STEPHEN WOLLMER, Plaintiff and Appellant v. CITY OF BERKELEY et al., Defendants and Respondents and R.B. TECH CENTER LP et al., Real Parties in Interest and Respondents.

This case harmonizes the State Density Bonus Law and CEQA. The City relied on the categorical exemption for urban in-fill projects to approve an affordable senior housing development that relied on the density bonus law to exceed the number of units otherwise allowed on site. The case contains several rulings that should be helpful when determining whether similar projects may be categorically exempt from CEQA review. First, the court found that the City properly applied the in- fill exemption (CEQA Guideline § 15332),which requires that the project comply with all “applicable” general plan and zoning designations and regulations. The City properly harmonized the density bonus law, CEQA, and the City’s own municipal code to find that when the DBL requires a zoning standard be waived , that standard is not “applicable,” and therefore, a project utilizing the density bonus law may still meet the requirements of the in-fill exemption. Next, the court rejected petitioner’s claim that the project’s location at the intersection of two major thoroughfares, which were also state highways, was an “unusual circumstance” that prevented the project from proceeding by in-fill exemption. CEQA Guidelines § 15300.2(c) provides that “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” The court found that locating an in-fill project at the intersection of two major city streets is precisely what the law encourages. The court stated that the project’s location is not an “unusual circumstance,” let alone a circumstance creating an environmental risk that does not generally exist for other in- fill projects. Finally, the court rejected petitioner’s contention that the City allowed the project to mitigate its way into a categorical exemption by allowing the applicant to dedicate land for a left-turn lane on one of the streets fronting the project. The turn lane improved existing traffic. The Court found that the City did not mitigate the project into qualifying for a categorical exemption. Rather, the City properly exercised its discretion to find that the project would not cause a significant traffic impact. The dedication of a five-foot right-of-way, enabling the City to improve the traffic was not a CEQA mitigation measure, but rather a component of the project that assisted the City with an existing traffic issue.