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Berkeley Hillside Preservation et al v. City of Berkeley et al

February 15, 2012

BERKELEY HILLSIDE PRESERVATION ET AL., PLAINTIFFS AND APPELLANTS,
v.
CITY OF BERKELEY ET AL., DEFENDANTS AND RESPONDENTS; DONN LOGAN ET AL., REAL PARTIES IN INTEREST AND RESPONDENTS.



(Alameda County Super. Ct. No. RG10517314) Trial Court: Alameda County Superior Court Trial Judge: Honorable Frank Roesch

The opinion of the court was delivered by: Sepulveda, J.

CERTIFIED FOR PUBLICATION

Appellants Berkeley Hillside Preservation and Susan Nunes Fadley challenge the denial of their petition for a writ of mandate to set aside the approval of use permits to construct a large residence in the Berkeley hills. They claim that the proposed construction was not categorically exempt under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),*fn1 and that environmental concerns should be reviewed in an environmental impact report (EIR). We agree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Real parties in interest and respondents Mitchell Kapor and Freada Kapor-Klein own a 29,714 square-foot lot on Rose Street in Berkeley. The lot is on a steep slope (approximately 50 percent grade) in a heavily wooded area. On May 19, 2009, Donn Logan of Wong-Logan Architects filed an application for a use permit to demolish the existing two-story, single-family dwelling on the lot, and to construct a 6,478 square-foot home with an attached 3,394 square-foot, 10-car garage designed to address lack of street parking in the area (the proposed construction). The residence would be built on two floors, plus an open-air lower level, and would cover about 16 percent of the lot (less than the 40 percent lot coverage permitted by respondent City of Berkeley (City) rules, according to an architect involved with the proposed construction). The application stated that the immediate neighbors of the affected lot supported the proposed construction, and the record reveals that those neighbors, as well as other Berkeley residents (including those who live in the surrounding neighborhood), supported the proposed construction throughout proceedings below. The application stated that the proposed construction would provide a turnaround for vehicles at the end of the dead-end street where the lot was located, an addition that was welcomed by the neighbors. A revised application was submitted on October 13, 2009.

After providing notice, Berkeley's Zoning Adjustment Board (Board) held a public hearing on January 28, 2010, received comment about the proposed construction, and approved the use permit for the proposed construction by a vote of seven to zero, with one Board member absent and one abstaining. The Board found, consistent with a Board staff report, that the proposed construction was categorically exempt from the provisions of CEQA pursuant to Guidelines sections 15332*fn2 ("In-Fill Development Projects") and 15303, subdivision (a) ("New Construction or Conversion of Small Structures," single-family residence). The Board also determined that the proposed construction did not trigger any of the exceptions to exemptions, as set forth in Guidelines, section 15300.2. In particular, the Board concluded that the proposed construction would not have any significant effects on the environment due to unusual circumstances.*fn3 (Guidelines, § 15300.2, subd. (c).) The Board approved (1) a use permit to demolish the existing dwelling on the lot, (2) a use permit to construct the proposed unit, (3) an administrative use permit to allow a 35-foot average height limit for the main building (with 28 feet being the maximum), and (4) an administrative use permit to reduce the setback of the front yard to 16 feet (with 20 feet usually required). The Board imposed various "standard conditions" on the proposed construction, including requiring the permit applicant to secure a construction traffic management plan, comply with storm water regulations for small construction activities, and take steps to minimize erosion and landslides when construction takes place during the wet season.

Appellant Susan Nunes Fadley, a Berkeley resident, filed an appeal to the City Council on February 19, 2010. Thirty-three other Berkeley residents also signed the appeal. Appellants stressed that the proposed dwelling and attached 10-car garage would result in a single structure of 9,872 square feet, which would make it "one of the largest houses in Berkeley, four times the average house size in its vicinity, and situated in a canyon where the existing houses are of a much smaller scale." They submitted evidence that, of more than 17,000 single-family residences in Berkeley, only 17 are larger than 6,000 square feet, only 10 exceed 6,400 square feet, and only one other residence exceeds 9,000 square feet. In a response to the appeal, the City's director of planning and development stated that 68 Berkeley "dwellings" are larger than 6,000 square feet, nine are larger than 9,000 square feet, and five are larger than 10,000 square feet, and that 16 parcels within 300 feet of the proposed construction had a greater floor-area-to-lot-area ratio than the proposed dwelling.

An addendum to the appeal dated April 18, 2010, first challenged the Board's declaration that the proposed construction was categorically exempt from CEQA, arguing that "the project's unusual size, location, nature and scope may have significant impact on its surroundings." The addendum stated that the proposed construction exceeded the maximum allowable height under Berkeley's municipal code, and was inconsistent with the policies of the City's general plan, and that an EIR was appropriate to evaluate the proposed construction's potential impact on noise, air quality, and neighborhood safety.

The City Council received numerous letters and e-mails both supporting and opposing the appeal. Among the submissions in support of the appeal were letters from Lawrence Karp, a geotechnical engineer specializing in foundation engineering and construction, who had more than 50 years of experience with design and construction in Berkeley, and who had previously prepared feasibility studies and provided engineering services during construction of "unusual projects." Karp first submitted a one-page letter to the City Council dated April 16, 2010, stating that he was familiar with the site of the proposed construction, and had been involved with new residences in the area for 50 years. Based on a review of the architectural plans and topographical survey filed with the Board, as well as visits to the proposed construction site, Karp stated that portions of the "major fill for the project are shown to be placed on an existing slope inclined at about 42§ (~1.1h:1v) to create a new slope more than 50§ (~0.8h:1v)." He opined that "[t]hese slopes cannot be constructed by earthwork and all fill must be benched and keyed into the slope which is not shown in the sections or accounted for in the earthwork quantities. To accomplish elevations shown on the architectural plans, shoring and major retaining walls not shown will have to be constructed resulting in much larger earthwork quantities than now expected." Karp further opined that the "massive grading" necessary would involve "extensive trucking operations," and that such work "has never before been accomplished in the greater area of the project outside of reservoirs or construction on the University of California campus and Tilden Park." He also emphasized that the project site was "located alongside the major trace of the Hayward fault and it is mapped within a state designated earthquake-induced landslide hazard zone." It was Karp's opinion that "the project as proposed is likely to have very significant environmental impacts not only during construction but in service due to the probability of seismic lurching of the oversteepened side-hill fills."

Karp submitted another one-page letter dated April 18, 2010, stating that after he wrote his April 16 letter, he had the opportunity to review a geotechnical investigation done by geotechnical engineer Alan Kropp, dated July 31, 2009. Karp stated that no "fill slopes" were shown in Kropp's plan, and that "the recommendations for retaining walls do not include lateral earth pressures for slopes with inclinations of more than 2h:1v (~27§) or for wall heights more than 12 feet." Karp also noted that the architectural plans he reviewed "include cross-sections and elevations that are inconsistent with the Site Plan and limitations in the 7/31/09 report (there have been significant changes)." He stated that "all vegetation will have to be removed for grading, and retaining walls totaling 27 feet in height will be necessary to achieve grades. Vertical cuts for grading and retaining walls will total about 43 feet (17 feet for bench cutting and 26 feet for wall cutting). [¶] A drawing in the report depicts site drainage to be collected and discharged into an energy dissipater dug into the slope, which is inconsistent with the intended very steep fill slopes." Karp reiterated that it was his opinion that "the project as proposed is likely to have very significant environmental impacts not only during construction, but in service due to the probability of seismic lurching of the oversteepened side-hill fills."

Geotechnical engineer Kropp, who had conducted the 2009 geotechnical investigation, submitted a response to Karp's environmental concerns. According to Kropp, opponents had misread the project plans, because the proposed construction would not involve "side-hill fill," and the current ground surface, along with the vegetation, would be maintained on the downhill portion of the lot. According to Kropp, "the only fill placed by the downhill portion of the home will be backfill for backyard retaining walls and there will be no side-hill fill placed for the project. The current ground surface, along with the vegetation, will be maintained on the downhill portion of the lot." Because there would be no steep, side-hill fill constructed as Karp claimed, none of the concerns Karp raised in his letter applied to the proposed construction, according to Kropp.

As for claims that the project site fell within the boundaries of an area that requires investigation for possible earthquake-induced landslides, Kropp stated that although the site was in an area where an investigation was required to evaluate whether there was a potential for a landslide, Kropp's investigation revealed that no such landslide hazard was in fact present at the site. Another engineer (Jim Toby) also submitted a letter in support of the proposed construction, and opined that no fills would be placed directly on steep slopes, as Karp claimed.

The director of the City's planning and development department filed a supplemental report to the City Council, in part to respond to Karp's letters. According to the director, "A geotechnical report was prepared and signed by a licensed Geotechnical Engineer and a Certified Engineering Geologist. This report concluded that the site was suitable for the proposed dwelling from a geotechnical standpoint and that no landslide risk was present at the site. Should this project proceed, the design of the dwelling will require site-specific engineering to obtain a building permit."*fn4

The City Council considered the appeal on April 27, 2010, and allowed each side 10 minutes to speak.*fn5 Geotechnical engineers Karp and Kropp made statements consistent with their written submissions. The City Council adopted the findings made by the Board, affirmed the decision to approve the use permit, adopted the conditions enumerated by the Board, and dismissed the appeal by a vote of six to two, with one councilmember absent. The City Planning Department thereafter filed a notice of exemption, stating that the proposed construction was categorically exempt from the provisions of CEQA (Guidelines §§ 15332, 15303, subd. (a)), and that the proposed construction did not trigger any of the exceptions to the exemptions (Guidelines, § 15300.2).

Appellants Fadley and Berkeley Hillside Preservation*fn6 sought judicial review of the decision by filing a petition for a writ of mandate in the trial court on May 27, 2010. Following a hearing, the trial court denied the petition by written order dated December 30, 2010. The trial court first concluded that there was substantial evidence in the administrative record to support the City's determination that the in-fill and new construction categorical exemptions applied to the proposed construction (Guidelines, §§ 15332, 15303, subd. (a)). (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1251.) As for whether appellants had established any exceptions to the exemptions, the trial court concluded that there was substantial evidence of a fair argument that the proposed construction would cause significant environmental impacts. The court nonetheless ...


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