A THREE-JUDGE PANEL of the California Court of Appeal ruled this week in favor of the town of Tiburon in a land use and housing appeal, reversing in part a decision that found that the town did not properly comply with state environmental review requirements in preparing its general plan.
The case involved the scope of necessary review under the California Environmental Quality Act in the context of the town’s update to its general plan.
The appeals court wrote, “This is a weighty issue, as it affects the CEQA responsibilities of local governments throughout the state,” but the court’s 30-page opinion issued Monday spends most of its force on unravelling how California’s complex housing planning process affects a single undeveloped 9-acre parcel on Paradise Drive between Tiburon and Corte Madera.
To simplify the complicated legal landscape, under California law there is a regional planning process that requires local governments to provide a “housing element” in their general plan. The housing element must provide for the expected housing needs in the local jurisdiction over the next eight years.
The state determines each local government’s estimated housing need, and it is up to the local government to figure out how to accommodate that need in its general plan.
In some areas of the state, there is more than enough available and developable land to accommodate the expected growth, so the task in updating the housing element is largely to identify that land and to determine that it is generally feasible for development. However, in other areas, particularly in the Bay Area, the expected need for housing — particularly housing for low- and moderate-income families — outstrips the available development sites.
In those situations, the local government must identify the steps it will take — for example by rezoning sites not otherwise suitable for development — so that the general plan will have enough capacity to accommodate the state-set number.
‘Site H’ at center of dispute
In 2020, Tiburon began to update its general plan, including the housing element, to specify how the town will meet its obligations. For this period, Tiburon was required to describe how it would accommodate an additional 639 housing units in a geographic area that was already densely populated. Town officials determined that they would rezone 17 sites to add development capacity.
While there were other moving parts, the key issue for the litigation was one of those 17 sites — the 9-acre parcel called “Site H.” It was previously zoned for “residential plan development,” a zoning category that would have allowed a maximum of seven units. However, if the zoning were changed to “very high density residential,” 93 units could be accommodated and — together with the changes at the other 16 sites — Tiburon would be able to satisfy the allocated expected housing need.
CEQA is the state statute that requires governments considering a project to undertake a comprehensive review of its environmental impacts before final approval. The new general plan (including the housing element) triggered CEQA review.
The town structured the CEQA review to look at the environmental impacts — direct, indirect and cumulative — of the comprehensive plan as a whole. However, it did not try to assess environmental impacts of specific projects that might one day in the future be developed on individual parcels rezoned pursuant to the plan.
So while the CEQA process assumed that Site H would be developed to its full rezoned capacity, and it evaluated the environmental impacts of such density as a part of the overall plan, it did not attempt to evaluate impacts of any specific development at Site H.
The town approved the environmental reviews and adopted the general plan and the included housing element on May 22, 2023 and, in September of 2023, it implemented the zoning changes.
The Committee for Tiburon LLC (formerly “The Committee to Preserve the Paradise Cove Salt Marsh, Tidelands, and Neighborhood Safety LLC”), a local community group, challenged the town’s general plan update and housing element for lack of a site-specific environmental assessment for Site H.
Marin County Superior Judge Sheila Lichtblau ruled for the committee.
The town appealed and argued that review at the town-wide level was proper. Because there was no specific development plan for Site H, the town argued that a site-level review made little sense.
The committee argued that if there was no Site H environmental review now, there may never be such a review. The appeals court danced around on this point, recognizing that CEQA review for a later project not covered by the initial review may be required, though it acknowledged that depending on the specifics, the developer might be able to qualify for exemption.
The appeals court concluded, without providing any certainty for the committee, that it “appears likely” that an environmental review would be required for any housing project proposed for Site H in the future.
The upshot appears to be that local jurisdictions will be able to avoid site-level CEQA review when updating their general plan, but whether that eliminates subsequent site-specific review when a development plan has gelled, is far from clear.
A request for comment from the lawyers for the committee was not immediately returned.
Tiburon Town Attorney Ben Stock said, “The Court recognized that the Town properly prepared a jurisdiction-wide General Plan, and that any site-level analysis of future development can wait until real project details are known from any future project specific application submittal.”
He added, “If the Court of Appeal had decided otherwise, local housing elements would likely have been substantially delayed, with opponents throwing up roadblocks that would stymie cities’ compliance with state housing laws.”
Christopher Elmendorf is the Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law, and a prominent land use scholar.
Shortly after the decision was announced, Elmendorf posted commentary on social media, criticizing the appeals court’s failure to carefully consider the impact of a 2025 bill that adds exemptions to CEQA for “housing-element rezonings & housing-development projects.”
He summed up the lay of the land after the decision as follows:
“In the future, cities will use this opinion to say they don’t have to do elaborate [environmental review] for their housing elements. And NIMBYs will say it counts for nothing since it rests on clearly incorrect and outdated premises.”
Elmendorf then sums up: “Both will be right.”
