The Committee for Tiburon LLC v. Town of Tiburon

Filed 2/2/26

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE COMMITTEE FOR TIBURON

LLC, A171983

Plaintiff and Respondent, (Marin County

v. Super. Ct. No. CV0000086)

TOWN OF TIBURON,

Defendant and Appellant;

SIERRA PINES GROUP, LLC,

Real Party in Interest.

Pursuant to the California Environmental Quality Act (CEQA; Pub.

Resources Code, § 21000 et seq.),1 the Town of Tiburon (Town) prepared and

certified a program-level Environmental Impact Report (EIR) for its general

plan update. Thereafter, The Committee for Tiburon LLC (Committee) filed

a petition for a writ of mandate, challenging the adequacy of the EIR based

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of parts D and E of the

Discussion.

1 All statutory references are to the Public Resources Code, unless

otherwise indicated. We will cite and refer to CEQA’s implementing

regulations, codified at title 14, division 6, chapter 3 of the California Code of

Regulations, as the “Guidelines.” The CEQA Guidelines are given “great

weight in interpreting CEQA, except where they are clearly unauthorized or

erroneous.” (Center for Biological Diversity v. Department of Fish & Wildlife

(2015) 62 Cal.4th 204, 217, fn. 4)

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on its failure to analyze the specific environmental impacts of developing

housing on “Site H,” one of 17 sites identified in the general plan’s housing

element that would accommodate the Town’s projected regional housing

needs of 639 units plus a buffer of 277 units (916 total units). Even though

the Town is not legally obligated to build housing on any of the 17 sites, and

even though no housing project has been proposed for Site H, the trial court

agreed with the Committee and granted its petition.

The question presented is this: If a local government is updating its

general plan and housing element site inventory, and no specific housing

project has been proposed for a listed site, must the EIR for the general plan

analyze site-specific environmental impacts of potential development for that

site? This is a weighty issue, as it affects the CEQA responsibilities of local

governments throughout the state. Although the Town is a relatively small

local agency whose housing element identifies only 17 sites, requiring site-

specific analyses could increase the EIR obligations exponentially for larger

local agencies, some of which list sites numbering in the hundreds. (See, e.g.,

Alameda County 2023-2031 Housing Element

https://www.acgov.org/cda/planning/housing-element/sites-inventory.htm

[identifying 523 different parcels to meet its projected regional housing needs

of 4,711 units] as of February 2, 2026.)

In the published portion of this opinion, we draw from the relevant

statutory, regulatory, and decisional authorities to conclude that a program

EIR for a local agency’s general plan need not include a site-specific

environmental analysis of a site identified in its housing element where, as

here, no housing project has been proposed for the site. When a housing

project has not even been proposed, the lack of project-specific details

precludes an informed review of environmental impacts and mitigation

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measures, and deferral of such a review to a site-specific, project-level EIR

analysis is appropriate. Accordingly, we hold the trial court erred in granting

the Committee’s petition based on the failure of the Town’s EIR to analyze

site-specific impacts of developing housing on Site H.

In the unpublished portion of this opinion, we explain our reasons for

remanding the matter to the trial court with instructions to consider the

applicability of recent CEQA amendments to the Town’s decision to rezone

Site H and to consider the Committee’s claim that the Town’s general plan is

not internally consistent and compatible.

OVERVIEW AND FACTUAL BACKGROUND

A. General Plan and Housing Element Requirements

The Planning and Zoning Law (Gov. Code, § 65000 et seq.) requires

local governments to “adopt a comprehensive, long-term general plan for the

physical development of the county or city, and of any land outside its

boundaries which in the planning agency’s judgment bears relation to its

planning.” (Gov. Code, § 65300.) The general plan serves to guide all future

development and is the basis for a local government’s land use regulations.

(San Franciscans for Livable Neighborhoods v. City and County of San

Francisco (2018) 26 Cal.App.5th 596, 609 (San Franciscans).)

Each general plan must include eight mandatory elements: land use,

circulation, housing, conservation, open space, noise, safety, and

environmental justice. (Gov. Code, § 65302, subds. (a)–(g).) The housing

element requirement relates to the Housing Element Law (Gov. Code,

§ 65580 et seq.), which reflects the Legislature’s determinations that housing

availability is of “ ‘vital statewide importance’ ” and that the “ ‘attainment of

decent housing and a suitable living environment [is] a priority of the highest

order.’ ” (San Franciscans, supra, 26 Cal.App.5th at p. 609; Gov. Code,

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§ 65302, subd. (c).) One purpose of the Housing Element Law is to assure

that cities “ ‘recognize their responsibilities in contributing to the attainment

of the state housing goal,’ including ‘housing affordable to low-and-moderate-

income households.’ ” (Ibid.) As part of the law’s regional housing needs

assessment procedure, each local government is assigned a share of the

existing and projected regional housing needs, i.e., its regional housing needs

assessment (“RHNA”). (Id. at p. 610.)

As relevant here, the housing element of a local government must

include “ ‘[a]n assessment of housing needs and an inventory of resources and

constraints relevant to the meeting of these needs,’ including an inventory of

land suitable for residential development.” (San Franciscans, supra, 26

Cal.App.5th at pp. 609–610; Gov. Code, § 65583.) The sites listed in this

inventory must have a realistic and demonstrated potential for

redevelopment during the planning period, and an analysis of the

relationship between zoning, public facilities, and the services for these sites

must be included. (Gov. Code, § 65583, subd. (a)(3).) Among other things,

the required information must include the size, general plan designation, and

zoning of each property, a map showing the property’s location, a general

description of any environmental constraints to the development of housing,

and a description of existing or planned utilities, including availability of and

access to distribution facilities. (Gov. Code, § 65583.2, subd. (b)(2), (4), (5),

(7).) The general description of environmental constraints, however, need not

be identified on a site-specific basis. (Gov. Code, § 65583.2, subd. (b)(4).)

After a local government has assessed its housing needs and compiled

its site inventory, it must prepare programs and policies to effectuate its

needs. (Gov. Code, § 65583, subd. (c).) If the available sites do not

accommodate the local government’s RHNA for each income level, the

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adopted program must identify actions that will accommodate those needs,

including rezoning. (Id., § 65583, subd. (c)(1)(A).)

Generally, a local government must update its housing element at least

every eight years to identify specific sites that are sufficient to accommodate

their RHNAs. (Gov. Code, §§ 65588, subd. (e)(3)(A)(i), 65583.2, subd. (a).)

Housing elements are subject to review by the California Department of

Housing and Community Development (HCD), which oversees local land use

planning, as well as the review and certification of all housing elements for

substantial compliance under the Housing Element Law. (See generally Gov.

Code, § 65585.)

B. The Town’s General Plan Update

In 2020, the Town began the process of preparing “the General Plan

2040,” a comprehensive update to its existing general plan which was last

prepared in 2005 (with updates to the circulation element in 2016 and the

2014 Housing Element). As part of the process, the Town conducted

extensive community outreach “to understand key issues and opportunities to

be explored” in the general plan update. The General Plan 2040 was

“intended to be an expression of the community’s vision for the Town and

Planning Area and constitutes the policy and regulatory framework by which

future development projects will be reviewed and public improvements will

be implemented.”

The General Plan 2040 is organized into the following 11 chapters:

Introduction; Land Use; Downtown; Housing; Diversity, Equity + Inclusion;

Mobility; Noise; Sustainability; Conservation; Open Space, Parks +

Recreation; and Safety + Resilience. “Each chapter describes existing

conditions and context for the related topic area, followed by goals, policies,

and programs to guide the Town’s management and development.” As

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pertinent here, the land use chapter “describes land use in Tiburon and how

and where new development will occur,” while the housing chapter “describes

the need for housing, especially affordable to lower and moderate-income

households, and sites available for housing.”

The housing chapter discusses the Town’s “2023-2031 Housing

Element,”2 which it incorporates as an appendix. For this eight-year housing

element cycle, the Town’s share of the regional housing needs is a total of 639

housing units, which represents 4.4 percent of the 14,405 units allocated to

Marin County as a whole.

The housing chapter then explains: “Most of the sites within

residential zones in the Town are built out or are not viable for high-density

development due to environmental or topographic constraints and therefore

offer very limited new housing opportunities. Where there are sites that can

accommodate higher residential density, residents have expressed concerns

about impacts that may result from the addition of a substantial number of

new housing units . . . . Nonetheless, the Town recognizes that it must

provide opportunities to meet its RHNA. To achieve this goal, the Town

increased allowable residential densities on certain housing opportunity sites

and identified mixed-use zones in the Downtown.”

As the 2023-2031 Housing Element noted, the Town “must provide

opportunities for high density residential development outside of traditional

residential zones. To achieve this goal and provide the density needed to

2 The Town’s “2023-2031 Housing Element” is a separate document

requiring HCD review and approval. (See part A, ante.) In this case, the

housing element was still in draft form when the EIR was certified in May

2023. As will be explained, HCD called for additional review and revision of

the Town’s 2023-2031 Housing Element, which HCD ultimately approved in

October 2023.

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meet the RHNA within the planning period, most of the multifamily sites are

in mixed use zones that allow housing.” The housing element then identified

17 vacant or underutilized sites, which must be rezoned, to meet the Town’s

RHNA. Consistent with the 2023-2031 Housing Element, the General Plan

2040 included implementation programs to rezone all 17 sites to

accommodate the Town’s RHNA.

The controversy in this case centers around 4576 Paradise Drive,

labeled as Site H in the 2023-2031 Housing Element attached to the General

Plan 2040.3 Site H is over nine acres in size and contains two residential

units. Site H was previously zoned for “residential planned development,”

allowing a maximum of seven units on the site. The 2023-2031 Housing

Element proposed changing Site H’s zoning designation to “very high density

residential,” with a realistic development capacity of 93 units. This change

would allow single-family and multi-family residential use with a minimum

density up to 10 dwelling units per acre. Additional compatible uses may be

permitted under this designation.

C. Environmental Review of the General Plan 2040

Upon determining that the General Plan 2040 was a project under

CEQA, the Town prepared an EIR to “evaluate the potential environmental

impacts” associated with its implementation. The Town structured its Draft

EIR as a program EIR to provide a “program-level analysis” to consider “the

broad environmental effects” of the general plan update. In the words of the

Draft EIR, it “analyz[ed] potential impacts to the environment associated

with implementation and buildout of the General Plan 2040, which included

future development projects, infrastructure improvements, and the

implementation of policies and actions included in the General Plan 2040.”

3 Site H is owned by real party in interest, Sierra Pines Group, LLC.

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As required by CEQA, the Draft EIR evaluated “the direct, indirect,

and cumulative impacts” of the General Plan 2040 in the environmental topic

areas of aesthetics, air quality, biological resources, cultural and tribal

cultural resources, energy, geology and soils, greenhouse gases, climate

change, and energy, hazards and hazardous materials, hydrology and water

quality, land use and planning, noise, population and housing, public services

and recreation, circulation, utilities and services systems, and wildfire.

(§§ 21063, 21083, subd. (b); Guidelines, §§ 15126.2, 15382.) Each section

contains a description of the existing environment and regulatory

environment as relevant to the topic area, identifies the thresholds of

significance, describes the impacts and cumulative impacts “from

construction, operation, and maintenance activities related to future

development that could occur under the General Plan 2040” on the topic area,

and identifies applicable mitigation measures. (Guidelines, §§ 15125,

15126.2, 15126.4, 15130.)

Describing the updating of the housing element as an “integral part” of

the General Plan 2040, the Draft EIR’s analysis assumed a full buildout of

each of the 17 sites identified in the 2023-2031 Housing Element “based on

the maximum permitted density for the General Plan 2040 land use

designation.” Site H, in particular, was assumed to have a residential

capacity of up to 118 net units based on its maximum permitted density.

Additionally, the Draft EIR assumed more residential units “than the

minimum number of units required by the RHNA to allow for a buffer,” as

mandated by HCD. But the Draft EIR explained that, as a program-level

general plan EIR, it “does not evaluate individual projects that may be

allowed under the General Plan 2040 at a site-specific level. Because the

General Plan 2040 establishes policies, goals and guidelines, and describes

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potential development that may or may not be built on any particular site,

environmental review will necessarily be general. . . . [¶] The General Plan

2040’s inventory of residential sites fulfills a State-mandated requirement to

ensure that the Town’s RHNA can be accommodated. In other words, the

General Plan 2040 identifies enough land designated at appropriate densities

to accommodate the RHNA allocation and ensures the Town will rezone its

housing sites consistent with the General Plan 2040.”

In summary, the Draft EIR did not conduct a specific environmental

review of each individual site listed in the housing element inventory.

Instead, it considered the overall addition of 916 units throughout the Town,

using the anticipated number of additional people and residences to project

the impacts that may arise from such a general increase in population and

housing within each of the EIR topic areas. In this way, the Draft EIR

provided a Town-wide review of the broad environmental impacts of the

changes made to the general plan, based on the overall increase of the

updated regional housing needs anticipated through the housing element.

The Draft EIR made clear, however, that “[f]uture development

proposals will be reviewed to determine whether their impacts fall within the

scope of analysis in this Draft EIR or if additional site-specific environmental

review will be required because new potentially significant impacts would

result. As provided for in CEQA Guidelines Sections 15152 and 15385, any

subsequent environmental document that might be required for a

development project could ‘tier’ from this Draft EIR and focus its analysis on

any new or more severe significant impacts.” The Draft EIR nonetheless

indicated that if a future project requires “no discretionary action,” or no

review and approval by the Planning Commission, Town Council, or other

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agencies, then such project would be “ministerial” and presumably approved

without further EIR review.

As CEQA also mandates, the Draft EIR considered three project

alternatives: a no project alternative, a village centers alternative, and a

downtown density alternative. (Guidelines, § 15126.6.) The village centers

alternative would focus more on new development of multifamily housing

near shopping areas within the Town and reduce the development potential

of Site H to a maximum of 49 units. The downtown density alternative would

increase the development potential in the downtown area and reduce the

development potential of Site H to the units allowed under the existing 2020

General Plan.

The Draft EIR explained the general plan update “has been developed

to be largely self-mitigating in that the goals, policies, and programs in the

General Plan 2040 recognize the importance of natural environment and are

designed to protect the environment and environmental resources. In certain

instances, mitigation is included to reinforce and enhance the protections

identified in the policies and programs.” But after considering the self-

mitigating goals and policies and implementation of the proposed mitigation

measures, the Draft EIR ultimately concluded the General Plan 2040 would

cause significant and unavoidable impacts to air quality, greenhouse gas

emissions, transportation, and utilities and service systems. At the same

time, the Draft EIR determined the development facilitated by the general

plan “would not induce” or cumulatively induce “substantial unplanned

population growth either directly or indirectly” and “would not displace a

substantial number of people requiring the construction of new housing.”

(Italics added.)

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During the review process, the Town received various comments on the

Draft EIR, including many regarding the proposed increased residential

density of Site H. Among the concerns raised were the “narrow and curvy

nature of Paradise Drive”; ingress and egress concerns; bicycle use of

Paradise Drive; increased traffic effects and “failure to consider the need to

widen Paradise Drive”; construction-related effects and onsite slopes;

“emergency safety concerns”; “sewage system problems”; “potential loss of

onsite trees”; “loss of privacy”; and “general concern with the number of units

anticipated for the site.”

The Town’s Final EIR provided responses to all the comments received.

In answer to the concerns regarding Site H, the document explained: “Due to

the programmatic nature of the Draft EIR, environmental analysis of the

carrying capacity of the site was analyzed as part of potential overall

implementation of the General Plan 2040; however, no site-specific analysis

was conducted for development of [Site H] or any other site identified in the

General Plan 2040 for increased residential density . . . , and it would be

premature and overly speculative to attempt to evaluate the potential effects

raised by the comments at this time. As discussed . . . in the Draft EIR, any

development application submitted for the property will undergo site-specific

CEQA review to the extent deemed necessary.” The EIR revised the Draft

EIR to “update, refine, amplify, and correct the information and analyses”

either in response to comments or as initiated by Town staff, but determined

the changes did not require recirculation of the Draft EIR.

On May 22, 2023, the Town passed a resolution certifying the EIR,

which included its adoption of CEQA findings of fact for the General Plan

2040, a Statement of Overriding Considerations, and a Mitigation Monitoring

and Reporting Program. The same day, the Town adopted the General Plan

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2040, with its inclusion of the 2023-2031 Housing Element, by separate

resolution.

After adopting the General Plan 2040, the Town received written

comments from HCD staff requesting changes to the adopted 2023-2031

Housing Element for it to be in substantial compliance with the Housing

Element Law. As relevant here, the Town revised the housing element to

address third party comments received by HCD regarding the potential

constraints that may impede the development of Site H, and to update the

program rezoning Site H to include development standards to accommodate

the designated housing capacity despite the known site constraints. The

Town provided additional analysis in the housing element of the site-specific

constraints of development on Site H to demonstrate that it was suitable for

redevelopment at the specified density. Additionally, in response to traffic

and safety concerns, the Town prepared a “Transportation Memo” confirming

that additional vehicles and people resulting from Site H development were

already accounted for in the overall traffic modeling for the General Plan

2040 and included in the EIR. The Town also prepared the “Site H

Conditions Report” to document and analyze existing conditions on Site H.

On September 20, 2023, the Town passed a resolution adopting

amendments to the 2023-2031 Housing Element of the General Plan 2040.

The Town found that the information addressed by the amendments had

been analyzed in the General Plan 2040 EIR and that there were no new

significant impacts or other triggers requiring additional CEQA review.

On December 6, 2023, the Town passed an ordinance amending

provisions of the zoning chapter of the Tiburon Municipal Code. The

ordinance noted that HCD found the 2023-2031 Housing Element to be in

substantial compliance with the Housing Element Law on October 18, 2023,

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and that “amendments to the Zoning Ordinance and Zoning Map are

necessary to permit housing at the densities specified within the Housing

Element, including changes to the base zoning of parcels.” The ordinance

also noted that objective development and design standards and associated

rezonings for commercial mixed-use development in the Downtown area were

previously adopted on June 21, 2023. Consistent with the 2023-2031

Housing Element, the Town established a new zoning district, rezoned Site

H, and adopted objective development and design standards for new

multifamily housing developments, including for hillside sites such as Site H.

The Town found that the EIR for the General Plan 2040 analyzed the impacts

of the proposed amendments to the zoning code and zoning map, and that no

supplemental or subsequent EIR was required.

D. The Committee’s Challenge to the EIR

Meanwhile, back on June 23, 2023, the Committee filed a petition for

writ of mandamus seeking to set aside the Town’s general plan and housing

element to the extent they designate Site H for very high density

development, as well as the Town’s decision to rezone Site H.4 The petition’s

first cause of action alleged the Town violated CEQA by failing to analyze or

acknowledge the significant impacts on aesthetics, biological resources,

hydrology and water quality, land use, and transportation resulting from

changing the zoning designation of Site H from residential planned

development to very high density residential. The second cause of action

alleged the Town violated state planning and zoning laws because the

General Plan 2040 is not internally consistent and compatible. The petition

4 The Committee initially filed its petition under the name “The

Committee to Preserve the Paradise Cove Salt Marsh, Tidelands, and

Neighborhood Safety LLC.” The Committee subsequently changed its name

to the “Committee for Tiburon LLC.”

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further alleged that Site H’s designation as very high density development

will cause significant environmental impacts that are inconsistent and

incompatible with the general plan’s conservation, mobility, and bicycle

policies, as well as the bicycle and pedestrian plan.

On September 28, 2023, the Committee filed a first amended petition

with new allegations that the Town adopted general plan amendments

contemplating that culverts and clustered development would be used on Site

H without additional environmental review. Then, on December 15, 2023,

the Committee filed a second amended petition further alleging the Town’s

amendment of the zoning code to rezone Site H as multifamily residential

prohibits open space use and mandates a minimum of 10 housing units per

acre. According to the petition, such rezoning effectively mandates the

conversion of Site H from open space to dense residential development

without additional environmental review.

The trial court granted the Committee’s petition, finding both that the

EIR failed to include site-specific impacts of developing housing on Site H

and that those impacts were reasonably foreseeable and feasible to analyze in

the EIR. The Town appealed.5

DISCUSSION

A. CEQA Standard of Review

In a CEQA case, we review “ ‘the agency’s action, not the trial court’s

decision.’ ” (Protecting Our Water & Environmental Resources v. County of

Stanislaus (2020) 10 Cal.5th 479, 495.) “The ultimate inquiry . . . is whether

the EIR includes enough detail ‘to enable those who did not participate in its

5 HCD, jointly with the Attorney General of California, and the

California League of Cities, jointly with the California State Association of

Counties, filed amicus curiae briefs in support of the Town’s appeal.

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preparation to understand and to consider meaningfully the issues raised by

the proposed project.’ [Citations.] The inquiry presents a mixed question of

law and fact. As such, it is generally subject to independent review.

However, underlying factual determinations—including, for example, an

agency’s decision as to which methodologies to employ for analyzing an

environmental effect—may warrant deference. [Citations.] Thus, to the

extent a mixed question requires a determination whether statutory criteria

were satisfied, de novo review is appropriate; but to the extent factual

questions predominate, a more deferential standard is warranted.” (Sierra

Club v. County of Fresno (2018) 6 Cal.5th 502, 516 (Sierra Club).)

Here, a program EIR was prepared for a comprehensive update to an

existing general plan, in which the requisite housing element included an

inventory of housing sites that would allow the local government to meet its

RHNA obligations consistent with the Housing Element Law. We are asked

to consider whether CEQA requires that a program EIR for a general plan

include site-specific environmental analyses of the housing sites listed in the

inventory. As this inquiry involves a question of law, we apply independent

review.

B. Program EIRs

CEQA and its implementing regulations “embody California’s strong

public policy of protecting the environment. ‘The basic purposes of CEQA are

to: [¶] (1) Inform governmental decision makers and the public about the

potential, significant environmental effects of proposed activities.

[¶] (2) Identify ways that environmental damage can be avoided or

significantly reduced. [¶] (3) Prevent significant, avoidable damage to the

environment by requiring changes in projects through the use of alternatives

or mitigation measures when the governmental agency finds the changes to

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be feasible. [¶] (4) Disclose to the public the reasons why a governmental

agency approved the project in the manner the agency chose if significant

environmental effects are involved.’ ” (Tomlinson v. County of Alameda

(2012) 54 Cal.4th 281, 285–286 (Tomlinson), quoting Guidelines, § 15002.)

As the California Supreme Court explains, “ ‘[t]he foremost principle

under CEQA is that the Legislature intended the act “to be interpreted in

such manner as to afford the fullest possible protection to the environment

within the reasonable scope of the statutory language.” ’ [Citation.] ‘With

narrow exceptions, CEQA requires an EIR whenever a public agency

proposes to approve or to carry out a project that may have a significant

effect on the environment. [Citations.]’ [Citations.] The basic purpose of an

EIR is to ‘provide public agencies and the public in general with detailed

information about the effect [that] a proposed project is likely to have on the

environment; to list ways in which the significant effects of such a project

might be minimized; and to indicate alternatives to such a project.’

[Citations.] ‘Because the EIR must be certified or rejected by public officials,

it is a document of accountability. If CEQA is scrupulously followed, the

public will know the basis on which its responsible officials either approve or

reject environmentally significant action, and the public, being duly

informed, can respond accordingly to action with which it disagrees.’ ”

(Sierra Club, supra, 6 Cal.5th at pp. 511–512.)

In re Bay-Delta etc. (2008) 43 Cal.4th 1143 (Bay-Delta) provides a

helpful discussion of “program” and “project” EIRs and their differences. “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 in specified ways.

([Guidelines], § 15168, subd. (a).) An advantage of using a program EIR is

that it can ‘[a]llow the lead agency to consider broad policy alternatives and

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program wide mitigation measures at an early time when the agency has

greater flexibility to deal with basic problems or cumulative impacts.’ (Id.,

§ 15168, subd. (b)(4).) Thus, a program EIR is distinct from a project EIR,

which is prepared for a specific project and must examine in detail site-

specific considerations. (Id., § 15161.)” (Bay-Delta, at p. 1169; see Olen

Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270, 279,

fn. 5 [“a program EIR is an EIR about a broad program or plan, as opposed to

a specific project”].)

As Bay-Delta explains, “[p]rogram EIR’s are commonly used in

conjunction with the process of tiering. [Citation.] Tiering is ‘the coverage of

general matters in broader EIRs (such as on general plans or policy

statements) with subsequent narrower EIRs . . . .’ ([Guidelines], § 15385.)

Tiering is proper ‘when it helps a public agency to focus upon the issues ripe

for decision at each level of environmental review and in order to exclude

duplicative analysis of environmental effects examined in previous

environmental impact reports.’ (Pub. Resources Code, § 21093, subd. (a); see

also [Guidelines], § 15385, subd. (b).)

“In addressing the appropriate amount of detail required at different

stages in the tiering process, the CEQA Guidelines state that ‘[w]here a lead

agency is using the tiering process in connection with an EIR for a large-scale

planning approval, such as a general plan or component thereof . . . , the

development of detailed, site-specific information may not be feasible but can

be deferred, in many instances, until such time as the lead agency prepares a

future environmental document in connection with a project of a more limited

geographic scale, as long as deferral does not prevent adequate identification

of significant effects of the planning approval at hand.’ ([Guidelines],

§ 15152, subd. (c).) This court has explained that ‘[t]iering is properly used to

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defer analysis of environmental impacts and mitigation measures to later

phases when the impacts or mitigation measures are not determined by the

first-tier approval decision but are specific to the later phases.’ ” (Bay-Delta,

supra, 43 Cal.4th at pp. 1169–1170.)

In Friends of Mammoth v. Town of Mammoth Lakes Redevelopment

Agency (2000) 82 Cal.App.4th 511, the Court of Appeal further explained:

“Designating an EIR as a program EIR . . . does not by itself decrease the

level of analysis otherwise required in the EIR. ‘All EIR’s must cover the

same general content. (Guidelines, §§ 15120–15132.) The level of specificity

of an EIR is determined by the nature of the project and the “rule of reason”

[citation], rather than any semantic label accorded to the EIR.’ ” (Friends of

Mammoth, supra, 82 Cal.App.4th at pp. 533–534.) This means the

sufficiency of a program EIR must be reviewed in light of what is reasonably

feasible, given the nature and scope of the project. (Center for Biological

Diversity v. California Department of Conservation, etc. (2019) 36 Cal.App.5th

210, 233; see Center for Biological Diversity v. Department of Fish & Wildlife

(2015) 234 Cal.App.4th 214, 234.)

In this regard, the Guidelines provide that, in general, “[a]n EIR should

be prepared with a sufficient degree of analysis to provide decisionmakers

with information which enables them to make a decision which intelligently

takes account of environmental consequences. An evaluation of the

environmental effects of a proposed project need not be exhaustive, but the

sufficiency of an EIR is to be reviewed in the light of what is reasonably

feasible . . . . The courts have looked not for perfection but for adequacy,

completeness, and a good faith effort at full disclosure.” (Guidelines,

§ 15151.) Similarly, the “degree of specificity required in an EIR will

correspond to the degree of specificity involved in the underlying activity

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which is described in the EIR. [¶] . . . . [¶] (b) An EIR on a project such as

the adoption or amendment of a comprehensive zoning ordinance or a local

general plan should focus on the secondary effects that can be expected to

follow from the adoption, or amendment, but the EIR need not be as detailed

as an EIR on the specific construction projects that might follow.” (Id.,

§ 15146.)

Nonetheless, “ ‘[t]he fact that precision may not be possible . . . does not

mean that no analysis is required. “Drafting an EIR . . . involves some degree

of forecasting. While foreseeing the unforeseeable is not possible, an agency

must use its best efforts to find out and disclose all that it reasonably can.”

(Guidelines, § 15144.)’ ” (Banning Ranch Conservancy v. City of Newport

Beach (2017) 2 Cal.5th 918, 938.) All the same, “[a]n EIR is not required to

engage in speculative analysis,” and this is a “core principle” that is “well

established in the Guidelines and case law.” (Citizens for a Sustainable

Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th

1036, 1060–1061; Guidelines, § 15145.) Thus, “[w]hile a lead agency must

use its ‘best efforts’ to evaluate environmental effects, including the use of

reasonable forecasting, ‘foreseeing the unforeseeable’ is not required, nor is

predicting the unpredictable or quantifying the unquantifiable. [Citations.]

[¶] This rule rests on both economic and practical considerations. It has long

been recognized that premature attempts to evaluate effects that are

uncertain to occur or whose severity cannot reliably be measured is ‘a

needlessly wasteful drain of the public fisc.’ ” (Ibid.)

Importantly, CEQA review is “not triggered where there is not yet an

identifiable impact as until that point, the review process [cannot] be

meaningful in the sense that it allows consideration of alternatives that could

19

mitigate the impact.” (Santa Rita Union School Dist. v. City of Salinas

(2023) 94 Cal.App.5th 298, 332.)

C. Analysis

As indicated, CEQA law clearly anticipates a public agency’s use of a

program EIR when considering large projects such as a general plan update,

as the Town did here. (E.g., Guidelines, § 15385.) As the Town correctly

posits, the issue ripe for decision at this level of environmental review was

approval of the general plan with its updated housing element and

anticipated zoning changes. Accordingly, the EIR correctly focused on the

overall addition of 916 units throughout the Town, using the anticipated

number of additional people and residences to forecast the secondary effects

that can be expected to follow from such a general increase in population and

housing within the EIR topic areas. In doing so, the EIR properly analyzed

the environmental impacts in a broad manner, reviewing the overall increase

in housing needs anticipated through the general plan’s housing element,

without considering any site-specific environmental effects of housing

projects that have not yet been proposed. But as the EIR also recognized, if

and when a specific housing project is proposed—whether on Site H or any of

the other 16 sites listed in the inventory—then the development of detailed,

site-specific information will in fact be feasible. (See Guidelines, § 15152,

subd. (c).)

In advocating the current necessity of a site-specific environmental

analysis of Site H, the Committee relies on Vineyard Area Citizens for

Responsible Growth, Inc. v. City of Rancho Cordoba (2007) 40 Cal.4th 412

(Vineyard). That reliance is misplaced.

Vineyard involved an EIR for a community plan involving “a large,

mixed-use development project” on more than 6,000 rural acres that, fully

20

built, would include “more than 22,000 residential units, housing as many as

60,000 people, together with schools and parks, as well as office and

commercial uses occupying 480 acres of land.” (Vineyard, supra, 40 Cal.4th

at pp. 421–422.) The EIR also addressed “a specific plan for the first portion

of that development.” (Id. at p. 421.) Though Vineyard concluded the EIR

adequately informed decision makers and the public of the county’s plan for

near-term provision of water to the development, it held the EIR inadequate

for its failure to address the impacts of supplying water in the long term.

(Ibid.) In the court’s words, “an adequate environmental impact analysis for

a large project, to be built and occupied over a number of years, cannot be

limited to the water supply for the first stage or the first few years,” despite

CEQA’s tiering provisions. (Id. at p. 431.)

As Vineyard explained, “[t]iering is properly used to defer analysis of

environmental impacts and mitigation measures to later phases when the

impacts or mitigation measures are not determined by the first-tier approval

decision but are specific to the later phases. For example, to evaluate or

formulate mitigation for ‘site specific effects such as aesthetics or parking’

[citation] may be impractical when an entire large project is first approved;

under some circumstances analysis of such impacts might be deferred to a

later tier EIR. But the future water sources for a large land use project and

the impacts of exploiting those sources are not the type of information that

can be deferred for future analysis. An EIR evaluating a planned land use

project must assume that all phases of the project will eventually be built and

will need water, and must analyze, to the extent reasonably possible, the

impacts of providing water to the entire proposed project.” (Vineyard, supra,

40 Cal.4th at p. 431, italics added.) It is the italicized language in the

foregoing passage that the Committee cites in asserting the inadequacy of the

21

Town’s EIR. Given the context in which the italicized language appears, as

well as the obvious differences between the project addressed in the Vineyard

EIR and the EIR for the General Plan 2040, we are not convinced.

In contrast to the situation in Vineyard, the EIR here was evaluating a

large-scale planning document, not a concrete development project. The EIR

did not need to assume that all “phases of the project will eventually be built”

because the identified housing sites are not phases of one large development,

but components of a planning document being used to satisfy the Town’s legal

obligation under the Housing Element Law. Indeed, it is undisputed that the

Housing Element Law requires only that local governments identify

sufficient sites with a realistic development potential and make such sites

available to accommodate their RHNA. (See generally Gov. Code, § 65580 et

seq.) The law does not require the Town to build housing, and there is no

guarantee that every site identified in the 2023-2031 Housing Element will

be developed. Where, as here, a specific housing project has not been

proposed and “the absence of project-specific details” precludes a detailed

analysis of impacts and mitigation measures at the program-level stage, a

site-specific EIR analysis is properly deferred to the project level. (See

Western States Petroleum Assn. v. State Air Resources Bd. (2025) 108

Cal.App.5th 938, 979 [collecting cases].)

We find the instant situation more analogous to the circumstances in

City of Hayward v. Trustees of California State University (2015)

242 Cal.App.4th 833 (Hayward). There, the university trustees created a

program EIR for approval of the university’s master plan. Though the

subject EIR analyzed the impacts of increased population on traffic in the

surrounding areas, including the primary intersection in that area, the

trustees “utilized a tiering approach for analysis of future projects not yet in

22

development.” (Id. at p. 850.) In upholding this approach, Hayward

determined the EIR’s traffic analysis was “important to avoid piecemeal

consideration of cumulative traffic impacts” and found its deferral of “[s]ite-

specific impacts to the smaller residential streets in the neighborhood and

related mitigation measures . . . were properly deferred until the project is

planned and a project EIR is prepared.” (Ibid.)

The Hayward court elaborated: “Although locating housing at this site

may cause impacts to the neighborhood, there are many variables to be

considered in connection with such a project, such as the location of entrances

and placement of parking spaces, that will affect where in the surrounding

neighborhood the impacts will be most felt and the measures that can

mitigate those impacts. These specifics cannot meaningfully be evaluated at

this point. There is no suggestion that deferring consideration of site-specific

impacts will disguise cumulative impacts or preclude proper consideration of

mitigation measures if and when construction of such housing is proposed.”

(Hayward, supra, 242 Cal.App.4th at p. 850.)

As in Hayward, the Town’s use of a program EIR and its level of

analysis are appropriate for the General Plan 2040 because—at the time of

the Town’s EIR analysis—the Town had made no commitment to a housing

project at any of the 17 sites identified in the housing element. In identifying

Site H, along with the other 16 undeveloped and underdeveloped sites, the

Town sought to satisfy its statutory obligation to “have land designated and

zoned to accommodate” the Town’s RHNA. But as the EIR explained, the

Town “is not required to ensure that adequate development to accommodate

the RHNA occurs.” And absent a specific project proposal for Site H,

requiring environmental review of site-specific resources under CEQA is

premature and unlikely to yield any meaningful analysis. Indeed, two of the

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basic purposes of CEQA are to identify ways in which environmental damage

can be avoided or reduced and to prevent significant, avoidable damage to the

environment by analyzing alternatives and mitigation measures.

(Tomlinson, supra, 54 Cal.4th at pp. 285–286.) Without a site-specific

proposal for development, neither purpose can be served because potential

alternatives and mitigation measures designed to avoid or reduce

environmental damage to site-specific resources cannot be analyzed.

In resisting this conclusion, the Committee contends the Town had

enough information about site-specific environmental impacts that were

reasonably likely from the proposed very high density development of Site H,

“regardless of whatever specific construction plan might ultimately be

submitted.” On this score, the Committee highlights that a few months after

the Town certified the EIR, the Town submitted two reports regarding Site

H—namely, the Transportation Memo and Site H Conditions Report—to

HCD as part of the review and approval process for the 2023-2031 Housing

Element. Pointing out that the site conditions report provided an assessment

of Site H’s wetlands, watershed, streams, and drainage channels and

identified various potential means for developing the proposed number of

housing units on the site to overcome the site’s physical limitations and

regulatory constraints, the Committee suggests these reports show the

feasibility of a site-specific analysis of Site H for inclusion in the EIR. We are

not convinced.

Though the Town’s letter reports supported the inclusion of Site H in

the site inventory for the requisite housing element of the general plan

update, they fall short of demonstrating the necessity and feasibility of

additional site-specific CEQA review at this time. In particular, they do not

24

evaluate the environmental effects or potential mitigation measures

associated with any proposed project.

The Committee also asserts the Town was aware of potential

environmental issues with developing Site H before the program EIR was

certified. While that appears correct, the Town properly analyzed the

potential environmental impacts of the General Plan 2040 as a whole. And

as previously indicated, the Housing Element Law does not require the Town

to develop any specific housing project—either on Site H or on any of the

other 16 sites identified by the Town. Without a proposed project that

identifies critical factors such as the amount and configuration of the

proposed housing, the planned means of access to the site, and the

availability of alternatives, the Town can only speculate as to the severity of

any particular environmental impacts or the effectiveness of potential

mitigation measures that would minimize those impacts at the site. Because

it is entirely speculative at this point whether a housing project will even be

proposed for Site H, a meaningful environmental analysis focusing on Site H

is not feasible.

To reiterate, the issue facing the Town was whether to approve the

General Plan 2040 with its updated housing element and anticipated

rezoning. Under the Housing Element Law, the Town was obligated to

identify sites with a realistic and demonstrated potential for redevelopment

and to identify actions, such as rezoning, to accommodate its RHNA. The

Town did so. It made the choice to include undeveloped and underdeveloped

sites, including Site H, as potential locations for future housing projects.

This clearly fell within the Town’s policy-making authority to decide how and

where to make additional space available for future housing. (Gov. Code,

§ 65301.5 [adoption of general plan or any element thereof is a legislative

25

act].) The EIR therefore focused, quite properly, on the environmental

impacts of an additional 916 housing units within the Town in a broad and

cumulative manner.

Moreover, the Committee offers no basis for concluding that deferral of

a site-specific environmental impacts analysis for Site H, or any other site

included in the site inventory, prevents “adequate identification of significant

effects of the planning approval at hand.” (Guidelines, § 15152, subd. (c).)

The Committee makes no claim that the EIR’s analyses of the environmental

impacts of the General Plan 2040 were otherwise inadequate. Nor does it

challenge the EIR’s analysis of alternatives to the general plan update. On

this record, the Committee fails to establish that the lack of site-specific

analysis demonstrated the program EIR’s inadequacy under CEQA.

Finally, the Committee speculates that if no site-specific environmental

review for Site H is included in this EIR, then no such analysis will ever be

conducted.6 This argument appears contrary to the weight of legal authority

and the dictates of CEQA.

“Program EIRs are routinely used ‘to avoid preparing multiple EIRs for

a series of actions.’ [Citation.] When used for this purpose, ‘the public

agency must examine [subsequent] site-specific program activities “in the

light of the program EIR to determine whether an additional environmental

6 If a housing project were proposed for Site H, the Town would have to

conduct a preliminary review to determine whether the project is statutorily

or otherwise exempt from compliance with CEQA. (Tomlinson, supra,

54 Cal.4th at p. 286.) As the Attorney General and HCD observe, the

possibility that a future housing project may qualify for a CEQA exemption

does not, by itself, make site-specific impacts more feasible to analyze at the

general plan and housing element stage. In any event, because neither side

argues the applicability of an exemption for a project on Site H, we assume,

for the purposes of this discussion, that none is implicated.

26

document must be prepared.” ’ ” (IBC Business Owners for Sensible

Development v. City of Irvine (2023) 88 Cal.App.5th 100, 118–119 (IBC).)

“[P]reparation of a site-specific environmental document through a public

process is only required if the agency discovers new impacts that were

unaddressed in the program EIR.” (Ibid.)

“When determining whether later activities are within the scope of a

program EIR, the Guidelines adopt an approach used to determine whether a

project EIR requires a subsequent EIR.” (IBC, supra, 88 Cal.App.5th at

p. 119.) In the latter situation, “once a project EIR has been certified, a

subsequent EIR is not required unless there are substantial changes to the

project, substantial changes to the circumstances surrounding the project, or

new material information becomes available.” (Ibid., citing Guidelines,

§ 15162, subd. (a).) “The Guidelines use the same criteria to determine

whether a later site-specific activity is consistent with a program EIR.” (IBC,

at p. 119.) Tiered review is necessary “if the later site-specific activity would

have significant environmental effects that were not examined in the

program EIR. [Citations.] If the activity has such unexamined effects, ‘a new

initial study [needs] to be prepared leading to either an EIR or a negative

declaration. That later analysis may tier from the program EIR . . . .’

(Guidelines, § 15168, subd. (c)(1).)” (IBC, at p. 120.7)

7 Guidelines section 15168, subdivision (c)(2), provides in relevant part:

“Whether a later activity is within the scope of a program EIR is a factual

question that the lead agency determines based on substantial evidence in

the record. Factors that an agency may consider in making that

determination include, but are not limited to, consistency of the later activity

with the type of allowable land use, overall planned density and building

intensity, geographic area analyzed for environmental impacts, and covered

infrastructure, as described in the program EIR.”

27

In light of these authorities, the Town’s recognition that site-specific

review for Site H must await the proposal of a housing project, and the

detailed public comments regarding potential impacts that are not

specifically analyzed in the program EIR, it appears likely that a project EIR

will be required for any housing project proposed for Site H. (See Guidelines,

§ 15168, subd. (c)(2).)8

D. Rezoning

The Committee also argues the rezoning of Site H was its own project

under CEQA, such that site-specific issues on Site H were ripe for review.

Even if the rezoning of Site H could be considered a separate project, the

Committee has not established that a separate site-specific environmental

review is presently necessary.

As the Attorney General and HCD point out, the Legislature recently

amended CEQA to expressly exempt “rezoning that implements the schedule

of actions contained in an approved housing element pursuant to subdivision

(c) of Section 65583 of the Government Code,” subject to certain exceptions.

(§ 21080.085, added by Stats. 2025, ch. 24, § 6 (Sen. Bill No. 131), eff. June

30, 2025.) At oral argument, the Committee conceded the California

Supreme Court’s decision in Make UC a Good Neighbor v. Regents of

University of California (2024) 16 Cal.5th 43 supports the application of that

amendment in this case. (See Make UC a Good Neighbor, at pp. 55–56, 65 [in

mandamus proceedings, “a reviewing court applies the law that is current at

the time of judgment in the reviewing court”; statute enacted after review

granted found applicable to the EIR at issue].)

8 The Committee additionally suggests the Town’s lack of site-specific

environmental analysis is a product of a rushed timeline to meet its deadline

for HCD approval of the 2023-2031 Housing Element. This has no bearing on

the adequacy of the EIR.

28

As the Committee points out, however, section 21080.085 provides its

rezoning exemption does not apply if the rezoning “would allow for

construction to occur within the boundaries of any natural and protected

lands as defined pursuant to Section 21067.5.” (§ 21080.085, subd. (b)(1)(B).)

The parties dispute whether the rezoning of Site H falls within this

exception.

We remand this matter to the trial court to decide in the first instance,

with the benefit of additional briefing and further development of the record,

whether or not the Town’s decision to rezone Site H is exempt from CEQA

review under section 21080.085. If the Town’s decision to rezone Site H is not

exempt from CEQA review, the trial court should determine whether

substantial evidence supports the Town’s findings that the EIR for the

General Plan 2040 adequately analyzed the impacts of the proposed

amendments to the zoning code and zoning map, and that no supplemental or

subsequent EIR was required. (See Citizens for a Megaplex-Free Alameda v.

City of Alameda (2007) 149 Cal.App.4th 91, 110 [decision whether conditions

for subsequent review under CEQA are present is reviewed for substantial

evidence].)

E. General Plan Consistency

As one court aptly summarized, “[t]he concept of consistency arises in

the context of a general plan at two distinct stages. It first arises when a city

adopts a general plan. Government Code section 65300.5 provides a general

plan and each of its elements must ‘comprise an integrated, internally

consistent and compatible statement of policies.’ ‘A general plan is internally

inconsistent when one required element impedes or frustrates another

element or when one part of an element contradicts another part of the same

29

element.’ ” (Citizens for Positive Growth & Preservation v. City of Sacramento

(2019) 43 Cal.App.5th 609, 619 (Citizens for Positive Growth & Preservation).)

Courts must be mindful that “[t]he adoption of a general plan is a

legislative act and is presumed valid.” (Citizens for Positive Growth &

Preservation, supra, 43 Cal.App.5th at p. 619.) “ ‘Judicial review of a

legislative act under Code of Civil Procedure section 1085 is limited to

determining whether the public agency's action was arbitrary, capricious,

entirely without evidentiary support, or procedurally unfair. [Citations.] A

court therefore cannot disturb a general plan based on violation of the

internal consistency and correlation requirements unless, based on the

evidence before the city council, a reasonable person could not conclude that

the plan is internally consistent or correlative.’ ” (Id. at p. 620.)

The Committee’s petition alleges the General Plan 2040 is not

internally consistent and compatible. The trial court did not address this

issue before granting the writ petition, and the parties disagree over whether

we should remand or resolve the issue in the first instance. We will remand

to obtain the benefit of the trial court’s analysis. (See Ruegg & Ellsworth v.

City of Berkeley (2023) 89 Cal.App.5th 258, 268.)

DISPOSITION

The judgment granting the petition for writ of mandate is reversed.

The matter is remanded with instructions to (1) deny the portion of the

petition for writ of mandate challenging the adequacy of the EIR for the

General Plan 2040; (2) determine whether or not the Town’s decision to

rezone Site H is exempt from CEQA review under section 21080.085, and if it

is not, determine whether substantial evidence supports the Town’s findings

that the EIR for the General Plan 2040 adequately analyzed the impacts of

the proposed amendments to the zoning code and zoning map and that no

30

supplemental or subsequent EIR is required; and (3) determine whether or

not the General Plan 2040 is internally consistent and compatible. The Town

is entitled to its costs on appeal.

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Petrou, J.

Committee for Tiburon LLC v. Town of Tiburon (A171983)

31

Trial Court: Marine County Superior Court

Trial Judge: Hon. Sheila S. Lichtblau

Counsel: Burke, Williams & Sorensen LLP, Anna C. Shimko,

Benjamin Louis Stock, and Hina Gupta for Defendant

and Appellant.

Rutan & Tucker, LLP, Matthew D. Francois for League of

California Cities and California State Association of

Counties as Amici Curiae on behalf of Defendant and

Appellant.

Rob Bonta, Attorney General, Daniel A. Olivas, Senior

Attorney General, David Pai, Supervising Deputy

Attorney General, Nathaniel Hyman, and John M.

Natalizio, Deputy Attorney Generals for California

Attorney General, and The California Department of

Housing and Community Development as Amici Curiae

on behalf of Defendant and Appellant and Real Party in

Interest.

Briscoe Prows Kao Ivester & Bazel LLP, Peter Prows, Tony

Francois and Nicole Kim for Plaintiff and Respondent.

32