Appeals court sides with Tiburon in Paradise Drive housing-element lawsuit

Tiburon won a significant legal victory last week when a California appellate court overturned a ruling that blocked the town from including a key Paradise Drive parcel in its state-mandated housing plan.

A three-judge panel of the 1st District Court of Appeal ruled Feb. 2 that Marin Superior Court Judge Sheila Shah Lichtblau erred in September 2024 when she sided with the neighborhood group the Committee for Tiburon. The group had sued the town in June 2023 over the inclusion of the 4576 Paradise Drive in Tiburon’s 2023-2031 housing element.

The neighbors argued the town violated the California Environmental Quality Act by not conducting detailed environmental analysis of the 9.6-acre site. The town’s housing element listed the property as one of 17 sites for potential development, saying it could reasonably accommodate 93 units and hold up to 118 units.

The appellate court’s 30-page opinion establishes a key precedent: “when a housing project has not even been proposed, the lack of project-specific details precludes an informed review of environmental impacts and mitigation measures” — and deferring such a review is “appropriate,” Justice Carin T. Fujisaki wrote. Presiding Justice Alison M. Tucher and Associate Justice Ioana Petrou concurred.

“We are happy that the court of appeal reversed the erroneous trial court ruling and upheld the town’s general plan (environmental-impact report),” Tiburon Town Attorney Ben Stock said in a Feb. 2 email. The Town Council authorized the appeal in November 2024.

The California attorney general, the state Housing and Community Development Department and the California League of Cities all filed amicus briefs supporting Tiburon’s appeal.

The housing roadmap, part of the town’s general plan, requires Tiburon to identify sites that can accommodate at least 639 new housing units over eight years. It does not require the town to build those units.

Lichtblau’s ruling set aside and decertified portions of an environmental-impact report prepared to rezone the Paradise site and other parts of town for denser development.

The appellate court sent two issues back to the lower court: whether Tiburon’s decision to rezone the Paradise site is exempt from the California Environmental Quality Act, and whether the town’s General Plan 2040 is “internally consistent and compatible.”

Eric Crandall, who owns 4576 Paradise Drive as Sierra Pines Group LLC, said Feb. 2 the town used “experienced environmental professionals” to complete its environmental-impact report “and followed the same process as nearly every other city in California, so I’m not surprised it was determined that their (report) was done according to the law.”

Stuart Scheinholtz of Paradise Cay, representing the Committee for Tiburon, said in a statement the group was disappointed the town continues “to pursue expensive litigation at its residents’ expense in order to pave the way for very high-density housing on Paradise Drive” instead of redesignating existing sites, including the Paradise site, “for their actual zoned capacity.”

“The Committee for Tiburon will continue to oppose this absurd development so long as the Town Council continues to shift blame and turn a deaf ear to a more reasonable plan for (4576 Paradise Drive) that it twice reported was capable of supporting only four total housing units, not more than over a hundred as now planned,” Scheinholtz wrote.

Scheinholtz did not address whether the committee would challenge the appellate court’s ruling. Committee attorney Peter Prows did not respond to two emails seeking comment by press time.

Original judge sided with neighbors

The town’s approved housing element included an intentional buffer, identifying spots for 692 units. The Paradise site was listed as reasonably able to accommodate 93 of those.

Removing the site left Tiburon with just 599 units — 40 fewer than the minimum required. However, the state Housing and Community Development Department never decertified Tiburon’s housing element because the court decision did not specifically rule the element out of compliance.

The environmental study was prepared to support rezoning and development under Tiburon’s General Plan 2040. Town attorneys argued the plan establishes “policies, goals and guidelines” for potential development that may or may not be built. They said an environmental review at this stage is purposefully general — what’s called a program-level analysis.

Deeper environmental review at the project level, specific to a proposed development, would happen when a developer files a detailed application.

Lichtblau acknowledged differences between project-level and program-level studies but sided with the neighbors. She cited case law holding that any environmental evaluation “must assume that all phases of the project will eventually be built.”

Because Tiburon knew since at least 2019 of “issues relating to environmental issues, access, utilities, fire and landslides” at 4576 Paradise Drive, the town should have addressed those impacts in its program-level review, Lichtblau said. She pointed to town documents from August 2023 that noted concerns about site accessibility, stream impacts, utilities, and geologic and seismic issues.

Lichtblau said that while she’s “sympathetic to Tiburon’s legal constraints” in meeting its housing-element deadlines, “it cannot disregard the applicable (California Environmental Quality Act) requirements.”

Appeals court: No project, no detailed review

Fujisaki’s opinion cites the draft environmental-impact report, which assumes impacts for up to 916 units based on maximum density on the 17 sites in Tiburon’s housing inventory. The state required the town to make that assumption.

The draft report was prepared as a program-level analysis. It “correctly focused on the overall addition of 916 units throughout the town,” Fujisaki wrote, citing environmental-law guidelines and case law.

The ruling reviewed environmental impacts from increased housing needs. It also recognized that “the development of detailed, site-specific information will in fact be feasible” should a project be proposed at 4576 Paradise Drive or any other housing-element site.

The appellate court said the Committee for Tiburon’s evidence for site-specific environmental review differed from what the law requires. Committee attorneys cited an environmental-impact report for a “concrete development project” — not the town’s “large-scale planning document.”

“The (environmental report) 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,” Fujisaki wrote, “but components of a planning document being used to satisfy the town’s legal obligation under the housing-element law.”

Fujisaki wrote that while the committee may have been right about the town being aware of potential environmental impacts, Tiburon did its job analyzing impacts of its overall general plan. State law doesn’t require housing projects to be built as part of planning.

 “Because it is entirely speculative at this point whether a housing project will even be proposed for (4576 Paradise Drive), a meaningful environmental analysis focusing on (the Paradise site) is not feasible,” she wrote.

Ruling’s impact may be limited

Christopher Elmendorf, a land-use law professor at the University of California at Davis School of Law, wrote in social media posts shortly after the ruling that the court’s decision may have limited practical impact because it’s based on outdated legal premises.

Elmendorf noted that a 2025 state budget bill exempted both housing-element rezonings and housing-development projects from the California Environmental Quality Act, with narrow exceptions. This means that in most cases, the housing-element environmental review will be the only review conducted — contradicting the court’s assumption that detailed project-level review would occur later.

“In the future, cities will use this opinion to say they don’t have to do elaborate (environmental reviews) for their housing elements,” Elmendorf wrote. “And NIMBYs will say it counts for nothing since it rests on clearly incorrect and outdated premises about programmatic (environmental reviews) and tiering.

“Both will be right.”

The appellate court’s opinion acknowledged arguments from the attorney general and state housing agency that future housing projects on the site may qualify for environmental-review exemptions, but the court said it was assuming for purposes of its analysis that no exemption would apply.

Lower court to decide remaining questions

The appeals court sent back to the lower court a decision on whether rezoning the Paradise site is exempt from environmental review and whether the general plan is consistent.

The court cited newer legal provisions that exempt rezoning from environmental review if it’s related to approved housing elements — unless the rezoning “would allow for construction to occur within the boundaries of any natural and protected lands,” as defined by law.

Both parties disputed whether the Paradise site met the exemption. The appeals court sent the issue back to allow more information to be considered.

The court also remanded the general-plan consistency issue because Lichtblau never analyzed the committee’s position that the plan wasn’t internally consistent and compatible. Both the town and the neighbors disagreed on whether the appeals court should remand or resolve the issue.

Fujisaki said sending it back to Marin Superior Court will allow the appellate court “to obtain the benefit of the trial court’s analysis.”

Reach Tiburon reporter Francisco Martinez at 415-944-4634.