Concerned >Dublin> Citizens v.
City of Dublin>























Filed 3/7/13 Concerned Dublin Citizens v. City of Dublin CA1/3







>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

>



California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST
APPELLATE DISTRICT

DIVISION
THREE




>

CONCERNED DUBLIN CITIZENS et al., Plaintiffs and Appellants, v. CITY OF DUBLIN et al., Defendants and Respondents; AVALONBAY COMMUNITIES, INC., Real Party in Interest.

A135790 (Alameda County Super. Ct. No. RG11581959)

Government
Code section 65457href="#_ftn1" name="_ftnref1"
title="">[1]
provides an exemption from environmental review for a residential development
that is consistent with a broader specific plan for which an environmental
impact report previously has been certified. This appeal challenges the
determination by respondents City of Dublin and the City Council of the City of
Dublin (collectively, the city) that the proposed development of a 7.2-acre
parcel by real party in interest AvalonBay Communities, Inc. (AvalonBay) within
a larger Dublin Transit Village Center development (transit center), for which
an environmental impact report was previously prepared and certified, qualifies
for that exemption. We find no error in the city’s application of the exemption
and therefore shall affirm the judgment denying appellants’ petition for a writ
of mandate. href="#_ftn2" name="_ftnref2" title="">[2]

Factual and
Procedural History

The
transit center is “a high-density mixed-use, transit and pedestrian-oriented
development” adjacent to Bay Area Rapid Transit’s East Dublin/Pleasanton
Station. As stated in the 2002 plan for the transit center, the objective of
the larger project is, among other things, to “1) Construct[] a
state-of-the-art, urban-scale, mixed-use employment, residential and retail
center based on close accessibility of inter-modal transportation
opportunities: rapid transit, bus transit, vehicle access and nonmotorized
transportation modes. [¶] 2) Promot[e] a pedestrian-friendly environment
within the transit center project where employees, residents and visitors are
encouraged to walk or use other non-vehicular modes of transportation.
[¶] 3) Increase[] employment opportunities in the community through the
development of office, retail and similar employment-generating land uses,
including a maximum of 2 million square feet of office space and 70,000 square
feet of ancillary retail space. [¶] 4) Provid[e] up to 1, 500 higher
density dwelling units for households desiring to live in a more urban setting,
near work and public transit opportunities.”

In
2002, the city approved the Eastern Dublin Specific Plan for the transit center
(the specific plan) and, in compliance with the California Environmental
Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), certified an
environmental impact report (EIR) for the specific plan. The specific plan
includes a stage 1 development plan that establishes the permitted land uses
and development standards for future development projects within the transit
center.

The
EIR for the specific plan was prepared as a program EIR, pursuant to
section 15168 of the CEQA Guidelines.href="#_ftn3" name="_ftnref3" title="">[3]
It describes general impacts and mitigation measures for, among other things,
the specific plan and the stage 1 development plan. The EIR analyzes the impacts from full
build-out of all uses authorized under the specific plan and contains a
detailed project description, setting forth specific locations for proposed
uses, roadways, setback requirements, and other site-specific features. The EIR analyzes
environmental impacts in thirteen areas, includes mitigation measures to
address potential impacts, and analyzes alternatives to the proposed transit
center project.

The
EIR anticipates that implementation of the transit center specific plan will
require a number of “follow-on actions,” including approval of stage 2
development plans and site development review for future projects. The EIR
states: “Prior to receiving final approvals for individual development projects
within the Dublin Transit Center site allowed by this General Plan/Specific
Plan Amendment described in this EIR, applicants must submit Stage 2 Planned
Development Rezoning requests to the City of Dublin. Stage 2 Rezoning includes
specific information regarding development proposals and land uses. Site
Development Review (SDR) applications must also be approved by the City of
Dublin, to include precise information regarding building architectural design,
use of exterior materials, a specific site layout, landscaping plans,
conceptual signs plans and other design details. Other applications may include
parcel maps to create individual building lots, consideration of grading and
building permits, utility hook-ups by the Dublin San Ramon Services District
(DSRSD), granting of encroachment permits by the City of Dublin, and filing of
Notices of Intent with the State Water Resources Control Board.” The EIR
“anticipate[s] that additional environmental review would occur at each of
these stages of the project.”

Under
the stage 1 development plan adopted in 2002, the parcel at issue in this action
was designated as site C and was to include a maximum of 405 high density
residential dwelling units and up to 25,000 square feet of retail space. In
2007, AvalonBay submitted its first proposal for development of site C.
The project as initially proposed consisted of 405 apartment units, 22,895
square feet of ground-floor retail space, a leasing center, fitness center, and
two multi-story parking garages. For economic reasons, AvalonBay did not
immediately move forward with this proposal. In 2010, AvalonBay submitted a
revised proposal that included 486 apartment units, 4,192 square feet of
commercial development, the leasing center, fitness center, and two multistory
parking garages. After initial review by the city but prior to a vote on the
project’s approval, AvalonBay withdrew its plan in order to further revise the
project.

On
March 7, 2011, AvalonBay submitted its revised proposal for the development of
site C. The latest plan differs from the prior proposals in that it increases
the number of residential units and eliminates the previously proposed retail
space. The project now includes 505 apartment units, a leasing center, a
fitness center, two parking structures, and on-street parking spaces. The
planning commission report prepared on the project explains that while
ancillary commercial development is not being proposed at this time, “to
maintain the look of commercial development, commercial architecture is being
applied to the residential units fronting the central plaza at the south end of
the project, at the fitness center located at the northeast corner of the
project and for two units facing Iron Horse Parkway just south of the fitness
center.” At a subsequent planning commission meeting, AvalonBay confirmed that
the ground floor units were being developed as residential but “would be able
to be returned to retail space in the future.” AvalonBay explained that the
basic project description removes retail usage from the project because the
transit center already has 12,000 square feet of retail space that has not been
leased after four years, but that “the units can be converted back to
commercial and the two-story look of the area will remain in the event there is
an opportunity to return those spaces to a retail component.”

As
anticipated by the specific plan, AvalonBay sought approval from the city of a
stage 2 development plan and a site development review (SDR) permit. AvalonBay also sought an amendment to the
stage 1 development plan to reallocate 100 residential units from site A to site
C.href="#_ftn4" name="_ftnref4" title="">[4]


With
respect to the proposed stage 2 development plan, the planning commission
report explains, “Most of the standards and requirements of a Stage 2
Development Plan required by Chapter 8.32.030 B. of the Zoning Ordinance were
adopted in 2002 with the Stage 1 Planned Development Zoning for all of Dublin
Transit Center. The Stage 1 Planned Development zoning established the
permitted, conditionally permitted, and accessory land uses; site areas and
proposed densities; maximum number of residential units and non-residential
square footages; and a Master Landscaping Plan. [¶] The approved
development standards contained in the Stage 1 Development Plan provide for
development standards such as building height, number of stories, building
setbacks and a parking ratio of 1.5 parking stalls per unit and suggested
high-density residential development in 4 or 5 stories either over podium
parking or with the units ‘wrapped’ around the parking structures as is the
case with this project and Avalon's first project. [¶] The adopted Planned
Development zoning also limits ancillary retail and services to the ground
floor frontage along Iron Horse Parkway. The proposed development of
Site C complies with the Stage 1 Planned Development Zoning for the Dublin
Transit Center as it is compatible with the Dublin Transit Center land use
concept to maximize transit opportunities presented by the adjacent
Dublin/Pleasanton Bay Area Rapid Transit (BART) Station and will contribute to
an accessible and pedestrian-friendly environment in proximity to the BART
Station. The Stage 2 Development Plan for Avalon Transit Center, Site C has
been designed to be consistent with the Stage 1 standards as proposed to be
amended. The proposed Site Development Plan is reflective of the Stage 2
standards in terms of lot area, lot dimensions, lot coverage, type and number
of units, location and number of parking spaces, setbacks, architecture, and
affordable housing.”

With
respect to the site design review, the planning commission report analyzes the
site plan, architectural design, building elevations, floor/unit plans,
landscape plan, access and circulation, parking, streetscape improvements and
ancillary retail/commercial space. As to the retail space, the report states
“The stage 1 development plan for the Dublin transit center notes that
‘ancillary ground floor retail and service uses are strongly encouraged’ and
‘Up to 70,000 square feet of ground floor retail and service uses could be
incorporated into the residential . . . fronting on Iron Horse
Parkway as long as the overall densities are not exceeded.’ The stage 1
[development plan] allows a maximum of 25,000 square feet of commercial space
in the project site. The site C project that was previously reviewed by the
planning commission included 4,192 square feet of commercial space. However,
the inability to lease the existing retail/commercial space (12,750 sq ft) in
Avalon’s existing project has prompted the applicant to eliminate the ancillary
commercial space from the proposed project on site C. The applicant has not
altered the architectural character significantly of the buildings facing the
central plaza or Iron Horse Parkway where the retail space was originally
located. At the intersection of Campbell Green and Iron Horse the project
incorporates a 4,223 square foot fitness center which gives the visual
impression of commercial space. Additionally, the conversion of the retail
space to residential uses facing Iron Horse Parkway and the central plaza will
maintain the commercial architectural look (Attachment 6 ).”

Following a hearing on March 22, the
planning commission approved the site development review and map and
recommended that the city council approve the stage 1 development plan
amendment, the stage 2 development plan, and the development agreement. The
planning commission found that the project is “exempt from CEQA pursuant to
Government Code section 65457 for residential projects that are consistent with
a specific plan for which an EIR was certified.” Accordingly, the planning
commission concluded that “No further environmental review is required.”
Appellantshref="#_ftn5" name="_ftnref5" title="">[5]
appealed the decision of the planning commission to the city council.

On May 17, 2011, the
city council affirmed the planning commission’s approval of the site development
review permit and map and, on June 7, 2011, approved the stage 1
development plan amendment, the stage 2 development plan and the
development agreement. The city council found that each of these is “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.”

On June 22, 2011,
appellants filed a petition for a writ of mandate challenging the exemption
from environmental review. After a hearing, the trial court found that
substantial evidence supports the city’s finding that the elements of the
section 65457 exemption are satisfied and, on April 30, 2012, issued a final
statement of decision and entered judgment in favor of the city, denying all relief.
Appellants filed a timely notice of appeal.

DISCUSSION

>1. Standard of Review

“It
is state policy in California that ‘the long-term protection of the environment
. . . shall be the guiding criterion in public decisions.’
[Citations.] In order to implement this policy, CEQA and the guidelines issued
by the State Resources Agency [citation] have established a three-tiered
process to ensure that public agencies inform their decisions with
environmental considerations.” (Davidon
Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112.) The first step
“is jurisdictional, requiring that an agency conduct a preliminary review in
order to determine whether CEQA applies to a proposed activity.” (>Ibid.) As part of the preliminary
review, the public agency must determine the application of any statutory
exemptions that would exempt the proposed project from further review under
CEQA. If, as a result of preliminary review, “the agency finds the project is
exempt from CEQA under any of the stated exemptions, no further environmental
review is necessary. The agency may prepare and file a notice of exemption,
citing the relevant section of the Guidelines and including a brief ‘statement
of reasons to support the finding.’ ” (Id.
at p. 113.)href="#_ftn6" name="_ftnref6"
title="">[6]

In
considering a petition for a writ of mandate in a CEQA case, “[o]ur task on
appeal is ‘the same as the trial court’s. [Citation.] Thus, we conduct our
review independent of the trial court's findings.” (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas
(1994) 29 Cal.App.4th 1597, 1602, fn. 3.) The question on appeal “is whether
the agency abused its discretion. ‘Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.’ ” (>Davidon Homes v. City of San Jose, >supra, 54 Cal.App.4th at p. 113.)

Here,
the city concluded that the project is exempt because it satisfies each of the
elements of the statutory exception provided by section 65457. Under section
65457, subdivision (a), “Any residential development project, including any
subdivision, or any zoning change that is undertaken to implement and is
consistent with a specific plan for which an environmental impact report has
been certified after January 1, 1980, is exempt from the requirements of
Division 13 (commencing with Section 21000) of the Public Resources Code.
However, if after adoption of the specific plan, an event as specified in
Section 21166 of the Public Resources Code occurs, the exemption provided by
this subdivision does not apply unless and until a supplemental environmental
impact report for the specific plan is prepared and certified in accordance
with the provisions of Division 13 (commencing with Section 21000) of the
Public Resources Code.”href="#_ftn7"
name="_ftnref7" title="">[7]
Thus, to qualify for the section 65457 exemption, the project must be for
residential development, it must implement and be consistent with a specific
plan for which an environmental impact report previously has been certified,
and the qualification contained in the final sentence must not apply, i.e.,
either a supplemental EIR must not be required by Public Resources Code
section 21166 or such a supplemental EIR must already have been prepared
and certified.

In
reviewing the city’s decision, we apply a de novo standard of review to
questions of statutory interpretation. (San
Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo
Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1382 [“The scope
of an exemption may be analyzed as a question of statutory interpretation and
thus subject to independent review”].) “In determining whether an agency’s
findings concerning the use of a statutory exemption from CEQA may be upheld,
we review the administrative record to see that substantial evidence supports
each element of the exemption. [Citations.] ‘There must be “substantial
evidence that the [activity is] within the exempt category of projects.”
[Citation.] That evidence may be found in the information submitted in
connection with the project, including at any hearings that the agency chooses
to hold. [Citation.]’ [Citation.] . . . [O]ur application of
substantial evidence review in the context of a challenge to an agency’s use of
a statutory exemption means we determine whether the administrative record
contains relevant information that a reasonable mind might accept as sufficient
to support the conclusion reached. All conflicts in the evidence are resolved
in support of the agency’s action and we indulge all reasonable inferences to
support the agency’s findings, if possible.” (Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170
Cal.App.4th 956, 973.)

Appellants
acknowledge that generally the substantial evidence rule applies to a local
agency’s determination that a project is statutorily exempt from CEQA review.
They argue, however, that there is an exception to this general rule when
application of the exemption depends on whether the project will have
significant environmental impacts. In such cases, appellants contend, the fair
argument standard should apply.href="#_ftn8"
name="_ftnref8" title="">[8]
Appellants rely on footnote 24 in Gentry
v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1407, in which the court
stated, “We have held that a substantial evidence standard of review applies to
an agency's factual finding that a statutory exemption applies. [Citations.]
Most statutory exemptions, however, operate regardless of whether the project
will have effects on the environment. [Citations.] Thus, ‘[w]hen reviewing a
statutory exemption, the nature and extent of the project's environmental
impacts are ordinarily irrelevant.’ [Citation.] Therefore, we have at least
suggested that where a statutory exemption does
depend on whether the project will have significant environmental effects
. . . , the fair argument standard should govern review of an
agency determination that the statutory exemption applies.”

We
need not decide whether there is merit to this suggestion because the
section 65457 exemption does not require a determination of whether the
proposed project will have significant environmental effects. The section 65457
exemption, like other statutory exemptions, reflects the Legislature’s
determination that the interest promoted is “important enough to justify
forgoing the benefits of environmental review.” (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50
Cal.3d 370, 382, superseded by statute on another ground as stated in Pub.
Resources Code, § 21080.04, subd. (b); see also Communities for a Better Environment v. California Resources Agency
(2002) 103 Cal.App.4th 98, 128-129 [“statutory exemptions have an absolute
quality not shared by categorical exemptions: a project that falls within a
statutory exemption is not subject to CEQA even if it has the potential to
significantly affect the environment”].) Under section 65457, a residential
development project that is consistent with a specific plan for which an EIR
already has been certified ordinarily is statutorily exempt from further CEQA
review regardless of possible environmental impacts of the project.

The
qualification contained in the final sentence of section 65457 delays
application of the exemption “unless and until” further environmental review of
the specific plan has taken place if required by Public Resources Code
section 21166. If Public Resources Code section 21166 should apply, the
exception does not require preparation of an EIR for the proposed residential
project; it prohibits application of the exemption “unless and until a
supplemental environmental impact report for the specific plan is prepared and certified.” (§ 65457, italics
added.) Thus, insofar as the exemption under section 65457 turns on whether
Public Resources Code section 21166 requires updating of the program EIR,
we apply the same substantial evidence standard of review that governs review
of a determination that a supplemental EIR is not required under section 21166.
(See Abatti v. Imperial Irr. Dist.
(2012) 205 Cal.App.4th 650,675 [“In reviewing an agency’s decision not to
require additional environmental review ‘pursuant to section 21166, courts “are
not reviewing the record to determine whether it demonstrates a possibility of
environmental impact, but are viewing it in a light most favorable to the
[agency’s] decision in order to determine whether substantial evidence supports
the decision not to require additional review.” ’ ”)

2. The project is a residential development.

Although
there is no statutory definition of the term “residential development” for
purposes of this exemption, the trial court concluded, and the parties agree
for purposes of this appeal, that a residential development project under
section 65457 is a project that contains “100% residential units or the usual
incidents of residential units, such as yards, parks or other uses authorized
as permitted uses within a residential zoning district.” Appellants acknowledge
that the development as presently proposed includes only residential units, as
so defined, but contend that the project is nonetheless a mixed-use development
because the specific plan, stage 1 development plan, stage 2 development plan
and the development agreement authorize up to 25,000 square feet of commercial
usage in site C. Hence, appellants argue, because AvalonBay “retains the option
to convert residential units to 25.000 SF of retail space, [the project] is not
limited to a residential development project and falls outside of Section
65457’s exemption.” The trial court rejected this argument because “[t]he city
code and approval process for this project makes it clear that any future
commercial use on the project site will require further discretionary review in
the form of an amendment to the site development review approved for the
project.” We agree.

The
only project that has been approved by the city for site C is development of
505 residential units and ancillary features.href="#_ftn9" name="_ftnref9" title="">[9]
As the court noted, conversion of some of the approved residential units to
commercial use, if later proposed, would be subject to site development review
under Dublin Municipal Code section 8.104.040. This section specifies the
proper body to process site development review of a lengthy list of common
improvements. The conversion of residential to commercial use is not listed,
but subsection H of the ordinance provides that “All other improvements to
structures or a site, which are not otherwise mentioned in this Chapter, shall
be subject to a Site Development Review Waiver or Site Development Review, as
determined by the Community Development Director.” Appellants contend that no
site development review of such a conversion would be required because of
subsection E of section 8.104.040, which exempts “interior alterations” from
site development review. However, this exemption applies only to “[i]nterior
alterations that do not result in . . . a change in the permitted use
of the structure or the modification of the existing configurations and uses of
each room.” The “permitted use” refers to the use approved in the site
development review permit—in this case embodied in city council resolution No.
60-11—and does not include other uses that may be permissible under the
applicable zoning ordinance but are not approved by the site development review
permit. The conversion of residential living space to commercial use would
clearly fall outside the plain language of this exemption.

Contrary
to appellants’ additional argument, the fact that the property is zoned for
mixed uses does not convert the otherwise purely residential project into a
mixed-use project. Wesley Investment Co.
v. County of Alameda (1984) 151 Cal.App.3d 672 is instructive in this
regard. In that case, the plaintiff was denied a permit to establish a retail
store even though that use was permitted under the applicable zoning ordinance.
The denial was based on a site development review ordinance that called for an
exercise of discretion to “ ‘promote orderly, attractive, and harmonious
development . . . by preventing establishment of uses . . .
which are not properly related to their sites, surroundings . . . or
their environmental setting.’ ” (Id.
at p. 676.) The court held that compliance with the zoning laws did not
guarantee entitlement to a permit. “The [zoning] ordinances do not provide for
an unbridled right to erect a retail store in a C-1 zone. Rather, the listing
of permitted uses in Ordinance Code section 8-48.1 is qualified by the
provision in section 8-48.4 subjecting certain projects to site development
review. . . . The fact that the site in question is in a zone where a
retail store may be lawfully maintained does not diminish the county's power to
determine that a particular development is not suitable for that location.” (>Id. at p. 678.) Commercial use within
the transit center is no different. AvalonBay is not automatically entitled to
develop commercial property simply because such use would comply with zoning
requirements. Rather, the specific plan anticipates that before any use of the
property is approved, there will be compliance with the site development review
process, which includes compliance with applicable environmental review. Hence,
approval of the project as presently proposed does not constitute approval of
commercial usage within site C. Therefore, the project is properly considered
residential development within the meaning of section 65457.

>3. The project is consistent with the
transit center specific plan.

Appellants
contend that in two respects the project is inconsistent with the transit
center specific plan for which the EIR was certified in 2002. First, they
contend that because the specific plan is for mixed use, the project must also
be a mixed-use plan. They argue, “[T]he transit center specific plan, the EIR
for which the city relies upon, is a mixed-use project and not a residential
development. Area C, the site of AvalonBay, is permitted to include up to
25,000 SF of retail space. Overall, the transit center anticipates a maximum of
70,000 SF of ground-floor retail space, including specifically along Iron Horse
Parkway on the eastern side of area C. The inclusion of ground-floor retail is
integral to the transit center’s goal of creating a human-scale street width
and interesting pedestrian environment. Because AvalonBay must be consistent
with that specific plan, it is a mixed-use project, not a residential project.
[Citation.] If the city in fact deleted the retail uses from area C and
AvalonBay — 35 percent of the transit center’s retail uses — then the project
would not be consistent with the mixed-use project specified in the specific
plan. The city cannot have it both ways – either AvalonBay is consistent with
the specific plan and, hence, a mixed-use project, or it is inconsistent with
the specific plan because it has deleted the retail uses from area C (in which
case section 65457(a) would also not be available).” We disagree.

While
the transit center is designed to combine residential and commercial use in a
sustainable, transit friendly environment, commercial development in site C is
not required by the specific plan. The transit center retains its mixed-use
character whether or not each of the several sites within the center includes
mixed usage. Moreover, as noted by the city, the specific plan states only that
retail uses are “encouraged” — not required. The planned development zoning,
which applies to the project site, similarly states only that ancillary retail
uses are “encouraged.” Thus, the absence of retail space does not render the
project inconsistent with the specific plan.

Next,
appellants argue that “[b]ecause the city elected to prepare a program level
EIR in 2002, it cannot now change and exempt itself from the tiered EIRs that
must necessarily follow.” Appellants argument finds no support under CEQA or
the EIR that was certified in 2002. Guideline 15168 explains that “[a] program
EIR is an EIR which may be prepared on a series of actions that can be
characterized as one large project and are related either: [¶] (1)
Geographically, [¶] (2) As logical parts in the chain of contemplated
actions, [¶] (3) In connection with issuance of rules, regulations, plans,
or other general criteria to govern the conduct of a continuing program, or
[¶] (4) As individual activities carried out under the same authorizing
statutory or regulatory authority and having generally similar environmental
effects which can be mitigated in similar ways.” (Guideline 15168, subd. (a).)href="#_ftn10" name="_ftnref10" title="">[10]
Subdivision (c) of Guideline 15168 addresses the use of a program EIR in
evaluating later activities. The subdivision states that “[s]ubsequent
activities in the program must be examined in the light of the program EIR to
determine whether an additional environmental document must be prepared.
[¶] (1) If a later activity would have effects that were not examined in
the program EIR, a new initial study would need to be prepared leading to
either an EIR or a negative declaration. [¶] (2) If the agency finds that . . . no new effects could occur or
no new mitigation measures would be required, the agency can approve the
activity as being within the scope of the project covered by the program EIR,
and no new environmental document would be required.” (Italics added.)
Subdivision (c)(5) advises, “A program EIR will be most helpful in dealing with
subsequent activities if it deals with the effects of the program as
specifically and comprehensively as possible. With a good and detailed analysis
of the program, many subsequent
activities could be found to be within the scope of the project described in
the program EIR, and no further environmental documents would be required.”
(Italics added.) Contrary to appellants’ argument, nothing in
section 15168 or any other provision mandates a particular level of
environmental review in evaluating later projects within the scope of a
certified program EIR. While in some cases it will be necessary to prepare a
negative declaration and in others to prepare a full environmental impact
report, in others, the analysis will be completed by determining that the
project is exempt from further CEQA analysis. This is the first of the
“three-tiered process to ensure that public agencies inform their decisions
with environmental considerations.” (Davidson
Homes, supra, 54 Cal.App.4th at pp. 112-113.)

Likewise,
the terms of the EIR do not prescribe the necessary scope of environmental
review for subsequent projects within the transit center. As noted above, the
EIR acknowledges that “[i]mplementation of the transit center will require a
number of follow-on actions” and that “it is anticipated that additional
environmental review would occur at each of these stages of the project.” href="#_ftn11"
name="_ftnref11" title="">[11]
The EIR does not, however, require a specific level of environmental review. As
the trial court noted, “The city’s consideration of whether the Govt. Code
65457 exemption applies is itself an environmental review, so the city has been
consistent with the letter of the law. By announcing that the city intended to
rely on the Govt Code 65457 exemption and permitting public comment on the use
of that exemption, the city has been consistent with the spirit of the law.”

>4. The qualification to the section 65457
exemption does not apply.

As
noted above, the section 65457 exemption does not apply if, subsequent to
certification of the program EIR, “an event as specified in Section 21166 of
the Public Resources Code” has occurred “unless and until a supplemental
environmental impact report for the specific plan is prepared and certified.”
Public Resources Code section 21166 specifies three events that trigger the
need for preparation of a supplemental environmental impact report. These
events are: “(a) Substantial changes . . . in the project which will
require major revisions of the environmental impact report. [¶] (b)
Substantial changes . . . with respect to the circumstances under
which the project is being undertaken which will require major revisions in the
environmental impact report. [and] [¶] (c) New information, which was not
known and could not have been known at the time the environmental impact report
was certified as complete, becomes available.” (Public Resources Code,
§ 21166; see also Guidelines, § 15162.) Thus, the qualification to
the section 65457 exemption thus turns on whether, subsequent to the
certification of the EIR, circumstances have changed to the extent that
reliance on the EIR is unwarranted. (See Bowman
v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073 [“section 21166 comes
into play precisely because in-depth review has already occurred, the time for
challenging the sufficiency of the original EIR has long since expired
[citation], and the question is whether circumstances have changed enough to
justify repeating a substantial portion of the process”].)

In
this case, the city determined that there are no circumstances warranting
additional environmental review of the transit center project. Appellants
challenge this determination in two respects. First, appellants argue that the
increase in residential units in site C constitutes a significant change to the
specific plan that requires further environmental review. The city contends the
reallocation of 100 units from site A to site C cannot be considered a
significant change to specific plan. We cannot disagree. As the city points
out, reallocation of residential units within the transit center is expressly
authorized by the plan. As reflected in the table on proposed land uses for the
Dublin Transit Center contained in the specific plan, sites A, B, and C are all
zoned high density residential. The specific plan allocates 405 residential
units to site C, 565 units to site B, and 530 units to site A for a maximum of
1,500 residential units. However, note 4 to the table states, “Maximum square
footage and maximum units per site can be exceeded, as long as the total square
footage or units is not.” The EIR analyzes environmental impacts based on the
maximum residential units in the transit center. Shifting 100 units to a
different location within the transit center is not a significant change. Site
C to which the units were reassigned is adjacent to site A, in which the number
of residential units was reduced. Importantly, the total number of residential
units was not increased. The city thus was entitled to determine that this
change does not require preparation of a supplemental environmental impact
report for the specific plan.

Appellant
also argues that supplemental environmental review is necessary under section
21166, subdivision (c) because significant and new information regarding
greenhouse gas (GHG) emissions has come to light since the EIR was certified in
2002. Although the EIR does not analyze environmental impacts from GHGs,
appellants do not question the sufficiency of the analysis of air quality
impacts in the EIR and they concede that the city “applied the then-available
BAAQMD [Bay Area Air Quality Management District] thresholds for ROGs [reactive
organic gases] and NOx [nitrous oxide] in the 2002 EIR for the overall transit
center and determin[ed] that it would have significant and unavoidable impacts
from its releases of those pollutants.”href="#_ftn12" name="_ftnref12" title="">[12] Appellants assert that in 2010, BAAQMD
adopted new thresholds for establishing significant environmental impacts from
GHG emissions and they contend that the new thresholds require additional
environmental analysis.

The
premise for this argument is highly questionable. In March 2012, the Alameda
County Superior Court found that BAAQMD failed to comply with CEQA in adopting
the new thresholds and set them aside pending further environmental review. (>CBIA v. BAAQMD (Super. Ct. Alameda
County, 2012, No. RG10-548693).) Pending appeal, BAAQMD “is no longer
recommending that the Thresholds be used as a generally applicable measure of a
project’s significant air quality impacts.”
(
Updated-CEQA-Guidelines.aspx.>
[as of March 7, 2013].) Moreover,
the suspended guidelines, even if effective, expressly have no retroactive
application: “It is the Air District’s policy that the adopted thresholds apply
to projects for which a notice of preparation is published, or environmental
analysis begins, on or after the applicable effective date. The adopted CEQA
thresholds . . . are effective June 2, 2010.”

The
trial court rejected appellants’ argument on the ground that substantial
evidence supports the city’s finding that, without regard to the effectiveness
of the new thresholds, they do not constitute “new information” requiring
additional environmental review under Public Resources Code section 21166,
subdivision (c). As the trial court found, “[t]he potential environmental
impacts of [GHGs] were known or could have been known at the time the 2002 plan
EIR was certified.” The court relied on a planning commission staff report that
states, “In 2002, information about the potential impacts of GHGs was widely
known. The United Nations Framework Convention on Climate Change was
established in 1992. The regulation of greenhouse gas emissions to reduce
climate change impacts was extensively debated and analyzed throughout the
early 1990s. The studies and analyses of this issue resulted in the adoption of
the Kyoto Protocol in 1997. In the early and mid 2000s, GHGs and climate change
were extensively discussed and analyzed in California. In 2000, SB 1771
established the California Climate Action Registry for the recordation of
greenhouse gas emissions to provide information about potential environmental
impacts. Therefore, the impact of greenhouse gases on climate change was known
at the time of the certification of the EIR in November 2002.” The court also
relied on Citizens for Responsible
Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th
515, 532, in which the court upheld a local agency’s determination that “new
information” about GHG emissions did not require supplemental environmental
review under Public Resources Code section 21166. Among the reasons for this
conclusion was that “information on the effect of greenhouse gas emissions on
climate was known long before the City approved the 1994 FEIR.” (>Id. at p. 531.)

Appellants
argue that Citizens for Responsible
Equitable Environmental Development is distinguishable because the petitioners
there “limit[ed] themselves to generalized assertions that global warming was a
problem” while here the appellants rely on the issuance of new threshold
guidelines which could not have been known in 2002. However, 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. Fort Mojave Indian Tribe v. California Department of Health Services
(1995) 38 Cal.App.4th 1574, cited by the trial court, illustrates this point.
In that case, the court held that a new regulation designating critical habitat
for an endangered species, the tortoise, was not “significant new information”
for purposes of Public Resources Code section 21166. (Id. at pp. 1605-1606.) As the court stated, “[H]owever legally
characterized, the habitat would be affected the same as before. And the
environmental review and mitigation measures that had already been completed
focused on the real effects of the project not just on ‘the tortoise,’ but on
its habitat (previously termed ‘crucial’), which is exactly how the project
would impact on the species.” (Id. at
p. 1605.) Thus, the new regulation
did not constitute new information requiring a supplemental environmental
impact report.

It
is true that the relevant impacts had been analyzed in the initial
environmental impact report in Fort
Mojave Indian Tribe and here the impact of GHG emissions was not analyzed
in the program EIR. Nonetheless, the impacts of the project on air quality were
considered in the EIR and substantial evidence supports the city’s finding that
the potential effects of GHGs were known and could have been addressed in
conjunction with the certification of the EIR in 2002. Therefore, the city
properly concluded that the issuance of new threshold guidelines was not new
information that requires the preparation of a supplemental environmental
report under Public Resources Code section 21166.

>5. Conclusion

As
did the trial court, we conclude that substantial evidence supports the city’s
determination that the proposed development of site C of the transit center is
a residential development exempt from further environmental review under
section 65457. The petition for a writ of mandate therefore was properly
denied.

Disposition

The
judgment is affirmed. Respondents and real party in interest shall recover
their costs on appeal.





_________________________

Pollak,
J.





We concur:





_________________________

McGuiness, P. J.





_________________________

Jenkins, J.