State court clears path for controversial wetlands housing

NEWARK — In a major victory for one of the Bay Area’s preeminent developers, a state appeals court has struck down an environmental challenge to plans to build 469 large houses near the edge of Newark’s wetlands, clearing a path for the controversial development to go forward.

Though the project area could see flooding in the coming decades because of projected rising sea levels, and will remove some habitat of the endangered salt marsh harvest mouse, the Newark City Council approved The Sobrato Organization’s plans in November 2019, over the objections of some residents and environmental groups, who called the development “illogical and irresponsible.”

The Citizens Committee to Complete the Refuge group and the Center for Biological Diversity argued that Newark should have completed a more thorough environmental review under the California Environmental Quality Act — including taking a closer look at the latest long-term sea-level rise data — before approving the project.

In a Dec. 29 opinion, however, a three-judge panel at the California 1st District Court of Appeal upheld a prior Alameda County Superior Court ruling from 2020, which sided with the city and the developer, who argued the existing environmental review work was sufficient for the “Sanctuary West” development by Sobrato.

“The city’s potential responses to environmental conditions between 50 and 80 years from now cannot be considered part of the current project,” Justice Tracie Brown wrote.

“We are disappointed by the decision of the Court of Appeal,” Carin High, the co-chair of the citizens group said in a statement Monday. 

“As our region’s scientific community has articulated, these wetlands and restorable wetlands are just too important to the long-term health of our bay to let them be developed,” High said.

Tim Steele, senior vice president of real estate development for Sobrato, did not respond to a request for comment.

The decision is the latest chapter in the legal wrangling over a 430-acre swath of land that’s a part of a larger plot known as Area 4 in the southwestern corner of the city. The area is made up of a mix of largely undeveloped seasonal wetlands, marshes and “upland agricultural” –areas that are not typically inundated with water — owned by a partnership between Sobrato and another big-name developer, Peery Arrillaga.

The Sobrato project’s houses and roads would be built on about 80 acres of the upland areas snaking along and between the wetlands. Because of the flooding risk, the whole development will need to be built atop as much as 15 feet of fill soil, city reports said.

Residents and environmentalists say the land would be better off preserved, allowing existing marshes to expand east as sea levels rise and act as a natural sponge to buffer the East Bay’s shoreline.

Newark completed an environmental impact report for a broader swath of land in 2010 that includes the area where Sobrato wants to build, which the citizens group sued over, asserting the report was inadequate, and won their case in part.

The report was revamped and reissued in 2015, and the city later completed an additional environmental review “checklist” to compare the impacts of Sobrato’s current project to the effects of possible projects outlined in the full report.

In 2019, after the city’s approval of the project, the citizens group and the biological diversity group filed another lawsuit in county court. They asserted that the checklist fell short in part because it did not fully consider how sea-level rise is “increasing more rapidly than had been estimated” in prior reports, which could mean “significantly more severe impacts” to the project area and endangered species there.

Alameda County Superior Court Judge Frank Roesch ruled on Christmas Eve in 2020 that the 2015 impact report envisioned and environmentally cleared a “much bigger project” with more than 800 houses that would have destroyed 86 acres of wetlands, and the current project is smaller, so Roesch ruled it doesn’t create any new, significant impacts.

Justice Brown, closely echoing Roesch, also noted that any concern over the risk to future occupants of the homes is not an issue that needed to be addressed under the state environmental review law. “Sea level rise is not an impact on the environment caused by the project,” but rather an impact of the environment on the project, she wrote.

Though the current legal challenges have been quashed, the Sanctuary West project still has some hurdles to clear, including a review by the San Francisco Bay Regional Water Quality Control Board.

Xavier Fernandez, the agency’s planning manager, said while Sobrato has maintained its project will not be built on any wetlands, that has yet to be vetted by the board.

“We haven’t received anything from them yet,” Fernandez said in an interview.

Overall, the agency has deep concern about any developments that could hurt the bay’s wetlands and lessen the resiliency of the region’s shorelines,” Fernandez said.

“As you harden one shoreline, then that leads to hardening of other shorelines, and eventually that will result in loss of wetlands,” he said.

The project was also set to face a review by the San Francisco Bay Conservation and Development Commission, which could have resulted in the project being scaled back, according to Larry Goldzband, the commission’s executive director.

But Sobrato reworked its original plans, avoiding the additional oversight.

“They moved the small bit of the project that was in our jurisdiction out of our jurisdiction,” Goldzband said in an interview.

“They basically decided that discretion was the better part of valor,” he said.

Steven Turner, Newark’s community development director, said Tuesday that the city has seen a revised set of plans from Sobrato that would reduce the number of houses in the plans by 37, down to 432.

Turner said the city will need to review the revised plans. “We haven’t made any decision on it yet,” he said.

High, of the citizens group, said despite the court decision, the group remains “undeterred” in its decades-long efforts to protect the area planned for development and to get it added to the Don Edwards San Francisco Bay National Wildlife Refuge.

“Time and time again, our region has banded together to protect our bay,” High said, “and we’ll continue to pursue every avenue to stop this destructive development.”

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