petitioners' opening brief in support of petition for writ ... · pdf...

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Susan Brandt-Hawley/SBN 75907 BRAND T-HA WLEY LAW GROUP P.O. Box 1659 Glen Ellen, CA 95442 707.938.3900, fax 707.938.3200

Attorneys for Petitioners

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALAMEDA

Berkeley Hillside Preservation, an unincorporated association, and Susan Nunes Fadley;

Petitioners,

v.

City of Berkeley and City Council of the City of Berkeley;

Respondents; ____________________________ ~I Donn Logan, Mitchell D. Kapor, Freada Kapor-Klein, and Does 1 to 5;

Real Parties in Interest.

----------------------------_1

Case No. RGI05I73I4

Petitioners' Opening Brief in Support of

Petition for Writ of Mandamus

Honorable Frank Roesch

Hearing Date: Time: Dept:

December 2, 2010 9:00 a.m. 31

Petitioners 1 Opening Brief in 'Support of Petition for Writ of Mandamus

Chuck Fadley

Text Box

Berkeley Hillside Opening Brief

__________________________________________________________________________________________________ Petitioners’ Opening Brief in Support of Petition for Writ of Mandamus 1

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Introduction Single-family homes are usually exempt from CEQA’s purview, and rightly so. When

a modest construction project will not have significant impacts, there is no need for

environmental review or public scrutiny. This case, on the other hand, presents a monumental

exception. On a steep wooded hillside on a narrow street in the seismically-vulnerable

Berkeley hills, a 10,000 square foot structure with underground parking for 10 cars is

proposed as a two-person residence and as a venue for philanthropic events.1

Everyone admires philanthropy, and the right to build a home is sacrosanct. But this is

not a typical low-impact single-family home that rightfully qualifies for a CEQA exemption.

There is abundant record evidence that the project’s massive size in its constrained location

may result in significant environmental impacts. An extant 1917 Craftsman bungalow is to be

demolished and the new home would be among the five largest ever built among the 17,000

single-family residences in Berkeley. Most of the unique historic homes in the vicinity are

80% smaller, and the record reflects wide community insistence on environmental review and

mitigation of the project’s hotly-disputed aesthetic, geotechnical, historic, and traffic impacts.

Yet a split Berkeley City Council refused to require environmental review, and instead

approved the project’s four discretionary use permits based on CEQA’s categorical

exemptions for single-family homes and urban infill. This was unlawful. Categorical

exemptions are rebuttable and are disallowed upon a low-threshold “fair argument” —

abundantly provided here —that a project may have a significant environmental impact.

To be clear: the Court is not being asked to weigh in on the beauty versus banality of

the project’s utilitarian box design or even its size. Opinions differ. A peremptory writ is

sought because the City Council asserted categorical exemption from CEQA and failed to

conduct any environmental review before approving multiple discretionary use permits.

Petitioners simply seek a public CEQA process to inform City consideration of permit

approvals, alternatives, and mitigation measures. This Court’s peremptory writ will require

the City to fulfill its duty to conduct the salutary environmental review mandated by CEQA.


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Statement of Facts In 2009, Mitchell Kapor and Freada Kapor-Klein (the Kapors) applied to demolish a

1566 square-foot single-family Craftsman-style home built in 1917. They propose to build a

3-level single-family dwelling of about 10,000 square feet, including underground parking for

10 cars, at 2707 Rose Street in the Berkeley hills. (Administrative Record [AR]1:48-64.)

Kapor-Klein House, Zoning Submittal (AR1:169.)

The City’s Zoning Adjustments Board (ZAB) held a hearing on January 28, 2010, to

consider the Kapors’ requests for multiple discretionary permits:

a use permit to demolish an existing dwelling unit,

a use permit to construct a dwelling,

an administrative use permit to allow an increase from a 28-foot average height limit

for a main building to a 35-foot average limit,

an administrative use permit to reduce a front yard setback from 20 feet to 16 feet.

1 Facts in the Introduction are supported by record citations, post.


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(AR1:30.) City staff proposed that ZAB find the project categorically exempt from CEQA as

both “in-fill housing” and as new construction of a small structure — a single-family home.

(AR1:2,30,40.) City staff contended that no exceptions to the categorical exemptions applied,

as there were no unusual circumstances, no potentially significant cumulative impacts, and no

adverse impacts to historic resources. (AR1:2,40.) Yet the City also recommended approval of

use permits that allow exceptions to the average height limit and reduction of the yard

setback, “warranted because of steep topography.” (AR1:6.)

At ZAB’s January hearing, many environmental objections to the project were raised.

(AR2:489-491,495-506.) Twenty-eight letters in opposition and requesting additional project

evaluation were submitted. (AR1:70-77,81-82,85,87,97,99,120-124.) Many objected to the

City’s refusal to require story poles consistent with its published rules and guidelines for R-

1(H) zoning, so that residents could assess the visual impacts (AR1:100,117); to lack of

notification to the Landmarks Preservation Commission (AR1:198); to the failure to research

or accurately describe the architectural and historic significance of neighborhood residences,

or the historic significance of the 1917 existing residence proposed for demolition (AR1:105);

to the failure to adequately analyze seismic stability, landslide issues, impacts of massive

excavation and tree removal, or the applicability of the Alquist Priolo Act (AR1:100,117,196,

199); to the failure to accurately measure the new home’s proposed height and applicable

setbacks (AR1:82,89,94,96,100,104,111,119); to the failure to accurately consider the

visibility of the new structure or to accurately assess required tree removal (AR1:100,105,

117); to the failure to adequately assess the new structure’s neighborhood compatibility

(AR1:71-72,74-75,81-82, 89,94-97,99,103-105,111-119,124); to the failure to assess pre- and

post-construction traffic impacts (AR1:81,85,88,91-92,97); and to inconsistencies with the

Berkeley General Plan, ordinances, and policies. (AR1:74, 92,99-100,105,111-119.)

Despite the extensive comments received, ZAB members refused to continue the

project hearing or to honor the City practice of requiring story poles. (AR:146) Project

permits were approved without any environmental review, based on a categorical exemption

from CEQA (AR1:161), with many project conditions imposed to mitigate environmental


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impacts. (AR1:163-168.) Such conditions included, among other things, requiring a

construction noise management manager (AR1:165); securing approval of a construction

traffic management plan (AR1:165); requiring drainage and erosion control plans to

minimize impacts from erosion and sedimentation during grading and wet weather (AR1:165-

166); filing a soils report prior to construction during wet weather (AR1:166); adherence to

requirements of the arborist report (ibid.); limitation on hours of construction (ibid.);

avoidance of use of pneumatic tools when possible (ibid.); compliance with maximum sound

levels (AR1:166-167); prohibition on use of heavy machinery causing vibration or excessive

noise (AR1:167); watering of active construction areas (ibid.); shielding of exterior lighting

(AR1:168); and establishment and maintaining of drainage patterns that would not adversely

affect adjacent properties and rights of way. (Ibid.)

Co-petitioner Susan Nunes Fadley appealed the ZAB project decisions to the Berkeley

City Council on February 19, 2010, on behalf of herself and 33 others who signed the appeal.

(AR1:186-192.) Substantial additional documentation, including a lengthy addendum as well

as individual letters and reports, was thereafter submitted to the City in support of the appeal

on all of the topics listed above. (AR1:193-292; 4:941-955.) Among other things, the appeal

noted that applicant Mitchell Kapor had publicly disclosed his intention to use “a substantial

part” of the proposed new structure for his philanthropic fundraising activities, forecasting

significant intended use beyond those at a typical residence. (AR2:311-312,440-441.)

The supporting documentation for the appeal included expert reports from Dr.

Lawrence B. Karp. A prominent geotechnical engineer, Dr. Karp detailed the basis for his

professional opinion regarding significant environmental impacts that would result from the

unstudied massive grading, filling, and foundations required for the project and, based on the

2003 State of California Landslide Hazard Map, concluded that there is significant potential

for seismic lurching of hillside fills and landslides resulting from the grading necessary to

achieve grade and structure elevations. (AR2:448-449.) He also noted errors in the project

description. (Ibid.)


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Dr. Karp’s “excellent credentials” were acknowledged by the Kapors’ lawyer, who

then claimed that although also a licensed architect as well as an engineer, Dr. Karp must

somehow have misread the architectural plans relating to the expected placement of fill.

(AR2:530-531.) Dr. Karp thereafter explained to the City Council that he had not misread the

plans, that he had independently reviewed the project site and the plans, and that he had

created a major section drawing that showed conflicts between grades and retaining walls.

Dr. Karp further confirmed his independent evaluation of the site grading requirements and

impacts that verified his expressed opinion. (Ibid.; AR4:1089.)

Berkeley Architectural Heritage Association President Daniella Thompson, an

architectural historian, notified the City that BAHA supported the Fadley appeal “on historic

preservation issues and on errors and omissions in the project application,” including the fact

that the Structure History report erroneously stated that “there is no architect of record and no

associated persons of historic interest” for the 1917 structure on site [the Dunham House]

proposed for demolition. (AR2:446.) In fact, as Ms. Thompson explained, the building permit

readily disclosed the architect to be the well-known Abraham Appleton. (Ibid.)

1917 Dunham House

(AR1:107.)


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Further, the Dunham House’s first owner, Lucia Dunham, was a renowned opera

singer and Julliard music professor. (AR2:446.) The last owner of the Dunham House, who

lived there for 50 years, was noted biophysicist Frank Lindgren, whose discovery of good and

bad cholesterol (HDL & LDL) is listed among “25 Berkeley Lab Breakthroughs that

Improved the World -- and Our Lives.” (AR1:425-439.) Ms. Thompson later provided her

fact-based expert opinion that the Dunham House is eligible for listing in the California

Register of Historical Resources. (AR2:446-447.) Ms. Thompson and others further noted that

the Kapors’ project application failed to reference the many unique historic and architectural

resources in the vicinity of the planned new residence. (AR1:105,2:447.)

During the appeal proceedings, the City was also provided with fact-based evidence

that categorical exemption from CEQA was unlawful based on the project’s potentially

significant impacts relating to the demolition of a likely historic resource, aesthetic impacts on

public views, neighborhood incompatibility based on mass, scale and institutional design of

the new home, both temporary and permanent traffic impacts relating to construction and non-

residential uses, massive unstudied excavation of steep hillsides and creation of large

retaining walls, inconsistencies with City land use plans and policies adopted for

environmental protection, the unusual size of the proposed structure out of scale with the

neighborhood and historic character, and removal of mature trees. (AR2:525-532.)

Preparation of environmental review for a project consistent with City ordinances and adopted

plans was requested. (AR2:529,532.)

A hearing on the ZAB appeal was held before the City Council on April 27, 2010.

(AR2:523-594.) Appellants submitted a written response to the City staff’s report on the

appeal. (AR2:436-462.) City staff then prepared a supplemental responsive report that was

provided to the appellants at the time of the hearing. (AR2:463-468; 2:524.) The appellants

and applicant were then allowed to address the Council for 10 minutes per side (AR2:524-

541), and no public comment was allowed by the many Berkeley residents who packed City

Council chambers. Before voting, members of the City Council explained their views about


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the project, without addressing the environmental issues. (AR2:541-591.) The majority voted

to deny the appeal [6-2-1]. (AR2:591.)

Scope and Standard of Review

In deciding whether to issue a peremptory writ of mandamus, the Court shall determine

whether the City committed a prejudicial abuse of discretion, which is established if it did not

proceed in the manner required by law or if its findings are not supported by substantial

evidence in light of the whole record. (Code of Civil Procedure § 1094.5; Pub. Resources

Code § 21168.) The Court is to be guided by the fact that “CEQA was intended to be

interpreted in such a manner as to afford the fullest possible protection to the environment

within the reasonable scope of the statutory language.” (CEQA Guidelines [14 Cal.Code

Regs] § 15003(f); The Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903,

926.) As the Supreme Court cogently held thirty years ago in Bozung v. LAFCO (1975) 13

Cal.3d 263, 274: “It is, of course, too late to argue for a grudging, miserly reading of CEQA.”

Public Resources Code section 21005(a) codifies the fact that “noncompliance with the

information disclosure provisions” of CEQA — which include whether or not an EIR is

prepared — results in a prejudicial abuse of discretion “regardless of whether a different

outcome would have resulted if the public agency had complied with those provisions.” This

holding as to irrelevance of ultimate outcome has been underscored in a number of cases,

including County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931,

946, and Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383,

1392. Thus, an agency cannot find a project to be categorically exempt from CEQA even if it

believes that no different outcome would likely result if environmental review was conducted.

The City was not required to make findings or to take any particular action to rely on

an exemption; the CEQA Guidelines provide that the City “may” file a Notice of Exemption.

(Guideline § 15062.) Here, the City chose to do so. (AR1:2.)

The Court’s consideration of whether a categorical exemption from CEQA is proper is

a two-step process. The first question is whether substantial evidence supports the City’s

determination that a project fits within a particular exempt category. If not, the exemption


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fails. But if the project arguably fits into the category, the Court will then decide whether any

applicable exceptions defeat the exemption. Exceptions include whether the presence of

unusual circumstances, cumulative impacts, or historic resources may result in environmental

impacts. The prevailing view is that the “fair argument” standard applies to this question.

(E.g., Banker’s Hill v. City of San Diego (2006) 139 Cal.App.4th 249, 264).

Most CEQA cases reference the fair argument standard vis-à-vis adoption of a negative

declaration, but application of the fair argument to consider exceptions to categorical

exemptions is identical in approach. Public Resources Code sections 21080 and 21100 codify

the fair argument standard, which is met unless “there is no substantial evidence” that a

project “may have a significant effect on the environment.” In Friends of B Street v. City of

Hayward (1980) 106 Cal.App.3d 988, 1002-1003, the First District Court of Appeal found

that the fair argument standard was met due to a street improvement project’s short term

impacts (dust and traffic impacts relating to construction) as well as long-term impacts, and

explained its reliance on the Supreme Court’s decision in No Oil v. City of LA:

But if a local agency is required to secure preparation of an EIR ‘whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact’ (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75), then an agency’s adoption of a negative declaration is not to be upheld merely because substantial evidence was presented that the project would not have such impact … If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR …, because it could be ‘fairly argued’ that the project might have a significant environmental impact.

Public Resources Code section 21080(e) defines substantial evidence sufficient to

support a fair argument of potentially significant environmental impact as “fact, a reasonable

assumption predicated upon fact, or expert opinion supported by fact.” Consistently, section

21082.2 mandates that “substantial evidence shall include facts, reasonable assumptions

predicated upon facts, and expert opinion supported by facts.” Neither of the definitions

speaks to expert determinations of fact, but call out expert opinion supported by fact[s].

CEQA Guideline section 15384 provides that a fair argument as to whether a project

may have a significant environmental effect is met by substantial evidence that includes


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“facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.”

This language obviously duplicates the statutory authority. And Guideline section 15064(f)

consistently provides that “whether a project may have one or more significant effects shall be

based on substantial evidence in the record of the lead agency,” citing both No Oil and

Friends of B Street. Subsection (f)(5) reiterates that substantial evidence “shall include facts,

reasonable assumptions predicated upon facts, and expert opinion supported by facts.”

CEQA Guideline section 15064(g) provides that “if there is a disagreement among

expert opinion supported by facts over the significance of an effect on the environment, the

Lead Agency shall treat the effect as significant ...” As held in Sierra Club v. County of

Sonoma (1992) 6 Cal.App.4th 1307, 1322-1323, CEQA … “reflects a preference for resolving

doubts in favor of environmental review when the question is whether any such review is

warranted.” Sierra Club also holds that a finding of no environmental impact “can be upheld

only when there is no credible evidence to the contrary.” (Id. at 1317-1318; italics added.)

Thus, a categorical exemption from CEQA is allowed only when there is no

substantial evidence — defined in both statute and the CEQA Guidelines as fact or fact-based

reasonable assumptions/expert opinions — supporting a fair argument that a project “may

cause a substantial change in the significance of a historical resource” or may otherwise have

any significant effect on the environment. (Guideline § 15300.2(f).) The overarching bottom

line is that environmental review is favored under CEQA and that categorical exemptions are

to be narrowly applied in the interests of environmental protection.

Discussion

To meet the burden of proof on the sole issue before the Court — whether the City was

entitled to approve the Kapor project on the basis of a categorical exemption from CEQA —

the substantial record evidence supporting a fair argument of potentially significant

environmental impacts is catalogued below. The Court will note that contrary evidence is not

much discussed. This is due both to the space constraints of the briefing and legal irrelevance.

The Kapors are well-respected, prominent philanthropists who will be exceedingly

welcome Berkeley residents. The record contains many letters from their friends and


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colleagues, as well as emails, letters, and testimony from some of their neighbors and hired

experts expressing sincere opinions that the Kapors’ proposed home is unlikely to have

significant environmental impacts. Since the Court does not weigh such evidence under the

standard of review explained above, most of it will not be referenced.

A. Substantial Evidence Relating to Exemption Categories The City exempted the Kapor project from CEQA based on two claimed categorical

exemptions: Class 3 [single-family residence] and Class 32 [in-fill development]. (AR1:1-5.)

Petitioners contend that Class 32 does not apply, because that category requires that in-fill be

consistent with applicable general plan policies, lack significant traffic impacts, and provide

emergency services: those requirements are not here met. (Guideline § 15332 (a)(d)(e).) The

size and proposed use of the structure are also arguably inconsistent with the Class 3 single-

family home category. (AR2:456.) However, these points are disputed, and because the

substantial evidence standard applies to the City’s initial choice of applicable categories,

Petitioners object but will focus on exceptions that defeat categorical exemption.

B. Fair Argument of Exceptions to Categorical Exemption As explained above, if the Court determines that substantial evidence supports a Class 3

or 32 categorical exemption for the Kapor project, the Court will next apply the fair argument

standard to determine whether the project may nonetheless result in significant environmental

impacts due to unusual circumstances, cumulative impacts, or historic resources. (Guideline §

15300.2.) If a fair argument is shown, the categorical exemption must fail.

Petitioners will show that the City’s approval of the Kapor project based on a

categorical exemption relied on inaccurate and inadequate information about the project site,

the project description, and the environs. With insufficient information about the

environmental setting, the accurate extent of project impacts could not be accurately measured.

Therefore, catalogued below are facts and fact-based assumptions and expert opinions relating

to potentially significant environmental impacts, the inadequacy of information regarding the

Kapor project’s environmental setting, and the inaccurate project description.


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Aesthetic Impacts. The CEQA Guidelines’ Appendix G Checklist inquires in its first

section whether a project may have a substantial adverse effect on a scenic vista, or may

substantially damage scenic resources [such as trees], or whether it may “substantially degrade

the existing visual character or quality of the site and its surroundings.” (Guideline Appendix

G, I, Aesthetics, (a)-(c).) Evidence of any such potential impact triggers CEQA review. Testimony of area residents that are not qualified environmental experts qualifies as

substantial evidence when based on relevant personal observations. (E.g., City of Carmel By-

the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246 n.8; Oro Fino Gold Mining

Corporation v. County of El Dorado (1990) 225 Cal.App.3d 872, 882; Citizens Association for

Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 173

[“... an adjacent property owner may testify to traffic conditions based upon personal

knowledge … ”]; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29

Cal.App.4th 1597, 1604-1605; Arviv Enterprises v. South Valley Planning Commission (2000)

101 Cal.App.4th 1333 [Relevant personal observations of neighbors regarding slope, dust,

erosion, and access problems met fair argument]; Ocean View Estates Homeowner’s

Association v. Montecito Water District (2004) 116 Cal.App.4th 396 [Residents’ subjective

opinions regarding potential aesthetic impacts affecting private views and public hiking trail

provided fair argument]; Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th 903

[Residents’ opinions provided a fair argument of aesthetic impacts of housing project and its

arguable inconsistency with adopted plans].) Under these cases, input from non-experts can

provide the requisite “fair argument” where such input is credible and does not purport to

embody analysis requiring special training.2

2 In Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, opinions regarding the aesthetic differences between a three-story and four-story housing project on Sacramento Street in Berkeley was held not to meet the fair argument standard; however, Bowman was limited to its facts in Pocket Protectors, supra, 124 Cal.App.4th 903,939, and Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, each of which found a fair argument based in part on aesthetic impacts of a housing project.


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Evidence of a fair argument of potentially significant aesthetic impacts includes:

• Berkeley resident Stephen Twigg provided an expert opinion that the Kapor structure

“will appear institutional” and out of scale with the neighborhood. “My judgment as a

degreed artist is that … the appearance of this huge monolith looming over the existing

ridge line will seem ominous…” (AR1:72, italics added.) He suggested other sites.

Further, the Kapors “are asking for a variance that will provide a more valuable view

from the proposed site … the downside of this is that it will provide a less valuable view

toward the site.” (AR1:73.)

• Berkeley resident Valerie Herr expressed a fact-based opinion that the proposed house

with its 10-car garage is “completely out of the scale and spirit of the neighborhood,

which contains historic districts and numerous individual houses by notable local

architects built over many decades.” (AR1:95.)

• Berkeley resident Chuck Fadley explained that “the home is approximately three times

larger than any in the adjacent historic neighborhood … and of significantly different

aesthetic character.” Its “modern rectangular design … cannot be said to be fully

compatible with most of the existing homes in the neighborhood.” He pointed out that

“the overall height of the structure appears to be underestimated, as it is in fact more

like three stories high at some points of its expanse and grade, and will at its highest

point be approximately 100 feet above Shasta Street below.” (AR1:99-100.)

• Resident Dawn Hawk found the project to be a “breathtaking and radical departure

from the style of the neighborhood … My neighbors have begun to refer to this house

as the ‘K-Mart House’ and it is hard to disagree with this assessment.” Further, “views

in our neighborhood are not merely the sweeping views of the bay, San Francisco, the

Golden Gate and Richmond-San Rafael bridges and Mt. Tamalpais, but also of the

surrounding neighborhood. This massive and imposing commercial design is

completely out of character for this neighborhood.” (AR1:105-106.) She described the


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neighborhood’s modest but architecturally significant homes designed by architects

such as Julia Morgan, Bernard Maybeck, Walter Ratcliffe, Carr Jones, and John

Thomas Hudson. “Part of the great charm of this neighborhood is the variety of older

homes which are a mixture of styles, but with few exceptions preserving the building

pattern in the area which was begun in the teens.” She pointed out that a property six

lots north on Shasta Road is in much worse condition than the Dunham House on the

Kapor property but that it is being restored. (AR1:105.)

• The Fadley appeal of the ZAB approval pointed out that the City staff report had noted

that dwellings to the north do not have views across the site, but did not assess views

toward the site. The architect’s model and drawings show that the building will be

visible from properties to the north. (AR1:203.) The staff report also understated the

size and volume of the building and how it fits into the topography. The proposed

house is three times the size of the average home in the area, or four and a half times

larger if one counts the total square footage. (AR1:204) Only five single-family

residences in Berkeley are greater than 10,000 square feet. (AR1:157.) Out of over

17,000 single-family residences in Berkeley, only 17 exceed 6000 square feet and only

two of those were built after 1942. (AR1:193.) “The impact of this building on its

surroundings will be great. Its construction will entail massive retaining walls to re-

profile the hill, and the building will loom over the small canyon to the north.”

(AR1:206.) The project does not respect the context of the surrounding built

environment, characterized by some of the most historic and architecturally significant

buildings in the city. (AR1:443.) Single-family home sizes in Berkeley average

between 1,734 square feet and 1,970 square feet. (AR1:208; see also 209-210 [homes

over 6,400 square feet].)

• Berkeley resident Elaine Chan is of the opinion “that this large, office-like structure

will change the character of the neighborhood in a negative way. It is way too large

and too out of character with the rest of the neighborhood.” (AR2:334.)


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• Charlene M. Woodcock asserted that this “greatly out of scale building in a

neighborhood of relatively small houses, on a hillside adjacent to an earthquake fault

and in a potential slide area seems, at the least, irresponsible.” (AR2:405.)

• Mildred Henry analogized “our situation here with the push to insert a truly enormous

structure into a closely knit, longstanding, historically interesting residence area and

big money, big corporate push everywhere to wipe out smallness and individuality…”.

(AR2:429.)

• Shasta Road resident Ira Lapidus protested that “the planned building is much larger

than other houses in the neighborhood and the style is not in character with the rest of

the neighborhood.” (AR2:431.)

• ZAB Boardmember Sara Shumer, who abstained from the final vote, said that “the

owners of the property are upstanding citizens in every way. And that goes to

credibility. But it doesn’t go to land use … My concern when I visited [the site] was

that I was quite surprised not to find any story poles. And I understand that height is

probably not an issue. But bulk is. And it is very hard to know where that house is

going to be on the property without pacing it off and all that. I was also concerned

about the north landscape view…” (AR2:510-516, italics added.)

• Long-term resident Ann Hughes, who ultimately supported the Kapor project,

expressed the opinion that it is out of scale, and that “introducing a house with built

square footage greater than the parcel size of many of the lots in the area requires more

subtle handling than the big box — flat wall over 100 feet long — looming over

Shasta Road 75 feet below. When viewed on its own, the model and drawings may be

handsome, but more representation of the adjacent homes should have been included

in the submittal: then the problems of scale would be revealed.” (AR1:104.)

• Dr. Lawrence Karp, consulting geotechnical engineer, provided an expert opinion that

the site grading with tree and stump removal, and benching, will be necessary from the


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midpoint of the new building down to Shasta Road, with removal of significant oak

trees. (AR4:1029; see AR2:448-449.) Removal of trees increases view impacts. The

Fadley ZAB appeal pointed out that depictions of the site with photo overlays and the

new structure depicted as substantially hidden by trees was misleading and unrealistic.

(AR2:441; 4:944.)

Historic Resources Impacts. A 1917 Craftsman home on the Kapor site is proposed

for demolition. (Ante at 2,4.) The potentially significant impacts of its demolition were not

analyzed prior to issuance of the categorical exemption. The presence of other historic and

architectural resources in the neighborhood was also not acknowledged, nor impacts assessed,

and so the exemption was based on inadequate information about impacts and the

environmental setting. (Ante at 4.)3

A fair argument of potentially significant impacts to historic resources, compounded

by the inadequate analysis of the environmental setting, includes:

• The ZAB appeal report to the City Council admitted that the ZAB staff report had

“informed the ZAB that no locally designated properties exist in the vicinity. This was

in error … Landmark properties do exist in the vicinity … The appellant is correct to

note that City Landmarks exist in the vicinity of the site ...” (AR1:150.)

• “It is shocking that there has been no research done to see if the existing structures on

the site, due to be demolished” are historic. (AR1:198.)

3 The Kapors obtained a report from “Preservation Architecture” dated April 20, 2010, the week before the City Council appeal hearing held on April 27, 2010, but it was apparently retained in the office of the City Clerk rather than being made available to the City Council or members of the public. (AR4:967,1046.) Regardless, as it reflects a dispute among experts as to the historic qualifications of the Dunham House, it cannot refute the fair argument of the project’s potentially significant impacts to historic resources due to the proposed demolition of that structure. (E.g., Architectural Heritage Association v. County of Monterey, (2004) 122 Cal.App.4th 1095, 1112 [Petitioners’ initial burden is to present a fair argument that a resource is historic].)


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• The project site lies at the edge of the reach of an extensive 1923 fire, and is one of

those that survived intact. “The area has been and continues to be the subject of

numerous walking tours held year after year, as well as books, magazines, and

newspaper articles and recently a documentary film. The property is in a neighborhood

of architecturally significant houses and groups of houses. Some are individually

designated City of Berkeley Landmarks, and there are three separate historic districts,”

including the Greenwood Common Historic District, La Loma Park Historic District,

and Rose Walk & Cottages. (AR1:282.)

• The Berkeley Architectural Heritage Association (BAHA) President Daniella

Thompson, writing on behalf of BAHA, provided information about the historic merit

of the 1917 “Dunham House” on the project site, explaining that while the project

application contended that “there is no architect of record and no associated persons of

historical interest,” in fact the architect, Abraham Appleton, was a notable Bay Area

architect and the original owner was a well-known concert soprano and influential

teacher. (AR2:322-333; ante at 4.)

• On April 27, 2010, the date of the City Council’s final action denying the ZAB appeal,

the City’s appointed Landmarks Preservation Commission provided detailed concerns

about the inaccurate and incomplete information that had been provided about the

project, including the undisclosed proposed demolition of the Dunham House, and did

not evaluate or even mention the historic resources in the vicinity. The Commission

requested that “an accurate and complete application should be prepared for the

proposed project and a new hearing scheduled.” (AR2:380-381.)4

4 The City-prepared transcript of the City Council meeting held on April 27th is incomplete, as it does not include initial proceedings during which the City’s Landmarks Preservation Commission spokesperson requested, and was denied, permission to address the City Council on behalf of the Commission regarding concerns about this project. Petitioners will take steps to obtain the missing portion of the transcript to provide to the Court.


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• Martine Kraus, Ph.D, protested the “failure to notify the Landmarks Preservation

Commission of the proposed demolition of a distinguished architect’s work.”

(AR2:399.)

• Resident Jane Edginton explained that that Appleton’s obituary referred to him as “a

titan of the architectural world” and decried the fact that the Kapor project files made

“no mention of the distinguished Berkeley Dunham family who built the house, nor

Helen and Frank Lindgren who last resided there for more than 50 years. He was a

distinguished LB scientist who pioneered the identification of blood lipoproteins and

was a Nobel prize contender. The Lindgrens were old friends of ours.” (AR2:425.)

• The building permit for the Dunham House references Appleton as its architect.

(AR2:460.)

• The supplemental staff report provided to the City Council at the hearing on the ZAB

appeal conceded that the ZAB report should have been more precise about historic

resources in the vicinity. (AR2:467.)

• Architectural historian Daniella Thompson provided a fact-based expert opinion that

the Dunham House is eligible for listing in the California Register of Historical

Resources as a “singular surviving early work in Berkeley by an important architect,

Abraham Appleton.” (AR4:958.) “Please do not allow the demolition of this house

without requiring environmental review following an accurate and complete project

application, with input from the Landmarks Preservation Commission.” (Ibid.)

The record thus supports a fair argument that the Kapor project may have a significant

environmental impact because it proposes demolition of the 1917 Dunham House, which may

be eligible for the California Register, and may also significantly impair the context of

historic buildings in the surrounding area. (Guideline § 15064.5 (a)(3), (b)(1); Architectural

Heritage Association v. County of Monterey, supra, 122 Cal.App.4th 1095, 1112.)


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Traffic Impacts. Potentially significant traffic impacts of the Kapor project relate

both to the many months of project construction and also to increased traffic caused by non-

residential use of the 10,000 square foot structure for fundraising activities. Area residents

may present evidence of current and likely traffic problems based on their personal

knowledge. (E.g., Oro Fino Gold Mining Corporation v. County of El Dorado, supra, 225

Cal.App.3d 872, 882.) Evidence supporting a fair argument of such impacts includes:

• Rose Street resident Rick Carr explained that “a project of this size with the proposed

amount of parking will in fact invite ‘commercial level use’ in terms of traffic, not

consistent with current zoning.” He explained that Rose Street is “essentially a one

lane road, with limited access & scarce parking,” which will be significantly impacted

by the Kapor project. (AR1:88.)

• Nancy and Jim Russell of nearby Greenwood Common agreed that Rose Street is a

“small, dead-end road” and requested adequate controls for delivery and movement of

construction-related materials during the expected one year of construction. (AR1:90.)

• Frederck Wyle of Greenwood Common pointed out that Rose Street and Greenwood

Terrace are curbless and “are the only access roads to the … site … and are narrow

roads not in the best of condition, with cracks and potholes. Heavily loaded truck

traffic [for a year or longer] will almost certainly aggravate the conditions of the

roads.” (AR1:91-92.) Wyle testified at ZAB about the project’s “enormous

consequences in terms of the traffic,” noting that trucks on Rose Street “almost always

find themselves compelled to hit the edge of our properties, [and] even a medium truck

has trouble negotiating that area.” (AR2:501-502.)

• Hawthorne Terrace resident Valerie Herr, aside from urging construction of a smaller

residence on the “very steep site,” also contended that the garage exit should be at the

top of the site “where it would cause far less of a traffic hazard.” (AR1:95.)


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• Charlene Woodcock of Virginia Street decried the City’s actions: “To overrule existing

regulations to allow for a 10-car private garage on a very narrow hillside street is so

hypocritical, not to mention environmentally destructive, as to boggle the mind …

How much consideration has been given … to the tiny 16-foot wide street that would

have to service large trucks to remove the demolished building and heavy building

equipment to excavate the hillside for this huge building and move materials to and

from the site?” (AR1:117.)

• Shasta Road residents Robert and Michaela Grudin noted that “enormous pressure will

be put on two hillside roads by traffic seeking to avoid congestion” from the Kapor

project. “Both Keith Road and Cragmont Road are very narrow and winding, and are

ill equipped to handle the burden ... the effects of this congestion on fire trucks and

other emergency traffic up Shasta Road, one of our only through streets in the hills,

could be catastrophic … the Kapor project is likely to have profoundly disturbing

effects on hill traffic up to 5 miles away.” (AR2:339.)

• Buena Vista Way resident Jane Edginton pointed out that Rose Street “dead ends at the

west edge of the property and is one lane 16-20 feet wide leading up to it … the trucks

and equipment required [to grade, excavate, and build the foundations] could not be

less appropriate for the space and neighborhood.” (AR2:425.)

• Susan Nunes Fadley, a Tamalpais road resident, explained that while the Rose Street

right-of-way may be 25 feet wide as represented in the Kapor application, the actual

street width is between 17 and 20 feet, and narrows as it approaches the dead end that

is the access to the site. She noted that all trucks using this approach would probably

have to back up or back down the street, not having enough room at the top to turn

around. The stress on Rose Street would be enormous. All parking would be

disallowed during construction. Many senior citizens live in the neighborhood, and the

lack of parking and traffic and construction noise would greatly impact their lives.

(AR2:439.) Further, reconstruction of the Berryman reservoir is planned to occur


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concurrently, 1000 feet from the site, and truck access will use the same streets needed

for the Kapor project with cumulative traffic impacts. (AR2:440, 444) The Kapors’

planned fundraising activities also have unstudied traffic issues. (AR2:441.)

• Consulting geotechnical engineer Lawrence B. Karp evaluated the project and

provided an expert opinion that “the massive grading necessary … will involve

extensive trucking operations, as a nearby site to stockpile and stage the earthwork is

not available. 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.” (AR2:448, attached.)

• The supplemental City staff report prepared on April 27, 2010, the day of the Council

appeal hearing, explained that engineers that were consulted about project traffic

impacts recommended using Shasta Road to remove the extensive excavated soil via

20-yard trucks, that a construction management plan was to be prepared later to

consider specifics of site operations “that may block traffic,” provisions for traffic

control, and limitations of off-site parking of construction-related vehicles if necessary

to protect the neighborhood, to ensure emergency vehicle access at all times and to

minimize neighborhood impacts for parking and circulation. The City staff noted that

the provisions are “standard conditions imposed on residential development in the Hills

which are not intended to address any specific environmental impacts resulting from

construction of the project. Rather, they represent the City’s attempt to generally

minimize detrimental impacts of residential development in the Hills.” (AR2:466.) The

one “unique” project condition added was to provide neighbors with a draft

construction management plan. (Ibid.)

The addition of traffic conditions also defeated the categorical exemption. No

mitigation conditions may support a categorical exemption; the need for mitigation allows for

the possibility that it may fail and an environmental impact may result. As held in Salmon

Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1102, if


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a project requires mitigation measures it cannot be approved via categorical exemption:

Only those projects having no significant effect on the environment are categorically

exempt from CEQA review. (Pub. Resources Code, §§ 21080, subd.(b)(9), 21084,

subd. (a).) If a project may have a significant effect on the environment, CEQA review

must occur and only then are mitigation measures relevant. (Azusa Land Reclamation

Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1199-2000.)

Mitigation measures may support a negative declaration but not a categorical

exemption.

Here, there is a fair argument of potentially significant traffic impacts based on the

significant truck traffic on narrow winding streets and the long duration of construction,

including significant removal of soil, as well as traffic connected with contemplated

fundraising events after construction is complete. The imposition of traffic mitigation

measures is also fatal to the exemption; the fact that similar mitigations are imposed in

Berkeley hills projects does not make them any less necessary to mitigate impacts. They are

not “usual” in terms of the impacts accepted in Class 3 or 32 exemptions statewide.

General Plan/Zoning Inconsistencies. Inconsistencies with adopted City plans and

policies adopted for environmental protection is also a matter for “fair argument” review.

Pocket Protectors v. City of Sacramento, supra, 124 Cal.App.4th 903, 930-931, found a fair

argument that a proposed housing project was inconsistent with an adopted area plan. The

City of Sacramento argued that a dispute as to the issue of plan consistency should not be

subject to the CEQA “fair argument” standard, since cities are generally accorded deference

to interpret their own plans.

The Court of Appeal disagreed, reversing the trial court decision, finding that in

addition to a fair argument of aesthetic impacts, the record included a fair argument that the

project was inconsistent with adopted plans under the standards of CEQA Guidelines

Appendix G, section IX, which queries whether a project may “conflict with any applicable


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land use plan, policy, or regulation of an agency … adopted for the purpose of avoiding or

mitigating an environmental effect.” (Pocket Protectors, supra, 124 Cal.App.4th 903, 929.)

The Pocket Court held that “…if substantial evidence supports a fair argument that the

proposed project conflicts with the policies of the [local plan], this constitutes grounds for

requiring an EIR. Whether a fair argument can be made on this point is a legal question on

which we do not defer to the City Council’s determination. (citations)” (Id. at 930-931.)

Under the Appendix G Checklist, as definitively interpreted by Pocket Protectors relevant to

the fair argument standard, an arguable inconsistency with plans and policies used by an

agency to assess environmental impact meets the fair argument standard. This includes

general plans and other city policies and guidelines. Here, the fair argument includes:

• The Fadley appeal recites a number of inconsistencies with General Plan Policy LU-3

Infill Development, Policy UD-16 Context, Policy UD-17 Context, Policy UD-24 Area

Character, and Policy UD-31 Views. (AR1:205, 99.) The appeal claims that the Kapor

project is inconsistent with Policy UD-16, for example, which requires that “the design

and scale of new … buildings should respect the built environment in the area,

particularly where the character of the built environment is largely defined by an

aggregation of historically and architecturally significant buildings.” (AR1:205.) The

other policies claimed to be inconsistent require consideration of massing, regulation

of new construction and alterations “to ensure that they are truly compatible with, and

where feasible, reinforce the desirable design characteristics of the particular area they

are in,” and enhancement of vistas. (Ibid; see also 204.)

• The appeal further explains that the Kapor project exceeds the City’s average height

and maximum height standards. (AR1:200-201.)

• Shasta Road resident Paul Newacheck explained how General Plan policies UD-16,

UD-17 and UD-24 are neglected by “this large, office-like structure [that] will change

the character of the neighborhood in a negative way.” (AR2:346.)


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• Attorney John McArthur of Stuart Street explained as a “concerned, long-term

Berkeley resident … I want to stress that this is not just a Rose-Street-area concern.

The fair and equal application of zoning regulations are a major part of the quality of

life for all of us in Berkeley. If relatively small houses receive detailed scrutiny, as they

often do, but the largest house built in decades is rubberstamped … it would be a sign

that the zoning board is not ruling even-handedly…” (AR2:348-349.)

• Mitchell Kapor justified the “extraordinary size of his project by saying that ‘a

substantial part of the home would be used to raise funds for community and campus

groups.’” (AR2:440-441.) The Fadley appeal pointed out that while “these are certainly

laudable activities,” the City limits occupations in the R-1 zone to 400 square feet, and

prohibits employees. The project is inconsistent, and the described events will increase

environmental impacts relating to traffic and noise. (Ibid.)

The record thus supports a fair argument of general plan inconsistency. Geotechnical Impacts. Unlike aesthetics and traffic and planning issues,

geotechnical impacts are solely the province of experts. Petitioners thus offered the reports

and testimony of an eminent structural engineer and architect, Dr. Lawrence Karp. The

credibility of Dr. Karp is undisputed and thus is not at issue in this case. The Kapors’

attorney, Rena Rickles, conceded his “excellent credentials” while disagreeing with his expert

conclusions. (AR4:934.)

Fact-based expert opinion supporting a fair argument of potentially significant impacts

relating to the potentially-significant geotechnical impacts of the Kapor project includes:

• The 3-story Kapor project [e.g., described as including a third open-air lower level

AR1:199, 2:464 [diagram]] requires earthquake resistance analysis due to its location

in the Landslide and Alquist-Priolo zone. (AR1:100-101 [drawing of earthquake zone],

2:441-443.) The tallest portion of the building is supported on isolated columns, with


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glass walls above, which should require steel or steel-reinforced concrete. (AR1:199.)

The City consulted with engineers who disagreed. (AR2:467.)

• The ZAB staff report discusses the site’s claimed 50% slope and 1500 cubic yards

proposed for excavation, and notes that ZAB’s approval “includes five conditions to

address construction-related erosion and drainage.” (AR1:149.) These conditions to

mitigate environmental impacts defeat the categorical exemption. (See ante at 19.)

• Dr. Karp wrote two reports. (AR2:448, 449; attached for the Court’s convenience.) In

the first letter, dated April 16, 2010, he noted that the City’s project file that he had

reviewed on April 15th did not include any geotechnical report. Following the filing of

the April 16th report, Dr. Karp was contacted by City staff and was provided with a

geotechnical report dated August 31, 2009. (AR2:449.) He then prepared his April 18th

letter to reference that information. Dr. Karp’s reports speak for themselves. He

concludes 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.” (Ibid.) The 2009 geotechnical study relied

upon by the Kapors was not for their current project but for a structure two-thirds of

the current size and without the 10-car garage. (Ibid., see AR4:944.)

• The Kapors’ engineering experts did not question Dr. Karp’s credentials or credibility

but disputed his opinion and claimed that they believed that he had misread and

misunderstood the project plans. (AR4:934,1061.)

• At the City Council hearing on the appeal, Dr. Karp appeared and testified. (AR2:530-

531.) He summarized his credentials: “I have an earned doctorate in civil engineering

and other degrees from UC Berkeley including two Masters and a post-doctoral

certificate in earthquake engineering. I am fully licensed. I taught foundation

engineering at Berkeley for 14 years and at Stanford for 3. I was born and raised in

Berkeley. I own homes in Berkeley. I work throughout the West Coast. My experience

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AR 001085

1 Zach Cowan, City Attorney (SBN: 96372)Laura McKinney, Deputy City Attorney (SBN: 176082)

2 LMckinneyêci. berkeley .ca. usCITY OF BERKLEY

3 2180 Milvia Street, Fourh FloorBerkeley, CA 94704

4 Telephone: (510) 981-6998Facsimile: (510) 981-6960

5Attorneys for Respondents

6 CITY OF BERKLEY

7Amrit S. Kulkari (SBN: 202786)

8 akulkariêmeyersnave.comJulia L. Bond (SBN: 166587)

9 jbondêmeyersnave.comMEYERS, NAVE, RIBACK, SILVER & WILSON

10 555 12th Street, Suite 1500Oakland, California 94607

11 Telephone: (510) 808-2000Facsimile: (510) 444-1108

EXEMPT FROM FILING FEESGOV'T CODE § 6103

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Attorneys for Real Paries in Interest

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA

BERKLEY HILLSIDE PRESERVATION,18 an unincorporated association, and SUSAN

NUNES FADLEY,

CASE NO. RG10517314

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Petitioners,

RESPONDENTS AND REAL PARTIES'OPPOSITION TO PETITIONER'SOPENING BRIEF IN SUPPORT OFPETITION FOR WRIT OF MANDAMUS

v.

CITY OF BERKLEY and CITY COUNCIL22 OF THE CITY OF BERKLEY,

Assigned for all puroses toHon. Fran Roesch:, Dept. 31

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Respondents. Date: December 2, 2010Time: 9:00 a.m.Dept: 3 1

DONN LOGAN, MITCHELL D. KAPOR,25 FREADA KAPOR-KLEIN and DOES 1-5;, Action Filed: May 27,2010

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Real Paries in Interest.

OPPOSITION TO PETITION FOR WRT OF MANDATE

Chuck Fadley

Text Box

Opponents Reply Brief

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4 i.

5 II.

6 III.

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12iv.

13V.

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17VI.

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TABLE OF CONTENTS

Pae:e

INTRODUCTION................................................................................................................. 1

SUMMARY OF ARGUMENT............................................................................................ 2

STATEMENT OF FACTS.................................................................................................... 4

A. The Project. ............................................................................................................... 4

B. The Existing Site and Structure............................................ ............................... ...... 4

C. The Kapors' Application and Pre-Application Meetings with Neighbors. ...............5

D. The Zoning Adjustment Board Found the Project Exempt From CEQA andApproved the Project.... .................................................................................... ... ...... 6

E. The City Council Affirmed the ZAB Decision. ........................................................ 7

STANDARD OF REVIEW .................................................................................................. 8

THE COURT SHOULD UPHOLD THE CITY'S DETERMINATION THAT THEPROJECT is CATEGORICALLY EXEMPT FROM CEQA.............................................. 8

A. Standard of Review for Categorical Exemptions. .....................................................8

B. There Is Substantial Evidence In the Record Supporting the City's

Determination that the Project is Categorically Exempt. .......................................... 9

PETITIONERS HAVE FAILED TO MEET THEIR BURDEN OF SHOWINGTHAT AN EXCEPTION TO THE CATEGORICAL EXEMPTIONS APPLIES............. 10

A. Petitioners Fail to Address the Relevant Exceptions. ............................................. 11

B. Standard of Review for Unusual Circumstances and Cumulative ImpactsExceptions. .............................................................................................................. 12

C. Petitioners Have Failed to Show that the Unusual Circumstances Exception

Applies to Defeat the Categorical Exemption. ........................................................ 14

1. Petitioners Fail to Show that the Project Presents Unusual

Circumstances.. ........................................................................................ ... 14

2. Petitioners Have Not Shown There Is a Reasonable Possibility of a

Significant Environmental Impact Resulting From UnusualCircumstances .............................................................................. ............... 16

(a) Aesthetic Impacts............................................................................ 16

(b) Traffic Impacts..... .......... ....................... .......................................... 19

iOPPOSITION TO PETITION FOR WRT OF MANDATE

1

2

3

4

5

6

7

8

9

10 VII.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(c) General PlanZoning Inconsistencies.............................................. 20

(d) Geotechnical Impacts...................................................................... 22

D. Petitioners Have Failed to Show that the Cumulative Impacts Exception

Applies to Defeat the Categorical Exemption. ........................................................24

E. Petitioners Have Failed to Show that the Historic Resource Exception

Applies to Defeat the Categorical Exemption. ........................................................25

1. Standard of Review for Historical Resource Exception.............................. 25

2. There Is Substantial Evidence in the Record Supporting the City's

Determination that the Historical Resource Exception Does NotApply..... ........................................................................................ .......... .... 26

F. Petitioners' Argument that the Project Is Mitigated Is Without Merit................... 27

CONCLUSION................................................................................................................... 28

11


1

2 TABLE OF AUTHORITIES

3

4

Page(s)CASES

Apartment Assn. of Greater Los Angeles v. City of Los Angeles5 (2001) 90 Cal.App.4th 1 162........................... ....................... .................... ......... ....................... 8

6 Architectural Heritage Assn. v. County 0/ Monterey .(2004) 122 Cal.App.4th 1 095 .................................................................... ...............................25

7Associationfor Protection of Environmental Values in Ukiah v. City of Ukiah

8 (1991) 2 Cal.App.4 th 720....................................... ................... .......... .............................. passim

10

9 Banker's Hil, Hilcrest, Park West Community Preservation Group v. City o/San Diego

(2006) 139 Cal.AppAth 249...................................................................................13, 14, 19,27

1 1 Bowman v. City of Berkele¡ .(2004) 122 Cal.App.4t 572.............................................................................................. passim

12 Citzen Action to Serve All Students v. Thornley(1990) 222 Cal.App.3d 748..................................................................................................... 24

13

Citzens for Goleta Valley v. Board of Supervisors

14 (1990) 52 Ca1.3d 553........................................... ......... ................................................ ............. 8

15 Citzensfor Responsible and Open Government v. City o/Grand Terrace

(2008) 160 Cal.App.4th 1323................................ ................... ................... ....................... 18, 1916

Committee to Save Hollywoodland Specifc Plan v. City of Los Angeles17 (2008) 161 Cal.App.4th 1 168...................................................................................................13

18 Defend the Bay v. City of Irvine(2004) 1 19 Cal.App.4th 1261... ............................................................ ............... .................... 10

19Fairbank v. City of Mil Valley

20 (1999) 75 Cal.App.4th 1243.................................................................................... 8, 11, 13, 15

21 Gentry v. City of Murrieta(1995) 36 Cal.App.4th 1359......................... ...... ..................... ............ .................................... 10

22Hines v. Coastal Commission

23 (2010) 186 Cal.AppAth 830............................................................................................. passim

24 Laurel Heights Improvement Assn. v. Regents of University of California(1988) 47 Ca1.3d 376................................................................................................................. 8

25Leonoff v. Monterey County Bd. of Supervisors

26 (1990) 222 Cal.App.3d 1337 ....................................................................................... 10, 16,23

27 Lucas Valley Homeowners Assn. v. County of Marin(1991) 233 Cal.App.3d 130...... ..................... ....... ....................................................... ...... ...... 16

28

11OPPOSITION TO PETITION FOR WRT OF MANDATE

1 Markley v. City Council(1982) 131 Cal.App.3d 656....... ......... ..................................... ............................... ................. 10

2

3Mira Mar Mobile Community v. City of Oceanside,th .

(2004) 119 Cal.App.4 477 ..................................................................................................... 16

4 Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist.,(2004) 1 16 Cal.App.4th 396 ............................................... ........ ................ ............. ................. 16

5Pocket Protectors v. City t Sacramento

6 (2004) 124 Cal.AppAt 903 ......................................................................................... 18, 19,20

7 Salmon Protection & Watershed Network v. County of Marin

(2004) 125 Cal.App.4th 1098................................................................................................... 278

Santa Monica Chamber o-l Commerce v. City of Santa Monica9 (2002) 101 Cal.App.4 h 786................................................................................... 11, 13, 14, 15

10 Tomlinson v. County of Alameda

(October 6, 2010) _ Cal.AppAth _, 2010 WL 3897507..................................................... 811

Valley Advocates v. City ol Fresno12 (2008) 160 Cal.App.4 1039.................................................................................... ............... 25

13 Vineyard Area Citizens for Responsible Growth, Inc. v. City 0/ Rancho Cordova(2007) 40 Ca1.4th 412................................................................................................................ 8

14

15STATUTES

PUBLIC RESOURCES CODE16 Section 21 080( e )(1)............................................................................ ...................... ............... 22

Section 21 080( e )(2)................................................................................................................. 2217 Section 21 168.5 ............. ..................... ........... ................... ................................ ......................... 8

18 CEQA GUIDELINESSection 15300.2............ ............................. .............................................................. 6, 11, 12, 20

19 Section 1 5300.2(b) .................................................................................................................. 12Section 15300 .2( c) ...... ............................................................................ ............ ........ 12, 14, 15

20 Section 15300 .2( f).)................................................................................................................. 25Section 1 5303( a) ................................................................................................................... 6, 9

21 Section 1 5303 (b) ....................................................................................................................... 9Section 1 5303 (c) ....................................................................................................................... 9

22 Section 15332................ ................................ ............... ........ ....................... ................ 10, 12, 21Section 153 84( a) ........... ............................................................................................................ 9

23

24OTHER AUTHORITIES

Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2010)25 p. 251 ....................................................................................................................................... 27

26

27

28

ivOPPOSITION TO PETITION FOR WRT OF MANDATE

1 I. INTRODUCTION

2 This lawsuit is about Petitioners' attempt to prevent Mitch Kapor and Freada Kapor-Klein

3 (collectively, the "Kapors") from building a single-family home in the City of Berkeley. Such

4 projects are exempt from review under the California Environmental Quality Act ("CEQA").

5 However, Petitioners decided that they do not care for the proposed design and mounted an

6 aggressive campaign to prevent the City's approval of this home. Petitioners wrongly claim that

7 there should be an exception to the rule that development of single family homes are exempt from

8 CEQA review based on their subjective opinion that the design is not appropriate and other

9 factually erroneous assertions about the proposed uses of the home and its impacts. CEQA was

10 never intended to be used for this purose.

lIThe Kapors wanted to construct a home and join the Berkeley community in which they

12 are very active. The proposed location of their home is at the end of a street that currently has no

13 parking, no turn-around for cars and limited emergency vehicle access. The only existing

14 structue on the Project site is a vacant, dilapidated eyesore that has become a public safety hazard

15 and an attractive nuisance for graffti and homeless people. The Kapors went to great lengths to

16 design a house that fit into the existing neighborhood and met extensively with neighbors to hear

17 their concerns and address them by solving existing problems on the site. As a result, all ofthe

18 immediate neighbors and the persons who wil be directly impacted by the Project have expressed

19 strong support for the construction of the home. Notably, none ofthe opponents ofthe Kapors'

20 home are immediate neighbors. Rather, like armchair planers, Petitioners are raising their

21 subjective objections from a comfortable distance away from the Project location. Indeed, one of

22 the City Council members remarked how very unusual this situation was, and that, after 20 years

23 as a member ofthe Zoning Adjustment Board and City Council, this was the first time all the

24 immediate neighbors supported project approval and other residents, who did not reside in the

25 immediate vicinity, objected to the project.

26 Ultimately, notwithstanding Petitioners' dislike for the Kapors' home, the Administrative

27 Record demonstrates that the City conducted a thorough administrative process that carefully

28 considered all of the evidence presented before properly concluding that the project was

1


1 categorically exempt from CEQA, and that none of the legal exceptions to the categorical

2 exemption applied. Under the applicable standards of review, the Cour should uphold the City's

3 determination and reject Petitioners' lawsuit.

4 II.5

SUMMARY OF ARGUMENT

In adopting CEQA, the Legislature made a policy decision that some activities and the

6 environmental impacts associated with them are not subject to CEQA. The construction of a

7 single family residence is of one these categorically exempt activities. In this case, Petitioners

8 have failed to meet their legal and factual burden of showing that the City's decision to rely on a

9 categorical exemption for the Kapors' home should be set aside.

10 It is well established that the decision whether a project is categorically exempt from

11 CEQA must be upheld if it is supported by substantial evidence in the administrative record.

12 Petitioners concede that the substantial evidence standard applies to the City's determination that

13 the Project is categorically exempt from CEQA, and further concede that there is substantial

14 evidence supporting the City's determination on this point. Petitioners focus their arguments on

15 whether any ofthe exceptions to the categorical exemptions apply. An activity that would

16 otherwise be categorically exempt would be subject to the requirements of the statute if it results

17 in a significant cumulative impact from successive projects ofthe same type in the same place,

18 significant effects due to unusual circumstances or a substantial adverse change in a historical

19 resource. Petitioners' various arguments that these exceptions apply faiL.

20 As an initial matter, Petitioners misapply the standards of review applicable to the

21 exceptions to the categorical exemptions. For example, there is established caselaw holding that

22 the substantial evidence standard applies to the historic resource exception. Yet, Petitioners

23 incorrectly argue that the evidence shows that there is a fair argument of a significant impact.

24 Moreover, there is a split in authority whether the substantial evidence or fair argument standard

25 of review applies to the other exceptions. Notably, however, under either standard of review,

26 Petitioners canot shòw that the City's determination should be set aside because their arguments

27 are based on speculation, unsubstantiated opinion or clearly erroneous information, and not on

28 facts.


1 Another fudamental flaw in Petitioners' case is that they fail to tie the alleged impacts of

2 the Project to the elements of the exceptions they rely upon. For example, Petitioners rely on the

3 "unusual circumstances" exception, but fail to meet their burden of showing that the impacts of the

4 Project result from unusual circumstances that are not typical for construction of a single family

5 residence or infill project. Petitioners appear to assume that any impacts are enough to take the

6 Project out ofthe categorical exemptions and require fuher environmental review. To the

7 contrary, there is no doubt that the typical single family residence or infill project wil have some

8 impacts from construction and operation. However, the Legislature has determined that the

9 impacts for these categories of projects do not trigger the requirements of CEQA. Indeed, the

10 exemption applies to up to three single-family residences, or a duplex or multi-family residential

11 structure with four dwelling units, on one parceL. To successfully show that an exception applies

12 in this case, Petitioners must show both that there are unusual circumstances that differentiate this

13 project from the typical single family residence or infill project, and that there may be significant

14 environmental impacts resulting from those unusual circumstances. Petitioners have not made

15 these showings.

16 Finally, Petitioners profess that they are not asking the Cour to weigh in on the "banality

17 of the project's utilitarian box design." (Petitioners' Opening Brief ("POB"), p. 1,11.21-22.)

18 Putting aside the loaded nature of that statement, it is clear that what Petitioners are asking is for

19 this Cour to defer to exactly those types of personal, subjective opinions raised by people other

20 than the immediate neighbors directly impacted by the project. Petitioners quote endless

21 comments from opponents about the size and look of the house, and contend these personal

22 opinions constitute substantial evidence of a fair argument that the home wil have a significant

23 effect on the environment. However, the First Appellate District, in a recent case brought against

24 the City of Berkeley, held to the contrar, stating that "(tJo rule otherwise would mean that an EIR

25 would be required for every urban building project. . . if enough people could be marshaled to

26 complain about how it wil look." (Bowman v. City of Berkeley (2004) 122 Cal.AppAth 572, 592.)

27 Petitioners have employed the same strategy here, and they should be met with the same result.

28


1 III.

2

STATEMENT OF FACTS

A. The Project.

3 The Project in this case is a request for permits to demolish the existing two-story, 2,477

4 square foot, single-family dwellng, a detached one-car garage and two one-car carorts to

5 facilitate the construction of a two-story, 6,478 square foot, single-family dwellng with a 3,394

6 square foot, lO-car garage, on a 29,714 square foot parcel at 2707 Rose Street in the Single Family

7 Residential District - Hilside Overlay (the "Project"). (1 AR 3.)

8 The proposed single-family dwelling would be approximately 6,478 square feet on two

9 floors plus an open-air lower leveL. (1 AR 36.) The proposed dwellng covers only 16 percent of

10 the property, leaving 84 percent of the property in open space. (1 AR 127.) The City's Code

1 1 allows 40 percent lot coverage, and thus would allow a much larger structure, or several structures.

12 (1 AR 127.) Although Petitioners assert that the Project would be one ofthe largest in the City,

13 the evidence in the record shows that 68 dwellngs in the City have more than 6,000 square feet of

14 floor area and, of these, nine are larger than 9,000 square feet, and five are larger than 10,000

15 square feet. (1 AR 157.) The floor area to lot area ratio (FAR) ofthese 68 dwellngs is .55,

16 whereas the FAR of the proposed Project, including the garage, is .33. (1 AR 157.) Accordingly,

17 City staff concluded that the "proposed dwelling is by no means the largest in the City nor among

18 the most intensely developed parcels citywide or within 300-feet of the proposed dwelling." (1

19 AR 157.)

20 B. The Existing Site and Structure.

21 The site is over 2/3 acre, with a dilapidated house which has been vacant for close to ten

22 years. Even prior to the vacancy, the house had been deteriorating from several decades of lack of

23 maintenance. (1 AR 29.) According to the neighbors, the house had been neglected for more than

24 10 years. The existing house is vacant, and "became a target for vandalism, burglary and

25 unauthorized people breaking in and using the house for shelter." (1 AR 83.) The property itself

26 has deteriorated, with tree branches fallng, hitting power cables and leading to loss of electricity

27 to the whole neighborhood several times. (1 AR 83.) One of the Council members detailed his

28 personal knowledge of the house and how it "has actually become quite a blight in the


1 neighborhood." (2 AR 580.) That same Council member stated that the "building poses a serious

2 threat to the neighborhood in its curent condition" and that "(a)ll we need is a cigarette butt or a

3 j oint that is not properly extinguished and that entire hilside wil be set ablaze." (2 AR 581.)

4 In addition, the house is at the end of a narrow street, with no parking, no tur-around and

5 emergency vehicle access issues. (1 AR 29, 84, 126.) In response to the site-constraints and

6 concerns of the neighbors, the house was designed to include parking for 10 cars beneath the main

7 floor level of the house. (1 AR 29,84.) The applicant got this idea from the immediate neighbors,

8 who have 8 off-street parking spaces at their house. (1 AR 84, 126.) In addition, the Project wil

9 create a new turn-around point for any vehicles that need to reverse direction. (1 AR 126.)

10 c. The Kapors' Application and Pre-Application Meetings with Neighbors.

lIOn May 19,2009, the Kapors fied their application for the Project, and submitted a

12 revised application on October 13, 2009. (1 AR 3,29.) Even before fiing their application,

13 however, the Kapors initiated contact with neighbors to hear and address their concerns. (1 AR

14 29.) Specifically, the Kapors and their architects worked with adjacent abutting and confronting

15 neighbors for over five months before submitting their application. (4 AR 1031.)

16 Through that process, the Kapors made numerous changes to the Project design to

17 accommodate their neighbors' wishes, including: maintain as many existing trees as possible to

18 provide privacy between properties; prue and treat existing trees that were long neglected by the

19 previous (deceased) owner; keep the proposed house as close as possible to Rose Street to not

20 impede views from the adjoining neighbors to the east and west; set the proposed house as far

21 from the side property lines as possible, for the privacy of the east and west neighbors; install a

22 low retaining wall, to rectify a crubling slope at the neighboring property; render the proposed

23 dwelling in dark colors that wil allow it to blend with the trees and be less visible; provide a

24 "turnaround" at the dead end Rose Street; provide for off street visitor parking, since Rose Street

25 is narrow and has no available street parking; beautify and landscape and maintain the area tider

26 the La Lorna overpass, which curently is blighting the neighborhood; and provide new trees to

27 augment visual privacy, and replace any trees removed as a result of construction. (4 AR 1031; 1

28 AR 29, 126-127, 145-146.)


1 As a result of the Kapors' efforts, all of the immediate neighbors are strongly supportive of

2 the Project, and expressed that support continuously throughout the public hearing process. (1 AR

3 83-84, 122-123; 2 AR 315-316,326,328-330,333,335-337,352,367,384, 393-398, 402-404,

4 406,427,435,482-484,533-537.)

5 As par of their application, the Kapors submitted a Geotechnical Investigation prepared by

6 a geotechnical expert, Alan Kropp (3 AR 653-691), which concluded that the "site is suitable for

7 the construction of the proposed residence from a geotechnical standpoint." (3 AR 660.) The

8 application also included a Structure History Report prepared by an expert in this area, Mark

9 Hulbert, of Oakland-based Preservation Architecture. (3 AR 612-613.) The report concluded that

10 the site and existing dwellng were not historically significant, and also provided that the building

11 is "dangerously dilapidated." (3 AR 612.)

12

13

14

15

The Zoning Adjustment Board Found the Project Exempt From CEQA andApproved the Project.

On Januar 14,2010, City staff mailed and posted a Notice of Public Hearing for the

D.

Project in accordance with the City's Code. (1 AR 3,65; 3 AR 746-753.) On Januar 28, 2010,

the Zoning Adjustment Board ("ZAB") held a public hearing in accordance with the City's Code16

and approved the Project by a 7-0-1-1 vote (seven yes, zero no, one abstention and one absent). (117

18

19

20

21

22

23

24

25

26

27

28

AR 3, 144-146; 2 AR 516.)

The City found that the Project was categorically exempt from CEQA pursuant to CEQA

Guidelines Sections 15303(a) ("New Construction") and 15332 ("In-Fil Development Projects").

(1 AR 5,30,34,40.) The City also found that the Project did not trigger any of the exceptions to

the exemptions in CEQA Guidelines Section 15300.2. In paricular, the City found that the

Project wil not have any significant effects due to unusual circumstances, or any cumulatively

significant impacts (such as traffic), and it wil not adversely impact any designated historical

resources. Accordingly, the City found that the Project was exempt from further review under

CEQA. (1 AR 5,34,40.)

At the ZAB hearing, persons who were not the immediate neighbors to the Project

protested. (2 AR 481.) As a couresy, the applicant offered and ZAB imposed a condition to


1 require pre-building permit submittal consultation with the neighbors to help inform the standard

2 construction management plan that is required for most construction projects. (1 AR 158, 9.)

3 Following the ZAB hearing on January 28,2010, on Januar 31, before the notice of decision was

4 released, the applicant held a meeting with at least 10 neighbors to solicit input. (1 AR 158.) On

5 February 5, 2010, the City issued notice of the ZAB decision. (1 AR 3.)

6 E. The City Council Affirmed the ZAB Decision.

7 On February 19,2010, Susan Nunes Fadley fied an appeal of the ZAB decision to the City

8 Council which was signed by 34 Berkeley residents. (1 AR 3, 193-206.) The Appeal Letter did

9 not raise any CEQA issues. (1 AR 193-206.) On April 19,2010, Petitioners filed an Addendum

10 to the Appeal Letter. (2 AR 437.) City staff prepared a detailed staff report which analyzed all of

lIthe issues raised in the Appeal letter, and concluded that the appeal was without merit. (1 AR

12 144-159.) On April 27, 2010, City staff also issued a Supplemental Staff report which analyzed

13 all the issues raised in the appeal addendum, and concluded that the appeal addendum did not

14 present any new information to suggest revising staff s prior recommendation to approve the ZAB

15 decision and dismiss the appeaL. (2 AR 463-468.)

16 On April 27, 2010, the City Council considered the record of proceedings before the ZAB,

17 and the staff report and correspondence presented to the Council, and affirmed the decision of the

18 ZAB and dismissed the appeaL. (1 AR 3.) At the Council meeting, the immediate neighbors again

19 spoke, "unanimously and emphatically" supporting the Project. (2 AR 533-537.) Again, the

20 opponents of the Project were not immediate neighbors who would be directly impacted by the

21 Project. (See 4 AR 975 (map showing location of supporters and opponents).) The Council

22 listened to both the opponents and the proponents of the Project, and the applicant. (2 AR 524-

23 541.) In addition, every one of the Council members had personally visited the site. (2 AR 543,

24 589.) The Council had an extensive discussion regarding the opponents' contentions, and in the

25 end, voted 6-2 to approve the ZAB decision and deny the appeaL. (2 AR 541- 591; 1 AR 1-3.)

26 One of the Council members also remarked how "very unusual" this situation was, and that, after

27 20 years on ZAB and the Council, "this is the first time that the immediate neighbors have come to

28 us to ask us to please pass this because it is an advantage for them and to have other neighbors


1 who are not in the immediate vicinity raise all of these issues around detriment." (2 AR 562-563.)

2 This lawsuit followed.

3 iv. STANDARD OF REVIEW

4 Under Public Resources Code section 21 168.5, the Cour reviews the City's exemption

5 determination for a prejudicial abuse of discretion. (Tomlinson v. County of Alameda (October 6,

6 2010) _ Cal.AppAth _,2010 WL 3897507, p. 4.) An abuse of discretion is established only if

7 the agency has "not proceeded in a maner required by law or if the determination or decision is

8 not supported by substantial evidence." (Laurel Heights Improvement Assn. v. Regents of

9 University of California (1988) 47 Ca1.3d 376,392-393; Vineyard Area Citzensfor Responsible

10 Growth, Inc. v. City of Rancho Cordova (2007) 40 Ca1.4th 412,427.)

11 Petitioners are challenging the City's determination that the Project is categorically exempt

12 from CEQA, and are further arguing that the exceptions apply, making the categorical exemptions

13 inapplicable. The threshold issue in these types of challenges is whether the substantial evidence

14 or the fair argument standard of review applies. There are different standards of review for

15 categorical exemptions and the exceptions, as well as a split in legal authority as to the standard of

16 review applicable to some of the exceptions. These standards are discussed with each of these

17 topics below.

18 V.

19

20

21

22

THE COURT SHOULD UPHOLD THE CITY'S DETERMINATION THAT THEPROJECT is CATEGORICALLY EXEMPT FROM CEQA

A. Standard of Review for Categorical Exemptions.

The question of whether the project meets the definition of a categorically exempt project

is a question oflaw for the cour. (Fairbank v. City of Mil Valley (1999) 75 Cal.AppAth 1243,

23

24

25

26

27

28

1251.) However, "the substantial evidence test governs (the cour's) review ofthe city's factual

determination that a proj ect falls within a categorical exemption." (Ibid. See also Apartment

Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.AppAth 1 162, 1 173, 1 175.)

Under the substantial evidence standard, the cour does not review the ultimate correctness of an

agency's environmental conclusions, but only whether its findings and decisions are supported by

substantial evidence in the record. (Citizens for Goleta Valley v. Board o/Supervisors (1990) 52


1 Ca1.3d 553, 564.) Guidelines § 15384(a) defines "substantial evidence" as:

2 enough relevant information and reasonable inferences from this information that a

fair argument can be made to support a conclusion, even though other conclusions3 might also be reached. Whether a fair argument can be made is to be determined

by examining the entire record. Mere uncorroborated opinion or ruor does not4 constitute substantial evidence.

5 Accordingly, as long as there is substantial evidence in the record supporting the City's

6 factual determination that the project falls within the categorical exemptions, then the Court

7 should uphold the City's decision, regardless of any conflcting evidence in the record. Petitioners

8 concede this standard. (POB, p. 10, LL. 6-14.)

9 Petitioners claim that they dispute the application of the exemptions, but then abandon this

10 argument "because the substantial evidence standard applies to the City's initial choice of

11 applicable exemptions." (POB, p. 10,11. 12-14.) Petitioners claim they wil focus on the

12 exceptions. However, as discussed below, Petitioners are trying to avoid the substantial evidence

13 standard of review applicable to the categorical exemption determination by simply repeating the

14 inquiries relevant to the exemption determination in the exception context, under the "fair

15 argument" test. This tactic is fudamentally flawed and should be rejected.

16

17

18

19

20

21

22

23

24

25

26

27

28

There Is Substantial Evidence In the Record Supporting the City'sDetermination that the Project is Categorically Exempt.

The City determined that the Project was categorically exempt from CEQA pursuant to

B.

CEQA Guidelines Sections 15303(a) ("New Construction") and 15332 ("In-Fil Development

Projects"). The categorical exemption in CEQA Guidelines Section 15303(a) applies to

construction and location of limited numbers of new, small facilities or structues, including one

single family residence. This categorical exemption also applies to, in urbanized areas, up to three

single-family residences and aparments, duplexes, and similar structures for not more than six

dwelling units on anyone legal parceL. (CEQA Guidelines § 15303(a) and (b).) Thus, one single-

family residence is the least intensive structure encompassed in the exemption. The exemption

also applies to, in urbanized areas, up to foùr commercial buildings with a square foot limitation.

(CEQA Guidelines § 15303(c).) Notably, however, there is no square foot limitation on single

family residences or multi-family residences. (Id. at (a), (b).)


1 The categorical exemption in CEQA Guidelines Section 15332 applies to projects

2 characterized as in-fill development meeting the following conditions:

3 (a) The project is consistent with the applicable general plan designation and all

applicable general plan policies as well as with applicable zoning designation and4 regulations.

5 (b) The proposed development occurs within city limits on a project site of nomore than five acres substantially surrounded by urban uses.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

( c) The project site has no value as habitat for endangered, rare or threatenedspecies.

(d) Approval of the project would not result in any significant effects relating totraffic, noise, air quality, or water quality.

( e) The site can be adequately served by all required utilities and public services.

There is substantial evidence in the record supporting the City's determination that the

Project is categorically exempt from CEQA pursuant to both these exemptions. Specifically, the

staff reports and stafftestimony in the record constitute substantial evidence supporting the City's

determination on these points. (1 AR 30-39, 147-152; 2 AR 463-468.) "(EJxpert planing

personnel may be entitled to conclude without additional evidence or consultation that a project

wil not have a particular environmental impact." (Gentry v. City of Murrieta (1995) 36

Cal.AppAth 1359, 1380 (county planing deparment could reasonably find, based upon its

experience and review of the project, that the project would not have certain impacts); Leonoffv.

Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1354.) Accordingly, the Cour

should uphold the City's determination that the exemptions apply.

Moreover, Petitioners' failure to address the substantial evidence in the record waives any

challenge to the City's determination that the Project falls within these categorical exemptions. A22

petitioner in a CEQA case "must layout the evidence favorable to the other side and show why it23

24

25

26

is lacking. Failure to do so is fataL. A reviewing cour wil not independently review the record to

make up for (petitioner's J failure to carry his burden." (Defend the Bay v. City 0/ Irvine (2004) 1 19

Cal.AppAth 1261, 1266; Markley v. City Council (1982) 13 1 Cal.App.3d 656, 673.)

VI. PETITIONERS HAVE FAILED TO MEET THEIR BURDEN OF SHOWING27 THAT AN EXCEPTION TO THE CATEGORICAL EXEMPTIONS APPLIES

28 "(WJhere the agency establishes that the project is within an exempt class, the burden


1 shifts to the pary challenging the exemption to show that the project is not exempt because it falls

2 within one of the exceptions listed in Guidelines section 15300.2." (Fairbank, supra, 75

3 Ca1.AppAth at 1259, citation omitted. See also Santa Monica Chamber of Commerce v. City of

4 Santa Monica (2002) 101 Cal.AppAth 786, 796.) CEQA Guidelines section 15300.2 recognizes

5 several exceptions to categorical exemptions, the following three of which are raised by

6 Petitioners here:

7 (b) Cumulative Impact. All exemptions for these classes are inapplicable when thecumulative impact of successive projects ofthe same type in the same place, over

8 time is significant.

9 ( c) Significant Effect. A categorical exemption shall not be used for an activity

where there is a reasonable possibility that the activity wil have a significant effectlOon the environment due to unusual circumstances.

11 (f) Historical Resources. A categorical exemption shall not be used for a projectwhich may cause a substantial adverse change in the significance of an historical

12 resource.13 Each of these exemptions is discussed in turn below.

14 A. Petitioners Fail to Address the Relevant Exceptions.

15 As an initial matter, there is a fundamental flaw in Petitioners' argument that the

16 exceptions to the categorical exemptions apply. This flaw is demonstrated on p. 10, lines 17-28 of

17 Petitioners' Opening Brief. First, Petitioners claim they are relying on the unusual circumstances,

18 cumulative impacts, or historic resources exceptions. However, Petitioners then assert:

19 Petitioners wil show that the City's approval of the Kapor project based on acategorical exemption relied on inaccurate and inadequate information about the

20 project site, the project description, and the environs. With insuffcient informationabout the environmental setting, the accurate extent of the project impacts could not

21 be accurately measured. Therefore, catalogued below are facts and fact-basedassumptions and expert opinions relating to potentially significant environmental

22 impacts, the inadequacy of information regarding the Kapor proj ect' senvironmental setting, and the inaccurate project description. (POB, p. 10, 11. 22-

23 28, italics originaL.)

24 As shown by Petitioners' own summary of argument, Petitioners make no attempt to show

25 that the unusual circumstances or the cumulative impacts exceptions apply. Rather, Petitioners

26 simply go through a list of potential environmental impacts and argue that there is substantial

27 evidence of a fair argument that the Project wil have aesthetic impacts, traffc impacts, general

28 planzoning inconsistencies and geotechnical impacts. That is not the question. Rather, "once an


1 agency 'determines, based on substantial evidence in the record, that the project falls within a

2 categorical exemption ..., the burden shifts to the challenging pary... " 'to produce substantial

3 evidence ...' " ... that one of the exceptions to categorical exemption applies.''' (Hines v. Coastal

4 Commission (2010) 186 Cal.AppAth 830,855, citations omitted.) Accordingly, it is Petitioners'

5 burden to show that the project would have a significant effect on the environment due to unusual

6 circumstances or that the cumulative impact of successive projects of the same type in the same

7 place, over time is significant. (CEQA Guidelines § 1 5300.2(b), ( c); Hines, supra, 186

8 Cal.AppAth at 856; see also Association for Protection of Environmental Values in Ukiah v. City

9 of Ukiah (1991) 2 Cal.App.4th 720, 733 (the exceptions in Guidelines § 15300.2 have specific

10 meanings J.) Petitioners fail to make these required showings.

11 Moreover, Petitioners appear to be simply challenging the application of the categorical

12 exemptions themselves, as opposed to the exceptions to the exemption. For example, whether

13 there are traffc impacts and general plan inconsistencies are relevant to the Infill Categorical

14 Exemption in CEQA Guidelines Section 15332, discussed above. However, the substantial

15 evidence standard applies to that determination, not the fair argument standard. Petitioners cannot

16 cherry-pick a more favorable standard of review simply by recharacterizing their arguments. The

17 CEQA Guidelines set forth specific determinations that must be made for the exemptions in the

18 first instance, and the exceptions to those exemptions. Petitioners have mixed up the relevant

19 Guidelines, and the applicable standards of review, and their arguments fail for that reason alone.

20

21

22

23

24

25

Standard of Review for Unusual Circumstances and Cumulative ImpactsExceptions.

Petitioners claim the "prevailing view" is that the fair argument standard applies to the

B.

question of whether any of the exceptions defeat the exemptions. (POB, p. 8,11.4-5.) However,

Petitioners have failed to inform the cour that, as recently as June of this year, the Cour of

Appeal, First District, stated that:

There is a split of authority on the appropriate standard of judicial review of a26 question of fact when the issue is whether a project that would otherwise be found

categorically exempt is subject to one of three general exceptions (significant27 impacts due to unusual circumstances, significant cumulative impacts, and impacts

on a uniquely sensitive environment) to the categorical exemptions set forth in28 Regulation section 15300.2, subdivisions (a) through (c). (1 Kostka and Zische,


1 supra, § 5.127, p. 297; San Lorenzo Valley CARE, supra, 139 Cal.App.4th at p.1390,44 Cal.Rptr.3d 128; Fairbankv. City of Mil Valley (1999) 75 Cal.App.4th

2 1243, 1259, 89 Ca1.Rptr.2d 233.) "Some cours have relied on cases involvingreview of a negative declaration, holding that a finding of categorical exemption

3 canot be sustained if there is a 'fair argument' based on substantial evidence thatthe project will have significant environmental impacts, even where the agency is

4 presented with substantial evidence to the contrary. (Citation.) Other courts apply

an ordinary substantial evidence test ..., deferring to the express or implied findings5 ofthe local agency that has found a categorical exemption applicable. (Citation.)"

(Fairbank v. City of Mil Valley, at pp. 1259-1260,89 Cal.Rptr.2d 233; accord, San6 Lorenzo Valley CARE, at p. 1390,44 Cal.Rptr.3d 128; see 1 Kostka and Zische, §

5.127, pp. 297-299.)7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(Hines, supra, 186 Cal.App.4th at 855-856.)

Many of these cours have not resolved this dispute because, in those cases, the petitioner

failed to meet the burden of proving the exception applied even under the more stringent "fair

argument" standard of review. (Id. at 856; Fairbank, supra, 75 Cal.App.4th at 1260; Santa

Monica, supra, 101 Cal.App.4th at 796-797. See also Association for Protection of

Environmental Values in Ukiah, supra, 2 Cal.App.4th at 728, fn. 7 (cour applied fair argument

standard because the paries agreed upon that standard, but observed that "the traditional

substantial evidence standard of review may be more appropriate."); Committee to Save

Hollywoodland Specifc Plan v. City of Los Angeles (2008) 161 Cal.AppAth 1168, 1187 (cour

recognized split in authority and found evidence that exception applied was sufficient under either

standard).)

However, with respect to the question of whether an impact would result from unusual

circumstances, one court has held that the agency's factual determinations regarding the relevant

circumstances would be reviewed under the substantial evidence standard, while the determination

whether those circumstances were unusual would normally involve a question of law. (Banker's

Hil, Hilcrest, Park West Community Preservation Group v. City of San Diego (2006) 139

Cal.App.4th 249, 262, n. 11.)

In this case, the Court should apply the more deferential substantial evidence standard, and

uphold the City's decision if it is supported by any substantial evidence in the record, regardless of

any conflcting authority. However, like the cases cited above, even under the fair argument

standard, Petitioners have failed to show that that an exception to the categorical exemptions


1 applies here.

2

3

4

5

6

7

8

9

10

Petitioners Have Failed to Show that the Unusual Circumstances ExceptionApplies to Defeat the Categorical Exemption.

Under Section 15300.2(c), there are two separate inquiries to the Unusual Circumstances

C.

exception: (1) whether the project presents unusual circumstances and (2) whether there is a

reasonable possibilty of a significant environmental impact resulting from those unusual

circumstances. (Banker's Hil, supra, 139 Cal.App.4th at 261.) "A negative answer to either

question means the exception does not apply." (Santa Monica, supra, 101 Cal.App.4th at 800.)

Petitioners have the burden of proof on both of these inquiries.

1. Petitioners Fail to Show that the Project Presents UnusualCircumstances

lIThe fudamental flaw in Petitioners' argument is that they focus on the alleged significant

12 environmental effects of the Project on its own, without showing that those effects are the result of

13 unusual circumstances that make this project different from the typical single family residence or

14 infill project. As the court explained in Santa Monica, supra, 101 Cal.App.4th at 801, "whether a

15 circumstance is 'unusual' is judged relative to the typical circumstances related to an otherwise

16 typically exempt project." (Emphasis originaL.) There is no doubt that the typical single family

17 residence or infill project wil have some impacts from construction and operation. However, the

18 Legislature has determined that the impacts for these categories of proj ects are not significant.

19 For example, in Association for Protection of Environmental Values in Ukiah, supra, 2

20 Ca1.AppAth 720, the cour held that concerns about height, view obstruction, privacy and water

21 runoff were normal and common considerations in construction of a single-family hilside

22 residence, and therefore these concerns did not amount to "unusual circumstances." Similarly,

23 here, Petitioners must show, not just that there wil be impacts from the Project, but that there are

24 unusual circumstances about the Project, and that there is a reasonable possibilty of a significant

25 environmental impact resulting from those unusual circumstances.

26 As another example, in Santa Monica, the cour held there were no unusual circumstances

27 within the meaning ofthe exception where the project created a large parking district requiring

28 residential parking permits. Rather, the cour held, there were only the "normal and common


1 considerations" any city might face when operating its public parking facilties and deciding best

2 how to allocate its limited parking facilties. (Id. at 801-803.) In Fairbank, supra, 75 Cal.App.4th

3 at 1260-1261, the cour held that a 5,855-square foot retail/office building was exempt under the

4 then-categorical exemption for new construction of small commercial structures in urbanized

5 areas. The court rejected an "unusual circumstances" argument based on inadequate parking

6 facilities and increased traffic flows because these impacts were the same as any other "run-of-the-

7 mil commercial building or use." (Id. at 1261.)

8 Here, Petitioners have the burden of showing that there are "unusual circumstances" within

9 the meaning ofCEQA Guidelines section 15300.2(c). Petitioners have not met their burden on

10 this point. As in Ukiah, supra, 2 Cal.App.4th 720, the concerns Petitioners raise about height,

1 1 view obstruction, traffic and construction impacts are "normal and common considerations" in

12 construction of a single-family hilside residence.

13 Petitioners do argue that the Project is "too large" and thus out of scale with neighboring

14 development. However, the facts do not support this assertion. The record shows that there are at

15 least 20 houses in the City, with five of them immediately surounding the site, that range between

16 4,000 and 6,000 square feet. (4 AR 1041.) City staff also showed that 68 dwellngs in the City

17 have more than 6,000 square feet of floor area and, of these, nine are larger than 9,000 square feet,

18 and five are larger than 10,000 square feet. (1 AR 157.) The Project also has an unusually low lot

19 coverage of 16 percent, whereas 40 percent is allowed by the City. (Ibid.) City staff also provided

20 evidence that, regarding size, and using floor area to lot area (FAR) as a guide, 16 parcels within

21 300 feet of the project site are developed with an FAR that exceeds the Project. (2 AR 468.)

22 Based on these undisputed facts, City staff concluded that the "proposed dwellng is by no means

23 the largest in the City nor among the most intensely developed parcels citywide or within 300-feet

24 ofthe proposed dwelling." (1 AR 157.)

25 Citing to a statement by the Kapors that they wil use their home for charity ahd

26 philanthropic puroses, Petitioners claim this "forecast( s J significant intended uses beyond those

27 at a typical residence." (POB, p. 4, 11. 17-18.) This statement is nothing short of outrageous.

28 Nothing in CEQA shows that the Legislature intended to invade the privacy of persons seeking to


3 home. In any event, "(u)nsubstantiated opinions, concerns, and suspicions about a project, though

4 sincere and deeply felt, do not rise to the level of substantial evidence." (LeonojJ supra, 222

5 Cal.App.3d at 1352; see also Lucas Valley Homeowners Assn. v. County of Marin (1991) 233

6 Cal.App.3d 130, 164 ("We have emphasized that the focus must be on the use, as approved, and

7 not the feared or anticipated use.").)

8 Thus, Petitioners have not shown that the Project presents any unusual circumstances.

9

10

2. Petitioners Have Not Shown There Is a Reasonable Possibilty of aSignifcant Environmental Impact Resulting From UnusualCircumstances

1 1 Even if Petitioners had shown that the Project presents unusual circumstances, they have

12 stil failed to identify facts or substantial evidence in the record showing that there is a reasonable

13 possibility of a significant environmental impact resulting from those unusual circumstances.

14 (a) Aesthetic Impacts

15 Petitioners argue that there is substantial evidence in the record showing a fair argument

16 that the Project wil create aesthetic impacts on views and would be incompatible with

17 neighborhood character.

18 However, "obstruction of a few private views in a project's immediate vicinity is not

19 generally regarded as a significant environmental impact." (Bowman, supra, 122 Cal.App.4th at

20 586-587, citing Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist., (2004) 116

21 Cal.App.4th 396,402 (that a project affects "only a few private views" suggests that its impact is

22 insignificant); Mira Mar Mobile Community v. City of Oceanside, (2004) 119 Cal.App.4th 477,

23 492-493 (distinguishing public and private views; "(u)nder CEQA, the question is whether a

24 project wil affect the environment of persons in general, not whether a project wil affect

25 paricular persons"); Associationfor Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th

26 720, 734 (views of "only a few of the neighbors," not "persons generally," were affected).)

27 Even if such view impacts were relevant, the evidence in the record shows that the site is

28 not readily visible fròm the public right of way. (2 AR 468.) Photo simulations show that the


1 proposed dwelling would only be minimally visible from several points in the area. (2 AR 468; 1

2 AR 152-155; see also 4 AR 1034-1040 (photo simulations showing proposed house is nearly

3 invisible from any vantage point).) Moreover, the evidence shows that the proposed site "is one of

4 the most secluded and invisible lots in Berkeley. Not only is the site itself heavily wooded-with

5 over 50 matue trees-the neighborhood is also replete with large trees, further obstructing the

6 view ofthe site from any distance or vantage point." (4 AR 1038.) Notably, none of the personal

7 opinions of Project opponents cited by Petitioners at pages 12-15 provide any factual evidence that

8 the Project wil have any view impacts. Project opponents "must produce some evidence, other

9 than their unsubstantiated opinions, that a project wil produce a paricular adverse impact."

10 (Ukiah, supra, 2 Cal.App.4th 735-736.)1

11 Rather, all ofthe personal opinions cited by Petitioners are that the Project is too large, too

12 institutional and out of scale with the neighborhood. (POB, pp. 12-15.) Notably, these same

13 concerns were raised by the project opponents in Bowman, supra, 122 Cal.App.4th at 587. Indeed,

14 a comparison of the complaints at POB, pp. 12-15, with the complaints in Bowman, suggests that

15 they could have been written by the same author:

16 The Neighbors' chief objection to the scale ofthe Project is the purely aesthetic onethat it is out of character with its surroundings. Petitions were submitted arguing

17 that the Project would "spoil the attractive visual character of our low-riseneighborhood." One area resident called the building "a Costco-sized box on a

18 Monterey Market -sized plot," and others complained: that there was "nothing ...this massive for as far as you can see in any direction"; that the building would be

19 "completely out of scale with the surounding one- and two-story homes andbusinesses"; and that the building would be "a monstrosity, not fitting into the

20 fabric of the neighborhood." A city council member observed that all of thesurrounding buildings were "much, much smaller," and another called the Project

21 "plain too big." Some DRC members thought that the Project would be "out ofscale" and "too massive," and some local architects shared that opinion. One

22 architect called the Project "grossly over-scaled for the neighborhood"; another

23

24 1 Most likely because they lacked substantial evidence of any view impacts, Project opponentscomplained that the City should have installed story poles to assess view impacts. However,

25 nothing in the City's Code requires story poles, and the City's Use Permit Checklist allows theproject planer to determine that story poles would not be useful in assessing view impacts. (1

26 AR 148, 211.) Here, City staff concluded that story poles were not required and would not be

27 useful because the Project would not impact any protected views, and Petitioners did not presentany evidence to the contrary. (1 AR 148-149.)

28


1 thought that the building would "stand out like a sore thumb for 100 years";

another was "just speechless" at "the size ofthis thing," and found it "mind-2 boggling" that the City would "even consider" it. (Bowman, supra, 122

Cal.App.4th at 587.)3

4

5

6

The Cour in Bowman held that these opinions did not constitute substantial evidence

supporting a fair argument that the project in that case would have a significant effect on the

environment. (Id. at 576.) The Cour stated:

Where scenic views or environmentally sensitive areas are concerned, aesthetic7 considerations are not discounted as environmental impacts merely because they

involve subjective judgments. . . . But we do not believe that our Legislature in8 enacting CEQA, any more than Congress in enacting NEP A, intended to require an

EIR where the sole environmental impact is the aesthetic merit of a building in a9 highly developed area. (Citations.) To rule otherwise would mean that an EIR

would be required for every urban building project that is not exempt under CEQA10 if enough people could be marshaled to complain about how it wil look. While

there may be situations where it is unclear whether an aesthetic impact like the one11 alleged here arises in a "paricularly sensitive" context (Guidelines, § 15300.2)

where it could be considered environmentally significant, this case does not test12 that boundar. (Id. at 592.)

13 The same result is required here. Petitioners have not presented any evidence that the

14 Project arises in a "particularly sensitive" environment, or that scenic views are concerned.

15 Moreover, in reaching its conclusion, the Cour relied on the fact that the Project had already been

16 subject to thorough design review, and that "aesthetic issues like the one raised here are ordinarily

17 the province of local design review, not CEQA." (Id. at 593.) Similarly, here, the Project

18 underwent extensive pre-application design modifications, and analysis under the City's General

19 Plan policies designed to ensure compatibility with the neighborhood. (1 AR 38.)

20 Petitioners try to dismiss the Bowman case in a footnote, claiming it was limited to its facts

21 in two subsequent cases. (POB, p. 11, fn 2.) However, the single family dwellng at issue in this

22 case does not even resemble the facts in any of those cases, as they all involved more substantial

23 projects approved with negative declarations rather than an exemption. (See Bowman, supra, 122

24 Cal.AppAth 572 (project was four-story, mixed use facilty with retail space and 40 dwellng units

25 approved with mitigated negative declaration); Pocket Protectors v. City of Sacramento (2004)

26 124 Cal.App.4th 903, 939 (project was 143 single-family houses on 20 acres with zero to 5-foot

27 setbacks, approved with a mitigated negative declaration; distinguishes Bowman on the grounds

28 that it dealt with a single building); Citizens for Responsible and Open Government v. City of


1 Grand Terrace (2008) 160 Cal.AppAth 1323 (project was a 120-unit senior housing facility, a

2 6,500 square foot community center and a four-acre park, approved with a mitigated negative

3 declaration).) Obviously, neither ofthe projects in Pocket Protectors nor Citizens for Responsible

4 and Open Government could have been approved under a categorical exemption. If anything, the

5 single-family home here is closest factually to the facts in Bowman.

6 Thus, Petitioners have failed to show that there is a reasonable possibility of a significant

7 aesthetic impact resulting from unusual circumstances.

8 (b) Traffic Impacts

9 Petitioners have failed to present any substantial evidence showing there is a reasonable

10 possibilty of traffc impacts resulting from unusual circumstances. Most of the personal opinions

11 cited by Petitioners simply describe the existing constraints at the site, i.e., that Rose Street is a

12 narrow road with limited access and scarce parking. (POB, p. 18-20.) From these existing

13 constraints, Petitioners speculate that the project wil cause traffic impacts. However, "although

14 local residents may testify as to their observations regarding existing traffic conditions, in the

15 absence of specific factual foundation in the record, dire predictions by nonexperts regarding the

16 consequences of a project do not constitute substantial evidence." (Banker's Hil, supra, 139

17 Cal.AppAth 249,274, citation omitted.) Moreover, claims based entirely on speculation are not

18 substantial evidence. "Opinions which state 'nothing more than "it is reasonable to assume" that

19 something "potentially ... may occur" , do not constitute substantial evidence 'necessary to invoke

20 an exception to a categorical exemption.'" (Hines, supra, 186 Cal.AppAth 830, 857-858, citations

21 omitted.)

22 Moreover, Petitioners wholly ignore that the Project was designed, not only with the street

23 constraints in mind, but so that the Project wil solve the existing problems. (2 AR 407.) Because

24 Rose Street dead-ends at the Project site, there is curently no tur-around for vehicles. The

25 Project wil create a new tur-around for all vehicles to use. (1 AR 126; 2 AR 407.) In response

26 to the site-constraints and concerns of the neighbors, the house was designed to include parking

27 for 10 cars beneath the main floor level ofthe house. (1 AR 29,84; 2 AR 407.) Indeed, the

28 applicant got this idea from the immediate neighbors, who have 8 off-street parking spaces at their


1 house. (1 AR 84, 126.)

2 With respect to excavation of fill from the site, and resulting parking and traffic impacts,

3 the evidence shows that the total amount of soil to be excavated wil be 940 cubic yards. (2 AR

4 465; 1 AR 149.) The evidence in the record shows that this is not an unusual amount for a typical

5 single family residence, and in fact, is significantly less in comparison with smaller homes with

6 basements. (4 AR 1066.) In fact, the off-site construction impacts are addressed by the City's

7 standard condition of approval that is applied to all Use Permit construction projects that may

8 affect the public right of way. (2 AR 465-466; 1 AR 149.) Imposition of only this standard

9 condition shows that there are no unusual circumstances with respect to the project. Rather, these

10 are typical construction impacts for a single family residence. (See Ukiah, supra, 2 Cal.AppAth

11 735-736 (issues of soil stability and water ruoff are "common and typical concerns" from

12 construction of a single-family home, were addressed by standard provisions in the Uniform

13 Building Code, and did not constitute unusual circumstances).) Thus, Petitioners' argument is

14 without merit.

15 (c) General Plan/Zoning Inconsistencies

16 Petitioners confusingly argue that "(i)nconsistencies with adopted City plans and policies

1 7 adopted for environmental protection is also a matter for 'fair argument' review." (POB, p. 21, 11.

18 18-19.) However, the relevant inquiries are whether the City properly determined that a

19 categorical exemption applied to the project, and whether any ofthe exceptions apply. None of

20 the exceptions in CEQA Guidelines section 15300.2 identify general plan consistency as an

21 element ofthe exceptions. Petitioners cite Pocket Protectors, supra, 124 Cal.App.4th 903, as

22 applying the fair argument standard to a claim that the proposed project was inconsistent with a

23 general plan. However, that case involved review of a mitigated negative declaration, not a

24 categorical exemption, and thus is inapplicable. (Id. at 930-931.) As discussed above, the project

25 in Pocket Protectors involved 143 single-family homes and therefore was much too large to

26 qualify for the categorical exemption for one single-family home at issue in this case. Moreover,

27 the city's plan at issue in that case did not authorize the type of housing that was being proposed in

28 the project, and even city staff admitted the project was inconsistent with the plan. (Id. at 929-


1 931.) There are no such facts here.

2 General plan consistency is a necessary element for the City to determine that the Project is

3 categorically exempt in the first instance, pursuant to CEQA Guidelines section 15332 for infill

4 development. Specifically, the Project must be "consistent with the applicable general plan

5 designation and all applicable general plan policies as well as with applicable zoning designation

6 and regulations." (Id. at subsection (a).) However, as discussed above, the Court reviews the

7 City's determination that the categorical exemption applies under the substantial evidence

8 standard, and Petitioners concede this point. Accordingly, Petitioners canot avoid this standard

9 of review simply by trying to place the general plan consistency analysis under one of the

10 exceptions to the exemption.

11 There is clearly substantial evidence in the record supporting the City's determinatiort that

12 the Project is consistent with the general plan designation and policies. Based on a detailed

13 analysis, the City concluded that "(t)he project is consistent with the applicable General Plan

1 4 designation and applicable General Plan policies. . . as well as with applicable zoning designation

15 and regulations." (1 AR 34-39, 157-158.) Moreover, Petitioners have conceded this point by

16 failng to address the evidence in the record in support of the City's position on this point.

17 With virtually no discussion, Petitioners cite to their claim in the record that the Project is

18 inconsistent with the following General Plan policies: Policy LU-3 Infill Development, Policy

19 UD- 1 6 Context, Policy UD- 1 7 Context, Policy UD-24 Area Character, Policy UD-3 1 Views.

20 (POB, p. 22.) Petitioners also claim that the Project exceeds the City's average height and

21 maximum height standards. (POB, p. 22, citing 1 AR 200-201.) However, City staff, on the basis

22 of factual evidence in the record, went through all of these general plan policies and explained

23 why the project was consistent with them as to views, shadows, neighborhood compatibilty, green

24 building design and reflection ofthe character ofthe buildings in the vicinity. (1 AR 34-39, 157-

25 158.) This evidence is all that is required for the Cour to uphold the City's determination under

26 the substantial evidence standard.

27 Moreover, even reviewing Petitioners' claimed inconsistencies in the record, it is clear that

28 Petitioners simply have a subjective disagreement over whether the Project and its size is


1 compatible with the neighborhood. (1 AR 204-205.) As discussed above, such aesthetic concerns

2 do not constitute substantial evidence.

3 Finally, staff specifically responded and explained that the project would be within the R-

4 l(H) limitations for height (35-foot maximum and the 694-foot roof parapet elevation). (1 AR

5 151-152; 2 AR 550-552; see also 2 AR 318,407.) Moreover, the height of the building blocks no

6 protected views, poses no shadow or other detriment and is not objected to by any of the

7 immediate neighbors. (2 AR 318.)

8 Thus, Petitioners have failed to show that the City's determination of general plan

9 consistency for purposes of the Infill Development Categorical Exemption was not supported by

10 substantial evidence.

11 (d) Geotechnical Impacts

12 On geological impacts, Petitoners try to make this a case of "dueling experts," in order to

1 3 satisfy the fair argument test. However, an opinion by an expert is only as good as the facts

14 supporting the opinion. In the CEQA context, substantial evidence is "fact, a reasonable

15 assumption predicated upon fact, or expert opinion supported by fact." (Pub. Res. Code §

16 21080(e)(1); 21082.2(c).) Substantial evidence does not include "argument, speculation,

17 unsubstantiated opinion or narative, (or) evidence that is clearly inaccurate or erroneous. . ."

18 (Pub. Res. Code § 21080(e)(2); 21082.2(c).)

19 Here, Petitioners provided an opinion by an expert regarding alleged geological impacts of

20 the Project, resulting from allegedly massive excavation and topographical changes to the

21 property. Specifically, Lawrence Karp submitted an opinion that the Project would have a

22 significant environmental impact because of fill, landslide, truck traffc and slope issues. (2 AR

23 448,449.) However, Mr. Kar's first opinion was prepared without reviewing the geotechnical

24 report prepared for the project. (2 AR 448, see POB, p. 24, 11.8-12.)

25 In response, the applicant submitted two expert opinions stating that Mr. Karp completely

26 misread the drawings upon which he based his opinion. The expert qualification of Alan Kropp

27 and Jim Tobey are detailed in the record. (4 AR 961,963-966, 1064.) There is a detailed

28 surarofthe evidence in the record explaining how Mr. Karp misread the plans:


1 Contrar to Mr. Kar's Opinion, there wil be no "Side Hil" Fil

2 What Mr. Karp calls a large, side-hil fill is in fact "the curent ground surfacewhere the east wing of the new building wil be located." (Kropp letter, April 2 1,

3 2010, (4 AR 1061)) There is "no evidence ...in the plans" of what Kar calls "fillsare placed directly on very steep existing slopes". (Letter Jim Toby, (4 AR 1065))

4 An accurate reading (ofl the submitted plans shows that the 'the only fill placed bythe downil portion of the home wil be backfill for backyard retaining

5 walls***The current ground surface, along with the vegetation, wil be maintainedon the downil portion of the lot." (4 AR 1061)

6Most ofMr. Kar's letter relates to unsubstantiated concerns related to the non-

7 existent fact of 'a large side-hil fill':

8 . Removal of vegetation on the lower slopes,

9 . Massive grading on a steep slope, including deep keyways and benches into the hil,

10 . Construction of a new, very steep fill slope,'

11 . Extensive trucking to stockpile excavated materials to re-use in the fill slope,

12 . Future seismic lurching on the steep side-hil fill.

13 "(Since) there wil be no steep, side-hil fill constructed, none of these assumptions,concerns or 'facts' relied on for those opinions apply to the proposed project." (4

14 AR 1061-1062)

15 There is no factual basis to Mr. Kar's opinions that this is a 'landslide area'; thesite was investigated and showed no indication of a landslide hazard.

16The remaining portion of Mr. Kar's letters regarding landslide hazards and

17 statements that the site was not investigated for landslide hazard, again are basedon "facts that are not the facts in this case." ((4 AR 1062; 1 AR 151)

18Mr. Karp's opinion 'that major retaining walls are not shown, which would result

19 in larger earhworks than is currently proposed" is also an opinion not supported bythe facts. ((4 AR 1064)) Jim Toby who holds an MS in Civil Engineering with an

20 emphasis in Urban Planing and Construction Management, is licensed both as aProfessional Engineer and Land Sureyor, and who has personally designed

21 grading and drainage for hundreds of hilside custom homes, stated from his reviewof the plans that the detail retaining walls and grading plan shown are customar

22 for zoning submission, and if Mr. Karp had reviewed the full set of plans wouldhave seen that the plans were clear and complete. ((4 AR 1064- 1 066))

23

24

25

26

27

28

(4 AR 934-935, emphasis original, citing 4 AR 1061-1062, 1064-1067. See also 2 AR 538.)

Thus, the evidence submitted by Petitioners does not rise to the level of substantial

evidence because it is not based on facts, is clearly erroneous, and misleading. Although Mr. Kar

protested that he did not misread the plans, the City disagreed and properly disregarded his

opinion. (LeonojJ supra, 222 Cal.App.3d 1337 (erroneous information that is corrected by other


1 evidence in record may be disregarded).) Of course, to the extent Petitioners attempt to rely on

2 their expert's conclusory opinion on the ultimate issue that "the project as proposed is likely to

3 have very significant environmental impacts" (POB, p. 24, 11. 14-15), such opinion does not

4 address factual issues and does not constitute substantial evidence of a significant impact. (Citizen

5 Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748.)

6 Although the expert evidence showed there was no landslide risk at the site, and

7 Petitioners' expert provided no substantial evidence to the contrary, Petitioners continued to insist

8 that the Project was a 3-story dwellng that was subject to peer review under the State Alquist

9 Priolo Act. (2 AR 466-467.) However, this argument is based on a misinterpretation of the

10 Project. The Project wil only have 2 enclosed floor levels; specifically, the garage is enclosed and

1 1 . on the same level as the lower living leveL. The lowest open air level is not a "story" under the

12 Act because it is not enclosed and does not have an internal connection with any enclosed floor.

13 (2 AR 466-467; 1 AR 151.) Notably, the State of California Geological Survey Offce confirmed

14 staffs interpretation. (Ibid.) Petitioners' attempt to expand the Project is therefore without merit.

15 Thus, Petitioners have not provided substantial evidence showing a reasonable possibility

16 of significant geotechnical impacts resulting from unusual circumstances.

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Petitioners Have Failed to Show that the Cumulative Impacts ExceptionApplies to Defeat the Categorical Exemption.

Although Petitioners reference the cumulative impact exception in passing (POB, p. 8, 1.

D.

3), they do not meet their burden of showing how this exception applies in this case. Petitioners'

only brief reference to an alleged cumulative impact is to an unsupported assertion that

"reconstruction of the Berryman reservoir is planed to occur concurrently, 1000 feet from the

site, and truck access wil use the same streets needed for the Kapor project." (POB, p. 19,1. 28-

p. 20, 1. 2.) There are no facts in the record supporting this assertion. The City properly

disregarded this unsupported speculation. (See Hines, supra, 186 Cal.AppAth at 857 (". . .

appellants' speculation that many others may also seek to build within the buffer zone and that the

county would permit them to do so does not provide substantial evidence of significant cumulative

impacts."). )


1 Moreover, City staff explained how the City's standard conditions require a Construction

2 Management Plan for all projects. (2 AR 465-466.) One of the purposes of the Construction

3 Management Plan is to take into account other nearby projects, to limit cumulative impacts.

4 (Ibid.) This is a standard condition which is imposed on all residential development in the hils

5 and is "not intended to address any specific environmental impacts resulting from construction of

6 the project." (2 AR 466.) Thus, Petitioners have not provided any evidence of any cumulative

7 impacts of successive projects of the same type in the same place.

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Petitioners Have Failed to Show that the Historic Resource Exception Appliesto Defeat the Categorical Exemption.

E.

1. Standard of Review for Historical Resource Exception

One of the exceptions from a categorical exemption is that the exemption shall not be used

for a project which may cause a substantial adverse change in the significance of an historical

resource. (CEQA Guidelines § 15300.2(f).) In Valley Advocates v. City of Fresno (2008) 16013

Cal.AppAth 1039, 1072-1074, the cour held that the "fair argument'" standard does not apply in14

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determining whether a resource is historic for purposes of applying the exception. Rather, the

substantial evidence standard applies. (Ibid.) Accordingly, if there is substantial evidence in the

record supporting the City's determination that the existing house is not an historic resource under

the statutory criteria, the Court should uphold the City's determination regardless of any

conflcting evidence in the record.

Notably, the applicant's attorney cited the Valley Advocates case in the administrative

proceedings below (4 AR 931-932), and so Petitioners were well aware of this case. Not only did

they neglect to cite it or bring it to the attention of the Cour, they rely on Architectural Heritage

Assn. v. County of Monterey (2004) 122 Cal.AppAth 1095, which was specifically discussed and

distinguished in Valley Advocates. As discussed in Valley Advocates, supra, 160 Cal.App.4th at

1068-1069, the parties in Monterey agreed on the fair argument standard and so the standard of

review was not at issue in that case, and that case only applies in the "unusual circumstance"

where the lead agency determines in its initial study that a building is an historic resource, but then

changes its mind and wishes to claim that determination was not supported by sufficient evidence.


1 Clearly, there are no such facts here.

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There Is Substantial Evidence in the Record Supporting the City'sDetermination that the Historical Resource Exception Does Not Apply

The City found that the existing house is not an historic resource, and substantial evidence

2.

supports this determination.

First, the staff report showed that the dwellng to be demolished is not on the State Historic

Resources Inventory. (1 AR 148.) It is also not a Berkeley Landmark or a Structure of Merit. (3

AR 612.) In May 2009, the applicant submitted a Structure History Report prepared by an expert

in this area, Mark Hulbert, of Oakland-based Preservation Architecture. (1 AR 148; 3 AR 612-

613.) Mr. Hulbert concluded that the architectue, the designer, the builder and none of the

occupants had any historic significance. (3 AR 612-613.)

In response to the Appeal, Mr. Hulbert conducted subsequent research and confirmed his

earlier research and findings. (4 AR 1046-1060.) Based upon a detailed analysis, he concluded:

As originally concluded and subsequently confirmed, the disintegrated context and14 condition of this property and residence are unequivocaL. Its conditions are such

that significance would require an association to persons or events of outstanding15 importance. In this case, its associations-its original architect, and its original and

subsequent owners-are minor. Consequently, the existing property and residence16 at 2707 Rose Street has no potential historical or architectural significance at any

level of consideration. (4 AR 1049.)17

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Mr. Hulbert also conducted an Historic Resource Evaluation, and concluded that the

property and structure at 2707 Rose Street are not eligible for designation as a City of Berkeley

Landmark or Structure of Merit, or to be listed on the California Register. (4 AR 1050- 1 05 1.)

City staff also determined that there was no evidence in the record supporting designation of the

property or the dwelling as historic. (2 AR 467-468.)

All of this substantial evidence supports the City's determination that the house is not an

historic resource. This substantial evidence is all that is required for this Court to uphold the

City's determination on this point.

Although Petitioners complained that the City's Landmark Preservation Council ("LPC")

was not adequately informed of the proposed demolition, the City concluded that the Project

opponents' appeal did not present any evidence to support that the existing dwellng presented any


1 "architectural, cultural, historical, or educational value to warrant review by the LPC." (1 AR

2 148.) Moreover, the LPC, as of the date ofthe City Council action on April 27, 2010, had not

3 chosen to initiate the propert for consideration as a Berkeley Landmark or Structure of Merit. (1

4 AR 148.)

5 Finally, although Petitioners argued that there were other historic buildings in the area

6 (specifically, one 400 feet to the west, one 650 feet to the south and one 780 feet to the west),

7 Petitioners did not present any showing how the proximity of historic resources was relevant to

8 any impact the Project might have on historic resources. (2 AR 467.) Thus, Petitioners have not

9 shown that this exception applies.

10 F. Petitioners' Argument that the Project Is Mitigated Is Without Merit.

11 Petitioners argue that the City's reliance on the categorical exemptions should be

12 disallowed because the City's adopted mitigation measures attempting to address potential

13 environmental effects provide an acknowledgement of potential adverse impacts. This argument

14 is based on the case Salmon Protection & Watershed Network v. County of Marin (2004) 125

15 Cal.App.4th 1098, 1102, which held that a public agency may not rely on mitigation measures in

16 order to conclude that a project is categorically exempt or that one of the exceptions to the

17 exemption does not apply. However, a project can stil be designed to qualify for an exemption.

18 (Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2010) p. 251,

19 citing Banker's Hil, supra, 139 Cal.AppAth at 275.)

20 Moreover, in Salmon Protection, supra, 12 Cal.AppAth at 1103-1104, the county imposed

21 specific mitigation measures to minimize adverse physical impacts of the project on a riparian area

22 designated as an environmental resource of critical concern. Nothing in this case precludes

23 reliance on standard conditions applicable to all development and which are not specific to the

24 project at issue. For example, in Ukiah, supra, 2 Cal.AppAth 735-736, the city imposed standard

25 conditions from the Uniform Building Code on the project, to address soil stability and water

26 ruoff issues. The cour upheld the city's reliance on a categorical exemption, finding that such

27 issues were "common and typical concerns" from construction of a single-family home. (Ibid.

28 See also Hines, supra, 186 Cal.App.4th 837 (single family residence approved with conditions

27OPPOSITION TO PETITION FOR WRIT OF MANDATE

1 exempt from CEQA review).

2 Here, the conditions of approval for the Project were standard conditions imposed on

3 residential development in the hils and "which are not intended to address any specific

4 environmental impacts resulting from constrction of the project." (1 AR 149; 2 AR 465-466.)

5 The only special condition imposed by the City was a courtesy condition offered by the applicant

6 to meet with the neighbòrs, which condition has 110 relation to any potential environmental impact.

7 (2 AR 466.) Thus, Petitioners'argurrentis without merit.

8 VII. CONCLUSION

9 Despite Petitioners' vigorous objections to the design and scaleofthe house, they have

10 failed to show that the Project wil have any irrpacts that are different from the run-of-the-mil

11 single family residence. Accordingly, the City's reliance on the categorical exemptions was

12 proper, as was its rejection of the claimed exceptions to the exemptions. The City 'and Real Parties

13 respectfully request that the Cour deny the petition in its entirety.

14 Dated: November 1, 2010 Respectfully submitted:

ZACH COWAN, City Attorney15

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By:LAUR McKINYAttorneys for Respondents CITY OF BERKLEY

20 pATED: November 1,2010

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MEYERS, NAVE, RlBACK, SILVER & WILSON

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By: H~Amrit S. u, lkariJulia L. B dAttorneys for Real Parties in Interest

28OPPOSITION TO PETITION FOR WRIT OF MANDATE

1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ALAMEDA

3 At the time of service, I was over 18 years of age and not a party to this action. I am

employed in the County of Alameda, State of California. My business address is 555 12th Street,4 Suite 1500, Oakland, California 94607.

5 On November 1,2010, I served true copies ofthe following document(s) described asRESPONDENTS AND REAL PARTIES' OPPOSITION TO PETITIONER'S OPENING

6 BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS on the interested partiesin this action as follows:

7Susan Brandt-Hawley Esq.

8 Brandt-Hawley Law Group13760 Arold Drive

9 Glen Ellen, CA 95442susanbhêpreservationlawyers.com

10BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons

1 1 at the addresses listed in the Service List and placed the envelope for collection and mailng,following our ordinary business practices. I am readily familar with Meyers, Nave, Riback,

12 Silver & Wilson's practice for collecting and processing correspondence for mailing. On the sameday that the correspondence is placed for collection and mailing, it is deposited in the ordinary

13 course of business with the United States Postal Service, in a sealed envelope with postage fullyprepaid.

14BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement

15 of the paries to accept service bye-mail or electronic transmission, at 1: 1 5 p.m., I caused the

document(s) to be sent from e-mail address CSaucedaêmeyersnave.com to the persons at the e-16 mail addresses listed in the Service List. I did not receive, within a reasonable time after the

transmission, any electronic message or other indication that the transmission was unsuccessfuL.17

I declare under penalty of perjury under the laws of the State of California that the18 foregoing is true and correct.

19 Executed on November 1,2010, at Oakland, Car orni .

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Chuck Fadley

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