Filed 1/14/21 Concerned Citizens of Beverly Hills/Bel Air v. City of Beverly Hills 

CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CONCERNED CITIZENS OF 

BEVERLY HILLS/BEL AIR,

Plaintiff and Appellant,

v.

CITY OF BEVERLY HILLS,

 Defendant and Respondent,

LOMA LINDA TRUST,

 Real Party in Interest and

 Respondent.

 B297931

 (Los Angeles County

 Super. Ct. No. BS171828)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard L. Fruin, Judge. Affirmed.
2

Channel Law Group, Jamie T. Hall and Julian K. 

Quattlebaum, III for Plaintiff and Appellant.

Laurence S. Wiener, City Attorney for Beverly Hills; 

Richards, Watson & Gershon, Ginetta L. Giovinco and Stephen 

D. Lee for Defendant and Respondent.

Allen Matkins Leck Gamble Mallory & Natsis and Patrick 

A. Perry for Real Party in Interest and Respondent.

___________________________

INTRODUCTION

Before us is the review of a finding by respondent City of 

Beverly Hills (City) that the construction of two single-family 

homes (the Project) located on two adjacent parcels of land on 

Loma Linda Drive (the Properties) is exempt from filing 

environmental review documents otherwise required by the 

California Environmental Quality Act (CEQA; Pub. Resources

Code,

1 § 21000 et seq.). The owner of these properties is 

respondent real party in interest Loma Linda Trust (Real Party).

As detailed below, the City found that two exemptions from 

having to prepare an environmental impact report (EIR) or 

negative declaration2 applied to the Project: the Class 2 and 

Class 3 exemptions. The Class 2 exemption exempts projects 

that replace or reconstruct existing structures (Cal. Code Regs., 

tit. 14, § 15302, Guidelines for Implementation of CEQA 

(Guidelines)) (Class 2 exemption), and the Class 3 exemption

1 All further unspecified statutory references are to the 

Public Resources Code.

2 We describe these documents in our Factual Background 

and Procedural History.
3

exempts small construction projects, including the construction of 

one to three single-family homes (Guidelines, § 15303) (Class 3 

exemption). The City approved the Project based on both 

exemptions. Because we conclude that substantial evidence 

supports the City’s findings that the Project qualifies for the 

Class 3 exemption, we do not address the City’s findings 

regarding the Class 2 exemption.

The Class 3 exemption is subject to certain exclusions 

known as “exceptions.” Two such exceptions are potentially 

applicable here. Very simply summarized, the first of these 

exceptions focuses on whether the project itself is “unusual,” in 

the sense that it has some feature distinguishing it from others in 

the exempt class, and that this unusual feature poses a risk to 

the environment. The second of these exceptions focuses on a 

project’s surroundings, that is, whether the project poses special 

risks to the environment because of its location or its relationship 

to environmental resources, such as natural phenomena like 

wildlife. We refer to these exceptions in the body of our opinion 

as the “unusual circumstances” and “location” exceptions.

Appellant Concerned Citizens of Beverly Hills/Bel Air 

(Citizens) directs its challenges on appeal primarily to the City’s 

findings that these exceptions do not apply to the Project.

Citizens also asserts that the City defined the proposed Project

improperly so as to avoid further CEQA review.

Stating the issue before us is the simple part. Elucidating 

our conclusion that substantial evidence supports the City’s 

determinations is not. The administrative record regarding 

development of the Properties is extensive and spans several 

years. CEQA itself is complex, as are the authorities interpreting 

it. We thus divide our opinion into three parts.
4

First, in our Factual Background and Procedural History,

we set forth in chronological order the proceedings before the City 

involving Real Party’s efforts to develop the Properties. Second, 

we outline the analytic structure of CEQA, particularly focusing 

on the Class 3 exemption and exceptions to that exemption. 

Third, in our Discussion, we apply that analytic structure to the 

record. We start with our standard of review, which itself is 

multi-layered under our high court’s guidance in Berkeley 

Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086

(Berkeley Hillside).

As set forth in our Discussion, we conclude that under 

Berkeley Hillside, the substantial evidence standard of review 

dictates our review of whether the City erred in finding that the 

unusual circumstance and location exceptions did not apply to 

the Project and reject Citizens’s contention that our review is less 

deferential under a “fair argument” standard of review. Finally, 

we discuss the administrative record set forth in our Factual and 

Procedural Background and conclude that the City did not err in 

finding that the Class 3 exemption exempted the Project from 

further CEQA review and that none of the exceptions to that 

exemption applies to the Project.

We thus affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Subject Properties

The Properties are located in Beverly Heights on 1184 

Loma Linda Drive (the 1184 Property) and 1193 Loma Linda 

Drive (the 1193 Property). We refer to the 1184 Property and the 

1193 Property collectively as the “Properties,” refer to each as “a 

Property,” and refer to the single-family residences Real Party 

intends to construct atop each Property as “the Residences.” The 
5

City has zoned the Properties as “R-1,” suitable for single-family 

residential use.3 They are bordered by other single-family 

residences and are located at the end of a cul-de-sac at the end of 

Loma Linda Drive, a single-lane residential street that is 

currently 22 feet wide.

Some time before 2013, one single-family home and one 

guest house sat atop the parcels currently comprising the 

Properties. Real Party removed these structures in order to 

prepare the site for future development. There are no structures 

currently on the Properties.

In 2013, Real Party proposed to construct a single-family 

residence that would straddle both Properties. This attempt to 

create a single structure began by filing applications for various 

permits with the City. We refer to Real Party’s submission of 

permits to construct this residence as the “2013 Application,” and 

the project envisioned by the 2013 Application as the “2013 

Project.”

The 2013 Application proposed a 23,632 square feet singlefamily residence with an attached office and guest house. In 

order to create this structure, Real Party would have needed to 

export approximately 8,081 cubic yards of earth material. The 

various approvals required to build the 2013 Project included a 

Hillside R-1 Permit to export more than 3,000 cubic yards of 

earth material, a Tree Removal Permit for the removal of an 

existing Canary Island pine tree, and approval of a street 

3 Zoning groups R-1 to R-4 “generally involve[ ] dwellings, 

congregate care facilities and some other types of residential care 

facilities, as well as houses and apartments.” (7 Miller & Starr, 

Cal. Real Estate (4th ed. 2020) § 25:6.)
6

vacation and acceptance of a street dedication to replace the 

existing turnaround at the end of Loma Linda Drive with a fire 

truck turnout.

Unlike the Project that is before us, the City did not find 

the now-abandoned 2013 Project exempt from CEQA review. 

Instead, the City moved to the next step in the CEQA process and 

conducted an “initial study” to determine the 2013 Project’s 

possible environmental impacts. (See generally Save Our Schools 

v. Barstow Unified School Dist. Bd. of Education (2015) 240 

Cal.App.4th 128, 137-139 [describing steps in the CEQA 

process].) The City then had two choices: to order preparation of 

an EIR, or order preparation of a “negative declaration.”

4

Here, the City filed a “mitigated” negative declaration in 

connection with the 2013 Project (the 2013 MND). By filing the 

2013 MND, the City found that although “the initial study has 

identified potentially significant effects on the environment, . . . 

(1) revisions in the project . . . would avoid the effects or mitigate 

the effects to a point where clearly no significant effect on the 

environment would occur, and (2) there is no substantial evidence 

in light of the whole record before the [City] that the project, as 

revised, may have a significant effect on the environment.” 

(§ 21064.5; see, e.g., Mejia v. City of Los Angeles (2005) 130 

Cal.App.4th 322, 332.)

4 An agency may file a negative declaration instead of an 

EIR when the agency’s “initial study” determines there is no 

substantial evidence that the project may have a significant effect 

on the environment. (See § 21064; see, e.g., Lighthouse Field 

Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 

1188-1191.)
7

In the end, the 2013 Project did not go forward. Real Party 

explains in its briefing that it abandoned the 2013 Project “[d]ue 

to community opposition.”

B. The 2016 Project

The Project before us involves Real Party’s second attempt 

to build on the Properties, which also has garnered community 

opposition. The current Project envisions two single-family 

homes—one atop each Property.

Real Party filed separate building permits for each 

Property. The building permit application for the 1193 Property

sought permission to build a two-story, 8,194 square-foot singlefamily home with a 2,629 square-foot basement. The building 

permit application for the 1184 Property sought permission to 

build a two-story, 7,924 square-foot single-family home with a 

5,838 square-foot basement and garage.

In response to a city ordinance, Real Party redesigned the 

Project to reduce the export of earth material below the level that 

would have required an R-1 building permit from the City for the 

Project.5 Real Party also agreed to the City’s demand that Real 

Party grant it easements and make improvements to Loma Linda 

5 On August 30, 2016, the Beverly Hills City Council (City 

Council) adopted Ordinance No. 16-O-2709, which amended the 

Beverly Hills Municipal Code to reduce the amount of export that 

would require approval of an R-1 permit from 3,000 cubic yards 

to 1,500 cubic yards on any site in the City’s Hillside area that is 

adjacent to a street that is less than 24 feet wide. Following 

adoption of this ordinance, Real Party modified the plans for the

Residences such that the amount of export required would be less 

than 1,500 cubic yards, thereby avoiding the need for an R-1 

permit.
8

Drive to improve emergency vehicle access in the event of a fire. 

Specifically, the City demanded that Real Party (1) dedicate 

easements for a fire truck turnaround on both Properties,

(2) agree to remove all encroachments in the easement area, and 

(3) construct street improvements required for the fire 

turnaround.

C. Review of the Project by the City

The City’s planning commission held its first public hearing 

on the Project on October 12, 2017. At that hearing, it

unanimously adopted Resolution Nos. 1825 and 1826 in which it 

found that the aforementioned easements dedicated for a 

firetruck turnaround were consistent with the City’s “General 

Plan.”

6 The City Council held a second hearing on November 7, 

2017, at which it adopted Resolution No. 17-R-13165 approving 

agreements between the City and Real Party containing the

easement dedications for public safety purposes along Loma 

Linda Drive adjacent to the 1184 Property and 1193 Property.

Mayor Lili Bosse began the hearing by emphasizing that 

“[p]ermits for the two [Residences] are contingent upon the City 

Council’s acceptance of the offers of dedication [of the fire-safety 

enhancing easements] and approval of a vacation of a storm drain 

easement.” She stressed the current cul-de-sac on Loma Linda 

Drive “make[s] it difficult for emergency vehicles to access the 

area.”

Fire Marshall Scott Stevens testified that the “existing 

turnaround [on Loma Linda Drive] is inadequate,” and 

6 See NJD, Ltd. v. City of San Dimas (2003) 110 

Cal.App.4th 1428, 1444-1446 [discussing a city’s “general plan” 

and a city’s “specific plan”].
9

“compromises response times.” The proposed dedication of 

easements would ameliorate this hazard by transforming the 

surface of the road from asphalt to concrete, installing a fire 

hydrant, and widening Loma Linda Drive itself so that 

emergency vehicles could more safely navigate this street. Fire 

Marshall Stevens further explained that from the Fire 

Department’s perspective, approving the Project was the “best 

option” to improve fire-safety hazards on Loma Linda Drive 

because the needed improvements are “outside of the public 

right-of-way and, therefore, require[ ] easements on private 

property.”

City Planner Ryan Gohlich advised the City Council on 

CEQA compliance. He stated that for CEQA purposes, the 

Project consisted not only of the proposed easements, but also the 

proposed two Residences. He also advised that the City did not 

need to order preparation of an EIR or negative declaration

because two exemptions applied to the Project: Class 2 and 

Class 3. Regarding the Class 3 exemption, he stated: “Those two

houses are within the three-house limit for a Class 3 categorical 

exemption and that Class 3 exemption does also contemplate 

street improvements and utilities that are associated with the 

development of those homes.” As to Class 2 exemption status, 

Gohlich observed although the proposed homes “are [of a]

different scale,” “each one is still by in [sic] use of a [sic] singlefamily home.” Apparently, Gohlich was comparing the proposed 

construction to the buildings that had existed on the Properties 

before Real Party first sought to develop the properties in 2013. 

The buildings no longer were on the property as of 2016.

The City Council found the Project qualified for the Class 3 

exemption because it contemplated construction of two single-
10

family homes and the Guidelines describing the Class 3 

exemption provide that construction of up to three single-family 

residences is exempt from CEQA review. (See Guidelines,

§ 15303, subds. (a) and (d).) The City Council found the Project 

qualified for the Class 2 exemption because it contemplated

construction of “two single family homes on two separate lots that 

previously had single family residences developed on them, thus 

replacing existing single family homes.”

D. Opposition to the Project at the November 7, 2017 

City Council Hearing

At the November 7, 2017 hearing, the City Council also 

heard public comment and received evidence in opposition to the 

Project.

Several neighbors testified against the Project. One 

claimed the Project would “create [a] three-story birthday cake 

structure[ ] that will loom over homes in the Coldwater Canyon 

Park below invading their privacy and sightlines.” Another 

stated it was “the will of the community to deny the monstrous 

proposed development . . . [g]iven its potential destruction of our 

neighborhood character.” A third stressed the Project “will 

impact the view of many homes on surrounding canyon slopes.” 

A fourth neighbor stated that “there are regularly deers [sic] in

my yard and a turtle recently showed up to live in my pond.”

Citizens’s counsel also testified in opposition to the Project.

First, he argued that the Class 2 exemption did not apply to the 

Project because there were no existing structures on the 

Properties, and even if one compared the Project to the structures 

that existed on the Properties in 2013, the proposed Residences 

would not have the requisite same purpose and capacity as those 

they would be replacing. (See Guidelines, § 15303.) To support 
11

an exception to the Class 3 exemption, counsel focused on the 

relationship of the Properties to nearby wildlife.

The City also received two written statements in opposition 

to the Project. One was from Citizens’s counsel. This letter 

stated that the 2013 MND described the Properties as being 

“adjacent” to Franklin Canyon Park. Next, this letter 

represented the Project was located “within Habitat Block 74 by 

the Santa Monica Mountains Conservancy.” (Italics added.) 

Citizens represented, without evidentiary foundation, that many 

rare animals “have been seen by residents in the area at one time 

or another.” Attached to the letter was a photo of a bobcat 

apparently seen in a neighbor’s backyard that counsel 

interpreted as moving toward the Properties in an effort “to 

access open space.” Citizens’s letter also stated: “The project site 

is also located in [a] Very High Fire Severity Zone which is an 

officially adopted hazard designation.”

The other letter was from the Mountains Recreation and 

Conservancy Authority (MRCA). The MRCA asserted that the 

same environmental concerns the City noted in its 2013 MND 

regarding the 2013 Project are true as to the current proposed 

Project, that is the Properties are located “fewer than 150 feet”

from Franklin Canyon Park, an area designated by the MRCA as 

an environmentally sensitive area. It also stressed that the 

Properties “sit on a visually prominent ridgeline between lower 

Franklin Canyon and lower Coldwater Canyon,” and that 

“[w]ildlife movement between these two canyon habitats has 

become increasingly restricted due to development.”
12

E. City Rejects Opposition to the Project and Files 

Notice of Exemption from CEQA

On November 14, 2017, the City posted a notice of 

exemption stating that the Project was categorically exempt from 

further review under CEQA. The notice of exemption states: 

“The Project involves dedications of [emergency] vehicle access 

easements in conjunction with proposed construction of two 

houses on previously developed lots at 1184 and 1193 Loma 

Linda Drive in Beverly Hills. The dedications and related street 

improvements would result in improved turnaround at the 

terminus of Loma Linda Drive for improved emergency vehicle 

access which benefits the public.”

The City rejected Citizens’s arguments that the presence of 

“unusual circumstances” involving the Project and its proximity 

to Franklin Canyon Park were circumstances that justified an 

exception to the Class 3 exemption. Specifically, Gohlich testified

that there were no “unusual circumstance[s] regarding biological 

resources that would apply here, especially because these 

properties were previously developed. They are disturbed. They 

don’t contain really any viable habitat that would constitute a 

substantial evidence that there would be an impact.”7 Gohlich 

emphasized: “This is an urbanized area. Yes, it’s in the hills but 

it’s urbanized.”

7 Indeed, Gohlich observed that Real Party had completely 

reconfigured its plans to develop the Properties in part to avoid 

an obstacle it faced with the now-abandoned 2013 Project. The 

obstacle was a tree that was a supposed habitat for birds and 

other wildlife, and the current Project no longer proposed to 

remove it.
13

The City also found that the Project complied with its 

general plan. Subsequent to the October 12, 2017 hearing, the 

City planning commission authored a report that concluded the 

Project satisfied 12 general plan requirements regarding hillside 

development (“[m]aintain the natural landforms that define the 

City”), architectural and site design (“new construction [must] 

exhibit a high level of excellence”), public and fire safety, traffic, 

and storm drainage.

As to the location exception challenge, Gohlich observed 

“this particular property is not within the habitat block.” He 

continued, “it’s also not directly adjacent. There are—there’s at 

least one property that separates the subject property from 

Franklin Canyon and the habitat block that is there.” 

Responding to Citizens’s claim that the MRCA letter shows the 

Properties are within a protected habitat block, Gohlich testified: 

“It’s also been noted in the correspondence [from the MRCA] that 

there are habitat linkages or trails that are used that go across 

the [Properties] on Loma Linda Drive. When in fact you look at 

the habitat linkage map that has been provided by the Santa 

Monica Conservancy there are no linkage trails that go through 

these properties. There are some identified that are in Trousdale 

Estates and then further north of Beverly Hills, but there is 

nothing that goes specifically through these properties.” (Italics

added.)

Regarding fire risk in the area, the City concluded the 

proposed easements and street improvements “will result in 

substantial life safety improvements . . . by making it easier for 

large fire trucks to safely turn around at the terminus of Loma 

Linda Drive without having to travel in reverse down the street 

to Coldwater Canyon, and to allow multiple vehicles, such as a 
14

fire truck and ambulance, to pass each other in emergency 

situations.”

The City also rejected Citizens’s challenge to the Class 2 

exemption, finding that the Project involved “construction of two 

single family homes on two separate lots that previously had 

single family residences developed on them, thus replacing 

existing single family homes.”

F. Trial Court Proceedings

Citizens filed a writ of mandate in the trial court 

challenging the City’s decision not to proceed further in its 

environmental review. On March 8, 2019, the court held a trial 

on Citizens’s verified petition for writ of mandate and issued a 

statement of decision and denied the petition.

The trial court ruled that the City had properly found the 

Project was exempt under Class 2. Although agreeing with 

Citizens that the new structures would be “larger because they 

include, unlike those previously on the lots, two-levels as well as 

a basement,” the court observed this distinction is not relevant 

because “there is no evidence that the structure does not serve 

the same purpose and capacity” as the structures they were 

replacing.

The trial court also rejected Citizens’s arguments that,

because of the Project’s proximity to a habitat zone designated by 

the MRCA, it qualified for an exception to the Class 3 exemption. 

The trial court rejected Citizens’s attempts to equate proximity to 

a protected habitat zone with presence within a protected habitat 

zone. The court observed: “There is no substantial admissible 

evidence, however, that the Project located on a ridge above the 

[p]ark ‘may impact’ this environmental resource. [Citizens] relies 

on the representations of its own lawyers that wildlife ‘have been 
15

seen by residents in the area at one time or another.’ . . . The 

court regards this contention in an attorney’s letter as argument 

offered without evidentiary foundation and, therefore, to lack 

probative value. [Citizens] offers nothing else.”

The trial court’s statement of decision also indicates that 

Citizens moved for judicial notice of 10 documents not presented 

to the City during its review, as well as a supplemental request 

for judicial notice of an 11th document. These documents 

included city ordinances, resolutions, and staff reports. Real 

Party objected, citing the rule that “a mandate petition [only] 

reviews documents submitted to the public agency.” The trial 

court declined to judicially notice all but a “Planning Commission 

Report,” dated December 11, 2014. The trial court reasoned that 

the correct procedure would have been for Citizens to move to 

augment the administrative record before the trial court. 

Citizens never did so. The court concluded it would not “take 

judicial notice of documents that were not before the decisionmaking body at the time it took the action that is challenged.” 

Citizens does not challenge this ruling on appeal.8

Citizens timely appealed from the trial court’s denial of its 

writ of mandate.

8 In its opening brief on appeal, Citizens still cites to 

documents the trial court declined to judicially notice. Citizens 

never filed a motion to augment the record. Real Party, however, 

did, on appeal only. We improvidently granted that motion and 

hereby deny it.
16

DISCUSSION

A. Applicable Law and Standard of Review

In reviewing the City’s actions “for compliance with CEQA, 

we ask whether the agency has prejudicially abused its 

discretion; such an abuse is established ‘if the agency has not 

proceeded in a manner required by law or if the determination or 

decision is not supported by substantial evidence.’ (. . .

§ 21168.5.) In determining whether there has been an abuse of 

discretion, we review the agency’s action, not the trial court’s 

decision. ‘[I]n that sense appellate judicial review [of the trial 

court’s decision] under CEQA is de novo.’ [Citation.]” (Center for 

Biological Diversity v. Department of Fish & Wildlife (2015) 62 

Cal.4th 204, 215, fn. omitted.)

Before discussing whether the City erred in finding that 

the Project qualified for a Class 3 exemption, we set forth CEQA’s 

regulatory architecture to provide context for our review.

1. CEQA Review Only Applies to “Projects”

The first decision in reviewing a proposed activity for 

CEQA compliance is to determine whether that activity qualifies 

as a “project.” CEQA only applies to “discretionary projects 

proposed to be carried out or approved by public agencies.” 

(§ 21080, subd. (a); Union of Medical Marijuana Patients, Inc. v. 

City of San Diego (2019) 7 Cal.5th 1171, 1190 (Union of Medical

Marijuana Patients).)

The scope of a “project” is defined as “the whole of an 

action, which has a potential for resulting in either a direct 

physical change in the environment, or a reasonably foreseeable 

indirect physical change in the environment . . . .” (Guidelines, 

§ 15378, subd. (a); Union of Medical Marijuana Patients, supra, 7 

Cal.5th at p. 1192.) Citizens does not appear to dispute that 
17

building two Residences on the Properties would be a project 

subject to CEQA.

2. Exemptions from CEQA Review

If a proposed activity is a “project,” “the agency must decide 

whether the activity qualifies for one of the many exemptions 

that excuse otherwise covered activities from CEQA’s 

environmental review.” (Union of Medical Marijuana Patients, 

supra, 7 Cal.5th at p. 1185.) The Secretary of the Natural 

Resources Agency (Secretary) has established “a list of classes of 

projects that have been determined not to have a significant 

effect on the environment and that shall be exempt from” CEQA. 

(§ 21084, subd. (a).) The Secretary “has found” that certain 

“classes of projects . . . do not have a significant effect on the 

environment” and, in administrative regulations known as 

guidelines, has listed those classes and “declared [them] to be 

categorically exempt from the requirement for the preparation of 

environmental documents.” (Guidelines, § 15300.) These

exemptions are known as “categorical exemptions.” Although 

there are other kinds of exemptions, the case before us involves 

only categorical exemptions.

The Class 3 exemption, entitled “New Construction or 

Conversion of Small Structures,” “consists of construction and 

location of limited numbers of new, small facilities or structures.” 

(Guidelines, § 15303.) Among the nonexclusive list identified by 

the Secretary as qualifying under this exemption are projects 

consisting of: “One single-family residence, or a second dwelling 

unit in a residential zone [or] [i]n urbanized areas, up to three 

single-family residences . . . .” (Guidelines, § 15303, subd. (a).)
18

3. Exceptions to Categorical Exemptions

Categorical exemptions are subject to exceptions. If an 

exception applies, the exemption is lost. The relevant exceptions 

here are: (i) if there is a reasonable possibility of a significant 

effect on the environment due to “unusual circumstances” 

(Guidelines, § 15300.2, subd. (c) [the unusual circumstances 

exception]); and (ii) with respect to five specific categories of 

projects, if the project will have impacts on a uniquely sensitive 

or hazardous environment (Guidelines, § 15300.2, subd. (a) [the 

location exception]). Class 3 exempt projects constitute one of the

five categories listed in Guidelines, section 15300.2, subdivision 

(a), subject to the location exception.

a. The Unusual Circumstances Exception

The Guidelines describe the unusual circumstances 

exception somewhat opaquely: “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.” (Guidelines, § 15300.2, subd. (c).) 

Although “[t]he Guidelines do not define ‘unusual circumstances’ 

(Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, 820), 

our high court has clarified that this exception may be 

established “by showing that the project has some feature that 

distinguishes it from others in the exempt class, such as its size 

or location.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1105.)

b. The Location Exception

The Guidelines state that the location exception applies 

“where the project may impact on an environmental resource of 

hazardous or critical concern where designated, precisely 

mapped, and officially adopted pursuant to law by federal, state, 

or local agencies.” (Guidelines, § 15300.2, subd. (a), italics 
19

added.) The location exception thus applies to projects that may 

impact on environmental “resources” that are either of 

“hazardous” or “critical concern.”

The Guidelines explain that this exception only applies if 

the environmental resource has been “designated, precisely 

mapped, and officially adopted pursuant to law by federal, state, 

or local agencies.” (Guidelines, § 15300.2, subd. (a).) If a 

putative environmental resource has not been “designated” and 

“precisely mapped” by a public agency, a location exception 

challenge premised upon impacts on such a putative resource will 

fail. (See Don’t Cell Our Parks v. City of San Diego (2017) 21 

Cal.App.5th 338, 363 [rejecting argument that “location

exception” applied by virtue of project site’s location within a 

dedicated park, because that location was not “designated” by 

any federal, state, or local agency as an “ ‘environmental resource 

of hazardous or critical concern’ ”].)

B. The City Did Not Err in Describing the Project

Citizens claims the City did not proceed in the manner 

required by CEQA and the Guidelines. Specifically, it asserts the 

City relied upon findings and conclusions based upon “an 

incorrect description of the project based on faulty legal advice.”

Citizens claims the City purposefully misdescribed the Project so 

that it did not have to consider the environmental impact of the 

Residences.

Citizens contends the City defined the Project solely as “the 

acceptance of irrevocable offers of dedication of easements for 

emergency vehicle access and street improvements located at 

1184 and 1193 Loma Linda Drive.” Citizens claims the failure of 

the City to indicate the Residences themselves were also part of 

the Project violates the rule that CEQA review “ ‘ “cannot be 
20

avoided by chopping up proposed projects into bite-size pieces”

which, when taken individually, may have no significant adverse 

effect on the environment’ ” or would require only ministerial 

determinations. (Tuolumne County Citizens for Responsible 

Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214, 

1223.)

This argument ignores other evidence in the record 

militating against its argument. The notice of exemption itself 

indicates “dedications are being made in conjunction with 

ministerial building permits for construction of two single family 

homes on two separate lots.” (Italics added.) Mayor Bosse, 

moreover, began the November 7, 2017 hearing by stating that 

the “[p]ermits for the two [Residences] are contingent upon the 

City Council’s acceptance of the offers of dedication [of the firesafety enhancing easements] and approval of a vacation storm 

drain easement.” (Italics added.)

C. Substantial Evidence Supports the City’s

Determination that the Project is Exempt from 

Further CEQA Review as a Class 3 Exempt Project

The City’s notice of exemption states: “Class 3 exemption 

[applies] because the exemption allows for construction of up to 3 

single family homes (the project would enable construction of 2 

homes), with street improvements.” Citizens focuses its 

argument on the City’s rejection of its contentions that the

“unusual circumstances” and “location” exceptions deprive the 

Project of Class 3 exempt status.
21

1. Standard of Review of Agency Determinations that 

the Unusual Circumstances and Location Exceptions

Do Not Apply

Before turning to the merits of Citizens’s arguments, we 

address the applicable standard of review. Citizens argues we 

should not review the City’s rejection of the unusual 

circumstances and location exceptions to the Class 3 exemption

for substantial evidence, but instead, for whether substantial 

evidence supports a “fair argument” that the Project may have a 

significant effect on the environment due to the unusual 

circumstances of the Project, or due to its location.

“ ‘The “fair argument” test is derived from . . . section 

21151, which requires [preparation] of an EIR on any project 

[that] “may have a significant effect on the environment.” ’ ”

(Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 884.) 

An EIR must be prepared “ ‘ “whenever it can be fairly argued on 

the basis of substantial evidence that the project may have 

significant environmental impact.” [Citation.]’ ” (Ibid.)

In Berkeley Hillside, our high court held that a party 

seeking to establish the unusual circumstances exception has the 

burden to show two elements. These elements are (1) “that the 

project has some feature that distinguishes it from others in the 

exempt class, such as its size or location,” and (2) that there is “a 

reasonable possibility of a significant effect [on the environment] 

due to that unusual circumstance.” (Berkeley Hillside, supra, 60 

Cal.4th at p. 1105.) “This bifurcated approach . . . require[s] 

findings of both unusual circumstances and a potentially 

significant effect.” (Id. at p. 1115.) The former is a purely factual 

determination; the latter is a question of causation. An agency 

need only address the second element if it first finds that some 
22

circumstance of the project is indeed unusual. (See Respect Life 

South San Francisco v. City of South San Francisco (2017) 15 

Cal.App.5th 449, 458 [“This [second step] presupposes the 

existence of unusual circumstances”] (Respect Life).)

We review an agency’s finding on the first element for 

substantial evidence. (Berkeley Hillside, supra, 60 Cal.4th at 

p. 1114.) If an agency moves to the second step, i.e., the agency 

has concluded that “a particular project presents circumstances 

that are unusual for projects in an exempt class,” then “the fair 

argument standard” applies. (Ibid.) Under that standard, “ ‘the 

reviewing court’s function “is to determine whether substantial 

evidence support[s] the agency’s conclusion as to whether” ’ there 

is a fair argument of a reasonable possibility that the activity will 

have a significant effect on the environment.” (Respect Life, 

supra, 15 Cal.App.5th at p. 457, quoting Berkeley Hillside, supra, 

at p. 1115.) If there is substantial evidence supporting a fair 

argument of a reasonable possibility of significant environmental 

effects, “then the [agency’s] determination that no fair argument 

can be made constitutes an abuse of discretion and cannot be 

upheld.” (Respect Life, supra, at p. 457.)

Citizens’s argument that we should apply the fair 

argument standard of review fails because the City explicitly 

found there were no unusual circumstances involving the Project, 

and as discussed below, that finding is supported by substantial 

evidence.9 Thus, we do not reach the second step of the Berkeley 

Hillside analysis.

9 We would have had to proceed to the second level of 

Berkeley Hillside review if the City had not expressly found that 

the Project was exempt. (Respect Life, supra, 15 Cal.App.5th at 
23

Citizens’s argument that we should review the City’s 

finding that the location exception does not apply to the Project 

under the fair argument standard of review fails for the same 

reason. Following Berkeley Hillside, courts have concluded that 

“the same bifurcated standard of review is applicable to the 

location exception.” (Berkeley Hills Watershed Coalition v. City of 

Berkeley (2019) 31 Cal.App.5th 880, 890 (Watershed Coalition).) 

“As with the unusual circumstances exception, the determination 

whether a project is located in ‘a particularly sensitive 

environment’ (Guidelines, § 15300.2, subd. (a)) is essentially a 

factual inquiry, subject to the substantial evidence standard of 

review.” (Ibid.) Thus, if an agency rejects a location exception 

challenge to a project by finding in the first instance that the 

project is not located within a particularly sensitive environment, 

we review that determination solely for substantial evidence.

As detailed below, the City reviewed the areas surrounding 

the Project and found that the location exception did not apply 

because the Project was not located within “a designated, 

p. 458 [“[A] court cannot affirm an entity’s implied determination 

that the unusual-circumstances exception is inapplicable by 

simply concluding that the record contains substantial evidence 

that the project involves no unusual circumstances. Instead, to 

affirm such an implied determination, the court must assume 

that the entity found that the project involved unusual 

circumstances and then conclude that the record contains no 

substantial evidence to support either (1) a finding that any 

unusual circumstances exist (for purposes of the first element) or 

(2) a fair argument of a reasonable possibility that any purported 

unusual circumstances identified by the petitioner will have a 

significant effect on the environment (for purposes of the second 

element.”].)
24

precisely mapped” environmental resource. As also detailed 

below, because substantial evidence supports that factual 

finding—the first level of Berkeley Hillside review—we do not 

progress to the “fair argument” standard of review—the second 

level of review under Berkeley Hillside.

Citizens also argued that the Project impacts on a sensitive 

environment because it is located in a fire risk zone. As we 

explain below, merely being located in a fire zone is not sufficient 

to invoke the location exception and Citizens proffered no other 

evidence to support that exception.

2. Substantial Evidence Supports the City’s Express 

Finding There Were No Unusual Circumstances

Involving the Project

It was Citizen’s burden in the administrative proceedings 

below “ ‘to show that the project is not exempt because it falls 

within one of the exceptions.’ ” (Save the Plastic Bag Coalition v. 

County of Marin (2013) 218 Cal.App.4th 209, 220, citing 

Guidelines, § 15300.2; Berkeley Hillside, supra, 60 Cal.4th at 

p. 1105.)

Citizens first asserts that “the undeniable evidence that 

wildlife is using the property on which the Project is located” is 

an unusual circumstance that should negate application of the 

Class 3 exemption. The City rejected this assertion. As 

summarized above, Gohlich concluded there are no “unusual 

circumstance[s] regarding biological resources,” in part because 

the Properties “don’t contain really any viable habitat.” On 

substantial evidence review, we “resolv[e] all evidentiary conflicts

in the agency’s favor and indulg[e] . . . all legitimate and 

reasonable inferences to uphold the agency’s finding.” (Berkeley 
25

Hillside, supra, 60 Cal.4th at p. 1114.) The City’s conclusion is 

supported by Gohlich’s testimony.

Second, Citizens contention that “new fencing” could 

“sever[ ]” the nearby “habitat linkage system” similarly fails. As 

discussed above, Gohlich reviewed the MRCA map identifying 

nearby linkage trails, and observed that this map shows that the 

trails do not traverse the Properties. Citizens thus failed to 

produce evidence that linkage trails would be “severed” by the 

Project and the City’s finding that the Project does not present 

unusual circumstances was supported by substantial evidence.

Third, Citizens cites to the 2013 MND in which the City’s 

initial study concluded, “Natural slopes are historically unstable

and graded and trimmed slopes onsite could be unstable.” 

Without any legal citation and relying only on its own contention 

in its appellate briefing, Citizens concludes that “[u]nstable 

natural slopes are not the usual circumstances in which 

construction of up to three single-family residences occur.”

This contention fails to appreciate that since 2013, the 

Properties have been subject to grading and slope stabilization. 

Indeed, the administrative record contains a “Grading Permit,” 

wherein the “Job Description” indicates “Grading and dranage 

[sic] for hillside repair of failed slope.” Because Citizens’s 

argument is premised upon conditions present in 2013, but 

thereafter remediated to the evident satisfaction of City officials, 

it fails. (See Communities for a Better Environment v. South 

Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 321

[CEQA review must focus on “the actual environmental 

conditions existing at the time of CEQA analysis” (italics added)].)

Fourth, Citizens again relies on the 2013 MND: the project 

site has “unusual geology.” This argument ignores that the City 
26

required Real Party to prepare a geotechnical study for its review 

as a condition for its issuance of the necessary building permits, 

and that the ensuing 27-page report addressed the City’s 

concerns. Specifically, the report “recommended that the 

downhill side of the development envelope be supported with 

soldier piles.” The report concluded: “It is the finding of Irvine 

Geotechnical that construction of the proposed project is feasible 

from a geologic and soils engineering standpoint . . . .” This 

finding is also substantial evidence supporting the absence of 

unusual circumstances.

10

3. Substantial Evidence Supports the City’s Finding that 

the Location Exception Does Not Apply

The Class 3 exemption does not apply where a “project that 

is ordinarily insignificant in its impact on the environment may 

in a particularly sensitive environment be significant.” 

(Guidelines, § 15300.2, subd. (a).) An environmental resource

may be “particularly sensitive” in one of two ways: it may be of 

“critical concern,” or it may be “hazardous.” Citizens argues the 

location exception applies to the Project in both these ways.

a. Substantial Evidence Supports the City’s 

Conclusion the Project Would Not Impact an 

Environmental Resource of Critical Concern

10 Citizens does not argue that the Project presents 

“unusual circumstances” because the proposed Residences are 

abnormally large. Rather, Citizens emphasized the size of the 

proposed Residences only in connection with its argument that 

the City erroneously exempted the Project under Class 2. We do 

not address this argument because, as noted in our Introduction, 

it is not necessary given our ruling that the City did not err in 

finding the Project exempt under Class 3.
27

According to Citizens, the Project’s “immediate proximity to 

the Franklin Canyon Park and Habitat Block No. 74” is an 

environmental resource of critical concern that triggers the 

location exception. Citizens also argues that the Project affects a 

purported wildlife corridor.

Contrary to Citizens’s argument, a project’s mere proximity

to an officially mapped environmentally sensitive resource does 

not preclude the application of a Class 3 exemption under the 

location exception. Citizens relies on Salmon Protection &

Watershed Network v. County of Marin (2004) 125 Cal.App.4th 

1098 to argue that a project located adjacent to, but outside the 

scope of a protected environmental resource area may 

nevertheless have an impact on that area.

In Salmon Protection, the court held that adoption of a 

categorical exemption in connection with approval of construction 

of a single family home was improper where the property (1) was 

located within a designated stream conservation area, (2) was 

immediately abutting a protected anadromous fish stream, and 

(3) where the house would be within 40 feet of the creek bank, 

and parking for the house would be just 20 feet from the creek 

bank. (Salmon Protection & Watershed Network v. County of 

Marin, supra, 125 Cal.App.4th at p. 1103.)

Here, Citizens is correct that Franklin Canyon Park is 

indeed a “location” “designated” as an “environmental resource of 

hazardous or critical concern” by any federal, state or local 

agency. (Guidelines, § 15300.2, subd. (a).) Unlike in Salmon 

Protection, the Properties are not located in that designated 

environmental resource. Instead, they are outside Franklin 

Canyon Park and are separated from the park by at least one 

other residential property.
28

Citizens also fails to demonstrate that the Project would 

impact the nearby Franklin Canyon habitat block, particularly 

wildlife in the surrounding area.

City Planner Gohlich rejected the claim of Citizens’s 

attorney that the MRCA map showed habitat linkage trails 

traversed the property: “When in fact you look at the habitat 

linkage map that has been provided by the Santa Monica 

Conservancy there are no linkage trails that go through these 

properties.”

Citizens relies on its attorney’s letter submitted to the City 

Council during its hearings on the Project. The only “evidence” to 

which this letter refers is the photograph of the bobcat on a 

neighbor’s property, which counsel interprets as the bobcat’s 

entering the Properties to access open land, and an argument 

that “portions of the property provide a pathway for animals” 

because they “have been seen by residents in the area at one time 

or another.” This letter fails to demonstrate counsel’s personal 

knowledge and is mere speculation that the Project will impact 

either Habitat Block No. 74 or any other “designated, precisely 

mapped, and officially adopted” wildlife corridor. (Guidelines, 

§ 15300.2, subd. (a).)

MRCA’s letter does not assist Citizens either. MRCA

stated that “[w]ildlife movement between [lower Franklin Canyon 

and lower Coldwater Canyon] habitats has become increasingly

restricted due to development.” Nowhere does the letter describe 

where, when, or how such other development has restricted 
29

movement of any identified wildlife, or how this Project in 

particular will restrict any such movement.

11

Citizens also cites testimony by a neighboring property 

owner at the City Council meeting in which she stated that the 

Project’s retaining walls would “encroach on the wildlife corridor 

that runs directly alongside.” Anecdotes are not data, and this

conclusory testimony by a neighboring property owner and 

hearsay by unidentified “residents in the area” are not 

“substantial evidence” supporting the existence of a “precisely 

mapped” environmental resource under the Public Resources 

Code which disqualifies “unsubstantiated opinion or narrative.” 

(§ 21080, subd. (e).)

In sum, substantial evidence supports the City’s finding 

that the Project is not located within an area of critical concern as 

precisely mapped and so designed by a public agency. Citizens 

thus fails to carry its burden on appeal to show the City erred in 

rejecting the location exception based on the presence of a critical 

concern.

b. There is No Evidence the Project Will Impact 

an Environmental Resource of Hazardous 

Concern

Citizens observes that the Properties are located in a high 

fire hazard severity zone. Citizens’s argument seems to be that 

the mere fact of the Project’s presence within “a fire-prone hillside 

area of the City” “renders it ineligible for a Class 3 exemption.” 

11 Citizens attempts to bolster its argument by citing to 

other MRCA documents that the trial court declined to judicially 

notice. We do not respond to arguments based on these 

documents for the reasons stated in section F of our Factual 

Background and Procedural History.
30

Citizens cites to a map that the City prepared indicating that the 

property lies within a “Fire Hazard Severity Zone.”

Citizens is correct that the Project is situated within an 

officially mapped fire risk zone. But Citizens is incorrect that 

location in a fire risk zone automatically qualifies as impacting 

an “environmental resource of hazardous or critical concern.” 

(Guidelines, § 15300.2, subd. (a), italics added.)

In Watershed Coalition, the First District recently rejected 

a “location exception” argument predicated on a project’s location 

in earthquake and landslide zones. (Watershed Coalition, supra, 

31 Cal.App.5th at p. 880.) The court started with an analysis of 

section 15300.2, subdivision (a), of the Guidelines in which the 

location exception appears. “Generally, we apply the same rules 

governing interpretation of statutes to the interpretation of 

administrative regulations.” (Id. at p. 890, citing Berkeley 

Hillside, supra, 60 Cal.4th at p. 1097.) “The plain meaning of 

‘environmental resource’ in the location exception does not 

encompass possible earthquake or landslide zones,” because “[a] 

‘resource’ is a ‘natural source of wealth or revenue,’ or a ‘natural 

feature or phenomenon that enhances the quality of human life.’

(Merriam-Webster’s Collegiate Dict. (11th ed. 2014) p. 1061.) 

Earthquakes and landslides are geologic events—and while they 

are indeed hazardous, they are not ‘resources.’ ” (Watershed 

Coalition, supra, at p. 891, italics omitted.)

Because fire zones are not “resources” any more than 

earthquake and landslide zones are “resources,” Citizens fails to 

establish an environmental resource of hazardous concern that 
31

would support a location exception.

12 We conclude that the City 

did not err in rejecting the applicability of the location exception.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

SINANIAN, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

12 Citizens makes no argument other than the Project’s 

presence in a fire zone to support its assertion that the Project 

may impact on an environmental resource of “hazardous”

concern.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.