Citizens’ Committee to Complete the Refuge v. City of Newark
(2022) (Case No. A162045)
The California Court of Appeal, First Appellate District, delivered a welcomed win for the public agency in Citizens’ Committee to Complete the Refuge v. City of Newark, when it affirmed the trial court’s decision to deny the petition for writ of mandate filed by Citizens’ Committee to Complete the Refuge and Center for Biological Diversity (appellants). The petition alleged the City of Newark’s non-compliance with the California Environmental Quality Act (CEQA) when it approved a housing development project while relying on prior environmental review completed for an applicable specific plan.
As background, in 2010, the city approved a specific plan for property referred to as Areas 3 and 4 that authorized the development of 1,260 residential units and a golf course. The city certified an environmental impact report (EIR) prepared for the specific plan, which was challenged. As a result of the challenge, the city recirculated the EIR (REIR), which clarified that it was providing a program-level analysis of environmental impacts of the Area 4 development based on the impacts of the maximum development scenario, because the final location and design of Area 4 development was not yet known. The REIR discussed the impacts to the destruction of harvest mouse habitat and called for mitigation of any such impacts, and the impacts of climate change and sea level rise. In 2015, the REIR was certified, and the specific plan was re-adopted. In 2016, the city approved a 386-unit development in Area 3.
In 2019, real parties in interest and project applicants submitted a proposed subdivision map for 469 units in certain subareas of Area 4, even though 874 of the 1,260 units approved as part of the specific plan remained to be developed. The city prepared, circulated for public review, and responded to public comments on a checklist that compared the impacts of the subdivision map to the impacts of the specific plan studied in the REIR. The city concluded the proposed development was consistent with the specific plan, and there were no changed circumstances or new information that triggered the need for additional environmental review.
Of direct relevance to the court’s evaluation of the city’s action, Government Code section 65457 provides an exemption from CEQA for housing development proposals that implement and are consistent with a specific plan, which exemption was enacted to booster the supply of housing – an important objective during this housing crisis and one that justifies foregoing the additional and repetitive environmental review of certain projects.[1] Because there was no dispute as to the type of project involved and its consistency with the specific plan, the court limited its analysis under Government Code section 65457 to the question of whether project changes, changed circumstances, or new information triggered the subsequent or supplemental EIR exception of Public Resources Code section 21166 to the Government Code exemption. The court held the city’s conclusions and analysis were supported by substantial evidence.
The court first rejected appellants’ arguments regarding project changes from the specific plan that would allegedly cause new, significant impacts on the harvest mouse. The allegedly significant project changes involved not developing all specific plan subareas. The court reasoned that: (1) developing less than what was studied in the REIR suggested less of an impact, (2) undeveloped areas would continue to provide habitat for harvest mouse, and (3) the mitigation by on-site habitat restoration will address indirect impacts on harvest mouse.
The only project change not addressed in the REIR was that the western sides of the raised and filled developed areas would be armored with riprap. But, the court underscored that a subsequent or supplemental EIR is only required when “[s]ubstantial changes are proposed in the project which will require major revisions of the environmental impact report” (italics added). The court found the new use of riprap did not meet this standard due to the lack of any evidence from appellants that the use of riprap would substantially increase project impacts.
Appellants’ next argument on the changed circumstances and new information was based on scientific insights concerning the amount and rate of sea level rise that emerged after the city certified the REIR, with rising sea levels forcing the harvest mouse from its wetland habitat into the developed residential areas, causing the harvest mouse to suffer predation from rats in the riprap and other threats from dogs, cats, people, and cars. However, even if an EIR was required to analyze the risk that a project could exacerbate the effects of sea level rise by contributing to coastal squeeze and thwarting wetland migration, the court held that these dynamics were not new in relation to this project, so the city did not need to address them in the checklist. The court chastised appellants, observing that the “time and place” for arguments regarding this issue was long ago and in response to circulation of the REIR, if not the original EIR.
Lastly, the court found appellants’ complaint about the city’s approach to managing flooding from sea level rise, which was presented as a mitigation measure challenge, as misplaced because sea level rise is not an impact on the environment caused by the project and therefore no discussion of the sea level rise impacts on the project was necessary. The court refused to consider appellants’ new alternative arguments on this point and ultimately took a pragmatic approach to the topic, observing that environmental conditions that may occur far into the future (“between 50 and 80 years from now”) cannot be considered part of the project. As such, the city was “not required to analyze the impacts of the adaptive pathways” for flood management as part of the project.
This case is an example of a successful application of the Government Code exemption for housing projects consistent with an approved specific plan and should be considered by public agencies as a powerful weapon in their arsenal to tackle the California housing crisis, which is continuing to be exacerbated by the day.
[1] As stated by the court, Government Code section 65457 sets “a higher threshold of review for a residential development consistent with a previously analyzed specific plan than for a project tiered under a program EIR” because the “interest animating Government Code section 65457 is to increase the supply of housing.”
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