Court Upholds City’s Use of CEQA Exemption for 469-Unit Project Consistent with Specific Plan

Specific plans are a useful tool local agencies use to implement a general plan in smaller geographical areas. If an agency adopts a specific plan for which an environmental impact report is certified, certain residential projects that are consistent with the plan are exempt from further review under the California Environmental Quality Act. (Gov’t Code § 65457.)

In Citizens’ Committee to Complete the Refuge v. City of Newark (Cal.Ct.App. No. A162045, ordered published 1/25/22), the First District Court of Appeal upheld the City of Newark’s use of this CEQA exemption despite project changes, changes to circumstances, and the addition of a new mitigation measure.  The Court determined that these changes did not require major revisions to the previous specific plan programmatic EIR to address a new or more severe significant environmental impact.

In 2015, the City approved a program EIR and adopted a specific plan allowing mixed uses for Areas 3 and 4 located next to San Francisco Bay.  Area 3 was developed and subsequently in 2019, the City approved a 469-lot residential subdivision in Area 4.  The City prepared a checklist comparing the previously-certified specific plan EIR’s analysis of impacts with the impacts of the subdivision map.  In using the specific plan exemption for residential projects under Government Code section 65457, the City found the Area 4 project was consistent with the specific plan, and that project changes, changes to circumstances and addition of a new mitigation measure were not significant enough to require additional environmental review.

The changes included the placement of housing (as opposed to the planned golf course) in an upland area containing salt marsh harvest mouse habitat, filling and raising portions of the site adjacent to wetlands, and supporting the raised areas with riprap.  Challengers claimed these changes, and the insertion of a new mitigation measure (use of riprap), required additional environmental review.  The Court disagreed.

Reviewing whether an event specified in Public Resources Code section 21166 had occurred, the Court determined that the changes did not constitute “substantial changes” that would require “major revisions” to the previous programmatic EIR to address an additional or more severe environmental effect.  In addition, while the Court agreed the use of riprap was not mentioned in the EIR, the challengers failed to provide adequate evidence to show the new mitigation measure would result new impacts or a substantial increase in the severity of previously identified impacts that would require major revisions to the EIR.  The challenges argued the use of riprap would increase the rat population that would be detrimental to the salt marsh harvest mouse, an endangered species.

The Court recognized that by rejecting the challengers’ arguments regarding the riprap, it was “allowing the [] development to proceed despite a potential increase in the impact on the harvest mouse to some degree.”  The Court explained that the Section 65457 exemption compels this result by setting a “higher threshold for review of a residential development project consistent with a previously analyzed specific plan….” The Court continued by stating that the exemption “reflects the Legislature’s determination that the interest promoted is ‘important enough to justify forgoing the benefits of environment review.’” The interest of Section 65457 “is to increase the supply of housing.” The Court concluded by stating that Section 65457 exemption “is intended to permit housing developments like the one at issue here that are consistent with a specific plan that has already undergone environmental review, ‘regardless of possible environmental of the project.’”

The Citizens’ Committee decision is another in a series of recent, strongly-worded court opinions supporting the Legislature’s desire to provide much needed housing in California.