Citizens' Committee to Complete the Refuge v. City of Newark

Filed 12/29/21; Certified for Publication 1/25/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CITIZENS’ COMMITTEE TO
COMPLETE THE REFUGE et
al., A162045
Plaintiffs and Appellants,
(Alameda County
v. Super. Ct. No.
CITY OF NEWARK et al., RG19046938)
Defendants and
Respondents;

SI XVII, LLC, et al.,
Real Parties in Interest
and Respondents.

Citizens’ Committee to Complete the Refuge (CCCR) and
Center for Biological Diversity appeal from the denial of their
petition for writ of mandate under the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA).1
Plaintiffs argue the City of Newark (City) violated CEQA when it
approved a housing development project by relying on the
environmental impact report (EIR) from its approval of a specific

Undesignated statutory citations are to the Public
1

Resources Code.

1
plan without conducting further environmental review. We
conclude the City’s project was exempt from further CEQA
review under Government Code section 65457 because it
implemented and was consistent with the specific plan, and
substantial evidence supports the City’s conclusion that no
project changes, changed circumstances, or new information
required additional analysis. We also determine that the City’s
deferral of analysis of potential flood control projects to address
sea level rise in the latter half of this century was proper. We
will therefore affirm.
BACKGROUND
In the early 1990s, the City’s general plan allowed for low-
density housing, a business park, a golf course, and other
recreational facilities and uses in the City’s Areas 3 and 4, which
are located next to San Francisco Bay.2 The general plan
acknowledged that development in Area 4 would have impacts on
wetlands containing the salt marsh harvest mouse (harvest
mouse), which is an endangered species. The general plan stated
that development in Area 4 would require a specific plan.
In 2010, the City certified an environmental impact report
(EIR) on the specific plan for Areas 3 and 4, approved the specific

2 We grant appellants’ unopposed request for judicial notice
of portions of the City’s 1992 and 2013 General Plans.
(Evid. Code, § 452, subds. (b) & (c); The Park at Cross Creek, LLC
v. City of Malibu (2017) 12 Cal.App.5th 1196, 1200, fn. 2.) We
deny as unnecessary their requests for judicial notice of a 2007
report by the Intergovernmental Panel on Climate Change and
the appearance and size of several plants mentioned in the
administrative record.

2
plan for Areas 3 and 4, and entered into a development
agreement for the specific plan. The specific plan allowed
development of up to 1,260 residential units as well as a golf
course and related facilities. In Area 4, the plan allowed
development of up to 316 acres spread across subareas B (about
125 acres), C (about 90 acres), and D (about 100 acres). Subarea
B could contain residential uses, subarea C could contain
residential uses and/or recreational uses such as the golf course,
and subarea D could contain only recreational uses such as the
golf course.
CCCR challenged the specific plan under CEQA,
contending the EIR was inadequate. The trial court in that case
identified several deficiencies in the EIR, including that the EIR
failed to make clear in what respects it was intended to be a
program-level or project-level document. In response, the City
prepared a recirculated EIR (REIR).
As relevant here, the REIR remedied the deficiency the
trial court had identified by stating that it was providing a
program-level analysis of environmental impacts of the
development of housing and a golf course in Area 4. The final
location and design of the housing development and golf course in
Area 4 was not yet known. The REIR’s analysis of environmental
impacts with respect to these elements was therefore “based on
the potential environmental impacts of the maximum
development permitted by the Specific Plan,” meaning the
construction of all 1,260 residential units in Areas 3 and 4, the
development of all 316 acres in Area 4, and the filling of all 86

3
acres of wetlands in subareas B, C, and D in Area 4, even though
the development might ultimately have a smaller footprint. The
REIR further stated that the City would proceed under CEQA
Guidelines3 section 15168 when it received a specific development
proposal for Area 4 and would use a checklist or initial study to
determine whether the environmental review for the specific
development approvals would consist of an exemption,
addendum, tiered negative declaration, or full subsequent or
supplemental EIR. But the REIR also quoted the statement in
CEQA Guidelines section 15168, subdivision (c)(5) that, with an
adequately detailed analysis in a program EIR, “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.”
The REIR found the specific plan could have significant
impacts due to the destruction of harvest mouse habitat from the
filling of wetlands, the placement of houses next to that habitat,
and predation by cats, rats, and raccoons. The REIR called for
avoiding these impacts where feasible and mitigating the impacts
where avoidance was infeasible.
The REIR discussed the impacts of climate change and sea
level rise, noting that by 2100 the Bay level could rise by as much
as 5.5 feet and that this rise could occur at an accelerated rate.
The REIR stated that fill would be used to raise the elevation of
the housing units in Area 4 to approximately 10 to 14.5 feet

References to CEQA Guidelines are to California Code of
3

Regulations, title 14, section 15000 et seq.

4
above mean sea level, and the REIR found these elevations would
protect the housing units against flooding from rising sea levels
until 2100 in all but the most extreme scenario. The REIR noted
that because of the uncertainty in projections for sea level rise, it
was not clear that using additional fill to raise the residential
sites further to provide more protection against flooding in an
extreme scenario would be better than relying on a regional
adaptive strategy, such as levees or floodwalls.
In March 2015, the City certified the final REIR and re-
adopted the 2010 specific plan. Later that year, the City
executed a development agreement with the predecessor in
interest to SI XVIII, LLC and Arques Investment Company, LLC
(collectively, “applicants”), who are the real parties in interest in
this proceeding.
In 2016, the City approved a subdivision map for the
development of 386 housing units in Area 3.
In 2019, the applicants submitted a proposed subdivision
map for approval of 469 residential lots in subareas B and C of
Area 4, even though there remained 874 units of the 1,260 units
authorized by the specific plan. The subdivision map proposed no
development outside subareas B and C and omitted the golf
course. Instead, the development agreement proposed to deed
much of subarea D to the City.
To determine whether the REIR sufficiently addressed the
environmental impacts of the proposed subdivision map, the City
prepared a checklist comparing the REIR’s analysis of the
impacts of the specific plan with the impacts of the subdivision

5
map. The checklist included supporting materials such as plans,
letters, expert memos, and technical reports, including an
updated analysis of the effects of sea level rise. The checklist
concluded the construction of 469 units as proposed in the
subdivision map would be consistent with the specific plan, and
there were no changed circumstances or new information that
might trigger the need for additional environmental review. The
City posted the checklist for public comment and responded to
those comments. The City then approved the subdivision map
based on the analysis in the checklist.
Plaintiffs challenged the map and checklist via a petition
for writ of mandate and complaint for injunctive relief. The trial
court denied appellants’ writ petition, concluding the
administrative record contained substantial evidence to support
the City’s determination that further environmental review after
the REIR was not necessary.
DISCUSSION
I. Relevant legal principles and standard of review
Section 21151, subdivision (a) states, “All local agencies
shall prepare, or cause to be prepared by contract, and certify the
completion of, an [EIR] on any project that they intend to carry
out or approve which may have a significant effect on the
environment.” The EIR “provides public officials and the general
public with details about a proposed project’s consequences. The
EIR also lists the ways to potentially minimize any significant
environmental effects, and presents alternatives to the project.”
(California Building Industry Assn. v. Bay Area Air Quality

6
Management Dist. (2015) 62 Cal.4th 369, 383 (Building Industry
Assn.).)
“Unlike ‘[p]roject EIR[s],’ which ‘examine[ ] the
environmental impacts of a specific development project’ (CEQA
Guidelines, § 15161), the CEQA provisions governing tiered EIRs
‘permit[ ] the environmental analysis for long-term, multipart
projects to be “tiered,” so that the broad overall impacts analyzed
in an EIR at the first-tier programmatic level need not be
reassessed as each of the project’s subsequent, narrower phases
is approved.’ ” (Friends of College of San Mateo Gardens v. San
Mateo County Community College Dist. (2016) 1 Cal.5th 937, 959
(Friends).)
Government Code section 65457 provides an exemption
from CEQA for housing development proposals that follow a city’s
specific plan. Subdivision (a) of that statute states, in pertinent
part, “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 [CEQA]. However, if
after adoption of the specific plan, an event as specified in Section
21166 . . . 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 [CEQA].” (Gov. Code, § 65457, subd. (a).)
Section 21166 provides that after an agency prepares an
EIR for a project, “no subsequent or supplemental [EIR] shall be

7
required . . . unless one or more of the following events occurs:
[¶] (a) Substantial changes are proposed in the project which will
require major revisions of the [EIR]. [¶] (b) Substantial changes
occur with respect to the circumstances under which the project
is being undertaken which will require major revisions in the
environmental impact report. [¶] (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.” (§ 21166, subds. (a)–(c).) “ ‘The purpose behind the
requirement of a subsequent or supplemental EIR or negative
declaration is to explore environmental impacts not considered in
the original environmental document. . . . The event of a change
in a project is not an occasion to revisit environmental concerns
laid to rest in the original analysis. Only changed
circumstances . . . are at issue.’ ” (Friends, supra, 1 Cal.5th at
p. 949.)
“Thus, to qualify for the [Government Code] section 65457
exemption, the project must be for residential development, it
must implement and be consistent with a specific plan for which
an [EIR] 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.” (Concerned Dublin Citizens v. City
of Dublin (2013) 214 Cal.App.4th 1301, 1310–1311 (Dublin).)
Government Code section 65457 exempts such a project “from

8
further CEQA review regardless of possible environmental
impacts of the project.” (Id. at p. 1312.)4
“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.’ [Citation.] 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.” ’ ” (Dublin, supra, 214 Cal.App.4th at
p. 1310.)
We review questions of statutory interpretation de novo
and review for substantial evidence the City’s determination that
the section 21166 criteria were not met. (Dublin, supra,
214 Cal.App.4th at p. 1311.) For the purposes of our substantial
evidence review, “ ‘[w]e resolve reasonable doubts in favor of the
administrative decision. [Citation.] “We do not judge the wisdom
of the agency’s action in approving the [p]roject or pass upon the
correctness of the EIR’s environmental conclusions. [Citations.]
Our function is simply to determine whether the agency followed

4 Both parties contend that the standard for application of
the Government Code section 65457 exemption is similar to
standard for CEQA review of projects under tiered EIRs,
discussed at Friends, supra, 1 Cal.5th at pages 959–960.
However, as Friends noted, review of tiered projects is “ ‘more
searching’ ” than the standard under section 21166. (Id. at
p. 960.) Because we conclude that Government Code section
65457 exempts the subdivision map from CEQA review, the
general standard for review of tiered projects does not apply here.

9
proper procedures and whether there is substantial evidence
supporting the agency’s determination . . . .” ’ ” (Moss v. County
of Humboldt (2008) 162 Cal.App.4th 1041, 1058.) “A party
challenging an agency’s decision under section 21166 has the
burden to demonstrate that the agency’s decision is not supported
by substantial evidence and is therefore improper.” (Committee
for Re-Evaluation of T-Line Loop v. San Francisco Municipal
Transportation Agency (2016) 6 Cal.App.5th 1237, 1247.)
Plaintiffs do not dispute that the subdivision map
constitutes a residential development project or that the project
implements and is consistent with the City’s specific plan. We
therefore confine our analysis under Government Code section
65457 to the question of whether project changes, changed
circumstances, or new information trigger the section 21166
exception to the exemption. We also consider appellants’
separate argument that the City failed to adequately study
certain measures it may adopt to respond to rising sea levels in
the second half of this century.
II. Changes to the project
Plaintiffs’ first argument focuses on three aspects of the
subdivision map that they contend are significantly different
from the specific plan the REIR analyzed. First, the subdivision
map proposes to fill and elevate only the upland portions of
subareas B and C and not the wetlands in those subareas.
Second, the subdivision map does not include a golf course, even
though the specific plan had allowed for a golf course in subarea
C or D. Third, the filled and raised portions of subareas B and C

10
to be developed will be directly next to the wetlands and the
western banks of those elevated areas will be armored with
riprap.
Plaintiffs contend these three changes will have new,
significant impacts on the harvest mouse. According to
appellants, the subdivision map’s occupation of all of the upland
areas in subareas B and C with housing instead of the golf course
will deprive the harvest mouse of escape habitat, also known as
refugia. The harvest mouse needs escape habitat like the
uplands so that when the wetlands where the harvest mouse
normally lives are inundated with periodic flooding, the mouse
can temporarily flee to higher ground. In appellants’ view, the
proximity of the housing development to the wetlands where the
harvest mouse lives, together with the riprap armoring the
western sides of the filled and raised housing development,
exacerbates the effects of the specific plan on the harvest mouse
by allowing rats, cats, and raccoons to prey on the harvest
mouse.5
Substantial evidence supports the City’s conclusion that
none of these changes will significantly increase the impacts on
the harvest mouse beyond what the REIR addressed. The
specific plan envisioned the complete development of all of
subareas B, C, and D. In its description of the specific plan, the

5 Plaintiffs raised other arguments in the trial court,
including the assertion that changes to the project would
exacerbate flooding inland from the project. Plaintiffs renewed
that argument in their opening brief but abandoned it in their
reply, so we do not discuss it.

11
REIR stated, “The Specific Plan land use plan for Area 4 includes
up to 316 acres of potential development,” with 316 acres
equaling the total land contained in subareas B, C, and D. By
contrast, the subdivision map will not develop subarea D at all
(except for a multi-use trail) and will develop only 96.5 acres of
the approximately 148.7 upland acres in subareas B and C. The
changes the subdivision map makes from the uses envisioned in
the specific plan thus will result in the development of fewer total
acres and fewer upland acres. The subdivision map also provides
for fewer residential units than the specific plan allowed.
In its discussion of biological resource impacts, the REIR
acknowledged that it was “possible that only a portion of the
potential development areas in Area 4 will actually be
developed,” and indicated that “any actual development will
require further entitlement processing and environmental
review.” Plaintiffs rely on passages like this in the REIR to argue
that the City could not rely on the REIR and instead was
required to analyze the impacts from the specific acres developed
in the subdivision map. Crucially, however, because the REIR
could not say which land would be developed, it assumed the
entire area was to be developed when it analyzed the impacts of
the specific plan on biological resources like the harvest mouse.
As the REIR stated, “For the purposes of this analysis of the
Specific Plan, however, it was assumed that the entire
development areas in Area 4 (Sub-Areas B, C, and D) would be
developed and impacted.” Elsewhere, it said that because “the
specific location and number of residences, and location and type

12
of recreation facility in Area 4 are only conceptually known,” the
EIR’s analysis of those elements was programmatic and “based
on the potential environmental impacts of the maximum
development permitted by the Specific Plan.” Because the REIR
claimed it analyzed the impact of developing all of subareas B, C,
and D, the subdivision map’s development of only a portion of
subareas B and C suggests that it will have less of an impact on
the environment than the REIR examined. (Citizens Against
Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788,
802–806 [assuming prior EIR was a program EIR, substantial
evidence supported city’s choice not to prepare new EIR for
airport project because updated information showed fewer flights
with quieter aircraft than previously projected].)
The mere fact that the REIR anticipated some additional
review but the City determined the subdivision map had no
additional impacts warranting review is not improper or even
remarkable. The City’s preparation of the checklist and
determination that the Government Code section 65457
exemption applies constitute environmental review, so the City
acted consistently both with the law and with the statements in
the REIR. (Dublin, supra, 214 Cal.App.4th at p. 1317.) And as
Dublin explained at page 1316, while in some cases involving
program EIRs and tiered review it will be necessary to prepare a
negative declaration or a full EIR, “in others, the analysis will be
completed by determining that the project is exempt from further
CEQA analysis.” The rule is similar even in the context of tiered
review under a program EIR, which involves more stringent

13
review standards than under section 21166 and Government
Code section 65457. (Citizens for Responsible Equitable
Environmental Development v. City of San Diego Redevelopment
Agency (2005) 134 Cal.App.4th 598, 615 [“a program EIR may
serve as the EIR for a subsequently proposed project to the extent
it contemplates and adequately analyzes the potential
environmental impacts of the project”]; Friends, supra, 1 Cal.5th
at p. 960.)
A closer examination of appellants’ arguments confirms
that substantial evidence supports the City’s conclusion that the
subdivision map was exempt from further review. First,
concerning escape habitat for the harvest mouse, the specific plan
recognized that uplands next to tidal marsh provide important
escape habitat. The REIR stated that there were 270 acres of
these uplands in Areas 3 and 4 currently being used for
agriculture and that grading and construction could destroy up to
154.6 acres of them in Area 4. CCCR itself complained in a
comment on the draft REIR that the specific plan would
eliminate most of the uplands in subareas B, C, and D, either
through development or conversion into wetlands as mitigation
for filling existing wetlands, and that this would deprive the
harvest mouse of escape habitat. The REIR found the impact of
the loss of these upland habitat would be less than significant
because the uplands were regularly used for agriculture and did
not provide high quality transitional habitat. This indicates the
REIR already addressed the loss of upland escape habitat, so the
subdivision map’s impact on such habitat is not new. The

14
subdivision map’s change of developing only 96.5 acres of the
uplands means the subdivision map will eliminate less upland
escape habitat, not more.
Second, regarding the elimination of the golf course,
appellants assert that the golf course would have provided escape
habitat for the harvest mouse because the development of the golf
course would not have changed the elevation of the undeveloped
land. They conclude from this that the subdivision map’s
abandonment of the golf course eliminates escape habitat.
However, the REIR’s finding of no significant impact from the
development of the uplands in Area 4 did not depend on the golf
course continuing to provide upland habitat in subarea C or D.
Rather, the City discounted the quality of the upland habitat
being eliminated for escape habitat because it is regularly disced
and ripped for agriculture. Plaintiffs disagree with this
conclusion, which the City repeated in a response to their
comment on the checklist. But appellants do not argue the value
of the upland habitat changed after the REIR was prepared or
cite any evidence to show such a change.6 If appellants believed
the uplands had more value as habitat than the City recognized,
they should have raised that challenge to the REIR. (Friends,

6 At oral argument, appellants pointed to a doctoral thesis
published in 2019 that they claim provided new information that
regularly disced agricultural land is suitable habitat for the
harvest mouse. The information in the thesis was not new in
2019. The thesis’s author made the same point in a 2014
presentation at a scientific conference. CCCR itself cited this
presentation in a comment on the checklist and provided a web
link to a copy of the presentation.

15
supra, 1 Cal.5th at p. 949 [“ ‘The event of a change in a project is
not an occasion to revisit environmental concerns laid to rest in
the original analysis. Only changed circumstances . . . are at
issue’ ”]; Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal.4th 1112, 1130 [conclusive
presumption under section 21167.2 that a certified and
unchallenged EIR is valid “acts to preclude reopening of the
CEQA process even if the initial EIR is discovered to have been
fundamentally inaccurate and misleading in the description of a
significant effect or the severity of its consequences”].)
Moreover, the subdivision map’s elimination of the golf
course came together with its abandonment of any development
of subarea D, with one minor exception, and the deeding of much
of subarea D to the City. Thus, as compared to the specific plan,
uplands in subarea D will be less developed and thus will
continue to provide the harvest mouse whatever escape habitat
they do currently. Plaintiffs respond that one portion of subarea
D is currently used by an auto dismantler, so leaving that area
undeveloped will mean it will be worse than developing the golf
course. But even if the auto dismantler’s continued operation in
subarea D prevents some of subarea D from serving as escape
habitat, the rest of subarea D may still do so, so the subdivision
map’s impact on uplands is comparable or lower than the specific
plan. Plaintiffs also claim there is no guarantee that the portion
of subarea D deeded to the City will never be developed. Since
the subdivision map does not propose to develop any acreage in
subarea D, the City cannot be faulted for failing to analyze a

16
development that is not currently proposed. If and when the City
develops subarea D in any fashion, such development will need to
comply with CEQA.
Third, regarding the impacts on harvest mouse habitation
through adjacent development, appellants admit that the REIR
disclosed these indirect impacts. Because the subdivision map
will develop fewer acres than the specific plan, in total the
impacts on the harvest mouse will be reduced. Moreover, the
REIR found the indirect impacts could be mitigated, declaring,
“Habitat for these species that is indirectly impacted due to
proximity to residential and golf course development (i.e., habitat
that is not directly filled but that is located within 100 feet of
direct impact areas) will be mitigated at a 2:1 ratio by on-site
habitat restoration.” Plaintiffs point out that the subdivision
map will avoid having any direct impacts on harvest mouse
habitat because it will avoid filling wetlands. They therefore
read this mitigation measure as meaning no indirect impacts will
be mitigated. This reads the REIR too narrowly. The REIR
plainly admits the harvest mouse habitat will be indirectly
impacted by adjacent residential development, regardless of
whether that development occurs in directly impacted wetlands.
The mitigation measure is designed to address indirect impacts,
and the checklist states that the subdivision map will implement
the mitigation measure that includes on-site habitat restoration
for indirect impacts on the harvest mouse “following an approved
habitat mitigation and monitoring plan.” Plaintiffs have not
challenged this aspect of the checklist, and at oral argument the

17
City represented that it would implement in good faith the
mitigation measure it has proposed for such indirect impacts.
The only aspect of the subdivision map that appellants
identify which the REIR did not already address is the fact that
the western sides of the raised and filled developed areas will be
armored with riprap. The City contends the need for engineering
and armoring of the slopes of the filled and raised developed
areas has long been known and cites to a portion of the REIR
that discusses different techniques the City could use to avoid
settlement of fill. The portion of the REIR the City cites does not
mention riprap. Also, the need for engineering and armoring
slopes in connection with the subdivision map is to prevent
erosion from waves and tidal flooding, not to prevent fill from
settling as discussed in the REIR. The use of riprap in
connection with erosion of the development is therefore new.
However, section 21166, subdivision (a) requires a
subsequent or supplemental EIR only when “[s]ubstantial
changes are proposed in the project which will require major
revisions of the environmental impact report.” (Italics added.)
Because Government Code section 65457 incorporates section
21166 by reference, we take further guidance from the CEQA
Guidelines’ interpretation of section 21166. (Building Industry
Assn., supra, 62 Cal.4th at p. 381 [courts “should afford great
weight to the Guidelines when interpreting CEQA, unless a
provision is clearly unauthorized or erroneous under the
statute”].) CEQA Guidelines section 15162, subdivision (a)(1)
expands on the concept of project changes by stating that an

18
agency shall not conduct further review of a project unless
“[s]ubstantial changes are proposed in the project which will
require major revisions of the previous EIR or negative
declaration due to the involvement of new significant
environmental effects or a substantial increase in the severity of
previously identified significant effects.” The same guideline also
allows for further review if new information “of substantial
importance, which was not known and could not have been
known with the exercise of reasonable diligence at the time the
previous EIR was certified as complete,” shows “[m]itigation
measures or alternatives which are considerably different from
those analyzed in the previous EIR would substantially reduce
one or more significant effects on the environment, but the
project proponents decline to adopt the mitigation measure or
alternative.” (CEQA Guidelines, § 15162, subd. (a)(3)(D).)
The new use of riprap does not meet this standard.
Plaintiffs admit the REIR already recognized that the specific
plan would lead to rat predation on the harvest mouse and
addressed it with a mitigation measure. Plaintiffs nonetheless
argue the use of riprap deserves further study because it will
substantially increase the severity of rat predation. They appear
to believe that without the riprap, the rats would den further
away from the harvest mouse’s habitat, so that the increased
proximity will increase the severity of rat predation relative to
the specific plan. Plaintiffs cite nothing to support this belief.
Logic might dictate that proximity will increase the risk of
predation to some degree, but without some evidence to support

19
their contention, appellants cannot establish that there will be a
substantial increase in the severity of conditions analyzed in the
REIR. (Committee for Re-Evaluation of T-Line Loop v. San
Francisco Municipal Transportation Agency, supra, 6 Cal.App.5th
at p. 1247 [party challenging a decision under section 21166 has
the burden to demonstrate the decision is not supported by
substantial evidence].) In the absence of such evidence, the City’s
position that its mitigation measure will continue to reduce the
impact of rat predation as described in the REIR is supported by
substantial evidence.
Plaintiffs counter the City’s reliance on its predator
management plan by pointing out that the plan does not require
extermination or elimination of rats and that extermination or
elimination of rats in riprap would be difficult. But even if the
plan were revised to require eliminating rats through some
means, such an adjustment would still not constitute a major
revision to the REIR. (River Valley Preservation Project v.
Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154,
175 & fn. 23 [change to small portion of project would not require
a major revision to EIR when considered relative to the size of
the rest of the project].) Any way we view it, the newly identified
use of riprap does not trigger the section 21166, subdivision (a)
exception to the Government Code section 65457 exemption.
We recognize that by rejecting appellants’ arguments
regarding the riprap, we are allowing the City’s development to
proceed despite a potential increase in the impact on the harvest
mouse to some degree. However, Government Code section

20
65457 compels this result by setting a higher threshold for review
of a residential development consistent with a previously
analyzed specific plan than for a project tiered under a program
EIR. (See Friends, supra, 1 Cal.5th at p. 960 [review of project
tiered under a program EIR is “more searching” than review for
substantial changes or new circumstances].) “The [Government
Code] 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.’ ” (Dublin, supra, 214 Cal.App.4th at
p. 1312.) The interest animating Government Code section 65457
is to increase the supply of housing. (May v. City of Milpitas
(2013) 217 Cal.App.4th 1307, 1324, 1331 [discussing history of
Gov. Code, § 65457 and its similar predecessor statute, former
Gov. Code, § 65453].) Thus, Government Code section 65457 is
intended to permit housing developments like the one at issue
here that are consistent with a specific plan that has already
undergone environmental review, “regardless of possible
environmental impacts of the project.” (Dublin, at p. 1312.)
III. Changed circumstances and new information
Plaintiffs’ arguments concerning the changed
circumstances and new information exceptions present a
variation on their argument about the impact of changes to the
project on the harvest mouse’s upland habitat. The new
information and circumstances they point to are scientific
insights concerning the amount and rate of sea level rise that
emerged after the City certified the REIR. Plaintiffs concede that

21
the City was not required to review the effects of sea level rise on
the project. (Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.App.4th 455, 472–474 (Ballona Wetlands) [agency
was not required to analyze impacts of sea level rise on project].)
In an amicus brief, Environmental Defense Center, Sierra Club,
San Francisco Baykeeper, and The Ohlone Audubon Society
(collectively, “amici”) characterize such analysis of the effects of
sea level rise on a project as “reverse-CEQA,” because CEQA
requires analysis of a project’s impact on the environment and
not the environment’s impact on a project. Plaintiffs and the
amici argue the City was nonetheless required to examine
whether the project risks exacerbating the effects of sea level rise
on the environment because of how the project interacts with
wetlands in the area. They rely on the California Supreme
Court’s clarification in Building Industry Association, supra,
62 Cal.4th at page 377, that “when a proposed project risks
exacerbating those environmental hazards or conditions that
already exist, an agency must analyze the potential impact of
such hazards on future residents or users.” They argue that
study of how the project will exacerbate the harms of sea level
rise is not “reverse-CEQA” but rather classic CEQA prospective
analysis of how a project will affect the existing environmental
conditions and risks at the site.
This argument turns on the concept of wetland migration,
which appellants define as “the movement of wetland areas
inland to slightly higher areas as sea levels rise and the former
wetlands are gradually submerged.” According to appellants and

22
the amici, the subdivision map’s development of all the uplands
in subareas B and C will prevent the wetlands in those areas
from migrating. They contend this process, which the amici call
“coastal squeeze,” will effectively eliminate wetlands in the area,
as rising sea levels inundate the wetlands on one side and on the
other side the project’s elevated building sites hem them in and
prevent the wetlands from becoming established on higher
ground. In their reply brief, appellants connect this idea to their
arguments about predation and the loss of escape habitat. They
argue that rising sea levels will force the harvest mouse from its
wetland habitat into the developed residential areas instead of
into escape habitat, causing the harvest mouse to suffer
predation from rats in the riprap and other threats from dogs,
cats, people, and cars.
Plaintiffs and the amici may be right that under Building
Industry Association an EIR must analyze the risk that a project
could exacerbate the effects of sea level rise by contributing to
coastal squeeze and thwarting wetland migration. Even if they
are correct, however, these dynamics are not new in relation to
this project, so the City did not need to address them in the
checklist. Plaintiffs themselves cite to a mention of wetland
migration in an appendix to the City’s first EIR for the specific
plan in 2009, long before the City certified the REIR.
Additionally, as noted above, the REIR assumed the entire
development areas in Area 4 (Sub-Areas B, C, and D) would be
developed and impacted, which would lead to the destruction of
154.6 acres of uplands. The time and place for appellants’ and

23
amici’s argument regarding the effects of the development of
uplands and rising sea levels on wetland migration was in
response to the City’s circulation of the REIR, if not the original
EIR.
Plaintiffs’ arguments about new scientific studies showing
an increased rate of sea level rise do not convince us otherwise.
The REIR noted that the rate of sea level rise was uncertain and
might be accelerating, so the REIR anticipated the new
information that appellants rely on. More importantly, while the
increased rate of sea level rise might expedite the effects of
thwarted wetland migration and make it harder to mitigate those
effects, the overall impact on the wetlands is the same: Wetlands
will be lost because the specific plan did not provide for any
mitigation of thwarted wetland migration, so it is immaterial for
CEQA purposes that sea level rise may occur faster and make
such mitigation more difficult. Accordingly, sea level rise does
not make the impacts of thwarted wetland migration
substantially more severe in a way that would trigger the section
21166 exception to the Government Code section 65457
exemption. (CEQA Guidelines, § 15162, subd. (a)(3)(A) & (B)7.)

7“When an EIR has been certified or a negative declaration
adopted for a project, no subsequent EIR shall be prepared for
that project unless the lead agency determines, on the basis of
substantial evidence in the light of the whole record, one or more
of the following: . . . [¶] (3) New information of substantial
importance, which was not known and could not have been
known with the exercise of reasonable diligence at the time the
previous EIR was certified as complete or the negative
declaration was adopted, shows any of the following:

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 IV. Adaptive management
In a separate argument, appellants take issue with a
hydrology report attached to the checklist, which says the City
would take an adaptive approach to managing flooding of the
project from sea-level rise toward the end of the century, such as
by creating levees or floodwalls built on top of or outside the
raised and filled residential areas. In their opening brief, they
fault the City for using this approach because it improperly
defers consideration of mitigation measures for the project’s
impacts, since the City did not say whether any of the adaptive
mitigation measures would be effective at addressing flooding,
nor did it address whether and how to avoid the environmental
impacts the measures would create.
This argument regarding mitigation measures is
misplaced. Sea level rise is not an impact on the environment
caused by the project, so neither the REIR nor the checklist
needed to discuss the effects of sea level rise on the project at all.8
(Building Industry Assn., supra, 62 Cal.4th at p. 377; Ballona
Wetlands, supra, 201 Cal.App.4th at pp. 472–474.) For the same
reason, the adaptive responses to sea level rise discussed in the
hydrology report are not mitigation measures and not governed
by the rules concerning deferred mitigation. (King & Gardiner

[¶] (A) The project will have one or more significant effects not
discussed in the previous EIR or negative declaration; [or] [¶] (B)
Significant effects previously examined will be substantially more
severe than shown in the previous EIR.” (CEQA Guidelines,
§ 15162, subd. (a)(3)(A) & (B).)
8The City apparently chose to include the discussion in
accordance with a policy in its general plan.

25
Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 851
[“Mitigation is defined as an action that minimizes, reduces, or
avoids a significant environmental impact or that rectifies or
compensates for the impact”].)
In their reply brief, appellants change tack and argue
instead that “[e]ven if the adaptive pathways do not constitute
mitigation measures under CEQA, they would certainly be
considered as a future project that is directly linked to the 2019
project.” Plaintiffs then contend that with faster rates of sea
level rise that will result in higher overall levels, additional flood
protection measures should be viewed as a reasonably foreseeable
project, not just a hypothetical.
Because appellants raised this alternative theory for the
first time in their reply brief, we need not consider it. (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 707.)
In any event, it fares no better. The hydrology report discussed
the use of adaptive responses to sea level rise in the latter part of
the century, between 2070 and 2100. The hydrology report cites
2018 projections for sea level rise by 2100 that range from 2.4
feet at the low end to 10.2 feet in the most extreme scenario. The
projections for 2100 that appellants cite range from 0.3 meters
(about 1 foot) in the best-case scenario to 2.5 meters (8.2 feet) in a
worst-case scenario.
The City’s potential responses to environmental conditions
between 50 and 80 years from now cannot be considered part of
the current project. Additionally, the range of projections for sea
levels by that time are wide and sea levels at different ends of

26
those projections could warrant significantly different responses.
Because the City currently can only dimly guess what measures
will be needed to respond to conditions several generations from
now, the City was not required to analyze the impacts of the
adaptive pathways as part of this project. (Environmental
Council of Sacramento v. County of Sacramento (2020)
45 Cal.App.5th 1020, 1031 [“CEQA does not require an EIR to
discuss future developments which are unspecified or uncertain.
‘Such an analysis would be based on speculation about future
environmental impact’ ”].)
DISPOSITION
The judgment is affirmed.

BROWN, J.

WE CONCUR:

STREETER, ACTING P. J.
ROSS, J.

Citizens Committee v. City of Newark (A162045)


Judge of the Superior Court of California, City and
County of San Francisco, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

27
Filed 1/25/22
CERTIFIED FOR PUBLICATION
CALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT
DIVISION FOUR

CITIZENS' COMMITTEE TO COMPLETE THE REFUGE et al.,
Plaintiffs and Appellants,
v.
CITY OF NEWARK et al.,
Defendants and Respondents;

SI XVII, LLC, et al.,
Real Parties in Interest and Respondents.

A162045
Alameda County
Sup. Ct. No. RG19046938

BY THE COURT:

The written opinion which was filed on December 29, 2021, has now
been certified for publication pursuant to rule 8.1105(b) of the California
Rules of Court, and it is ordered published in the official reports.

Date:___________________________ __________________________Acting P.J.
J. Streeter

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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch

Counsel: Law Offices of Stuart M. Flashman, Stuart M. Flashman;
John Buse, Lisa Belenky for Plaintiffs and Appellants.

Linda Krop, Margaret Hall as Amicus Curiae on behalf of
Plaintiffs and Appellants.

Rutan & Tucker, David P. Lanferman, Matthew D.
Francios, Travis Van Ligten for Defendants and
Respondents.

Cox, Castle & Nicholson, Andrew B. Sabey, Anne E.
Mudge, Linda C. Klein, Craig E. Spencer for Real Parties in
Interest.

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