The opinion
Filed 1/30/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BERKELEY HILLS WATERSHED
COALITION et al.,
Plaintiffs and Appellants, A153942
v. (Alameda County
CITY OF BERKELEY et al., Super. Ct. No. RG17853768)
Defendants and Respondents.
MATTHEW WADLUND et al.,
Real Parties in Interest and
Respondents.
Defendant City of Berkeley (City) approved the construction of three new single-
family homes on adjacent parcels in the Berkeley Hills. Plaintiffs filed a petition for writ
of mandate in the superior court opposing the approval because (1) the proposed
construction was subject to the “location” exception to the Class 3 exemption for “up to
three single-family residences” in urbanized areas under the California Environmental
Quality Act (CEQA; Pub. Resources Code,1 § 21000 et seq.) and (2) the City failed to
comply with several provisions of its zoning ordinance in approving the project. The trial
court denied the petition for writ of mandate. We affirm.
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.C. and II.D.
1
All undesignated statutory references are the Public Resources Code unless
otherwise specified.
I. BACKGROUND
Real parties in interest, Matthew Wadlund (Wadlund), Alexandra Destler
Wadlund, Eric S. Schmier, individually and as the trustee of the Eric S. Schmier 2010
Living Trust, and Kenneth J. Schmier, individually and as the trustee of the Kenneth J.
Schmier 2010 Separate Property Trust, are owners of three contiguous parcels of land on
Shasta Road in Berkeley, California. In January 2016, Wadlund submitted separate
applications for use permits to construct three new single-family homes on the parcels.
The proposed development sites are located in Berkeley’s R-1(H) zoning district, on
steeply sloped terrain.
In connection with the permit applications, Wadlund hired Alan Kropp &
Associates, Inc. (Kropp & Associates) to prepare a geotechnical and geologic hazard
investigation of the proposed residences. The report noted “[t]he western portion of the
site is within the Alquist-Priolo Earthquake Fault Zone (APEFZ) established by the State
of California along the Hayward fault” and the “site is also located in a potential
earthquake-induced landslide area mapped by the California Geologic Survey on their
Seismic Hazard Mapping Act map for this area.” The purpose of the investigation was
“to evaluate the geotechnical and geologic conditions that exist at the site, including
landsliding and fault rupture, and their potential impact on the project.” The report
concluded the site was suitable for the proposed residences and offered recommendations
for the design and construction of the project to “minimize possible geotechnical
problems.”
The City retained Cotton, Shires and Associates, Inc. (Cotton/Shires) to peer
review the investigation by Kropp & Associates. Cotton/Shires requested additional
evaluation and further information about proposed design measures “to address slope
instability concerns,” noting the “[p]roposed site development is constrained by earthflow
landslide material of moderate depth, soils with high expansion potential, unstable
existing fill materials, and anticipated strong seismic ground shaking.” After receiving
two further responses and modifications from Kropp & Associates, Cotton/Shires
eventually recommended approval of the permits, concluding the “geotechnical
2
evaluations and recommended project design measures satisfactorily address State
requirements for investigation and mitigation within the mapped earthquake-induced
landslide hazard zone.”
After holding a public hearing and receiving public comments, the zoning
adjustments board (Board) approved the use permits in September 2016. The Board
found the proposed projects2 categorically exempt from CEQA under the Class 3
categorical exemption for new construction of small structures. (Cal. Code Regs., tit. 14,
§ 15303, subd. (a) [Class 3 exemption includes “up to three single-family residences” in
“urbanized areas”].)3 Approximately one month later, a group of 24 neighbors appealed
the decision to the city council, challenging the Board’s CEQA exemption determination,
and voicing concerns, among other things, about (1) a history of landslides on the site,
(2) access for emergency vehicles and fire hazards, and (3) the failure of the staff report
to delineate the “Usable Open Space” for the projects. In an expanded appeal letter, the
neighbors, joined by an additional 20 neighbors, also argued the projects violated the
prohibition on “the addition of a fifth bedroom to a parcel” in the City’s zoning
ordinance.
In January 2017, the city council denied the appeal and approved the three use
permits. Plaintiffs4 filed a petition for writ of mandate in the superior court. In
contesting the City’s CEQA exemption findings, plaintiffs argued two exceptions to the
2
The parties apparently disagree whether the City treated the three applications for
use permits as one project or three separate projects, but neither party discusses how the
issue affects our resolution of the issues raised in this appeal. Because there were three
separate applications, three separate sets of findings and conditions, and three separate
use permit approvals, we will refer to “projects” rather than a single “project” in this
opinion.
3
Subsequent references to “Guidelines” are to the CEQA guidelines found in title
14 of the California Code of Regulations, section 15000 et seq.
4
Plaintiffs are Berkeley Hills Watershed Coalition and Center for Environmental
Structure. Berkeley Hills Watershed Coalition is a nonprofit association formed by a
group of the neighbors who opposed approval of the projects. Center for Environmental
Structure is a nonprofit corporation “dedicated to the shaping of our living environment
so that it becomes deeply comfortable, beautiful and supportive for all human beings.”
3
exemption applied: (1) the “location” exception under Guidelines, section 15300.2,
subdivision (a); and (2) the “unusual circumstances” exception under Guidelines,
section 15300.2, subdivision (c). Plaintiffs also argued the City’s approval of the projects
violated zoning requirements regarding “fifth bedrooms,” useable open space, and fire
safety and accessibility of emergency vehicles. The superior court denied the petition for
writ of mandate, and this appeal followed.
II. DISCUSSION
A. CEQA Findings
The City found the projects fell within the CEQA “Class 3” categorical
exemption, which applies to “construction and location of limited numbers of new, small
facilities or structures,” including “up to three single-family residences” in “urbanized
areas.” (Guidelines, § 15303.) “When a project comes within a categorical exemption,
no environmental review is required unless the project falls within an exception to the
categorical exemption.” (Aptos Residents Assn. v. County of Santa Cruz (2018)
20 Cal.App.5th 1039, 1046 (Aptos Residents).) Because they do not dispute that the
projects meet the requirements for a Class 3 exemption, plaintiffs bear the burden of
demonstrating that the projects fall within an exception. (Berkeley Hillside Preservation
v. City of Berkeley (2015) 60 Cal.4th 1086, 1105 (Berkeley Hillside I) [“As to projects
that meet the requirements of a categorical exemption, a party challenging the exemption
has the burden of producing evidence supporting an exception.”].)
Plaintiffs argue the City’s determination here is erroneous because the projects
meet the “location” exception set forth in Guidelines, section 15300.2, subdivision (a).
The Guideline provides: “Location. Classes 3, 4, 5, 6, and 11 are qualified by
consideration of where the project is to be located—a project that is ordinarily
insignificant in its impact on the environment may in a particularly sensitive environment
be significant. Therefore, these classes are considered to apply in all instances, except
where the project may impact on an environmental resource of hazardous or critical
concern where designated, precisely mapped, and officially adopted pursuant to law by
federal, state, or local agencies.” (Guidelines, § 15300.2, subd. (a).)
4
1. Standard of Review
Until relatively recently, the standard of review applicable to the three general
exceptions to categorical exemptions set forth under Guidelines, section 15300.2,
subdivisions (a) through (c) was a subject of disagreement among the appellate courts.5
(See, e.g., Hines v. California Coastal Com., supra, 186 Cal.App.4th at pp. 855–856.)
Our Supreme Court offered guidance on that subject in Berkeley Hillside I, which like
this case, involved a CEQA challenge to the City of Berkeley’s approval of a use permit
to construct a new home on a steep slope. (Berkeley Hillside I, supra, 60 Cal.4th at
p. 1093.) Berkeley Hillside I settled the appropriate standard of review for the unusual
circumstances exception under Guidelines, section 15300.2, subdivision (c).6 (Berkeley
Hillside I, at pp. 1114–1115.)
As our Supreme Court explained, “Section 21168.5 provides the standard of
review in all . . . actions ‘to attack, review, set aside, void or annul a determination,
finding, or decision of a public agency on the grounds of noncompliance with
[CEQA].’ . . . Under it, a court’s inquiry is ‘whether there was a prejudicial abuse of
discretion. Abuse of discretion is established if the agency has not proceeded in a manner
required by law or if the determination or decision is not supported by substantial
evidence.’ [Citation.] Thus, reversal of the City’s action here is appropriate only if
(a) the City, in finding the proposed project categorically exempt, did not proceed in the
manner required by law, or (b) substantial evidence fails to support that finding.”
(Berkeley Hillside I, supra, 60 Cal.4th at p. 1110.)
5
The general exceptions are the unusual circumstances exception, the location
exception, and the cumulative impacts exception. (See Guidelines, § 15300.2, subds. (a)–
(c); Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 855–856.)
6
The unusual circumstances exception provides: “A categorical exemption shall
not be used for an activity where there is a reasonable possibility that the activity will
have a significant effect on the environment due to unusual circumstances.” (Guidelines,
§ 15300.2, subd. (c).) As noted above, plaintiffs asserted in the trial court that the
projects at issue here fall within the unusual circumstances exception, but they have
abandoned that argument on appeal.
5
Berkeley Hillside I held a bifurcated approach applies to an agency’s
determination with respect to the unusual circumstances exception. (Berkeley Hillside I,
supra, 60 Cal.4th at pp. 1114–1115.) “The determination as to whether there are
‘unusual circumstances’ (Guidelines, § 15300.2, subd. (c)) is reviewed under
section 21168.5’s substantial evidence prong. However, an agency’s finding as to
whether unusual circumstances give rise to ‘a reasonable possibility that the activity will
have a significant effect on the environment’ (Guidelines, § 15300.2, subd. (c)) is
reviewed to determine whether the agency, in applying the fair argument standard,
‘proceeded in [the] manner required by law.’ ” (Id. at p. 1114.)
In further elucidating these standards, the Supreme Court explained, “[w]hether a
particular project presents circumstances that are unusual for projects in an exempt class
is an essentially factual inquiry,” and accordingly, “a reviewing court should apply the
traditional substantial evidence standard” to that prong. (Berkeley Hillside I, supra,
60 Cal.4th at p. 1114.) “Under that relatively deferential standard of review, the
reviewing court’s ‘ “role” ’ in considering the evidence differs from the agency’s.
[Citation.] ‘ “Agencies must weigh the evidence and determine ‘which way the scales
tip,’ while courts conducting [traditional] substantial evidence . . . review generally do
not.” ’ [Citation.] Instead, reviewing courts, after resolving all evidentiary conflicts in
the agency’s favor and indulging in all legitimate and reasonable inferences to uphold the
agency’s finding, must affirm that finding if there is any substantial evidence,
contradicted or uncontradicted, to support it.” (Ibid.)
As to the second part of the unusual circumstances exception, “whether there is ‘a
reasonable possibility’ that an unusual circumstance will produce ‘a significant effect on
the environment’ (Guidelines, § 15300.2, subd. (c)), a different approach is appropriate,
both by the agency making the determination and by the reviewing courts.” (Berkeley
Hillside I, supra, 60 Cal.4th at p. 1115.) When “ ‘unusual circumstances’ ” are
established, “it is appropriate for agencies to apply the fair argument standard in
determining whether ‘there is a reasonable possibility [of] a significant effect on the
environment due to unusual circumstances.’ ” (Ibid.) “As to this question, the reviewing
6
court’s function ‘is to determine whether substantial evidence support[s] the agency’s
conclusion as to whether the prescribed “fair argument” could be made.’ ” (Ibid.)
We conclude the same bifurcated standard of review is applicable to the location
exception. (See Aptos Residents, supra, 20 Cal.App.5th at p. 1048 [noting standard of
review applicable to cumulative impact and location exceptions is “not as well settled” as
unusual circumstances exception but concluding same standard of review applies to all
three exceptions].) As with the unusual circumstances exception, the determination
whether a project is located in “a particularly sensitive environment” (Guidelines,
§ 15300.2, subd. (a)) is essentially a factual inquiry, subject to the substantial evidence
standard of review. Thus, in evaluating the agency’s determination whether a project is
located where there is “an environmental resource of hazardous or critical concern”
(ibid.), the court applies a deferential standard of review, “resolving all evidentiary
conflicts in the agency’s favor and indulging in all legitimate and reasonable inferences
to uphold the agency’s finding.” (Berkeley Hillside I, supra, 60 Cal.4th at p. 1114.)
However, in determining whether the project “may impact on” the environmental
resource because of its location, the court applies a fair argument standard of review.
2. Location Exception
Plaintiffs contend the projects in this case are subject to the location exception
because the geotechnical report prepared in connection with the use permits stated the
projects were located “within the Alquist-Priolo Earthquake Fault Zone (APEFZ)
established by the State of California along the Hayward fault” and in a “potential
earthquake-induced landslide area mapped by the California Geologic Survey on their
Seismic Hazard Mapping Act map for this area.”7 Plaintiffs argue these facts are
7
The trial court noted the project was not located in the mapped Alquist-Priolo
Earthquake Fault Zone (APEFZ). The geotechnical report states, however, that the
“western portion of the site is within the [APEFZ].” Other sections of the report explain
“[o]nly the extreme front portion of the parcel is within the APEFZ,” and the “proposed
home sites will all be located outside the APEFZ.” The report also explains no active
traces of the Hayward fault run through the site. Because the record reflects at least some
7
“undisputed,” and therefore the court may determine, as a matter of law, that the agency
erred. This is because, plaintiffs claim, under the plain language of the location
exception, the APEFZ and earthquake-induced landslide areas are “ ‘environmental
resources of hazardous or critical concern.’ ” We disagree.
Generally, we apply the same rules governing interpretation of statutes to the
interpretation of administrative regulations. (Berkeley Hillside I, supra, 60 Cal.4th at
p. 1097.) “ ‘We give the regulatory language its plain, commonsense meaning. If
possible, we must accord meaning to every word and phrase in a regulation, and we must
read regulations as a whole so that all of the parts are given effect. [Citation.] If the
regulatory language is clear and unambiguous, our task is at an end, and there is no need
to resort to canons of construction and extrinsic aids to interpretation. [Citation.]’
[Citation.] Our primary aim is to ascertain the intent of the administrative agency that
issued the regulation. [Citation.] When that intent ‘cannot be discerned directly from the
language of the regulation, we may look to a variety of extrinsic aids, including the
purpose of the regulation, the legislative history, public policy, and the regulatory scheme
of which the regulation is a part.’ ” (Hoitt v. Department of Rehabilitation (2012)
207 Cal.App.4th 513, 523.)
Employing those principles here, the language of the statute indicates it is the
“environmental resource” which must be “designated, precisely mapped, and officially
adopted pursuant to law.” (Guidelines, § 15300.2, subd. (a).) But the statutes cited by
plaintiffs map the physical locations of potential earthquakes and landslides. The plain
meaning of “environmental resource” in the location exception does not encompass
possible earthquake or landslide zones. 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
portion of the site is in the APEFZ, however, we consider whether that fact renders the
location exception applicable.
8
“resources.” Thus, giving meaning to the phrase “environmental resource,” we cannot
conclude the location exception was intended to cover all areas subject to such potential
natural disasters as a matter of law.
Though the language of the Guideline is clear and unambiguous, our interpretation
is further supported by the stated purposes of the hazard mapping and zoning acts
identified in the geotechnical report. As the trial court observed, the Seismic Hazards
Mapping Act was enacted to prevent “economic losses” and “to protect public health and
safety,” not to identify the location of “environmental resource[s].” (§ 2691.)
Specifically, the Legislature found and declared: “(a) The effects of strong ground
shaking, liquefaction, landslides, or other ground failure account for approximately 95
percent of economic losses caused by an earthquake. [¶] (b) Areas subject to these
processes during an earthquake have not been identified or mapped statewide, despite the
fact that scientific techniques are available to do so. [¶] (c) It is necessary to identify and
map seismic hazard zones in order for cities and counties to adequately prepare the safety
element of their general plans and to encourage land use management policies and
regulations to reduce and mitigate those hazards to protect public health and safety.”
(Ibid., italics added; § 2692 [statute further intends to provide mapping and technical
advisory program to assist cities and counties in protecting public health and safety risks
arising from earthquakes and landslides].) Similarly, the APEFZ was enacted to “provide
policies and criteria . . . to prohibit the location of . . . structures for human occupancy
across the trace of active faults” and to “provide the citizens of the state with increased
safety and to minimize the loss of life during and immediately following earthquakes
. . . .” (§ 2621.5, subd. (a).) Looking to the purposes of the statutory schemes, the fact
that the project site falls within mapped areas reflects governmental concern about
damage to property and loss of human lives, not protection of a sensitive environmental
resource.
Our interpretation is also supported by the purposes of CEQA. (California
Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 382 (California Building Industry Assn.) [“CEQA was enacted to advance four
9
related purposes: to (1) inform the government and public about a proposed activity’s
potential environmental impacts; (2) identify ways to reduce, or avoid, environmental
damage; (3) prevent environmental damage by requiring project changes via alternatives
or mitigation measures when feasible; and (4) disclose to the public the rationale for
governmental approval of a project that may significantly impact the environment.”].) As
our Supreme Court explained, “Despite [CEQA’s] evident concern with protecting the
environment and human health, its relevant provisions are best read to focus almost
entirely on how projects affect the environment.” (Id. at p. 387; Ballona Wetlands Land
Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473 (Ballona Wetlands) [“the
purpose of an [environmental impact report] is to identify the significant effects of a
project on the environment, not the significant effects of the environment on the
project”].)8 By its terms, the location exception applies “where the project may impact
on an environmental resource.” (Guidelines, § 15300.2, subd. (a).) The plain language in
the exception reflects concern with the effect of the project on the environment, not the
impact of existing environmental conditions (such as seismic and landslide risks) on the
project or its future residents.
8
Plaintiffs argue California Building Industry Assn. supports application of the
location exception because it held agencies are required to evaluate a project’s potential
exacerbating effect on existing environmental conditions. (California Building Industry
Assn., supra, 62 Cal.App.4th at p. 377.) First, it is not clear that holding controls here,
because California Building Industry Assn. concerned preparation of an environmental
impact report for a project that was not exempt, and thus did not consider the language in
the location exception. Second, as plaintiffs themselves argue, its holding is more likely
relevant to the second prong of the location exception—whether substantial evidence
supports a fair argument the project “may impact on an environmental resource of
hazardous or critical concern,” which we address briefly below. Plaintiffs also contend
Ballona Wetlands, supra, 201 Cal.App.4th 455, was limited by California Building
Industry Assn., but the California Supreme Court expressly noted California Building
Industry Assn. was not inconsistent with Ballona Wetlands, which was one of several
cases that implicitly held CEQA does not generally require an agency to analyze how
existing hazards or conditions might impact a project’s users or residents. (California
Building Industry Assn., at p. 392.)
10
Having concluded the location exception is not applicable based solely on the
“undisputed” fact the project is located in a potential earthquake and landslide zone, we
consider whether the City’s determination that “the site is not located in an
environmentally sensitive area” is otherwise supported by substantial evidence in the
record. We have little trouble doing so.
As noted earlier, plaintiffs bore the burden of demonstrating the location exception
applied here. Plaintiffs argue “the geotechnical reports show the project presents a
serious risk of activating or exacerbating an existing landslide on the property,” but the
record citations they provide do not discuss any environmental resources on the project
site that would be exposed to harm as a result. As described earlier, the geotechnical
report by Kropp & Associates was prepared to “evaluate the geotechnical and geologic
conditions that exist at the site, including landsliding and fault rupture, and their potential
impact on the project.” (Italics added.) The report noted a “small, localized landslide”
may have an impact “on the middle lot building area and the central section of the new
access driveway,” and provides suggestions for removing and controlling the landslide.
It also observes, “All owners or occupants of homes on hillsides should realize that
landslide movements are always a possibility, although generally the likelihood is very
low that such an event will occur.” The peer review conducted by Cotton/Shires focused
on the importance of mitigation measures to “reduce the risk of ground failure during an
earthquake to a level that does not cause the collapse of buildings,” but plaintiffs cite no
language in the geotechnical reports that suggests the projects pose a risk of harm to the
environmental resources on the sites, as opposed to people or buildings. Nor did
plaintiffs submit their own geotechnical assessment, or any other evidence, to
demonstrate the presence of “an environmental resource of hazardous or critical
concern.”9 (Guidelines, § 15300.2, subd. (a).)
9
We likewise reject any argument the project cannot be exempt because it relies
on mitigation measures. Though “ ‘[t]he distinction between elements of a project and
measures designed to mitigate the impacts of the project may not always be clear,’ ”
measures taken to comply with building codes or to address “ ‘common and typical
11
Plaintiffs also argue, for the first time on appeal, that the landslide risk is not only
about the impact on the project’s own residents, but about potential impacts of activating
a landslide on the community of protected coast live oak trees on the parcels. Plaintiffs
failed to raise this issue during the administrative process, and thus have failed to exhaust
their administrative remedies. (§ 21177, subd. (a); Sierra Club v. City of Orange (2008)
163 Cal.App.4th 523, 535 [“ ‘ “exact issue” ’ ” must have been presented to the
administrative agency for petitioner to raise issue on appeal].) Further, even had they
raised the issue with the City, plaintiffs point to no evidence in the record supporting their
argument that activation of a landslide would impact the coast live oak trees.
Finally, plaintiffs argue the trial court’s interpretation of the location exception is
inconsistent with section 21159.21, subdivision (h)(4) and (5), which set forth exceptions
to a specific statutory exemption for housing projects located in seismic and landslide
hazard areas. That section provides projects qualify for CEQA exemption if they are not
subject to “(4) . . . a delineated earthquake fault zone . . . or a seismic hazard zone . . . .
[or] [¶] (5) Landslide hazard . . . zone . . . .” (§ 21159.21, subd. (h)(4) & (5).) Plaintiffs
contend these specific exceptions “provide further evidence of the legislature’s intent that
projects in seismic and landslide hazard areas . . . cannot be exempted from review under
CEQA.” 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. As our Supreme Court explained in California Building Industry
concerns’ ” during construction projects do not preclude Class 3 exemption. (Berkeley
Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, 960–961 (Berkeley
Hillside II).) Here, the record reflects the “mitigation measures” plaintiffs identify were
developed as part of the project design to meet building code requirements for properties
located in seismic zones and address preexisting conditions on the site as opposed to
being “proposed subsequent actions by the project’s proponent to mitigate or offset the
alleged adverse environmental impacts” of the project. (Save the Plastic Bag Coalition v.
City and County of San Francisco (2013) 222 Cal.App.4th 863, 882–883, citing Salmon
Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1104
& 1108; Berkeley Hillside II, at p. 961.)
12
Assn., “these statutes [(including § 21159.21, subd. (h))] constitute specific exceptions to
CEQA’s general rule requiring consideration only of a project’s effect on the
environment, not the environment’s effects on project users. Accordingly, we cannot, as
the [Bay Area Air Quality Management District] urges, extrapolate from these statutes an
overarching, general requirement that an agency analyze existing environmental
conditions whenever they pose a risk to the future residents or users of a project.”
(California Building Industry Assn., supra, 62 Cal.4th at p. 392.) By the same reasoning,
we cannot extrapolate from the specific exception in section 21159.21, subdivision (h) an
intent to apply the same requirements to a general exception like the location exception
that does not include similar language.
Because we conclude the City’s determination the project is not in an
environmentally sensitive area is supported by substantial evidence, we need not reach
the second prong of the location exception inquiry—whether substantial evidence
supports a “fair argument” that the project “may impact” the mapped resource. (See, e.g.,
Berkeley Hillside II, supra, 241 Cal.App.4th at p. 958.) Even if we did, however, we
would affirm the agency’s exemption finding. Plaintiffs failed to identify any substantial
evidence that would support a fair argument the project in this case will have an adverse
effect on the environment. As noted above, the geotechnical reports prepared by Kropp
& Associates and Cotton/Shires addressed potential impacts of the environment on the
projects, and made recommendations for site preparation and earthwork, foundations,
retaining walls, drainage, and other measures to reduce the impact of potential
earthquakes and landslides on the projects. But plaintiffs point to no evidence in those
reports that construction of the three proposed residences would exacerbate existing
hazardous conditions or harm the environment.
B. Mini-dorm Ordinance
Plaintiffs claim the City abused its discretion by misinterpreting and misapplying
Berkeley Municipal Code section 23D.16.050 in approving the projects. Berkeley
Municipal Code section 23D.16.050 (Ordinance No. 7306-NS) provides: “For the
addition of a fifth bedroom to a parcel, an Administrative Use Permit (AUP) shall be
13
required. For the addition of any bedroom beyond the fifth, a Use Permit with Public
Hearing (UPPH) shall be required.” Plaintiffs argue because each of the proposed three
houses have more than four bedrooms, the City was required to either issue an
administrative use permit (AUP) or use permit with public hearing (UPPH) under
Berkeley Municipal Code section 23D.16.050, or make specific findings of nondetriment
regarding the number of bedrooms under section 23B.32.040 of the zoning ordinance.
The City argued below, and argues on appeal, that because new construction already
requires a use permit, requiring a second, separate permit for buildings with more than
five bedrooms would be redundant.
At the city council hearing, City Planning Director Carol Johnson explained the
AUP and UPPH requirements for buildings with more than four bedrooms do not apply
to new construction, but only modifications of existing dwellings. That interpretation
was supported by an opinion letter prepared by former City Attorney Zach Cowan, in
response to a request from the former planning director. Cowan’s letter explained
Ordinance No. 7306-NS was adopted in July 2013 to address community concerns
regarding the creation of “Mini-dorms,” that result from the “addition of bedrooms to
parcels,” “which have negative impacts to the surrounding neighborhoods.” The purpose
of the ordinance was “to gain discretion over the creation of new Mini-dorms via the
addition of bedrooms to existing buildings, which in many cases could otherwise be done
without discretionary review.” Opining that the ordinance did not apply to new
construction, Cowan’s letter observed, “Since construction of new dwelling units requires
a Use Permit already, this purpose is already served by pre-existing zoning requirements,
which require the same non-detriment finding as Ordinance No. 7,306-N.S.”
The letter also explained the reference to “parcels” in the ordinance was intended
to apply to the “ ‘addition’ of bedrooms,” not new construction. “The Planning
Commission report states that the question under consideration was ‘[w]hether to link the
addition of bedrooms to a unit, building or parcel. The Commission recommends that the
bedroom addition regulations apply to each parcel.’ In other words, the Planning
Commission recommended that the ordinance be as broadly applicable as possible, i.e.,
14
any time a bedroom was added on a parcel that already had four or more bedrooms on it,
regardless of the number of bedrooms in the specific building to which it was added.”
The letter concluded interpreting the ordinance “as applying to new construction of
buildings with five or more bedrooms would be contrary to the legislative intent that led
to its enactment, and would read it as redundant to pre-existing zoning provisions.”
In interpreting municipal ordinances, we exercise our independent judgment as we
would when construing a statute. (Harrington v. City of Davis (2017) 16 Cal.App.5th
420, 434.) Nonetheless, a city’s interpretation of its own ordinance “ ‘is entitled to great
weight unless it is clearly erroneous or unauthorized.’ ” (Anderson First Coalition v. City
of Anderson (2005) 130 Cal.App.4th 1173, 1193.) In determining what weight to give an
agency’s interpretation of its own regulations, we apply the “complex of factors” set forth
by our Supreme Court in Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 12 (Yamaha) [weight to be given an agency’s interpretation is
“fundamentally situational”].) Greater deference is accorded an agency’s interpretation
where “ ‘the agency has expertise and technical knowledge, especially where the legal
text to be interpreted is . . . entwined with issues of fact, policy, and discretion. . . . since
the agency is likely to be intimately familiar with regulations it authored and sensitive to
the practical implications of one interpretation over another.’ ” (Ibid.) Deference is also
appropriate when there are indications the agency’s interpretation is likely to be correct.
(Id. at pp. 12–13.)
In this case, it is appropriate to give the city attorney’s opinion substantial
deference because the “Mini-dorm ordinance” is intertwined with issues of “fact, policy,
and discretion” regarding zoning requirements and impacts to neighborhoods and the
local community. Moreover, the City is familiar with the rationale for the ordinance, is
responsible for its implementation, and has special knowledge about the “practical
implications” of possible interpretations.10
10
Plaintiffs argue we should not defer to the City’s interpretation of its own
ordinance because after the City adopted the ordinance, it applied it to “new
construction” when it approved use permits for two new construction projects in 2014
15
Even without according deference to the city attorney’s letter, however, we
conclude the City’s interpretation of its ordinance is correct. Our review of local
regulations is guided by the same established rules we use for statutory construction.
(Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 305.) “ ‘[W]e first look to the
plain meaning of the statutory language, then to its legislative history and finally to the
reasonableness of a proposed construction.’ ” (MacIsaac v. Waste Management
Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.)
Examining the plain meaning of the words used in the ordinance, an AUP or a
UPPH is required for the “addition of a fifth bedroom to a parcel.” The words “addition”
and “fifth bedroom” imply the preexistence of four bedrooms on a parcel. The trial court
thus correctly determined “[t]he plain meaning of ‘addition’ is that the bedroom must be
added to an existing structure.”
Further, contrary to plaintiffs’ argument, the definition of “Addition” in the zoning
ordinance supports the City’s interpretation. An “Addition” is the “The creation of any
new portion of a building which results in a vertical or horizontal extension of the
building, or results in any new gross floor area that was not present in the building prior
to construction of the addition.” (Berkeley Mun. Code, § 23F.04.010.) The “creation of
any new portion of a building” implies a building is already existing. That the Mini-dorm
and 2016, both of which contain specific findings pursuant to Berkeley Municipal Code
section 23D.16.050 justifying the construction of more than four bedrooms. Plaintiffs
contend such findings are “powerful evidence” the City originally intended the ordinance
to cover new construction and its recent change of interpretation is inconsistent with that
intent. (See Yamaha, supra, 19 Cal.4th at pp. 7–8, 12, 13 [evidence an agency “ ‘has
consistently maintained the interpretation in question, especially if [it] is long-standing’ ”
is a factor that supports judicial deference to an agency interpretation].) Whether the
agency’s interpretation is long-standing, however, is only one of several factors we
consider under Yamaha. In any event, as discussed below, even without deferring to the
city attorney’s opinion, we independently conclude its interpretation is correct. (See
Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 928 [“court has the duty
‘ “ ‘to state the true meaning of the statute finally and conclusively,’ ” notwithstanding
the agency construction’ ”]; McPherson v. City of Manhattan Beach (2000)
78 Cal.App.4th 1252, 1266 [extrinsic evidence regarding city planner’s interpretation of
ordinance was irrelevant where meaning was clear and unambiguous as a matter of law].)
16
ordinance says the addition of a fifth bedroom is to “a parcel” does not defeat that
interpretation. It simply means the ordinance will apply broadly to include any addition
to an existing building on a parcel if the addition will result in more than four bedrooms
on the parcel, regardless of the number or type of existing structures.
We also agree with the City this interpretation is consistent with the apparent
intent of the ordinance. In articulating the rationale for the proposed ordinance, a 2013
report from the city manager and the director of planning and development to the city
council explained the “addition of bedrooms to parcels increases the possibility that
residential units could be turned into Mini-dorms” and noted “[i]ncreased levels of
discretion for the addition of bedrooms to parcels . . . should address the concerns voiced
by the community . . . .” These statements support the city attorney’s explanation that the
ordinance was passed to provide for discretionary review of such mini-dorms being
created from the addition of bedrooms to already existing buildings, changes which
otherwise might escape review by planning authorities. Because the City’s interpretation
of its own ordinance is supported by both the plain language of the regulation and the
apparent legislative purpose, we reject plaintiffs’ claim.11
11
Plaintiffs also argue the City was required “to specifically address the
prohibition on new dwellings with more than four bedrooms,” either with a specific use
permit under Berkeley Municipal Code section 23D.16.050 or by specific findings under
section 23B.32.040. But plaintiffs do not point to any language in Berkeley Municipal
Code section 23B.32.040 that either prohibits construction of new dwellings with more
than four bedrooms or requires specific findings of nondetriment regarding the number of
bedrooms exceeding four. (See Berkeley Mun. Code, § 23B.32.040.A [“The Board may
approve an application for a Use Permit . . . only upon finding that the . . . construction of
a building, structure or addition thereto, under the circumstances of the particular case
existing at the time at which the application is granted, will not be detrimental to the
health, safety, peace, morals, comfort or general welfare of persons residing or working
in the area or neighborhood of such proposed use . . . .”].) We likewise reject plaintiffs’
argument that the mini-dorm ordinance would only be “redundant” for new construction
if the City was required to make such findings. The mini-dorm ordinance was enacted, as
explained, to provide for discretionary review of projects that would otherwise escape
review. For reasons explained above, we conclude Berkeley Municipal Code
section 23D.16.050 does not apply to the proposed projects in this case.
17
C. Open Space
Berkeley Municipal Code section 23D.16.070.F specifies minimum open space
requirements for new residential development in single-family residential zones.12 The
ordinance sets forth nine limits on what can be considered “open space,” including the
requirement that “[n]o area which exceeds 8% grade shall qualify as usable open space.”
(Berkeley Mun. Code, § 23D.04.050.E.) Plaintiffs contend the City erred in determining
the three proposed projects would have sufficient open space because their findings are
conclusory, are not supported by substantial evidence, and the only evidence in the record
contradicts the City’s findings.
We review the City’s factual findings that the projects met the open space
requirements for substantial evidence. (Horwitz v. City of Los Angeles (2004)
124 Cal.App.4th 1344, 1354.) We indulge all presumptions and resolve all evidentiary
conflicts in favor of the agency’s findings and decision. (Ibid.)
Upon review of the entire record, we conclude substantial evidence supports the
City’s finding the projects meet the open space requirements. Real parties in interest
completed “Tabulation Forms” with their permit applications that specify usable square
footage of 825, 820, and 1,010 feet, respectively, for the three properties, far in excess of
the 400-square-foot requirement. City planning staff included the same square footage of
usable open space in a table summarizing the “Development Standards” for the
properties, and city staff found in its analysis that each project would be “Adherent to all
applicable regulatory requirements of the Zoning Ordinance.” Further, in written
responses to plaintiffs’ appeal to the city council, city planning staff noted that for each
project, “Prior to presenting this project to the [Board] with a recommendation to
approve, staff confirmed that the new dwelling would be provided with at least 400
square feet of useable open space, which is the minimum required for a new dwelling in
the R-1(H) district.” At the city council meeting in January 2017, city planning staff
12
Plaintiffs’ unopposed request for judicial notice of Berkeley Municipal Code
section 23D.16.070 is granted. (Evid. Code, §§ 452, subd. (b); 459, subd. (b).)
18
member Layal Nawfal also confirmed the usable open space requirement in the zoning
ordinance is satisfied for the property. Specifically, in response to an expressed concern
in the “appeal materials” regarding balconies being used as open space, Nawfal stated,
“[T]he property provides open space in terms of decks and rooftops, so the restriction of
50 percent is particular to balconies. [¶] That does not apply to decks and rooftops that
don’t have any walls and are open to the air.” (See City of Rancho Cucamonga v.
Regional Water Quality Control Bd. (2006) 135 Cal.App.4th 1377, 1387 [agency may
rely on staff opinion in reaching decisions, and staff opinions may constitute substantial
evidence].) The record also contains drawings reflecting finish grading plans and floor
plans for each of the parcels which show substantial areas allocated to courtyards, patios,
and decks. Plaintiffs fail to explain why this evidence is insufficient.
Instead, plaintiffs argue geotechnical reports, communications between the City
and real parties in interest, and topographical maps in the record show slopes on the
unimproved, existing property well in excess of 8 percent which cannot serve as open
space. As the City notes, however, the open space requirements pertain to finished
projects, not the natural slope of the land before construction. In any event, even if there
is substantial conflicting evidence in the record, we may not weigh the evidence or
substitute our judgment for that of the City. (McAllister v. California Coastal Com.
(2008) 169 Cal.App.4th 912, 921 [reviewing court presumes agency decision is supported
by substantial evidence and petitioner bears burden of demonstrating to the contrary;
court may not substitute its own findings and inferences for that of the agency].) The
burden was on plaintiffs “to show there is no substantial evidence whatsoever to support
the findings of the [City].” (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1212.)
Because they have failed to meet that burden, we must affirm.
Plaintiffs also fault the City for failing to “explain” its “conclusory” findings that
the open space requirements are met in this case, but the authority they rely on is
inapposite. Plaintiffs cite, for example, Topanga Assn. for a Scenic Community v. County
of Los Angeles (1974) 11 Cal.3d 506, 516–517 (Topanga I) to support their argument the
City failed to disclose its “mode of analysis” and explain how the evidence shows the
19
project retains enough usable space. Topanga I, however, involved approval of a zoning
variance under Government Code section 65906 “ ‘only when, because of special
circumstances applicable to the property, . . . the strict application of the zoning
ordinance deprives such property of privileges enjoyed by other property in the vicinity
and under identical zoning classification.’ ” (Topanga I, at p. 520, italics added by
Topanga I.) There, the language of the statute required the agency to compare the
characteristics of the property at issue with surrounding properties, but the agency’s
decision “focus[ed] almost exclusively on the qualities of the property for which the
variance was sought.” (Ibid.) Accordingly, our high court concluded the agency’s
administrative findings did not justify the variance. (Id. at p. 522.)
Nor do we find Next Century Associates, LLC v. County of Los Angeles (2018)
29 Cal.App.5th 713 “on point” as plaintiffs contended at oral argument. In that case,
Next Century Associates, LLC (Next Century) sought a property tax refund, arguing it
was entitled to a reduction in the assessed value of its hotel based on market conditions
following the global economic crisis that began in late 2008. (Id. at p. 715.) The county
assessment board rejected Next Century’s application and upheld the existing roll value
of the property, even though both Next Century and the county assessor agreed the
assessed valuation was too high and no evidence in the record showed the existing roll
value remained valid. (Id. at pp. 720, 723–724.) Under those circumstances, the court
concluded the assessment board’s decision to maintain the existing roll value was
arbitrary and emphasized “it was incumbent on the Board to explain in far more detail the
deficiencies it perceived in Next Century’s analysis so that the parties could understand
why the Board rejected Next Century’s analysis, and its rationale for affirming the
discredited enrolled value.” (Id. at p. 723.) In other words, the board was required to
explain how it reached its conclusion because it was undisputed the assessed valuation
was too high and the only evidence in the record showed it was inaccurate. Here, by
contrast, the City repeatedly affirmed the open space requirements were met, and
20
plaintiffs have not shown that determination is unsupported by the evidence in the
record.13
In Topanga Assn. for a Scenic Community v. County of Los Angeles (1989)
214 Cal.App.3d 1348 (Topanga II), an unrelated case involving the same parties but a
different property, the appellate court rejected the notion that the Supreme Court’s
decision in Topanga I, supra, 11 Cal.3d 506 required detailed open space findings to
support a county’s decision to approve development of a tract of land. As the
Topanga II, court observed, “Findings are required to state only ultimate rather than
evidentiary facts.” (Id. at p. 1362.) Here, the City was not required to further explain its
implied finding the open space requirements were met. (See, e.g., Young v. City of
Coronado (2017) 10 Cal.App.5th 408, 421–422 [when zoning ordinance authorizes
agency to approve a conditional use only upon making specified factual findings,
Topanga I does not prevent the agency from making findings in the language of the
ordinance or require the agency support those findings with subfindings]; Levi Family
Partnership, L.P. v. City of Los Angeles (2015) 241 Cal.App.4th 123, 132.) Moreover,
we liberally construe an agency’s findings to support rather than defeat the decision
under review. (Young, at p. 421.) Under these standards, and because the City’s implied
“open space” finding is supported by substantial evidence in the record, we reject
plaintiffs’ claim.
D. Emergency Vehicles and Fire Access
In their appeal to the city council, plaintiffs also complained the project presents a
danger to public health and welfare because of the extremely tight access for emergency
13
At oral argument, plaintiffs observed an agency cannot make a finding that
something is true just because the agency says it is true, and argued the City erred in
relying on unsupported statements that the open space requirements of the ordinance
were met. As explained above, however, the record contained specific tabulations
reflecting more than double the required open space for each property and site plans for
each parcel showing each proposed use of the finished space, all of which were submitted
to the City with the permit applications. Plaintiffs fail to explain why this evidence,
combined with staff statements confirming the requirements were met, does not
constitute substantial evidence in support of the City’s decision.
21
vehicles and potential fire hazards resulting from restricted access. The Board and the
city council determined the dwellings would have to comply with building and fire codes
during the building permit process, but fire safety issues were outside the “purview” of
their review of use permit applications. Plaintiffs contend this was error, and the City
was required to make findings on whether the project’s fire, safety, and emergency
vehicle access impacts would be detrimental to the public’s health, safety, or welfare.
As required by Berkeley Municipal Code sections 23D.16.090 and 23B.32.040.A,
the city council found “the project, under the circumstances of this particular case
existing at the time at which the application is granted, would not be detrimental to the
health, safety, peace, morals, comfort, and general welfare of the persons residing or
working in the neighborhood of such proposed use or be detrimental or injurious to
property and improvements of the adjacent properties, the surrounding area or
neighborhood, or to the general welfare of the City . . . .” Plaintiffs cite no apposite legal
authority14 in support of their contention the Board or city council were required to make
specific findings with respect to emergency vehicle access or fire hazards. Moreover, the
city council’s nondetriment findings are supported by substantial evidence in the record
with respect to fire and emergency vehicle access. In response to concerns expressed
during the appeal process, specifically, the “tight quarters with minimal setbacks and one
narrow means of egress,” planning staff set forth the specific setbacks for the property,
noted the driveway for the project had been reviewed by the City’s traffic engineer, and
observed technical review of the building, public works, and fire codes were not within
the Board’s purview. Staff also noted no evidence had been presented to show the
“dwelling would pose a unique fire risk to this site or to neighboring properties, or that
site-specific COAs[15] are needed to address Fire, Traffic or Building and Safety
concerns.” Though plaintiffs claim they did present such evidence, they cite only to
14
Plaintiff again cite to Topanga I, supra, 11 Cal.3d 506, in support of their
argument the City failed to make required findings, but for the same reasons discussed
above, that case does not assist plaintiffs here.
15
Presumably, “conditions of approval.”
22
general concerns about the width of the road, a fire in 1923 that “destroyed all the
existing houses in the area and most of North Berkeley,” and a letter from a neighboring
property owner referencing a list purportedly generated by the Berkeley Fire Department
showing streets and/or properties subject to restrictions for future development because
of narrow streets. Plaintiffs did not provide the list from the Berkeley Fire Department,
however, or demonstrate the proposed dwellings present unique fire or access risks.
Plaintiffs have failed to demonstrate the City’s nondetriment findings were insufficient or
unsupported by substantial evidence.
III. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
23
____________________________
Margulies, Acting P. J.
We concur:
_____________________________
Banke, J.
_________________________
Kelly, J.*
A153942
Berkeley Hills Watershed Coalition v. City of Berkeley
*
Judge of the Superior Court of the City and County of San Francisco, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
24
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Frank Roesch
Counsel:
Law Offices of Thomas N. Lippe and Thomas N. Lippe for Plaintiffs and Appellants.
Farimah F. Brown, City Attorney, Savith Iyengar and Jerome Mayer-Cantu, Deputy City
Attorneys for Defendants and Respondents.
The Aftergood Law Firm and Aaron D. Aftergood for Real Parties in Interest and
Respondents.
25