In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal affirmed the trial court’s ruling that a residential project in a specific plan area in the city of Newark fell within Government Code section 65457, a statutory exemption under CEQA for residential development projects that are consistent with a specific plan for which an Environmental Impact Report (EIR) has been certified.  Petitioners argued a subsequent EIR was required due to three project changes that they claimed led to new significant impacts.  However, the Court found the exemption applied to the project as the exemption’s focus is to increase the supply of housing and it therefore should apply to projects that meet the criteria “regardless of possible environmental impacts.”

In 2010, the City of Newark (the City) certified an EIR for a specific plan and entered into a development agreement.  Citizens’ Committee to Complete the Refuge (CCCR) challenged the specific plan under CEQA, and the City prepared a recirculated EIR (REIR) after the trial court identified certain deficiencies in the document.  In March 2015, the City certified the final REIR and re-adopted the 2010 specific plan, and later executed a development agreement.  In 2019, a proposed subdivision map was submitted for the approval of residential lots.  To determine whether the REIR sufficiently addressed the environmental impacts of the proposed subdivision map, the City prepared a checklist that compared the REIR’s analysis of the specific plan’s impacts with the impacts of the subdivision map.  The City posted the checklist for public comment, responded to the comments, and approved the subdivision map.

CCCR filed a petition for writ of mandate and complaint for injunctive relief challenging the subdivision map and checklist.  The trial court denied the writ and found the administrative record contained substantial evidence to support the City’s determination that no further environmental review was necessary after the REIR.  CCCR appealed this denial and argued a subsequent EIR was required due to new significant impacts created by three project changes.

CCCR stated the subdivision map reflected three project changes that would have new and significant impacts to the protected harvest mouse: (1) a proposal to fill and elevate only the upland areas and not the wetlands, (2) the omission of a golf course, which the specific plan allowed for, and (3) protection of certain elevated banks directly next to wetlands with riprap.

However, the Court found that substantial evidence supported the City’s conclusion that these three changes would not significantly increase the impacts on the harvest mouse beyond what the REIR addressed.  The Court upheld the City’s finding that even with the changes, the project impacts were within the envelope of what was studied in the REIR.

The Court found that Public Resources Code section 21166, which requires a subsequent or supplemental EIR when “[s]ubstantial changes are proposed in the project which will require major revisions of the [EIR],” did not apply here, because CCCR did not demonstrate that the project changes would significantly impact rat predation, nor that sea level rise would “make the impacts of thwarted wetland migration substantially more severe in a way that would trigger the section 21166 exception.”

Importantly, the Court addressed the scope of an agency’s obligation to address sea level rise.  The Court found that sea level rise is an environmental condition, not an impact caused by the project and thus, its effects on the project did not need to be discussed in the REIR or the checklist.  The Court made clear that “[t]he City’s potential responses to environmental conditions between 50 and 80 years from now cannot be considered part of the current project,” and that there is a wide range of sea level projections for that time period and would thus warrant a variety of different responses.

Ultimately, the Court affirmed the trial court, reinforcing the key CEQA principle that the standard for requiring another EIR after one has previously been prepared is quite high.  The City’s housing development project was exempt from further environmental review under Government Code section 65457 and Public Resources Code section 21166 did not trigger subsequent or supplemental review.  The project was consistent with the specific plan, and there was substantial evidence to support the City’s findings that there were no project changes, changes circumstances, or new information that required additional analysis.  The Court found “[t]he City’s preparation of the checklist and determination that the Government Code section 65457 exemption applies constitute[d] environmental review, so the City acted consistently both with the law and with the statements in the REIR.”

Photo of Megan V. Unger Megan V. Unger

Megan Unger is dedicated to helping public and private sector clients navigate complex environmental, land use, and regulatory issues. Megan’s enthusiasm and passion for environmental law aid her in assisting clients with a wide range of legal issues, including compliance with various environmental…

Megan Unger is dedicated to helping public and private sector clients navigate complex environmental, land use, and regulatory issues. Megan’s enthusiasm and passion for environmental law aid her in assisting clients with a wide range of legal issues, including compliance with various environmental regulations. (Read more…)

Photo of Kathryn L. Oehlschlager Kathryn L. Oehlschlager

With nearly twenty years of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counseling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with…

With nearly twenty years of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counseling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with all facets of environmental and land use law, including NEPA and CEQA, federal and state endangered species laws, contaminated site remediation, water quality and supply issues, and laws regulating solid and hazardous waste.  She routinely represents clients in all aspects of the CEQA project review process, including preparation, review, and analysis of negative declarations, draft environmental impact reports, and final environmental impact reports. (Read more…)