March 12, 2012
The California Environmental Quality Act (“CEQA”) requires that an environmental impact report be prepared for a project that potentially has a significant impact on the environment. However, CEQA exempts construction of a single-family residence from the environmental review process, since such construction usually does not create a significant environmental impact. An exception to the exemption for construction of single-family residences exists for a project that presents “unusual circumstances.” As such, a project with “unusual circumstances” requires an environmental impact report and is subject to the CEQA process.
On March 7, 2012, a California Appeals Court ruled in Berkeley Hillside Preservation v. City of Berkeley, 203 Cal.App.4th 656, that CEQA may require an environmental impact report for the construction of a single-family home when such construction presents an “unusual circumstance.”
In Berkeley Hillside Preservation, a couple owned a 29,714 square foot lot. The couple proposed to build a 6,478 square foot house with an attached ten-car garage that added another 3,394 square feet to the residence. The house and garage only covered about 16% of the lot, significantly less than the 40% allowed by the City of Berkeley, and all of the couple’s immediate neighbors supported the proposed construction.
However, certain Berkeley residents claimed that the home, which totaled 9,872 square feet for the house and the garage, would be one of the largest homes in the community and that “the project’s unusual size, location, nature and scope” would have significant environmental impacts. The residents retained a geotechnical engineer who reported that the project would require “massive grading” and “extensive truck operations” because the lot was on a steep slope.
The Appeals Court found that, because the home was so large and on a sloped lot, the construction of the house and the garage could have a significant environmental impact. The court also found that the very fact that construction of the residence could impact the environment was an “usual circumstance” because the construction of most single-family residences would not have any potential environmental impact on their communities.
Significantly, in deciding that the residence in Berkeley Hillside Preservation should be subject to a CEQA environmental impact report, the Appeals Court cautioned that, to determine whether “unusual circumstances” are present, one has to remember that the CEQA exception for single-family residences was designed for a typical house in a typical community. The CEQA exception for single-family residences was not designed for an exceptionally large house typical in a neighborhood of other exceptionally large houses. Therefore, a large house is not automatically excepted from the CEQA process just because it is built in a neighborhood of similarly large houses.
The ruling in Berkeley Hillside Preservation has potential implications for homeowners looking to build homes in Bel Air, Beverly Hills, Beverly Hills Post Office and/or Malibu, to name a few local areas where homes totaling 10,000 square feet or more can be found. While a house totaling 10,000 square feet or more might not be especially large for those particular neighborhoods, a local city council could require an environmental impact report based upon the rule in Berkeley Hillside Preservation if the local city council believes that such a project presents “unusual circumstances.”
To date, the decision in Berkeley Hillside Preservation has not been appealed. In light of Berkeley Hillside Preservation, if you are thinking of constructing a sizeable residence, we recommend consulting with a real estate attorney in the early stages of designing the home so that any potential CEQA implications can be addressed.