In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.
In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.
In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.
In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.
The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.
Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.
Court of Appeal’s Decision
To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.
Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:
(1) Fill of only uplands and not wetlands inhibited wetland migration;
(2) Omission of the golf course deprived the harvest mouse of escape habitat; and
(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.
The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.
In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.
While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.
The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.
Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.
– Nina Berglund