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Do You Need an Environmental Impact Report to Build a House? California Supreme Court to Address the Issue

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In a closely watched land use case entitled Berkeley Hillside Preservation v. City of Berkeley, the California Supreme Court will soon decide whether a property owner who wishes to build a single family residence may be subject to the expensive and time consuming process of an Environmental Impact Report (EIR), even though homes have historically been categorically exempt from the EIR process.

The property owners in the case, Mitchell Kapor and Freada Kapor-Klein, own a lot in Berkeley and received approvals from both the Berkeley Zoning Adjustment Board and the Berkeley City Council to construct a 6,400 sq. foot house and 3,300 sq. foot garage on a large lot. Immediate neighbors had no objection to the home. However, a Berkeley no growth group objected to the home, claiming it was too big in relation to other large homes in Berkeley. Also, it was claimed that the project would require a significant amount of grading and that an EIR should have been required.

The trial court rejected the no growth group’s claim that an EIR was required. The California Environmental Quality Act (CEQA) specifically exempts single family homes from the EIR process, and the group could not cite sufficient evidence that “special circumstances” existed which would create an exception to the exemption.

However, the Court of Appeal reversed the trial court and held that an EIR was required because there was a “reasonable probability” that the project may have a significant effect on the environment.

Fortunately, the California Supreme Court has granted review of the Court of Appeal decision. This decision would wreak havoc on the home building industry, and will potentially require thousands of single family home applications to first submit to the EIR process, which can cost tens of thousands of dollars and years of delay. The size of a home alone has no possible effect on the environment. If vague and amorphous aesthetic consideration such as this will now trigger an EIR requirement, the already exorbitant cost of home ownership will become prohibitive. The Court also accepted the opinion of the no growth group’s engineer regarding the extent of grading, which was flatly contradicted by the City’s engineers and the property owner’s engineers.

It is hoped that the California Supreme Court will reject the analysis of the Court of Appeal and protect property owners who simply wish to build a home from the red-tape nightmare that is the EIR process.

The land use and EIR lawyers at Kassouni Law have extensive experience advocating and litigating for clients’ Constitutional rights to develop property in the face of CEQA and EIR hurdles. If you have a similar matter you’d like to discuss with the legal team, don’t hesitate to call. Land use and EIR lawyer Timothy Kassouni will speak with you personally.

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