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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.,                                                   A135790
         Defendants and Respondents;                                     (Alameda County
AVALONBAY COMMUNITIES, INC.,                                             Super. Ct. No. RG11581959)
         Real Party in Interest.


         Government Code section 654571 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. 2


1
    All statutory references are to the Government Code unless otherwise noted.
2
  The city’s request for judicial notice of Dublin Municipal Code section 8.28.030(e), which is
referenced in appellants’ brief but not contained in the record, is granted.


                                                             1
                              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.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

3
  All references to guidelines are to the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000
et seq.) developed by the Office of Planning and Research and adopted by the California
Resources Agency. We note that the specific plan EIR might also be characterized as a master
plan EIR pursuant to Guidelines section 15175, which would not significantly affect the analysis
of any issue considered in this opinion.


                                               2
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


                                              3
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.4

4
  AvalonBay also sought approval of a “Vesting Tentative Tract Map” (map) so that the
apartment units could be converted to condominiums in the future and approval of the standard
development agreement. Because AvalonBay was seeking to develop in site C more than the 405
residential units initially authorized by the stage 1 development plan, an amendment to the stage
1 development plan was necessary but no further modification of the stage 1 development plan
was required because the plan includes a provision authorizing the City to exceed the dwelling
unit limits established for each of the residential use sites if an equal number of residential units
are eliminated from other sites within the transit center, as AvalonBay proposed.


                                                 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


                                              5
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.” Appellants5
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.”

5
 Appellants are Concerned Dublin Citizens (an unincorporated group of concerned citizens),
Robert Klein (a member of the group), and Carpenters Local Union No. 713.

                                              6
       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.)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

6
  The overview in Davidson Homes continues: “If, however, the project does not fall within any
exemption, the agency must proceed with the second tier and conduct an initial study. [Citation.]
If the initial study reveals that the project will not have a significant environmental effect, the
agency must prepare a negative declaration, briefly describing the reasons supporting that
determination. [Citation.] Otherwise, the third step in the process is to prepare a full [EIR] on the
proposed project.” (Davidon Homes v. City of San Jose, supra, 54 Cal.App.4th at p. 113.)


                                                  7
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.”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



7
  Section 21166 provides: “When an environmental impact report has been prepared for a project
pursuant to this division, no subsequent or supplemental environmental impact report shall be
required by the lead agency or by any responsible agency, unless one or more of the following
events occurs: [¶] (a) Substantial changes are proposed in the project which will require major
revisions of the environmental impact report. [¶] (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.”


                                               8
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.8


8
  “The ‘fair argument’ test is derived from section 21151, which requires an EIR on any project
which ‘may have a significant effect on the environment.’ That section mandates preparation of
an EIR in the first instance ‘whenever it can be fairly argued on the basis of substantial evidence
that the project may have significant environmental impact.’ [Citation.] If there is substantial

                                                 9
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

evidence of such impact, contrary evidence is not adequate to support a decision to dispense with
an EIR.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316.)


                                               10
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



                                              11
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.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

9
  Contrary to counsel’s suggestion at oral argument, the site development review permit does not
include or approve any commercial use as part of the approved project. City council resolution
No. 60-11 approving the site development review incorporates the following recital as part of the
resolution: “WHEREAS, the Applicant applied for a PD-Stage 1 Development Plan amendment
and Stage 2 Development Plan in accordance with Dublin Zoning Ordinance, Section 8.32, and
for Site Development Review, Vesting Tentative Tract Map 7929 and a Development Agreement
for 505 residential units on Site C of the Dublin Transit Center. The application for Site
Development Review and Vesting Tentative Tract Map are collectively referred to herein as the
‘Project.’ ” In finding that the project is exempt from CEQA, the resolution repeats that “[t]he
Project is a residential project because it consists of 505 residential units and ancillary parking
and fitness center uses.” The city council resolution also incorporates the findings and conditions
of approval under planning commission resolution No. 11-09, which defines the project as “505
residential units on Site C of Dublin Transit Center” and includes the finding that “[t]he
proposed site design for the development of the Dublin Station project, as conditioned, is
consistent with chapter 8.104 of the Dublin Zoning Ordinance, complies with the policies of the
General Plan, the Eastern Dublin Specific Plan, the Stage 1 Planned Development zoning as
amended, the Stage 2 Development Plan, and with all other requirements of the Dublin Zoning
Ordinance in that it will create housing opportunities; and provide additional landscape amenities
and areas to congregate at the Transit Center.”


                                                12
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.


                                              13
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


                                               14
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).)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

10
   Subdivision (b) of this guideline lists the advantages of a program EIR, including that a
program EIR can “(1) Provide an occasion for a more exhaustive consideration of effects and
alternatives than would be practical in an EIR on an individual action, [¶] (2) Ensure
consideration of cumulative impacts that might be slighted in a case-by-case analysis,
[¶] (3) Avoid duplicative reconsideration of basic policy considerations, [¶] (4) Allow the Lead
Agency to consider broad policy alternatives and programwide mitigation measures at an early
time when the agency has greater flexibility to deal with basic problems or cumulative impacts,
and [¶] (5) Allow reduction in paperwork.”


                                               15
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.” 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.”



11
   Appellants cite two additional passages in the EIR dealing with subsequent environmental
review. In one passage, the EIR reads, “The entitlements currently sought are intended to provide
a general framework for the comprehensive development of the area as a transit village. Precise
site development plans have not yet been prepared for individual properties, but will be included
in subsequent submittals to the City of Dublin. Subsequent submittals will deal with such issues
as project-specific land uses, site layouts, parking, building architecture, landscaping and similar
items. Future environmental reviews will be completed on specific development applications to
ensure compliance with this Program EIR and CEQA.” In a second passage, the EIR reads,
“Although not specifically addressed in this Program EIR, the following actions are foreseen as
future actions to be considered as part of the overall Dublin Transit Center project subject to
subsequent applications and environmental reviews: Stage 2 Planned Development rezoning,
Site Development Review applications, 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.” Neither of these statements specifies the necessary level of review or precludes
application of a statutory exemption.


                                                16
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


                                              17
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.”12 Appellants assert that in
2010, BAAQMD adopted new thresholds for establishing significant environmental



12
   The EIR acknowledges that “According to the Bay Area Air Quality Management District, air
pollution potential is high in the Livermore-Amador Valley especially for ozone in the summer
and fall. High temperatures increase the potential for ozone, and the valley not only traps locally
generated pollutants but can be the receptor of ozone and ozone precursors from upwind portions
of the greater Bay Area. Transport of pollutants also occurs between the Livermore Valley and
the San Joaquin Valley to the east. [¶] During the winter, the sheltering effect of terrain and its
inland location results in frequent surface-based inversions. Under these conditions pollutants
such as carbon monoxide from automobiles and particulate matter generated by fireplaces and
agricultural burning can become concentrated.” The EIR concludes that even with feasible
mitigation, the transit center will have significant and unavoidable impacts on cumulative
regional air quality.


                                                18
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.”
(<http://www.baaqmd.gov/Divisions/Planning-and-Research/CEQA-GUIDELINES/
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


                                             19
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


                                              20
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.




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