First District Court Of Appeal Upholds City’s Application of Exemption for Residential Development Consistent with a Specific Plan for Which an EIR Was Certified

On March 28, 2013, following a publication request submitted by James G. Moose, of Remy Moose Manley, LLP, the First District Court of Appeal ordered published its decision in Concerned Dublin Citizens v. City of Dublin (2013) ___Cal.App.4th___, Case No. A13570. The case is the first published decision to address the exemption from environmental review set forth in Government Code section 65457. That section provides an exemption from environmental review for a residential development that is consistent with a broader specific plan for which an EIR has been certified.

Background: In 2002, the City of Dublin approved the Eastern Dublin Specific Plan for the Dublin Transit Village Center development, a high-density mixed-use, transit and pedestrian-oriented development adjacent to the Bay Area Rapid Transit’s East Dublin/Pleasanton Station. The specific plan includes a “stage 1” development plan that establishes the permitted land uses and development standards for future development projects within the transit center. The city also certified a final EIR for the project.

The EIR for the specific plan was prepared as a program EIR, pursuant to CEQA Guidelines section 15168. It described general impacts and mitigation measures for, among other things, the specific plan stage 1 development plan. Under the stage 1 development plan, the parcel at issue in this case was designated as “site C” and was to include a maximum of 405 high density residential dwelling units and up to 25,000 square feet of retail space.

In 2011, following rescission of two previous proposals, Avalon Bay Communities submitted a proposal for development of site C. The planning commission approved the proposed site development review and map and recommended the city council approve the stage 1 development plan amendment, a stage 2 development plan, and a development agreement. The planning commission found the project was exempt from CEQA under Government Code section 65457, as a residential project that is consistent with a specific plan for which an EIR was certified. The organization Concerned Dublin Citizens (CDC) appealed the planning commission’s decision to the city council and the city council affirmed. CDC thereafter filed a petition for writ of mandate in the Alameda Superior Court challenging the exemption from environmental review. The superior court denied the petition and CDC appealed.

Residential Development. The Court of Appeal first considered CDC’s argument that the project is not a “residential development” and therefore the exemption under Government Code section 65457 could not apply. CDC acknowledged that the development as then-proposed included only residential units, but contended that the project is nonetheless a mixed-use development because the specific plan, the development plans, and the development agreement authorize up to 25,000 square feet of commercial usage in site C.

CDC argued that because Avalon Bay retains the option to convert 25,000 square feet of residential uses to retail space, the project falls outside the scope of the exemption. The Court of Appeal rejected this argument, explaining that the city code approval process for the project makes it clear that any future retail use on the project site will be subject to further discretionary review in the form of an amendment to the site development review approved for the project. As such, the only project that has been approved by the city for site C at this time is the development of residential uses.

The court further explained that the fact that the property is zoned for mixed-use does not convert the otherwise purely residential project into a mixed-use project. Avalon Bay is not entitled to develop retail property simply because such use would be consistent with zoning requirements. Further, the specific plan contemplates that before any use of the property is approved, there will be compliance with the site development process, which includes compliance with applicable environmental review. Therefore, approval of the project did not constitute approval of retail uses within site C, and the city properly characterized the project as “residential development” within the meaning of section 65457.

Specific Plan Consistency. CDC argued that in two respects the project is inconsistent with the transit center specific plan for which the EIR was certified. First, it contended that because the specific plan calls for mixed-use, the project must also be a mixed-use plan. According to CDC, the inclusion of ground-floor retail is integral to the transit center’s goal of creating a pedestrian-friendly environment, and if the city deleted the retail uses from area C, then the project would be inconsistent with the specific plan. The court disagreed.

The court explained that while the transit center is designed for mixed-use, commercial development in site C is not required by the specific plan. Further, the specific plan states only that retail uses are encouraged, not required. Thus, the absences of retail space did not render the project inconsistent with the specific plan.

Second, CDC contended that because the EIR for the specific plan was a program-level EIR, a tiered-project-specific EIR necessarily was required to follow the program EIR. The court found this argument to be without legal support. Contrary to CDC’s contention, nothing in the CEQA statute or Guidelines mandates a particular level of environmental review in evaluating later projects within the scope of a certified program EIR. Although in some cases, it will be necessary to prepare a negative declaration and in others to prepare a full EIR, in others, the analysis will be completed by determining that the subsequent project is exempt from further analysis under CEQA—as was the case here.

Section 65457 Qualification to the Exemption. Lastly, the court held that the qualification to the Government Code section 65457 exemption did not apply. Government Code section 65457 provides that the exemption does not apply if, after certification of the program EIR, an event specified in Public Resources Code section 21166 (requiring preparation of a supplemental EIR) has occurred, “‘unless and until a supplemental environmental impact report for the specific plan is prepared and certified.’” Thus, explained the court, the qualification to the section 65457 exemption turns on whether, after certification of the EIR, circumstances have changed to the extent that reliance on the EIR is unwarranted. Here, the court found that substantial evidence supported the city’s determination that the circumstances requiring additional environmental review of the transit project were not present. Therefore, the qualification to the application of the Government Code section 65457 did not apply.