Berkeley Hillside Preservation v. City of Berkeley

Filed 5/27/15

IN THE SUPREME COURT OF CALIFORNIA

BERKELEY HILLSIDE ) PRESERVATION et al. ) ) Plaintiffs and Appellants, ) ) S201116 v. ) ) Ct.App. 1/4 A131254 CITY OF BERKELEY et al., ) ) Alameda County Defendants and Respondents; ) Super. Ct. No. RG10517314 ) DONN LOGAN et al., ) ) Real Parties in Interest and ) Respondents. ) ____________________________________)

ORDER MODIFYING OPINIONS

THE COURT:

The majority opinion in this case, filed March 2, 2015, and appearing at 60 Cal.4th 1086, is modified as follows: 1. The first full paragraph of text on page 1098 of 60 Cal.4th and the paragraph following it (which carries over to page 1099) are modified to read:

In addition, we agree with respondents that, under the construction of appellants and the concurring opinion, the categorical exemptions the Legislature, through the Secretary, has established would have little, if any, effect. CEQA specifies that environmental review through preparation of an EIR is required only “[i]f there is substantial evidence . . . that the project may have a significant effect on the environment.” (§ 21080, subd. (d).) As a

corollary to this principle, CEQA also specifies that, if “[t]here is no substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment,” then the proposed project is not subject to further CEQA review. (§ 21080, subd. (c)(1).) Guidelines section 15061, subdivision (b)(3), is similar, specifying: “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”

Under these provisions, where there is no substantial evidence a proposed project may have a significant environmental effect, further CEQA review is unnecessary; no categorical exemption is necessary to establish that proposition. According to appellants, under the unusual circumstances exception, the categorical exemptions are inapplicable unless an agency “check[s] its files” and finds no “evidence of potentially significant impacts.” But this is similar to the inquiry an agency makes under Guidelines section 15061, subdivision (b)(3), to determine whether the proposed project is subject to CEQA review in the first instance. (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 387 (Muzzy Ranch) [under Guidelines, § 15061, subd. (b)(3), agency must determine whether the evidence in the administrative record shows no possibility the proposed activity may have a significant effect on the environment].) Thus, under appellants’ view, the categorical exemptions would serve little purpose; they would generally apply only when the proposed project is already outside of CEQA review.