Development in an Earthquake Zone Can Still Be Exempt From CEQA.
A city approved a use permit to construct three new single-family homes on steeply sloped terrain that was also in a mapped earthquake zone. In approving the project, the city relied on the “Class 3” Categorical Exemption from CEQA, which applies to “construction and location of limited numbers of new, small facilities or structures,” including “up to three single-family residences” in “urbanized areas.” (Guidelines, § 15303, Berkeley Hills Watershed Coalition v. City of Berkeley(2019) 31 Cal.App.5th 880, 887.) An opponent challenged the City’s approval on several grounds, including that the project was not exempt because the “Location” exception to the CEQA Categorical Exemption applies. (CEQA Guidelines Section 15300.2(a).)
The court found that under the facts of the case, a mapped earthquake zone does not trigger the exception to the exemption and upheld the city’s use of the Class 3 Categorical Exemption from CEQA.
In coming to this decision, the court gave us two useful takeaways: (1) the bifurcated standard of review that applies to the “Unusual Circumstances” exception to a categorical exemption also applies to the “Location” exception; and (2) a mapped earthquake zone, such as the Alquist-Priolo Earthquake Fault Zone (APEFZ) or being in an earthquake-induced landslide area mapped by the California Geologic Survey on the Seismic Hazard Mapping Act map does not trigger the “Location” exception to the use of categorical exemption.
STANDARD OF REVIEW FOR THE “LOCATION” EXCEPTION TO THE USE OF A CEQA CATEGORICAL EXEMPTION
In evaluating whether the “Location” exception to the exemption applies, “the court applies a deferential standard of review, ‘resolving all evidentiary conflicts in the agency’s favor and indulging in all legitimate and reasonable inferences to uphold the agency’s finding.’ However, in determining whether the project ‘may impact on’ the environmental resource because of its location, the court applies a fair argument standard of review.” (Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 890, citing Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1114 (Berkeley Hillside I).)
EARTHQUAKE FAULT ZONES NOT INCLUDED IN THE "LOCATION" EXCEPTION TO A CATEGORICAL EXEMPTION.
There are several exceptions to CEQA’s Categorical Exemptions (CEQA Guidelines §§ 15301-15333), including the “Location” exception (CEQA Guidelines § 15300.2(a).) Here, the court found that a project located “within the Alquist-Priolo Earthquake Fault Zone (APEFZ) established by the State of California along the Hayward fault” and in a “potential earthquake-induced landslide area mapped by the California Geologic Survey on their Seismic Hazard Mapping Act map for this area” do not amount to a “location” that would kick the project out of the categorical exemption under the Locations exception. The court held that to fall under the Location exception, the “environmental resource” must be “designated, precisely mapped, and officially adopted pursuant to law.” (Guidelines, § 15300.2, subd. (a).) According to the court, “The plain meaning of 'environmental resource' in the location exception does not encompass possible earthquake or landslide zones.”
Beyond the clear meaning of the statute, the court also came to this conclusion based on the well-developed reasoning that CEQA is not concerned with the impact of existing conditions (like a landslide or earthquake) on the project, but on the effect of the project on the environment. Since the opponents failed to show, during the administrative process, that the project may have an impact on the resources located on the property, the court sided with the City in finding that the location exception did not apply. Therefore, the project was held to be exempt from CEQA.
Stephanie is a CEQA and Land Use Attorney with Grid Legal.