In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, the First District Court of Appeal affirmed the trial court’s decision upholding the city’s determination that the construction of three new single-family homes in the Berkeley hills fell within the scope of the Class 3 categorical exemption.

The project is located in the Alquist-Priolo Earthquake Fault Zone (APEFZ). Petitioners contended that the project was subject to the location exception to the Class 3 categorical exemption. That exception provides that the exemption does not apply in instances “where a project may impact on an environmental resource of hazardous or critical concern,” which must be “designated, precisely mapped, and officially adopted pursuant to law” (CEQA Guidelines, § 15300.2, subd. (a).) Petitioners argued that the exception applied because the APEFZ is an environmental resource of hazardous concern. The First District disagreed.

The court held that the plain language in the location exception reflects concern with the effect of the project on the environment—not the impact of existing environmental conditions (seismic and landslide risks) on the project. The court found support for its interpretation in the plain meaning of the term “environmental resource,” as well as existing statutes. Citing the dictionary definition of “resource,” the court concluded that earthquakes and landslides are geologic events, not environmental resources, as contemplated by the location exception. Furthermore, while the APEFZ is “officially mapped” in accordance with the Seismic Hazards Mapping Act, that statute was enacted for the purpose of preventing economic loss and protecting health and safety, not to identify the locations of environmental resources. Similarly, as the California Supreme Court affirmed in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, CEQA is concerned with a project’s significant effects on the environment, not the significant effects of the environment on the project. Finally, the court rejected petitioners’ argument that the trial court’s interpretation of the location exception is inconsistent with Public Resources Code sections 21169.21, subdivisions (h)(4) and (5)—which set forth exceptions to a specific statutory exemption for housing projects located in seismic and landslide hazard areas—reasoning that it cannot extrapolate from that specific exception an intent to apply to a general exception like the location exception.

– Christina Berglund