Court Upholds CEQA Exemption for Residential Development - Minor Project Tweaks and New Greenhouse Gas Thresholds Don’t Trigger Additional Review

In a recent case involving the California Environmental Quality Act, a state appellate court upheld a city’s decision to exempt from environmental review a residential development because it was consistent with a broader specific plan that already had a certified environmental impact report (EIR).

The court, in upholding the City of Dublin’s use of the exemption under Government Code section 65457, took a reasonable and flexible approach to its interpretation of the law in Concerned Dublin Citizens v. City of Dublin. The court’s opinion was published this week.

Plaintiffs challenged the city’s use of the exemption for a residential-only development within the Eastern Dublin Specific Plan. That plan called for a mixed-use transit center under a previously certified EIR. Plaintiffs alleged that replacing retail uses with residential ones created a specific plan inconsistency that made the CEQA exemption unavailable.

The appellate court disagreed, first holding that while the specific plan envisioned a mixed-use center, not every site within that center was required to be mixed use on its own; a residential-only development could still be consistent with a mixed-use specific plan. The court also held that, because the project added 100 units to a particular portion of the specific plan but also removed 100 units from another portion, the overall project did not result in a substantial change to the specific plan. Accordingly, the court found that the CEQA exemption was appropriate.

Plaintiffs also alleged that greenhouse gas significance thresholds recently adopted by the region’s air quality regulating agency constituted new information requiring supplemental review. The court again disagreed. Because the original EIR considered air quality impacts and because the potential effects of greenhouse gases were known at the time of the EIR’s certification, the new thresholds were not new information requiring a supplemental EIR.

For more information on this case and how it may affect your city, county or agency, please contact Sarah Owsowitz or Charity Schiller in the Environmental and Natural Resources practice group or your BB&K attorney.

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