Applicants did not show that the development complied with a specific plan The EIR was outside the scope of a legal exemption
In Citizens Committee to Complete the Shelter et al. vs. City of Newark et al., the First District Court of Appeals (Div. 4) held that California environmental quality law did not require subsequent or additional environmental review for the City of Newark’s approval of a residential subdivision project of 469 lots. Instead, the court upheld the City’s use of the CEQA exemption from section 65457 of the Government Code for projects conforming to a “specific plan” for which an environmental impact report (EIR) had already been certified.
The area-specific plan which includes the site of the subdivision project – Zones 3 and 4 on land adjacent to the San Francisco Bay – allowed the development of up to 1,260 residential units, a golf course and trails, and filling in all wetlands (86 acres), which provides habitat for the endangered salt marsh mouse. The related EIR provided an environmental analysis of the development at the programmatic level, but recognized that the final development of the planning area may be less than the maximum development foreseen in the specific plan.
The subdivision project proposed to fill and raise only the highlands (zone 4), instead of and wetlands and proposed adding riprap to protect the western sides of these upland areas. The subdivision project would also reduce the number of residential units to 874 and cede the area intended for a golf course to the City, rather than developing the golf course as identified in the Particular Plan.
Citizens’ Committee to Complete the Refuge and Center for Biological Diversity (Applicants) argued that reductions in the development footprint of the subdivision project and the addition of rip rap would impact the endangered salt marsh crop mouse and its wetland habitat. The petitioners argued that these changes would both limit the species’ migration through wetlands and its escape habitat during periodic flooding, and increase its proximity to rats and other predators.
Under section 65457 of the Government Code, a residential project, including a subdivision, conforming to a “specific plan” for which an RIE was certified after January 1, 1980, is exempt from the requirements of the CEQA, unless ‘a specific threshold identified in public resources Code section 21166 is triggered. Specifically, under Section 21166, where an EIR has already been prepared, no subsequent or additional EIR (SEIR) is required, except in the listed circumstances that would result in new or greater impacts. These threshold events typically include when substantial changes are proposed to the project, substantial changes occur in the circumstances under which the project is undertaken, or new information becomes available after certification of the RIE.
Carefully reviewing the analysis of the specific EIR plan, the Court made a number of decisions, leading to the ultimate conclusion that the claimants failed to discharge their obligation to show that the approval of the project by the City under the statutory exemption (and without IRRS) was not substantiated. by substantial evidence. Firstly, the Court concluded that because the RIE did not specify which area of the plan the land would be developed on and – instead – assumed the full construction of the development under the specific plan, the RIE therefore analyzed the impact of the harvest mouse project. upland escape habitat. Second, the Court determined that since the EIR’s finding of no significant impact did not depend on the complete construction of the golf course, the change to eliminate the golf course did not require further analysis. thorough. With regard to armourstone, the Court concluded that, although the specific EIR plan did not analyze the use of armourstone for the purpose of armouring development on high areas, the claimants did not provide any evidence to support their claim that the added riprap would create a significant increase in the severity of the conditions analyzed in the RIE, including the impacts of the Plan Particulier on harvest mice due to rat predation. Finally, although the Court accepted that the Specific EIR Plan indicated that additional review might be required, the Court found that the City had prepared and circulated a “checklist” analyzing whether the circumstances set out in Section 21166 would occur for the purposes of applying the exemption under section 65457 of the Government Code. “constitute an environmental review” in accordance with the law and statements in the specific EIR plan. In making these findings, the Court recognized that the Government Code Section 65457 exemption used by the City is intended to increase the supply of housing and “reflects the determination of the Legislative Assembly that the interest promoted is “significant enough to justify foregoing the benefits of environmental review”.
The Court relied on the statutory language of Section 65457 of the Government Code and Section 21166 of the Public Resources Code, as well as Section 15162 of the CEQA Guidelines, to conclude that substantial evidence supported the City’s conclusion that none of the Project changes would trigger an event as identified. 21166. Not only did the Court find that the Petitioners had failed in their obligation to show that an IRRS was required, but the Court went further by finding that the evidence demonstrated that the proposed reduction in development indicated a less environmental impact.
Further, the claimants argued that the city improperly deferred mitigation of the impacts of sea level rise based on statements in the subdivision hydrology report that the city would take an “adaptive to manage future flooding due to sea level risk towards the end of the century. Cautioning that sea level rise is not an environmental impact of the project, the Court concluded that the “adaptive” approach is therefore not “mitigation” subject to carry-over limits under of the CEQA. Also, as the City’s potential “adaptive” responses in the next 50-80 years were speculative, they could not be considered part of the current project.
Although the application of CEQA’s subsequent review rules under Section 21166 of the Public Resources Code has been the subject of significant case law since the enactment of the law, this case stands apart from the precedents. In its ruling, the First District crystallized CEQA’s desire for finality by identifying the incredibly high standard set by law to require subsequent environmental review after certification of a prior related EIR. According to the Court’s analysis, this threshold is true for both project-specific environmental review and programmatic review, particularly in cases where the subsequent project represents a reduction from a development scenario. maximum identified.