Court Finds Subdivision Map Exempt From CEQA, Consistent With Specific Plan EIR – Potential Impacts to Endangered Mouse, Sea Level Rise, Not Enough to Overcome Exemption for Housing

February 1st, 2022

By: Dustin Peterson



In Citizens’ Comm. To Complete v. City of Newark (Dec. 29, 2021, A162045) ___Cal.App.5th___ [2021 Cal. App. LEXIS 1120], the First District Court of Appeal upheld the trial court’s ruling that the City of Newark’s (City) approval of a 469-unit residential subdivision (Project) was exempt from CEQA pursuant to Government Code section 65457, the statutory exemption for residential projects consistent with a previously approved specific plan. The Court held that the Project did not involve substantial changes that would require major revisions to the underlying specific plan EIR. Further, the Court found that recognizing the potential need for measures to address sea level rise near the end of the century did not improperly defer analysis on the subject.

Following litigation over the original iteration of the specific plan and its EIR in 2010, the City certified a recirculated EIR (REIR) in 2015, and readopted the specific plan. The readopted specific plan allowed for the development of residential units and a golf course on wetlands next to San Francisco Bay. The REIR analyzed the specific plan’s environmental impacts based on the maximum development permitted, and discussed the plan’s impacts on an endangered harvest mouse and potential impacts from climate change on sea level rise in the area. In 2019, the Project was submitted to the City for consideration. The proposal contained 874 units less than allowed under the specific plan and omitted the golf course. The City prepared a checklist comparing the REIR’s analysis of the specific plan with the impacts of the Project finding there to be no new circumstances that would trigger the need for additional environmental review, and approved the Project.

The Citizens’ Committee to Complete the Refuge and the Center for Biological Diversity (collectively, Petitioners), filed a Petition for Writ of Mandate, challenging the Project’s use of the checklist as inadequate. The trial court found that substantial evidence supported the City’s findings and determination and denied the writ. The Petitioners timely appealed.

On appeal, Petitioners argued that section 65457 did not apply because the Project proposed substantial changes to the specific plan, which would require major revisions to the REIR under Public Resources Code section 21166. While both parties contended that the applicable standard of review was similar to the standard applicable to tiered EIRs, the Court recognized that to be a “more searching” standard than was applicable here under section 21166.

On the merits, Petitioners contended that the Project’s (1) fill and elevation of some upland areas and not adjacent wetlands, (2) omission of the golf course, and (3) siting of residential development with riprap to prevent coastal erosion adjacent to wetlands, would reduce escape habitat for the harvest mouse, exposing the species to increased predation as water periodically inundated the wetlands. In addition, Petitioners argued that the new plan increased habitat for harvest mouse predators. However, the Court disagreed that these were changes or new information requiring additional review. Though the REIR had anticipated additional review, the City’s determination that there would be no additional impacts was not improper. The REIR had evaluated the loss of upland habitat adjacent to wetlands, and the proposed Project would eliminate less of that habitat than previously analyzed, not more. The REIR’s habitat analysis was not dependent on the construction of the golf course because the REIR discounted its value as habitat. Had Petitioners disagreed, they should have challenged the REIR. Further, the Project would have a smaller footprint than the development contemplated by the REIR. Thus, the Court upheld the City’s conclusion that the Project’s impacts on harvest mouse habitat would not be greater than was analyzed in the REIR. Moreover, the Project utilized a mitigation and monitoring plan for on-site habitat restoration adopted from the REIR.

The only aspect of the Project Petitioners identified that the REIR did not address was the use of riprap. While the specific plan had recognized the need for some engineering and slope armoring, the riprap was proposed to address erosion. Petitioners argued that the riprap would provide spaces for rats to live close to wetlands and increase rat predation on the harvest mouse. But because they cited nothing to support their contention, the Court found that Petitioners had failed to meet the burden under section 21166, and failed to demonstrate that the City’s decision was not supported by substantial evidence. The Court admitted that the use of riprap might potentially increase impacts on the harvest mouse, but concluded that the “interest animating section 65457 … to increase the supply of housing” was “important enough to justify forgoing the benefits of environmental review.”

Petitioners, along with a number of amici, also argued that the City was required to take account of new information regarding sea level rise and how the Project might impact existing environmental conditions. They contended that the Project would exacerbate the impacts of sea level rise because it would border the retreating wetlands, preventing the wetlands from becoming established on higher ground. The Court found that, even if they were right that an EIR was required to analyze these impacts, this was not a new phenomenon and the issue should have been raised in a challenge to the specific plan REIR, not for this subsequent Project.

Lastly, the Petitioners argued that a hydrology report attached to the Project’s checklist improperly deferred consideration of mitigation measures because the City planned on taking an “adaptive approach” to managing flooding of the Project from sea level rise. The Court rejected Petitioners’ argument, finding that these impacts were not impacts of the Project on the environment. Because the impacts were not subject to CEQA, the measures adopted to address the impacts were also not subject to CEQA’s rules concerning deferred mitigation. Petitioners also argued (for the first time in their reply) that, even if CEQA rules did not govern the mitigation, the environmental impacts of such measures needed to be evaluated. But the measures were discussed as potentially occurring in the latter half of the 21st century in the City’s hydrology report. The Court concluded that the City’s responses to environmental conditions potentially occurring in 50-80 years were speculative and, therefore, were not required to be analyzed. As such, the City prevailed on all issues.

Key Points:

  • Government Code section 65457 exempts residential projects consistent with a specific plan from further CEQA review, with the legislative intent to increase the supply of housing.
  • Measures proposed to address the impacts of the environment on a project, such as hazards associated with sea level rise, are generally not subject to CEQA’s rules regarding deferred mitigation if the project does not cause or exacerbate the hazard.