Residential Project Exempt From CEQA Review Under Government Code Section 65457 As Consistent With Specific Plan For Which Program EIR Previously Certified; First District Also Holds New GHG Thresholds Do Not Constitute “New Information” Requiring Supplemental EIR For Specific Plan

by Miller Starr Regalia
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In a recently published opinion construing Government Code § 65457’s exemption from environmental review for a residential development consistent with a specific plan for which an EIR was previously certified, the First District Court of Appeal affirmed a judgment rejecting a challenge to the City of Dublin’s use of the exemption to approve AvalonBay Communities, Inc.’s (“AvalonBay”) 7.2-acre development within the larger Dublin Transit Village Center. Concerned Dublin Citizens, et al. v. City of Dublin, et al. (2013 1st Dist., Div. 3) _____ Cal.App.4th _____, 2013 WL 1235649, filed 3/7/13, ordered pub’d 3/28/13.

The City approved the Eastern Dublin Specific Plan for the high-density, mixed-use transit center project near the East Dublin/Pleasanton BART station and certified a program EIR for it in 2002. The transit center specific plan provided for up to 1500 high density residential units, 2 million square feet of office, and 70,000 square feet of retail space. Its EIR analyzed impacts from full build-out of all authorized uses, anticipating “follow-on actions” and site-specific development approvals subject to “additional environmental review” but without specifying the level of required reviews. The plan designated numerous sites within it, and specified their permitted uses and development intensities, and densities, but also provided flexibility in the form of allowed transfers of uses and densities between sites so long as specified overall maximum development levels were not exceeded.

After a series of revised development proposals, AvalonBay sought entitlements in 2011 to develop Site C within the transit center as 100% residential, eliminating commercial, and other uses (except a fitness center), and reallocating 100 residential units from Site A to Site C. The transit center plan “strongly encouraged” but did not require retail uses on Site C. The City approved AvalonBay’s project entitlements and a related development agreement, finding them “exempt from CEQA under Government Code section 65457… as a residential project that is consistent with a specific plan for which an EIR has been certified.”

The trial court rejected a legal challenge to City’s actions brought by Carpenters Local Union No. 713 and a group of citizens, and the Court of Appeal affirmed its judgment denying a writ of mandate. Key holdings of the Court of Appeal include:

  • Considering whether an exemption applies is itself a form of “environmental review” under CEQA, i.e., the first and “jurisdictional” step of the “three-tiered process” described in CEQA case law. Thus, statements in the transit center specific plan EIR contemplating further environmental review for “follow-on” actions – without requiring a specific level of review – did not preclude application of the statutory exemption.
  • To qualify for the Government Code § 65457 exemption from CEQA’s requirements, (1) a project must be for residential development, (2) it must implement and be consistent with a specific plan for which an EIR was previously certified, and (3) the qualification to the exemption found in the statute’s last sentence must not apply, i.e., either no supplemental EIR is required under Public Resources Code § 21166 or such a supplemental EIR must already have been prepared and certified.
  • Regarding the standard of review the court held: A de novo standard of review applies to statutory interpretation, and the substantial evidence standard applies to review of the lead agency’s findings regarding whether each element of the exemption is satisfied. Government Code § 65457 does not require a determination as to whether the proposed project will have significant environmental effects so, in any event, and contrary to Appellants’ arguments, the “fair argument” test cannot apply in determining its applicability. Finally, the same “substantial evidence” standard of review used to determine whether a supplemental EIR is required under Public Resources Code § 21166 applies to whether Government Code § 65457’s qualification applies.
  • The City’s finding that the project was a “residential” development was correct; the only approved project on Site C was for 505 residential units and ancillary features. Notwithstanding the absence of a statutory definition, the parties all agreed the permitted project contained 100% residential units or other uses permitted within a residential zoning district. Moreover, further discretionary review by the City would be required to authorize any non-residential uses on Site C. The fact that the site was zoned for mixed-use development did not vitiate these points or automatically entitle future non-residential development to occur absent future discretionary site review and applicable environmental review processes.
  • AvalonBay’s residential project on Site C was consistent with the transit center’s specific plan despite its deletion of retail uses, which were only “encouraged” and not required by the plan. Nothing in CEQA Guidelines § 15168’s provisions governing program EIRs, nor in the specific plan EIR itself, mandated any particular level of environmental review for subsequent activities in the program, and nothing in them precluded use of an otherwise applicable exemption from CEQA.
  • The qualification for use of Government Code § 65457’s exemption did not apply because none of the circumstances specified in Public Resources Code § 21166 as requiring preparation of a subsequent EIR existed.  For example, the reallocation of 100 residential units between adjacent sites was expressly authorized by, and not a significant change to, the specific plan, and the overall maximum number of residential units remained unchanged.
  • Further, Appellant’s assertion that BAAQMD’s 2010 adoption of new thresholds of significance for GHG emissions constituted “significant and new information” requiring a supplemental specific plan EIR and precluding use of the exemption was also meritless. Even apart from the fact that the referenced thresholds had been set aside by a superior court judgment and were expressly prospective in application, substantial evidence supported City’s findings that they were not “new information” in any event. Even though the EIR didn’t analyze GHGs, it conducted an air quality analysis and could have analyzed such impacts; substantial evidence supported the City’s finding that information about GHGs and then potential impacts has long been known and available could have been addressed in the 2002 EIR’s air quality analysis, and is thus not “new information” requiring a supplemental EIR.
  • Further, the court held that “the adoption of guidelines for analyzing and evaluating the significance of data does not constitute new information if the underlying information was otherwise known or should have been known at the time the EIR was certified.”

The Concerned Dublin Citizens case doesn’t reach any surprising or ground-breaking conclusions, but it does provide helpful construction and guidance on the application of Government Code § 65457’s CEQA exemption for residential projects consistent with a specific plan for which an EIR has been certified. It also clarifies the applicability of Public Resources Code § 21166’s limited triggers for a supplemental EIR in a helpful manner that promotes CEQA’s policies favoring finality of review after an EIR has been duly certified and survived actual or potential challenge, and will discourage future lawsuits seeking to reopen environmental review based on alleged “new” GHG information or regulations.

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