On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. The modifications, made to the majority opinion at pages 1098-1099, 1102, and to the concurring opinion at page 1130, soften the majority’s comparison between (1) the unsuccessful appellants’ position on operation of the unusual circumstances exception to categorical exemptions, and (2) the operation of CEQA’s co-called “common sense” exemption embodied in Guidelines § 15061(b)(3).

The majority opinion formerly asserted that appellants’ position – i.e., under the unusual circumstances exception, categorical exemptions are inapplicable unless the agency “checks its files” and finds no “evidence of potentially significant impacts” – postulated “precisely” the same “inquiry” or “test” as the common sense exemption. The modified majority opinion more modestly asserts the inquiries are “similar,” but not identical or “duplicative,” while ultimately concluding that “under appellants’ view, the categorical exemptions would serve little purpose [and] would generally apply only when the proposed project is already outside of CEQA review.” (Order, p. 2, emph. added.) The Order clarifies that “[t]hese modifications do not affect the judgment.” (Order, p. 3.)

The modified concurring opinion rejoins: “[T]he 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.” (Order, p. 3, emph. in orig.)

While both the Supreme Court’s majority and concurring opinions thus recognize differences between the two standards, the majority (unlike the concurrence) ultimately did not view them as substantial enough to indicate that a “significant procedural advantage” is conferred by use of any categorical exemption that is subject to the unusual circumstances exception as broadly construed by appellants. This differing viewpoint informs the majority’s holding rejecting appellants’ interpretation, which it reached so as to ensure that categorical exemptions are accorded meaningful effect and “have significant independent value” as the Legislature intended.