Filed 5/27/15



      IN THE SUPREME COURT OF CALIFORNIA


BERKELEY HILLSIDE                       )
PRESERVATION et al.                     )
                                        )
           Plaintiffs and Appellants,   )
                                        )                         S201116
           v.                           )
                                        )                   Ct.App. 1/4 A131254
CITY OF BERKELEY et al.,                )
                                        )                     Alameda County
           Defendants and Respondents; )                Super. Ct. No. RG10517314
                                        )
DONN LOGAN et al.,                      )
                                        )
           Real Parties in Interest and )
           Respondents.                 )
____________________________________)

                           ORDER MODIFYING OPINIONS

THE COURT:

        The majority opinion in this case, filed March 2, 2015, and appearing at 60
Cal.4th 1086, is modified as follows:
        1. The first full paragraph of text on page 1098 of 60 Cal.4th and the
        paragraph following it (which carries over to page 1099) are
        modified to read:

                In addition, we agree with respondents that, under the
        construction of appellants and the concurring opinion, the
        categorical exemptions the Legislature, through the Secretary, has
        established would have little, if any, effect. CEQA specifies that
        environmental review through preparation of an EIR is required only
        “[i]f there is substantial evidence . . . that the project may have a
        significant effect on the environment.” (§ 21080, subd. (d).) As a
corollary to this principle, CEQA also specifies that, if “[t]here is no
substantial evidence, in light of the whole record before the lead
agency, that the project may have a significant effect on the
environment,” then the proposed project is not subject to further
CEQA review. (§ 21080, subd. (c)(1).) Guidelines section 15061,
subdivision (b)(3), is similar, specifying: “Where it can be seen with
certainty that there is no possibility that the activity in question may
have a significant effect on the environment, the activity is not
subject to CEQA.”

       Under these provisions, where there is no substantial evidence
a proposed project may have a significant environmental effect,
further CEQA review is unnecessary; no categorical exemption is
necessary to establish that proposition. According to appellants,
under the unusual circumstances exception, the categorical
exemptions are inapplicable unless an agency “check[s] its files” and
finds no “evidence of potentially significant impacts.” But this is
similar to the inquiry an agency makes under Guidelines section
15061, subdivision (b)(3), to determine whether the proposed project
is subject to CEQA review in the first instance. (Muzzy Ranch Co. v.
Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 387
(Muzzy Ranch) [under Guidelines, § 15061, subd. (b)(3), agency
must determine whether the evidence in the administrative record
shows no possibility the proposed activity may have a significant
effect on the environment].) Thus, under appellants’ view, the
categorical exemptions would serve little purpose; they would
generally apply only when the proposed project is already outside of
CEQA review.

2. The second full paragraph of text on page 1102 of 60 Cal.4th is
modified to read:

       The concurring opinion’s attempt to succeed where appellants
have failed — i.e., to show that the categorical exemptions still have
some “value” under their construction (conc. opn, post, at
p. 1127) — is also unpersuasive. The concurring opinion first
asserts that proposed projects enjoy “a considerable procedural
advantage” when an agency finds that they fall within the terms of
an exempt category. (Conc. opn., post, at p. 1128.) As to such
projects, the concurring opinion notes, an agency “need not follow
any particular procedure,” “include any written determination,”
“undertake an initial study, or adopt a negative declaration.” (Ibid.)
However, the same is true of proposed projects that fall within the

                                   2
       terms of Guidelines section 15061, subdivision (b)(3), i.e., projects
       that are “not subject to CEQA” because “it can be seen with
       certainty that there is no possibility that [they] may have a
       significant effect on the environment.” (See Muzzy Ranch, supra, 41
       Cal.4th at p. 380 [initial study not required where Guidelines,
       § 15061, subd. (b)(3) applies].) As already explained, the
       concurring opinion’s discussion of these so-called procedural
       advantages fails to show that, under its interpretation, the categorical
       exemptions have significant independent value.


       These modifications do not affect the judgment.


       The concurring opinion in this case, filed March, 2015, and appearing at 60
Cal.4th 1086, is modified as follows:
       1. The first full paragraph of text on page 1130 of 60 Cal.4th, and the
paragraph following it, are modified to read:
             Today’s opinion also contends that under my reading of section
       15300.2(c), a project proponent who claims a categorical exemption
       is in a “similar” position to the proponent of a nonexempt project
       who claims the common sense exemption in Guidelines section
       15061, subdivision (b)(3). (Maj. opn., ante, at pp. 1098-1099,
       1102.) But the term “similar” is a fudge. The court says “similar”
       rather than “equivalent” because it does not and cannot deny that
       there is a difference between the common sense exemption and the
       reasonable possibility standard. The common sense exemption is
       available only when the agency, based on the record evidence, meets
       its burden of demonstrating “with certainty that there is no
       possibility that the activity in question may have a significant effect
       on the environment.” (Guidelines, § 15061, subd. (b)(3), italics
       added; see Muzzy Ranch Co. v. Solano County Airport Land Use
       Com. (2007) 41 Cal.4th 372, 386–387.) This exacting requirement
       exceeds an agency’s obligation under section 15300.2(c), before
       applying a categorical exemption, to consider the evidence in its files
       and preliminarily rule out a reasonable possibility of significant
       effects. This well-established difference in standards undermines the
       court’s claim that a project’s classification as categorically exempt
       has no significant procedural advantage.



                                          3
     Furthermore, an agency may find that a project falls within a
categorical exemption without first making an express or definitive
finding that no section 15300.2 exception applies; the burden is on
the party challenging the categorical exemption to show that an
exception applies. (Committee to Save the Hollywoodland Specific
Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168, 1186–
1187.) In addition, project proponents seeking to invoke a
categorical exemption may employ comparative arguments that are
not available to project proponents seeking to invoke the common
sense exemption. Thus, the availability of the common sense
exemption for projects meeting its narrow standard of “certainty”
does not negate the advantages that a categorical exemption confers.




                                 4
