute that the project met the requirements for the exemption, they bore the burden of proof that the project was subject to an exception to the exemption. In particular, the neighbors argued that the project was subject to the “location” exception – “a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant.”

The court rejected this argument, saying that an area that holds a risk of earthquake or landslide is not an environmental resource.

“The plain meaning of ‘environmental resource’ in the location exception does not encompass possible earthquake or landslide zones,” wrote Acting Presiding Justice Sandra Margulies for a unanimous three-judge panel. “A ‘resource’ is a ‘natural source of wealth or revenue,’ or a ‘natural feature or phenomenon that enhances the quality of human life.’ (Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 1061.) Earthquakes and landslides are geologic events—and while they are indeed hazardous, they are not ‘resources’.”

The neighbors also argued that one section of the CEQA guidelines (Section 21159.21, subdicision (h)(4) and (5), works in their favor because it sets forth exceptions to the statutory exemption for housing projects located in seismic and landslide hazard areas. But the court knocked that down: “To the contrary, however, the fact that the Legislature provided a specific exception for housing projects located in seismic and landslide areas but did not do the same for projects in Class 3, suggests it did not intend Class 3 projects to be subject to the same requirements.”

In a cause of action unrelated to CEQA, the neighbors also argued that the project should be subject to Berkeley’s so-called “mini-dorm” ordinance, which requires a special permit for housing projects with more than four bedrooms. However, the court concluded that this ordinance applied only to additions, not new construction – and, in any event, the additional use permit process would be redundant.

The Case:

Berkeley Hills Watershed Coalition v. City of Berkeley, No. A153942 (January 30, 2019)

The Lawyers:

For Berkeley Hills Watershed Coalition: Thomas N. Lippe, 

For City of Berkeley: Farimah F. Brown, City Attorney,