It won’t go anywhere. No planning department in CA is going to start doing EIR’s on single family homes. I’ve never seen this in 20 years of my professional experience, and never expect to do so. But I suppose it will be interesting to get that ruling from a court.

Yes, I’ve read some of the many, many arguments on both sides of the issue. I still think there’s no way this will be a successful suit. A precedent to do EIR’s even for big SF homes – when it is rarely even done for larger commercial projects – would be a precedent no court would want to establish.

I don’t have a dog in the fight, really. I’m just saying that based on my professional experience over many years, this is unlikely to go anywhere.

There’s goes the first year’s parcel tax…

Here is an example of one case in which the categorical exemption for a single family dwelling was rejected first by a lower court and again on appeal (in Marin):

http://www.romingerlegal.com/california_court/caselaw_opinions/A105592.html

Diane,

No, don’t trust JNG, trust me. The City of Berkeley will not try make anyone get an EIR, even for a gargantuan single family home. They had the opportunity to require an EIR, but they didn’t even do a half vast job of CYA. That’s why it’s no longer in the hands of the City of Berkeley, that’s why it’s in the courts.

Contrary to what people want to believe about the EIR requirements, they were designed as an ACT to protect the QUALITY of the ENVIRONMENT of CALIFORNIA (CEQA).

I am familiar with the CA code, and I can tell you that I can prove that JNG is wrong in stating “that a single family home cannot possibly trigger a CEQA analysis.” Here is just one example: I want to build a five story single family home of 10,000 feet on a 30,000 square foot lot zoned R1-H. Do I have a categorical exemption under CEQA? JNG, I’m asking you directly: Do I have a categorical exemption?

We’re not loonies, JNG, we’re trying to protect and preserve our neighborhood. Preservation members support adaptive reuse of the City’s historic resources as a greener alternative to new construction. Preservation also supports residential development that is sensitive to the natural and built environments in both design and scale and that conforms to the policies of the City’s General Plan. Preservation supports compliance with principals, rules, ordinances, and statutes that have long-served as guides to hillside building in Berkeley, avoiding interference with the natural shape of a hillside and discouraging additions that harm natural features.

I don’t see anything wrong with that.

In the case I linked to, the court observed that a single family residence project is not categorically exempt if there are indications of a significant environmental impact. In that case, Marin County found that there were not significant impacts because of mitigations mentioned in the plan, hence it initially gave the owner an exemption. The court pointed out that it is procedurally incorrect (per statute) to consider planned mediations when deciding whether or not a project is exempt. It further held that the procedural error was in that case a substantial error.

So in that case you can see how it is not always a matter of governing authorities abusing CEQA to force EIRs: as in Berkeley, that owner was granted an exception initially. And you can see that the courts don’t agree that CEQA is simply for “for massive projects like shopping malls and entire subdivisions”.

It’s also interesting trivia, perhaps, that in the famous case of Steve Jobs and EIR was required, although that case differs in that it involved the razing of a designated significant historical structure.

From Thomas L’s case:

“…Certain “classes of projects are `categorically exempt’ from CEQA pursuant to
administrative regulation because they do not have a significant effect on the
environment.” (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at pp. 112-113; Pub. Resources Code, §§ 21080, subd. (b)(9), 21084, subd. (a).) Single-family homes are categorically exempt from CEQA. (Cal. Code Regs., tit. 14, § 15303,subd. (a).) ”

SFH ARE categorically exempt, exactly as I said. It is ONLY the case if some other exception applies that this can be reviewed. In the opinion you cite, the exception was that the “…project site is adjacent to a protected anadromous fish stream and within a stream conservation area.”

The only “protectible” concern here in the Kapor’s case is the neighbor’s insignificant objections towards the project.

Thomas Lord,

Good points about CEQA and EIRs, at least we can use this as a teachable (and learnable) moment. I include myself in those who are open to learning, even though my postings can seem strident. As I said, I do have a dog in this fight. This is my home, my neighborhood.

I believe that an EIR will be required for some of the reasons you touched on, and for other reasons, but that doesn’t mean that the Kapors can’t still build a house on that lot. It does mean that they can’t build the house they have proposed for that lot.

JNG,

I’m not randomly parsing codes, but perhaps you have more experience, or at least more knowledge about single family homes in Berkeley that were required to do an EIR (without a lawsuit to force the issue). If that’s the case, it would be nice to know what the circumstances were, even if you didn’t “name names.”

If that’s the case, then your statement at 10:56 today that “anyone familiar with the CA code knows that a single family home cannot possibly trigger a CEQA analysis” was somewhat disingenuous, wasn’t it? You argue that a single family home “cannot possibly trigger a CEQA analysis” and then argue that “Berkeley does in fact impose EIR/CEQA requirements even on SFH” and go on to point out that they do so regularly? Any way to reconcile those two statements?

When I said that the city of Berkeley would not require an EIR, “even for a gargantuan single family home,” I was specifically referring to their failure to request an EIR for this project, which so obviously requires one. If the city has, of their own volition, required EIRs for other single family homes, then I would stand corrected, but I would need to see the evidence and circumstances to see if there were any fair comparisons to this development. And I would want to hear you reconcile the seeming inconsistencies in your own statements.

I therefore stand by my original statement, apparantly further buttressed by your arguments, that single family homes are not categorically exempt under CEQA, but I see that my last posting to Thomas Lord referred to his previous posting, not his last posting. Time to cover exceptions to the categorical exemption.

Cliff:

You misread the threads. You attributed a comment to me:

I was going to address your statement that “the only ‘protectable’ concern here in the Kapor’s case is the neighbor’s insignificant objections towards the project,”

That wasn’t my comment and is, in fact, something with which I strongly disagree.

Much appreciated, Cliff. Whole lot of “wait and see,” now, in this case.

David,

You’re right, anyone can file a suit over anything, and filing isn’t prevailing. For that, we’ll have to be patient and wait for the wisdom of the court.

As to the substance of your plaintive concerns, I put it to you that they can say it’s a three story “house” because it is a three story “house,” no ethical problems there. I would think the ethical problems would come with calling it a two story structure.

Once again, let me walk you through all three stories (please follow along with the picture at the top of the page): Start at FIRST FLOOR (ground) level and walk up the white stairway on the west side of the building (right side of the picture) up to the SECOND FLOOR. After admiring the art collection on the second floor, walk up the interior stairway (or take the elevator) to the THIRD FLOOR and step out onto the two enclosed decks and admire the sweeping views of the bay (don’t count the roof and parapet wall as a floor, even though it exceeds the maximum average height limit). See, it’s easy as Lotus 1-2-3.

As for the categorical exemption from CEQA for single-family homes, have you even read all the comments on this? Have you even read the lawsuit? http://www.berkeleyside.com/wp-content/uploads/2010/05/Berkeley_Hills_Petition_FInal.signed.pdf

I’ll ask you the same question I asked JNG: Do I have a right, under CEQA, for a categorical exemption for a five story single family home of 10,000 square feet on a 30,000 square foot lot? Irrespective of any local zoning limitations, do I have a categorical exemption?

JNG alluded other single family homes in Berkeley that were required to go through an EIR, but has not provided any additional details. Remember the categorical exemption is subject to exceptions, and it is the exceptions the prove the rule.

I think what you are having trouble wrapping your mind around is that this IS an issue of environmental protection, by a group who has put their manifesto in their pleadings. Your tired argument that the law is weakened because of YOUR beliefs about the motivations of the plaintiffs, is just … irrelevent. The plaintiffs obviously believe that an EIR will result in a better project.

One thing you can be sure of is that it will resolve the issue of whether an EIR is required or not, and whether it is a two or three story structure, along with a host of other issues.

The plaintiffs obviously believe that an EIR will result in a better project.

It’s not obvious to me and I don’t think it’s obvious to most people. The most the objectors have ever argued is that they are entitled to a EIR and a lengthy delay if there is even a hypothetical argument that there would be some environmental impact. The purpose of the argument and litigation is to stall the project, not that there is any actual expectation that the EIR would be anything but negative. Just that it would be an opportunity to stall the project and perhaps the sponsor will get frustrated and give up. That’s what this is all about.

It reminds me more than anything of the activist who tied the city of SF up in knots for years by demanding an EIR before the city could install new bike lanes.

David,

The plaintiffs are arguing the threshold that requires an EIR, which is that there is a possible environmental impact.

Once again, I am going to use my admittedly hyperbolic analogy to the Deepwater Horizon platform now fouling the gulf, insofar as both projects claimed and received categorical exemptions for environmental impact statements. Wouldn’t it have been worthwhile to prepare an Environmental Impact Statement under NEPA, even if it caused a lengthy delay to drilling, based on a “hypothetical argument that there would be some environmental impact?” Wouldn’t it be worthwhile to prepare an EIR for this project based on a “hypothetical argument that there would be some environmental impact?”

I believe that the purpose of the litigation is to prepare an EIR in order to fully resolve all the misrepresentations that have been made, not merely to “stall the project,” but I agree that this is a consequence of rushing this project through the process. Since it is clear that the city reports that the ZAB and council relied on were replete with errors, I believe that documenting those errors and resolving them with an EIR will be like shooting fish in a barrel.

I understand your frustration, I even sympathize, but I am not alone in feeling that an EIR is required, and with due respect, I will wait for the courts to make that decision.

Take your time replying, I’m checking out for a while.

David,

Good point, let’s not call it a floor (because, as you so adroitly point out, there is no “floor”). There, now we’ve succinctly summarized one significant part of the disagreement. Now let’s put it before a disinterested third party to make a judgment on the merits of the arguments of both sides, using the definition of what defines a “floor” or a “story” under CEQA.

Besides, I’m not talking about “an open space outside the house,” I’m talking about the space under and enclosed by the structure, which is defined as a floor (and not the space under the structure not defined as a floor).

“An unavoidable consequence of building a hill on a slope?” I think you have inadvertently hit the nail on the head with that odd statement. That is exactly what is happening, they are proposing to build a substantial hill on a substantial slope. Then to build a three story structure on that hill.

“Ground level” in this model is twenty feet above the existing hillside. Is there a possibility that re-engineering this hillside to facilitate a better view for the owners could have some environmental impacts? Just above Codornices Creek and two parcels that have been protected by preservationists? Preservation sure seems to think so.

“Obviously, the technical usage of terms for the purposes of the Berkeley zoning code has nothing at all to do with interpretation of California state law or regulations?” Didn’t you argue exactly the opposite point when you stated in your 2:28 posting that “it’s (the number of stories) just completely irrelevant to the environmental impact. Local zoning determines what height you can build.” The Berkeley Zoning Code determines the height limitation, but it has nothing to do with how to count a story? Can you reconcile these two contradictory statements?

As to your concerns that EIRs be required on homes that have already been legally built . . . talk about red herrings! You know just as well as I do that EIRs are not and cannot be required on existing legal and completed construction.

Once again, tedious as it may be to hear again, I must repeat that the categorical exemption for single family homes is subject to exceptions, and the exceptions prove the rule. To argue that there is a categorical exemption not subject to exceptions, is disingenuous to others who may be following our dialogue (both of them). I agree with you when you point out that “it’s not a different law for every city and town, it’s one set of criteria that apply everywhere.” That’s a good thing.

You may think you understand why I don’t want to see this particular development built, and you may be partially right, but I assure you that you are wrong about my motivations. I have not been shy about posting my reasons, one of them is my proximity to this development. I’m not entirely sure why you support the construction, except that you are, by your own admission, pro-development, anti-preservation, you have some prior connection with the developers . . . and of course, the abuse of democracy issue.

I think I do understand your stated reasoning for why you are offended by what you see as abuse of the “democratic system designed to implement the will of the community, and abuse the legal process intended for legitimate environmental concerns.”

David, that’s not what’s happening here. It’s the system working as it was designed to work. There are legitimate environmental concerns, all doubt to the contrary can and will be eliinated by an EIR. There is a categorical exemption for single family homes, but there are clear definitions which keep the LBNL from building a single family home for their GPL–and exceptions that prevent this “home,” as proposed, from being built in this location.

It really is as simple as that.

After the next big fire in that neighborhood, all the homes will be as big as Kapor’s proposed home.
It’s not as much fun to work on reducing the ridiculous fuel load in the hill as joining the pitchfork and torch brigade, (watch those torches,) but it’s a lot more significant in preserving the current charm and style of that neighborhood.

Mike Farrell,

After the next big fire in this neighborhood, many homes may have burned down, many people may have even died as a result of the conflagration. When it comes time to plan reconstruction, maybe those who survive and decide to rebuild take the lessons from the Oakland hills fire to heart. Maybe Berkeley Hillside Preservation will take the lead in that effort.

Even if that doesn’t happen, there is no way under the EXISTING code that all homes would be rebuilt to 10,000 square feet. The lot sizes simply will not allow that (although one could argue, as I have, that lots will be combined to allow for these mega-mansions, changing forever the character of the neighborhood–fire or no fire).

Still, your point about reducing the ridiculous fuel load in the hills is well taken, and anyone hoping to maintain the character of the neighborhood should be as committed to reducing that fuel load, making sure they comply with the fire code, and creating defensible space around their homes. We might start by clearing brush which acts as the first rungs of the fire ladder, removing Eucalyptus trees and other invasive species, replacing wood shingles and non fire treated decks, etc. The BFD has some excellent tips at this link: http://www.ci.berkeley.ca.us/ContentDisplay.aspx?id=7342

I see that the 2010 Fire Fuel Chipper and Debris Bin Program runs from June 21st to June 25th, and then again from August 16th to August 20th in Area 3; June 28th to July 2nd and again from August 23rd to August 27th in Area 4. My neighbors and I particpate in this every year, and I think you will see more people with pruning shears and pole saws than pitchforks, but that torch comment was a funny touch ;-]

All: These are handy resources:

http://ceres.ca.gov/ceqa/guidelines/

A copy of the actual guidelines is towards the very bottom of the page. It is easy to miss.

See also the link for “case law” on the left. The guidelines cite many cases as authority for various points. You can find the decisions in those cases under the “case law” link.

A couple of quick items for David and Cliff to consider:

In CEQA jurisprudence, local zoning rules and regulations and whether they were properly applied properly are a consideration in deciding when the CEQA categorical exemption applies to a proposed single-family dwelling. See, for example, from 1991, “ASSOCIATION FOR PROTECTION OF ENVIRONMENTAL VALUES IN UKIAH v. CITY OF UKIAH”

One exception to the categorical exemption is “significant environmental impact due to unusual circumstances”. In the case cited above, one reason the lower court found that there was no likely significant impact was that Ukiah had found the plan consistent with its local zoning rules. It was only upon appeal that plaintiffs argued Ukiah had improperly applied the zoning rules. The appeals court said, among other things, it’s too late for plaintiffs to raise that issue only on appeal.

We have carefully reviewed the writ petition, supporting points and authorities and supplemental pleadings filed below. Despite its contention to the contrary, Association simply failed to raise the issue of the asserted inadequacy of findings in connection with approval of the site development permit below.

In the case of Rose St., plaintiffs have asserted the inadequacy of permit findings in their initial petition. They haven’t made the same mistake that plaintiff “ASSOCIATION FOR [...] UKIAH” made.

So that is one reality check that shows that local zoning and permitting processes are actually relevant to the application of state CEQA code. Local zoning rules and their application worked favorably for the defendants in the Ukiah case – it can go the other way as well.

If you think about it, local zoning rules are of course relevant to CEQA because they help to establish, in the eyes of the law, just what the environment is that is to be protected. For example, a City may have the discretion to give excess height exemptions in a permit process – yet the exercise of that discretion can be enough (as Cliff has pointed out) to necessitate an EIR, even for a single family residential project (under the “unusual circumstances” exception to the categorical exemption).

CEQA code also specifically calls out as significant those environmental protections that are explicitly spelled out and geographically delineated by local code. For example, Berkeley’s ordinances to protect certain views from, among, and of the hills may come into play.

On the question of whether the plan describes a 2 or a 3 story building, personally, I think there is an interesting test that might be useful here. Looking at the plans and drawings, I ask myself: “Suppose it is built. Suppose that I buy it. What work would be needed and what permits would I have to seek (if any) to turn that lower level into an extension of the enclosed and heated living space?” I’m not sure it would take any permits at all or even any particularly heavy building. Supposing that is the case, imagine I then try to sell the place. Would it not be marketed as a three story building? Leaving a story lightly unfinished does not seem, to me, to cause it to not be a story.

It would be incoherent for the courts to find that a CEQA exemption is justified in part because it is a 2-story structure if, after being built, the structure could be converted to a 3-story structure without having to make any truly substantial alterations and without having to invoke the City’s discretionary approval processes in any serious way.

Thomas Lord,

That is very helpful, excellent analysis, good links and good citations. I think I may have made some similar points before I read your comments, but without the fine grain detail of your posting.

I will just quickly comment on your idea for testing whether the plan describes a 2 or a 3 story building. I think it is useful exercise, but after looking at the plans, the drawings, the model and the building code, I stand by my statement that this structure cannot and will not be built with the approvals that have been issued so far. Not if the building side of Planning and Development still has integrity.

I also stand by my assertion that the ground level is a story. That magical space that doesn’t exist in David’s perception of the plans and the model is supported on columns which also must not exist. That’s an environmental issue right there! Inadequate support of the second and third floors! ;-]

No doubt about it, we need an EIR!

Diane,

I agree with you that there are definitions as to what constitutes a “story” or a “floor”, but there is disagreement about which definition to apply. I used the Alquist-Priolo defintion, but I think any definition would reveal that the ground floor is a story. If, as you say, the City of Berkeley’s definition is used, then any enclosed space over six feet in height is a story. An EIR will certainly resolve these kinds of questions.

My point is that if, as you say, it will be reviewed by the building department for compliance based on the final plans, I believe that this structure as proposed cannot and will not be built on this site with the current approvals that have been issued.

You’re right of course, we are a bunch of non-professionals arguing on a public message board about what the issues are, but maybe even David and I would agree that this is an opportunity to learn something. I have to say I have learned quite a bit, even in this brief exchange, thanks to some incisive legal research by Thomas Lord, and reasonably well thought out arguments by pretty much everyone who has posted.

Diane,

For what it’s worth you can get a clearer picture of the nature of that level and/or story from the drawings in the plan submitted to ZAB. See the links at the bottom of the article here:

http://www.berkeleyside.com/2010/03/08/date-set-for-appeal-on-mitch-kapors-rose-st-home/

The 11th page of the drawings (titled “West Elevation”) gives some sense. I *think* I correctly understand that the existing grade below that lower level is, in many places, lower than what they are planning on.

https://www.yousendit.com/download/RmNDcmxRQ3RlM1JFQlE9PQ

In any event, you aren’t stuck only with the model to look at.

I am pretty sure that CEQA only allows 30 days to appeal the categorical exemption claimed by the developers,

35, I think. Apparently the courts are extremely strict about it, too, which is presumably why the suit against Berkeley came so quickly.

Also, I’m not sure what you mean by “claimed”. The developers can argue that the project merits an exemption and they can provide evidence – but exemptions are ultimate granted by the controlling authority (in this case the City of Berkeley). CEQA lays out fairly detailed guidelines of the process by which an authority (like our City) is supposed to make that decision. (E.g., search for keywords like “three tier process” in the guidelines document I linked to earlier).

The legislative intent of the very short statute of limitation, as well as CEQA rules that allow the CEQA evaluation to proceed early and be combined with other activities like permitting, appears to be minimize the cost impact of administering CEQA and to minimize opportunities for “gaming” the CEQA rules to unjustly interfere with a development.

If I’ve been reading things correctly, the course from here is like this: Plaintiff’s asked for an emergency revocation of the notice of exemption. It looks to be pretty hard to get such and so, unless plaintiffs are just tossed out of court altogether, the notice of exemption will tentatively stand but a trial will commence to test it. Should both parties remain as committed as they now appear, that trial will probably be followed by an appeal. We should no pretty quickly if the request for emergency relief is granted (and again, I’d *guess* not) and then, after that, it’s a very long process.

Thanks to everyone who pointed me to the plans – those were interesting. To me (again based on a cursory look) that lower level doesn’t seem like a story – it’s both below grade and open. I can’t see it would qualify as a story based on those plans, but I do mainly commercial, so I could be mis-interepreting it.

“It’s just interesting, to me, that our local society here puts the burden of proof against such charges on the plaintiffs while giving the Kapor’s the benefit of the doubt. It’s a curious bias in the way we collectively look at things. Oh, those poor oppressed richer-than-most (relatively rich) folks?”

Its not nearly that “interesting” if you consider the fact that Kapors are the ones who already underwent several months of costly review with architects, engineers and city planners to get the project approved in the first place. Having passed that administrative review and complied with all applicable requirements, they are presumptively entitled now to their permit. Procedurally therefore they are more than entitled to the benefit of the doubt as the result of having gone through the hoops just like any other permit paying citizen, not only “richer than most” folks. Nor is there any incentive to negotiate or compromise, b/c the after-the-fact second guessers with too much time on their hands will always invent some new reason to complain immediately after getting one concession, especially when such complaints come at almost zero marginal cost.

Thomas Lord,

An interesting observation, but I thought that there had always been a balanced (if not fair) subtext in this discussion. On the one hand you had the parvenu billionaire who wants to buy into the neighborhood and steamroll his development without concern or regard for the rest of the community, on the other hand you had a bunch of busybody NIMBY types who hated progress and modernism and who were willing to abuse CEQA to simply harass and delay the noble philanthropist.

I thought some comments had been made on this forum (maybe it was a different one) that the Kapors had the opportunity to agree to a continuance before the ZAB (and the ZAB had the opportunity to grant one), but they simply refused. They knew they had gushing support of the ZAB and they had lined up enough political support from the council and the Mayor long before they sprung their plans on the neighborhood. The die was cast from the beginning, and the entire process was perfunctory, and they knew it. All they had to do was keep their game face on through the proceedings, and they were in like flint.

But a funny thing happened on the way to the McMansion aerie. Neighbors who had not been in on the year long planning effort got the two week notice and blanched. Two weeks is not a lot of time to try to get the kind of information you need on a project of this breathtaking size and scale, and people started asking questions and expressing concerns, but they were rebuffed. The Kapors thought they had this all sewn up, and while there might be some grumbling from dyspeptic malcontents, they were comfortably in the drivers seat of the steamroller.

The Kapors refusal to engage with any more of the neighborhood than they felt they had to was perhaps their biggest tactical error. After approaching their immediate neighbors, they thought they didn’t need any further community support, nor did they seek it. The sad part of this is how divisive this has become to neighbors who have had long friendships with people who are now on opposite sides. Many neighbors are navigating those treacherous waters by simply dropping out of the discussion, without regard to their true feelings. Community is important up here.

But you don’t even know the half of it. I have lightly touched on some of the incredible hypocrisy and back stabbing that has gone on through this, but have not wanted to twist the knife for fear of making the situation even worse (if that’s possible). The time will come when people will ask how it was that those who had a duty and a responsibility to protect the community from just this kind of development conspired to keep this a secret for over a year.

As far as an amicable solution still being possible, I would hope there is, but the bad feelings may be too much to overcome at this point. The City of Berkeley and the Kapors could just go ahead and do an EIR without being forced to do it kicking and screaming, but as I continue to say, they will NOT be able to build the house they have proposed with the approvals they have in hand. An EIR could kill this project because it will make it clear that it cannot be built as currently designed. Ultimately, it will have to be redesigned, and I don’t know if they will still want to proceed when it is downscaled.

Here is an alternative they might want to consider. This modest little place on Grizzly Peak is only $4.2M (they’ll take less). http://www.redfin.com/CA/Berkeley/1530-Grizzly-Peak-Blvd-94708/home/1221666 I mean, it’s an embarrassing eyesore already, someone else’s dream McMansion, and now the owners are relocating across the pond. If it’s not their style, maybe they could just build a big modern box around it, devoid of any architectural detail. They could still paint it green.

Even if they bulldozed it (not green, but merciful) and put the house and ten car garage they already have designed on Grizzly Peak, it would be a better solution. It’s closer to campus, it has great views, and it would be easy to re-site the proposed house on this half acre lot (more usable space than the Rose St. lot).

In the long run, it could be a lot cheaper, and it could be a win win for everyone.