May 2012

On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12 203 Cal.App.4th 656, Case No. A131254), which held that substantial evidence of a fair argument of a potentially significant environmental impact automatically satisfies the “unusual circumstances” exception, and thus precludes reliance on a CEQA categorical exemption.  (See “CEQA Categorical Exemptions Defeated By Mere “Fair Argument” of Impact, First District Holds”, 2/23/12 post by Arthur F. Coon and Nadia L. Costa.)  The First District’s decision, requiring an EIR for construction of a large single-family home in the Berkeley hills, was controversial and sharpened a split of authority regarding the proper standard of review for categorical exemptions and interpretation of the “unusual circumstances” exception to categorical exemptions.  CEQA practitioners and stakeholders will continue to follow this matter with interest.
Continue Reading Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case

In a highly detailed and analytical opinion, the Fifth District Court of Appeal addressed and answered numerous novel legal questions regarding the proper interpretation and application of Public Resources Code § 21167.6(e), CEQA’s administrative record statute.  Consolidated Irrig. Dist. v.. Superior Court, 205 Cal.App.4th 697 (2012).  In brief, the court of appeal rejected the blanket contention that discovery is never allowed in a CEQA case, and also provided significant guidance as to the proper content of the administrative record.
Continue Reading Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out

In a series of decisions that had agency planners and environmental consultants scratching their heads, various courts of appeal last year held that every CEQA document must take account of existing conditions in assessing environmental impacts.  (See Sunnyvale West Neighborhood Assoc. v. City of Sunnyvale City Council (6th Dist. 2010) 190 Cal.App.4th 1351; Pfeiffer v.