Lead Opinion
Opinion
This case arises under the California Environmental Quality Act (CEQA).
Acting through its city council, respondent City of Santa Cruz (City) approved a master plan for Arana Gulch, a City-owned greenbelt property. In approving that project, the City certified an environmental impact report (EIR). As acknowledged in the EIR and in findings made by the City, the project will have a significant effect on the habitat of the Santa Cruz tarplant due to the chosen alignment of a multiuse trail. The City nevertheless found that overriding considerations warranted approval.
Claiming CEQA violations, appellants California Native Plant Society and Friends of Arana Gulch petitioned the superior court for a writ of mandate, naming as respondents the City and its city council. The court denied the petition. On appeal, appellants continue to press their claim that the City
We find no violation of CEQA’s procedural mandates. We also find substantial evidence in the administrative record to support the City’s actions. We therefore affirm the superior court judgment denying appellants’ writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Project
The project whose approval is challenged here is the Arana Gulch Master Plan. The master plan addresses both public uses and resource management for the site.
The Site
As described in the draft master plan, “Arana Gulch is a scenic natural area situated along the eastern boundary of Santa Cruz. This 67.7-acre City-owned property features unique- natural resources such as coastal prairie, Santa Cruz tarplant, and riparian and wetland habitat areas- of Arana Gulch Creek. Bounded by neighborhoods and the Santa Cruz Harbor, this refuge of open space—with rich biological diversity, sweeping vistas, and tranquility—is of great value to the people of Santa Cruz.”
Planning Background
The draft master plan chronicles the planning process for Arana Gulch.
As that document explains, the master plan “evolved from planning efforts spanning over two decades.” The impetus for those efforts was the 1979 approval by city voters of Measure O, which identified greenbelt parcels for preservation. Among the designated parcels was Arana Gulch, which was then in private ownership. In 1992, city voters approved Measure I, which “required preparation and adoption of a Greenbelt Master Plan.” A greenbelt master plan planning and feasibility study was completed two years later.
In 1997, the city council approved the Arana Gulch Interim Management Plan. It “did not include any land use decisions, which were intended to be addressed at a future date in a long-term Master Plan.”
“In late 2003, the City began the planning process for the Arana Gulch Master Plan. As an initial step, the Parks and Recreation Department sought direction from City Council regarding specific uses for Arana Gulch.[
The Arana Gulch draft master plan also summarizes the evolution of the proposed east-west multiuse pathway connecting Broadway Avenue and Brommer Street through Arana Gulch. “The City’s General Plan (1992) and the Greenbelt Master Plan (1994) identified the concept of an east-west bicycle/pedestrian connection between the City and County of Santa Cruz. In 1995, an initial Scope of Work for this bicycle/pedestrian path connection was prepared. Since that time, the proposed pathway and alternative routes have undergone several rounds of environmental evaluation and review, [f] In May 2003, the City Council certified the environmental document— Broadway-Brommer Bicycle/Pedestrian Path Connection Environmental Impact Report/Environmental Assessment—but did not take action on the project itself.” Instead, the city council decided to proceed with the Arana Gulch Master Plan, specifically including an east-west multiuse trail.
Elements of the Master Plan
Elements of the project are described both in the draft master plan for Arana Gulch and in the EIR. The principal master plan components are (1) resource protection and enhancement and (2) public use, including trails.
Public Use: As explained in the draft master plan: “An interpretive trail system is the focus of public use within Arana Gulch. The proposed trail system, totaling approximately 2 miles, would provide public access for pedestrians, wheelchair users, and bicyclists.” More than two thirds of the system, “approximately 1.4 miles, would be limited to pedestrian use” (including leashed dogs), with the remainder devoted to multiuse trails “designed for pedestrian, bicycle, wheelchair, and on-leash dog use.” “The multi-use trails would include Arana Meadow, Creek View, and Canyon Trails.” They “would feature a hardened surface and gradient that is compliant with the Americans with Disabilities Act (ADA) requirements.” Their width would not exceed eight feet, except as needed “to accommodate interpretive displays and nature viewing areas.” The multiuse trails “would enable visitors of all abilities to experience and learn about the different habitat areas” and would “also provide key trail connections between adjoining neighborhoods and the coastline. Together, Canyon View and Creek View Trail would provide a continuous west-east trail connection through the Arana Gulch property and Upper Harbor.”
Environmental Review
Preparation of the draft master plan for Arana Gulch and the draft environmental impact report took place concurrently.
The Draft EIR
The draft environmental impact report (DEIR) was “made available for public review on March 1, 2006.” It comprises 240 pages, plus appendices.
Objectives: The DEIR lists 10 project objectives, divided into two categories. Four objectives are listed under the heading “Resource Protection and Enhancement,” including this one: “Implement an adaptive management program to ensure the long-term viability of the Santa Cruz tarplant within
Proposed Project: In describing the project—the Arana Gulch Master Plan—the DEIR refers to that plan, provides a detailed summary of it, and attaches its table of contents as an appendix.
Impacts and Mitigation: The DEIR includes a chapter entitled “Environmental Setting, Impacts and Mitigation Measures.” As relevant here, that chapter describes the biological resources of Arana Gulch, including the Santa Cruz tarplant. It summarizes the anticipated biological impact of the project on the tarplant habitat, along with proposed mitigation measures.
In terms of impacts, the DEIR notes that some of the trails proposed in the master plan “would pass through, or near the boundary of’ four areas of Arana Gulch identified as historic tarplant habitat (areas A, B, C & D). The DEIR states: “Any routing of trail segments through historic Santa Cruz tarplant habitat would represent a direct loss of habitat for the species.” In recent years, only small numbers of plants were observed in areas B, C, and D. “It is assumed, however, that a seed bank may still be present throughout these historic areas of tarplant occurrence. Thus, with appropriate management measures, the species could potentially be restored to those areas from the dormant seed bank.” The DEIR continues: “Loss of tarplant habitat would be relatively greater with the multi-use trails . . . because these trails would be 8 feet wide, as compared to the pedestrian-only trails which would be 18 to 24 inches wide. To the extent that these trails cannot be routed to avoid the tarplant habitat. . . , this would be an impact that cannot be fully mitigated.”
Alternatives: The DEIR has a chapter devoted to alternatives. It evaluates four alternatives: (1) the “No Project Alternative”; (2) the “Reduced Creek View Trail Alternative”; (3) the “Unpaved Trail System with Hagemann Gulch Bridge Alternative”; and (4) the “Unpaved Trail System without Hagemann Gulch Bridge Alternative.” The DEIR summarizes the four alternatives as follows:
Alternative 1 “would keep the site in its existing condition. No Master Plan and no Santa Cruz Tarplant Adaptive Management Program would be adopted. Management actions would be limited and the Arana Gulch Interim Management Plan would remain in effect. No new trails would be developed on the site. This alternative would eliminate most of the project impacts but would not contribute to the achievement of any of the project objectives.”
Alternative 2 “would include the same trail system as the proposed project but would not include any trail segments within Port District property. Trail access to Arana Gulch would continue to be provided by the existing trail segment along the western edge of the dry storage area at the Upper Harbor. This alternative would include the long-term Santa Cruz Tarplant Adaptive Management Program.”
Alternative 3 “would have the same trails as the proposed project except that no trails would be paved and no trails would comply with Americans with Disabilities (ADA) requirements. Due to unpaved surfaces and gradients, trails would not be accessible for wheelchairs and some types of street bicycles. Without funding for paved, multi-use trails, there would be uncertainty about funding and implementing the Santa Cruz Tarplant Adaptive Management Program.”
Alternative 4 “would provide unpaved trails and would not include the Hagemann Gulch Bridge proposed by the project. This alternative would provide public access for pedestrians and some bicyclists but would not comply with ADA requirements. Since no bridge across Hagemann Gulch would be constructed, this alternative would not provide a new west entrance
Following this summary, the DEIR discusses the alternatives in greater depth. As part of that discussion, the DEIR includes two tables, one comparing the environmental impacts of the project alternatives after mitigation and another showing the relationship of the alternatives to project objectives.
The DEIR concludes that alternative 4 “would be the environmentally superior alternative, because it provides for the least amount of construction at the site. Thus, on-site resources such as Santa Cruz tarplant, wetlands, and other habitat would be least affected.” But the DEIR also states: “This alternative would not meet the project objectives of providing ADA-compliant, multi-use trails and would not provide a new west entrance and connection to the Seabright neighborhood. Thus, access within Arana Gulch would be significantly limited compared to the proposed project. Additionally, funding may not be available for long-term resource management of the site, specifically the Santa Cruz Tarplant Adaptive Management Program.”
Public Comments
During the public review period for the DEIR, numerous comments were received, including a letter from appellants. Appellants’ letter enumerated 20 separate questions or criticisms; three pertain to the issues raised here.
As relevant to this appeal, appellants first complained that the project objectives were defined too narrowly, resulting “in a skewed alternatives analysis.” According to appellants, since ADA-compliant (Americans with Disabilities Act of 1990; 42 U.S.C. § 12101 et seq.), multiuse trails are listed as a project objective, the alternatives should include such trails, “which are assumed to be an essential part of the Project.” By excluding such a key component, appellants argued, “the alternatives analysis would be pointless.”
In addition, appellants took issue with the DEIR’s conclusion that “funding for tarplant management is uncertain for Alternatives 3 and 4.” In their words: “This is clearly a ruse. The fact that there will still be development associated with these proposals means that mitigations will have to be proposed to mitigate for significant environmental impacts, including impacts to the tarplant.”
Finally, appellants commented: “The Master Plan clearly includes the Broadway-Brommer Bicycle/Pedestrian Path Connection. Yet, the DEIR fails
The Final EIR
The final environmental report (FEIR) was presented in May 2006. As explained in its introduction, the FEIR is “prepared in the form of an addendum to the DEIR, responds to public comments on the DEIR, revises the DEIR as necessary, and provides a Mitigation Monitoring and Reporting Program for the project.” In its response to public comments, the FEIR addresses each point raised by appellants, including the three mentioned above.
As relevant here, the FEIR first responds to appellants’ comment that the project objectives were unduly narrow and thus skewed the alternatives analysis. Concerning project objectives, the FEIR states: “The objectives outlined in the DEIR are not considered so narrow that they preclude the development of reasonable alternatives. . . . The objective of developing multi-use trails and trail connections allows a variety of means for such trails to be provided within Arana Gulch. For example, such objectives allow a multitude of alignments to be selected within the 67-acre property.” Concerning alternatives, the FEIR states: “The four alternatives evaluated in Chapter 5 of the DEIR are considered to be a reasonable range of alternatives. While each alternative does not necessarily achieve all of the identified project objectives, the City’s decision makers can easily select any of the alternatives rather than the proposed project, and each alternative would still provide the City with a Master Plan for Arana Gulch. Only the ‘No Project’ alternative fails to achieve most of the identified project objectives which is quite common in CEQA documents.”
Next, in a master response about funding for tarplant management (a point raised by appellants and others), the FEIR states: “The Santa Cruz Tarplant Adaptive Management Program . . . must be funded by the City in order to fulfill the EIR mitigation measure requirements for the proposed project and Alternative 2. Funding of the Adaptive Management Program would not be required for the No Project and other alternatives; however, the City Council could still decide to fund the Adaptive Management Program, regardless of which alternative is selected. Because there would not be a requirement to fund it, the Draft EIR states that there is uncertainty regarding funding.”
Third, the FEIR addresses the issue of an offsite alternative in another master response as follows: “An off-site alternative was not addressed because the proposed project is a Master Plan for the 67.7-acre Arana Gulch
On July 10, 2006, the City prepared an addendum to the FEIR to address typographical errors and an inadvertent omission.
Consideration by Advisory Bodies
The draft master plan identified two advisory bodies for the project: (1) the City’s parks and recreation commission, which was “the lead advisory body to the City Council for review of the Arana Gulch Master Plan and EIR” and (2) the City’s planning commission, which had advisory responsibility “for the General Plan Amendments, rezoning, and annexation of County parcels.”
On June 26, 2006, the parks and recreation commission considered the Arana Gulch Draft Master Plan and EIR. The hearing began with a staff report. The staff representative responded to commissioners’ questions about the absence of offsite trail alternatives through Frederick Street Park.
Project Approval
On July 11, 2006, the city council conducted a public meeting to consider approval of the Arana Gulch Draft Master Plan. First, city staff members explained the project and the environmental review process. Those reports were followed by public comments. The city council then discussed and voted on the Arana Gulch Draft Master Plan.
Staff Reports: Reports were presented by parks and recreation department staff, planning department staff, and the environmental consultant for the project. The environmental consultant confirmed that “the mitigation measures in the EIR will reduce potential environmental impacts to less than significant, except for the impact related to the historic Santa Cruz tar plant habitat.” Nevertheless, she stated, “the majority of the tar plant habitat is protected.” As the consultant explained: “Area A which has included the highest population historically and in recent years is completely avoided by the multiuse trails” but “the trails would pass nearby or through areas B, C and D” of the tarplant habitat. She further explained: “Because there may be tar plant seed bank within the footprint of the paved trails, the EIR took a conservative approach and defined the impact as significant and unavoidable. It should be noted that there is uncertainty about the location and viability of the seed bank.” Nevertheless, the consultant advised, given the identified impact to tarplant habitat, “the City must adopt a Statement of Overriding Considerations in order to approve the Master Plan.”
Speakers’ Comments: Dozens of people spoke at the hearing, offering comments for or against the project or its components.
Speaking in favor of the inclusion of multiuse trails in the master plan, several people cited wheelchair accessibility. A number of individuals favored the multiuse trails based on the need for safe bicycle route alternatives. Still others spoke of the environmental benefits of promoting alternative transportation. Among those urging adoption of the EIR and master plan was the former executive director of the regional transportation commission, who described the proposed multiuse trail as “the most critical bike and pedestrian path project in this county for this region.”
Other members of the public spoke against the inclusion of paved trails through Arana Gulch, citing environmental and other concerns, including the
Council Discussion: In discussing the motion to approve the master plan, several city council members spoke about the multiuse trails. Councilmember Coonerty stated that “the important issue for me here is about access.” In his words, “we need to make public spaces available to—accessible to everybody. And that’s an incredibly important value. And that includes . . . our open spaces.” Councilmember Madrigal agreed, saying: “I just think that our natural environment, our greenbelt should not be an exclusive area. And so whatever we can do to try and increase access to that, we should do that.” According to Councilmember Mathews: “We also take to heart the importance of providing transportation alternatives. No one can look at the situation and think we need only one east-west, or even two east-west bike routes. That’s a major corridor and we need several good ones, and this can be one of them.”
Council Action: By a vote of six to zero, the city council adopted a resolution certifying the FEIR for the Arana Gulch Master Plan. In a separate resolution, the city council adopted findings of fact and a statement of overriding considerations, which are contained in a 36-page exhibit. As relevant here, the findings of fact conclude that each of the alternatives analyzed in the EIR is infeasible for failure to satisfy project objectives and on policy grounds. In its statement of overriding considerations, the city council identified “economic, social, or other benefits that render acceptable the significant and unavoidable effect on the Santa Cruz tarplant” including improved access for people with disabilities and trail connections to coastal resources. The city council also took other actions related to approval of the Arana Gulch Master Plan, including amending the local coastal plan and making zoning changes.
Trial Court Proceedings
On August 10, 2006, appellants filed a petition for writ of mandate in superior court. In January 2007, the administrative record was lodged with the court; it contains more than 8,700 pages. The following month, respondents answered the petition. The parties submitted extensive briefing, with the final brief filed by appellants in May 2007.
In September 2007, the court conducted a hearing on the petition. In October, the court issued a tentative decision in respondents’ favor. Later that month, after appellants had responded to the tentative decision and respondents had submitted a proposed statement of decision, the court held another hearing. In November, the court filed a final decision denying the petition.
Appeal
Appellants brought this timely appeal. In this court, appellants assert CEQA violations based on the analysis of alternatives in the EIR and the subsequent infeasibility findings by the city council.
LEGAL PRINCIPLES
As a framework for our discussion of the issues raised in this appeal, we begin by summarizing the principles of law that govern our analysis.
I. Environmental Protection Under CEQA
“The Supreme Court has repeatedly observed that the Legislature intended CEQA to be interpreted to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Marin Mun. Water Dist. v. KG Land California Corp. (1991)
A. The Environmental Impact Report
The “heart of CEQA” is the EIR. (Marin Water, supra,
“A public agency must prepare an EIR or cause an EIR to be prepared for any project that it proposes to carry out or approve that may have a significant effect on the environment.” (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004)
The process begins with notice to the public that the lead agency is preparing a draft EIR. (§ 21092; Laurel Heights Improvement Assn. v. Regents of University of California (1988)
“ ‘Technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure.’ ” (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994)
B. Alternatives
“CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts.” (In re Bay-Delta etc. (2008)
“The basic framework for analyzing the sufficiency of an EIR’s description of alternatives is set forth” in the statute, in the CEQA Guidelines, and in Goleta II, supra,
1. Range of Alternatives
Project alternatives “typically fall into one of two categories: on-site alternatives, which generally consist of different uses of the land under consideration; and off-site alternatives, which usually involve similar uses at different locations.” (Goleta II, supra,
2. Level of Analysis
“An EIR’s discussion of alternatives must contain analysis sufficient to allow informed decision making.” (Laurel Heights, supra, 47 Cal.3d at
C. Feasibility
“In determining the nature and scope of alternatives to be examined in an EIR, the Legislature has decreed that local agencies shall be guided by the doctrine of ‘feasibility.’ ” (Goleta II, supra,
“Among the factors that may be taken into account when addressing the feasibility of alternatives are site suitability, economic viability, availability of infrastructure, general plan consistency, other plans or regulatory limitations, jurisdictional boundaries (projects with a regionally significant impact should consider the regional context), and whether the proponent can reasonably acquire, control or otherwise have access to the alternative site (or the site is already owned by the proponent).” (Guidelines, § 15126.6, subd. (f)(1).) As to that last factor, “the government’s power of eminent domain and access to public lands suggest that alternative sites may be more feasible, more often, when the developer is a public rather than a private agency.” (Goleta II, supra,
The issue of feasibility arises at two different junctures: (1) in the assessment of alternatives in the EIR and (2) during the agency’s later consideration of whether to approve the project. (See Mira Mar Mobile Community v. City of Oceanside (2004)
Under CEQA, “a public agency is not required to favor environmental protection over other considerations, but it must disclose and carefully consider the environmental consequences of its actions, mitigate adverse environmental effects if feasible, explain the reasons for its actions, and afford the public and other affected agencies an opportunity to participate meaningfully in the environmental review process.” (Federation II, supra,
As relevant here, a project with significant environmental impacts may be approved only if the decisionmaking body finds (1) that identified mitigation measures and alternatives are infeasible and (2) that unavoidable impacts are acceptable because of overriding considerations. (§ 21081, subds. (a)(3), (b); Guidelines, §§ 15043, 15091, 15093; Federation II, supra,
1. Infeasibility Findings
Where an EIR has identified significant environmental effects that have not been mitigated or avoided, the agency may not approve the project unless it first finds that “[sjpecific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (§ 21081, subd. (a)(3); see Guidelines, § 15091, subd. (a)(3).) For these purposes, rejected alternatives must be “truly infeasible.” (City of Marina v. Board of Trustees of California State University (2006)
“The required findings constitute the principal means chosen by the Legislature to enforce the state’s declared policy ‘that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects ....’” (Marina, supra,
“If the agency finds certain alternatives to be infeasible, its analysis must explain in meaningful detail the reasons and facts supporting that conclusion. The analysis must be sufficiently specific to permit informed decision-making and public participation, but the requirement should not be construed unreasonably to defeat projects easily.” (Marin Water, supra,
Before approving a project with significant unavoidable environmental impacts, a public entity must make an express written determination that the project’s benefits outweigh any potential environmental harm. (§ 21081, subd. (b); Guidelines, §§ 15043, 15093; Marina, supra,
“A statement of overriding considerations is not a substitute for the [infeasibility] findings required by Public Resources Code section 21081, subdivision (a).” (Federation II, supra,
The override decision “lies at the core of the lead agency’s discretionary responsibility under CEQA and is, for that reason, not lightly to be overturned.” (Marina, supra,
A. Mandamus Proceedings
“Quasi-legislative acts are ordinarily reviewed by traditional mandate, and quasi-judicial acts are reviewed by administrative mandate.” (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997)
B. Review Standards
Under CEQA, courts review quasi-legislative agency decisions for an abuse of discretion. (§ 21168.5.) At both the trial and appellate level, the court examines the administrative record anew. (Vineyard, supra,
An “agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence.” (Vineyard, supra,
1. Procedural Claims
Courts must “scrupulously enforce all legislatively mandated CEQA requirements.” (Goleta II, supra,
2. Substantive Claims
Compared with review for procedural error, “we accord greater deference to the agency’s substantive factual conclusions.” (Vineyard, supra,
The CEQA Guidelines define substantial evidence as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Guidelines, § 15384, subd. (a).)
CONTENTIONS
According to appellants, “the City Council adopted a Statement of Overriding Considerations approving the Project with significant and unavoidable impacts despite the fact that there are feasible alternatives. These actions violated CEQA and sand-bagged the public because it was already told there were feasible alternatives.” Moreover, appellants assert, the City was required to consider an offsite alternative for the ADA-compliant, multiuse trail, since it was a key objective of the project. By failing to do so, appellants maintain, the City did not foster the informed decisionmaking and public participation that CEQA requires.
The City disagrees. Asserting the existence of substantial evidence in the administrative record as a whole, the City defends the alternatives considered in the EIR, as well as its ultimate determinations of infeasibility and overriding considerations.
ANALYSIS
In essence, appellants attack and we therefore evaluate (1) the range of alternatives analyzed in the EIR, and (2) the city council’s findings that the alternatives were infeasible. As explained below, appellants’ contentions are based on erroneous factual and legal assumptions. First, concerning the project alternatives, appellants’ arguments are predicated on the misapprehension that the east-west multiuse path was such an important project objective that it must be treated as the project itself. Second, concerning feasibility, appellants are mistaken in their view that the inclusion of potentially feasible alternatives in the EIR precluded the city council’s subsequent finding of infeasibility. They also err in asserting that the alternatives are not truly
I. Project Alternatives
In their bid for reversal of the project approval, appellants argue that the alternatives analysis in the EIR is legally inadequate for failure to include any proposals with an ADA-compliant trail. Appellants also urge error in the exclusion of offsite alternatives to the multiuse trail.
A. Review Standard
In pressing their argument concerning the alternatives analysis, appellants urge de novo review, claiming an abuse of discretion under the procedural prong of section 21168.5. Asserting that the City did not proceed in the manner required by law in analyzing alternatives, appellants characterize this CEQA challenge as “primarily the type” involving procedural error by the agency. (See Vineyard, supra,
An EIR will be found legally inadequate—and subject to independent review for procedural error—where it omits information that is both required by CEQA and necessary to informed discussion. (See, e.g., Save Our Peninsula, supra,
On the other hand, it “frequently occurs” that “the major disputes are over whether relevant information was omitted from the EIR.” (National Parks & Conservation Assn. v. County of Riverside (1999)
To sum up, the omission of required information constitutes a failure to proceed in the manner required by law where it precludes informed decisionmaking by the agency or informed participation by the public. (Sierra Club v. State Bd. of Forestry, supra,
In this case, appellants contend that the City’s choice of alternatives resulted in an analysis that was “merely perfunctory,” thereby precluding informed decisionmaking and public participation. But appellants do not tether that claim to any specific informational or procedural requirement of CEQA. (Cf. Planning & Conservation League, supra, 83 Cal.App.4th at pp. 898, 916 [EIR failed to discuss the required “no project” alternative].) And as noted above, “CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR.” (Goleta II, supra,
In any event, we cannot assess appellants’ claim without reviewing the evidence in the administrative record. In examining the evidence here, we are not limited to the EIR itself. (Goleta II, supra,
In undertaking our review, we bear in mind that it is appellants’ burden to demonstrate that the alternatives analysis is deficient. “Where an EIR is challenged as being legally inadequate, a court presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise.” (Sierra Club v. City of Orange (2008)
As explained above, the master plan calls for paved, multiuse, ADA-compliant trails through Arana Gulch, including an east-west trail that connects Broadway Avenue and Brommer Street by extending onto adjacent Port District property at the Upper Harbor.
The EIR analyzed four alternatives to the project: alternative 1, no project; alternative 2, no trail segments on Port District property; alternative 3, no paved trails; and alternative 4, no paved trails and no bridge over Hagemann Gulch. Of these, only alternative 2 “would include implementation of the Santa Cruz Tarplant Adaptive Management Program as mitigation for paved, multi-use trails.” The other alternatives would require some form of tarplant management, but funding for the formal adaptive management program could not be guaranteed. No offsite alternatives for the multiuse trails were included.
C. Discussion
We address each of appellants’ challenges to the project alternatives in turn. First, we discuss appellants’ contentions about the range of alternatives selected. Next, we analyze their arguments about the exclusion of offsite trail alternatives. As to each, we carefully scrutinize whether the City complied with CEQA’s procedural mandates. We then consider whether substantial evidence supports the decisions made.
1. Selection of Alternatives for Discussion in the EIR
To be legally sufficient, the consideration of project alternatives in an EIR must permit informed agency decisionmaking and informed public participation. (Laurel Heights, supra, 47 Cal.3d at pp. 404-405; Guidelines, § 15126.6, subds. (a), (f).) What CEQA requires is “enough of a variation to allow informed decisionmaking.” (Mann v. Community Redevelopment Agency (1991)
Appellants challenge the range of alternatives in the EIR as skewed, given the project objectives, particularly the objective relating to multiuse trails.
At the outset, we question several key factual premises underlying appellants’ arguments.
The first is appellants’ assumption that the City considered an ADA-compliant path “an absolutely necessary component” of the master plan. That assumption is not borne out by the record. As stated in the FEIR, “the City’s decision makers can easily select any of the alternatives rather than the proposed project, and each alternative would still provide the City with a Master Plan for Arana Gulch.” An ADA-compliant east-west connection is just one objective of the project, out of a total of 10. As respondents observe: “Nothing in the objectives preordained that the proposed Project had to be approved in the precise form described in the Draft EIR.” (Cf. Sierra Club v. City of Orange, supra,
The second questionable premise is appellants’ assertion that “only the proposed project includes ADA compliant trails.” To the contrary, as stated in the DEIR, alternative 2 would “provide ADA-cómpliant north-south and
A third factual error is appellants’ assertion that City somehow hid its desire for an ADA-compliant trail. The record belies that assertion. Not only is such a trail included in the project objectives, but it is also discussed in the master plan.
Beyond the question of factual support for the premises underlying appellants’ argument, we are not persuaded by the argument itself, which posits that CEQA’s informational mandates were violated by the absence of an alternative with an ADA-compliant trail connection. In our view, the EIR in this case does not omit any required information necessary to informed decision-making and public participation concerning this issue.
The DEIR discusses multiuse trails, including a long-debated proposal for an east-west path for bicyclists and pedestrians connecting Broadway Avenue and Brommer Street. On this topic, the DEIR notes the existence of “earlier environmental studies for the project site” including the Brommer-Broadway EIR, which the City certified in 2003. The draft master plan for Arana Gulch itself explains that “the proposed pathway and alternative routes have undergone several rounds of environmental evaluation and review.” On the same topic of multiuse trails and connections, the FEIR includes and responds to comments provided by appellants and others. As stated in the pertinent responses, the project objectives of “developing multi-use trails and trail connections . . . allow a multitude of alignments to be selected within the 67-acre property.”
Taken together, this information satisfies CEQA’s informational requirements. It alerts the public and the decisionmaking body to the potential for trail alignments other than those shown in the project or in the alternatives. It tells them that other alignments were considered in prior review processes. It provides the public and decision makers with enough information to compare the project’s merits with a reasonable body of current alternatives.
As appellants point out, the alternatives discussed in an EIR need not fully accomplish all of the project objectives. As provided in the Guidelines: “The range of potential alternatives to the proposed project shall include those that could feasibly accomplish most of the basic objectives of the project and could avoid or substantially lessen one or more of the significant effects.” (Guidelines, § 15126.6, subd. (c), italics added.) Thus, “the discussion of alternatives shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.” (Id., subd. (b).) “The CEQA Guidelines make clear that the project objectives should drive the agency’s selection of alternatives for analysis and approval.” (Remy et al., Guide to California Environmental Quality Act, supra, at p. 588.)
Contrary to appellants’ assertions, however, there is no legal requirement that the alternatives selected must satisfy every key objective of the project. This concept finds expression in CEQA case authority. One example is Mira Mar, supra,
That same principle applies here. In this case, each alternative meets some of the 10 project objectives. As shown in a matrix in the EEIR, alternative 2 meets nine of the 10 objectives, alternative 3 meets seven, and alternative 4
2. Failure to Analyze an Offsite Trail Alternative in the EIR
Appellants assert; “Because an offsite alternative east-west bike path can completely avoid significant and unavoidable impacts to the Santa Cruz tarplant, alternative locations must be discussed in the EIR.”
a. The City’s Compliance with CEQA’s Informational Mandates
“Whether an EIR must consider the availability of alternative sites to a given project depends upon the particular facts of the case,” with “the ultimate objective being whether a discussion of alternatives ‘fosters informed decision-making and informed public participation.’ ” (Save Our Residential Environment v. City of West Hollywood (1992)
In appellants’ comments on the DEIR, they argued that “in order for the DEIR to be legally sufficient, it must address off-site alternatives for [the Broadway-Brommer bicycle/pedestrian] connection.” The PEER responded with a two-pronged explanation, which first cited the nature of the project as a master plan for this particular property, Arana Gulch, and which also referred to the prior environmental evaluation of offsite trail alternatives.
Judged on a purely informational basis, the explanation provided in the response was adequate. “In keeping with the statute and guidelines, an adequate EIR must respond to specific suggestions for mitigating a significant environmental impact unless the suggested mitigation is facially infeasible.” (Los Angeles Unified School Dist. v. City of Los Angeles (1997)
b. The City’s Substantive Determination to Exclude Offsite Alternatives
Turning next to appellants’ substantive challenges to the exclusion of an offsite trail alternative, we reject those challenges on three grounds.
First, there is no rule requiring an EIR to explore offsite project alternatives in every case. As stated in the Guidelines: “An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (Guidelines, § 15126.6, subd. (a), italics added.) As this implies, “an agency may evaluate on-site alternatives, off-site alternatives, or both.” (Mira Mar, supra,
Second, this case involves the question of an offsite alternative for a component of the project, not for the project itself. “The pertinent statute and EIR guidelines require that an EIR describe alternatives to the proposed project.” (Big Rock Mesas Property Owners Assn. v. Board of Supervisors (1977)
Appellants attempt to distinguish those authorities on the ground that they “concern whether alternatives must consider various ‘facets’ of a project, not whether alternatives must include project objectives. A ‘key objective’ is not a mere ‘ancillary facet’ of a Project.” We find no merit in that position. To the extent that appellants are restating their argument that the alternatives analysis was skewed in light of project objectives, we reject the argument for the
Our third and final reason for rejecting appellants’ substantive claims is that substantial evidence in the administrative record as a whole supports the decision to exclude offsite trail alternatives, which had been the subject of extensive prior consideration. The City had explored many locations for an east-west connection in a long process that culminated in the BroadwayBrommer EIR.
The city council did not take action on the Broadway-Brommer EIR in 2003, nor did it formally incorporate that earlier environmental review into the Arana Gulch EIR in 2006. Nevertheless, as respondents point out, “the
3. Summary of Conclusions
We find no violation of CEQA’s informational mandates in the alternatives analysis. The EIR presented sufficient information to explain the choice of alternatives and the reasons for excluding offsite alternatives for the multiuse trail. The information “did not preclude informed decisionmaking or informed public participation and thus did not constitute a prejudicial abuse of discretion.” (Mira Mar, supra,
As to the City’s substantive decisions concerning which alternatives to analyze and which to omit, we find sufficient evidence in the administrative record as a whole to support those determinations. Judged against the rule of reason that governs our review, a reasonable range of alternatives was selected for analysis in the EIR; “no more was required.” (Marin Water, supra,
Pursuant to CEQA’s “substantive mandate,” an agency may not approve a proposed project if feasible alternatives exist that would substantially lessen its significant environmental effects. (§ 21081; Mountain Lion Foundation v. Fish & Game Com. (1997)
Appellants challenge the City’s infeasibility findings on both procedural and substantive grounds. Procedurally, the gist of appellants’ argument is that the same feasibility standards apply both to the EIR and to project approval. They assert that the City “created an artificial construct to approve the Master Plan” because the EIR told the public “that there are indeed feasible alternatives” but then “the City Council, at the eleventh hour, contradicted those conclusions and made findings that there were no [feasible] alternatives to the Master Plan that would avoid the impact to the tarplant.” Substantively, appellants contend that alternatives were not truly infeasible. Instead, they assert, the city council rejected the alternatives because they did not satisfy the City’s preference for a multiuse trail.
A. Review Standard
Arguing for de novo review, appellants contend that feasibility findings present a question of law under the California Supreme Court’s recent decision in Marina, supra,
In Marina, the high court entertained a challenge by the Fort Ord Reuse Authority (FORA) to an EIR for California State University, Monterey Bay (CSUMB), prepared by the university’s board of trustees (Trustees). (Marina, supra,
As the court explained, the Trustees’ incorrect legal assumption was “an error of law invalidating their finding that voluntary mitigation payments to FORA do not represent a feasible method of mitigating CSU’s off-campus environmental effects.” (Marina, supra,
Because they are free of legal error, the infeasibility findings made here are entitled to great deference. (Cf. Marina, supra,
B. Background
The city council adopted findings of fact that address the feasibility of project alternatives. Excerpts are set forth in the margin.
The findings of fact conclude that each of the four alternatives fails to meet certain project objectives and thus “is undesirable from a policy standpoint.” The findings of fact support each such infeasibility determination by citation to two cases, Sequoyah Hills Homeowners Assn. v. City of Oakland (1993)
C. Discussion
As noted above, appellants raise both procedural and substantive challenges to the infeasibility findings. We address each in turn.
1. Procedural Challenge to the Infeasibility Findings
Appellants’ procedural challenge is based on the premise that the same feasibility standards apply both to the EIR and to project approval. In appellants’ words: “The City cannot in a public process [the EIR] tell the public that there are feasible alternatives, and then at the end of the process [project approval] make a contrary conclusion.”
The premise of appellants’ argument is fundamentally flawed. As stated earlier, the issue of feasibility emerges at two distinct points in the administrative review process: first, in the EIR, and next, during project approval.
a. The EIR: Potentially Feasible Alternatives
When assessing feasibility in connection with the alternatives analysis in the EIR, the question is whether the alternative is potentially feasible. (Mira Mar, supra,
While it is up to the EIR preparer to identify alternatives as potentially feasible, the decisionmaking body “may or may not reject those alternatives as being infeasible” when it comes to project approval. (Sierra Club v. County of Napa, supra,
b. Project Approval: Ultimate Determination of Feasibility
When it comes time to decide on project approval, the public agency’s decisionmaking body evaluates whether the alternatives are actually feasible. (Mira Mar, supra,
c. Application to This Case
At this final stage of project approval, the agency considers whether “[sjpecific economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (§ 21081, subd. (a)(3).) Broader considerations of policy thus come into play when the decisionmaking body is considering actual feasibility than when the EIR preparer is assessing potential feasibility of the alternatives.
2. Appellants’ Substantive Challenge to the City’s Infeasibility Findings
Appellants insist that the city council’s reasons for finding the alternatives infeasible have “nothing to do with” the relevant factors listed in section 21081, subdivision (a)(3). Appellants thus contend that alternatives identified in the EIR were not “truly infeasible.”
The City disagrees, asserting: “The City Council was legally justified in rejecting environmentally superior alternatives as ‘infeasible’ on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve what the Council regarded as primary objectives of the Master Plan.” The City further asserts that substantial evidence supports its infeasibility findings.
We agree with the City on both counts.
In finding the alternatives infeasible on policy grounds, the City relied on Del Mar, supra,
Here, the City’s infeasibility findings likewise are based on policy considerations, particularly the City’s interest in promoting transportation alternatives as well as access to its open space for persons with disabilities. Such policy considerations are permissible under the relevant statute, which calls for a determination that “economic, legal, social, technological, or other considerations . . . make infeasible the mitigation measures or alternatives identified in the environmental impact report.” (§ 21081, subd. (a)(3), italics added.) Under this authority, an alternative that “is impractical or undesirable from a policy standpoint” may be rejected as infeasible. (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 17.29, p. 824.) Additionally, an alternative “may be found infeasible on the ground it is inconsistent with the project objectives as long as the finding is supported by substantial evidence in the record.” (Id., § 17.30, p. 825.)
Appellants nevertheless attack the infeasibility determination in this case, asserting that the City “rejected the alternatives simply because they did not like them, not because they were truly infeasible.” (Italics omitted.) As we see it, however, appellants’ assertion represents nothing more than a “policy disagreement with the City.” (Defend the Bay v. City of Irvine (2004)
Appellants question the continued validity of Del Mar following the decision in Marina, supra,
We reject appellants’ reading of Marina. In our view, the quoted statement from that case simply recognizes the two distinct steps involved in approving a project with environmental impacts. The agency must first make a finding of infeasibility. (§ 21081, subd. (a); Guidelines, § 15091, subd. (a)(3).) This determination necessarily entails an evaluative process, since statutory “considerations” are involved. (§ 21081, subd. (a)(3).) In this first step, the positive and negative aspects of each alternative are evaluated. (Concerned Citizens, supra,
In sum, we conclude, the City relied on appropriate considerations in determining that the alternatives analyzed in the EIR were infeasible.
b. Substantial Evidence
Appellants mount no direct attack on the evidentiary basis for the feasibility findings. Instead, their bid for reversal is based solely on the assertion that the alternatives were not truly infeasible. As they put it: “There was no legal or economic infeasibility. It was simply a preference.” Again, this is nothing more than a “policy disagreement with the City.” (Defend the Bay, supra,
In any event, substantial evidence supports the City’s infeasibility findings. Evidence for such findings may be contained anywhere in the administrative record. (Association of Irritated Residents v. County of Madera, supra,
DISPOSITION
The judgment of the superior court is affirmed.
Duffy, J., concurred.
Notes
Public Resources Code section 21000 et seq.; further unspecified statutory references are to that code.
In the superior court, appellants also claimed CEQA violations based on the asserted failure (1) to delineate wetlands and (2) to analyze impacts to an environmentally sensitive habitat area (ESHA). In this court, appellants’ CEQA claim rests solely on the alternatives analysis and related findings. We limit our analysis to that claim. (See, e.g., Leader v. Health Industries of America, Inc. (2001)
Various uses for the property had been proposed or recommended over the years. In the 1994 greenbelt planning study, the recommended uses for Arana Gulch were “protection of views, habitats, and watershed areas, nature preserve areas, trails (nature, hiking and bicycle), a playground, a sports field, picnic sites, a restroom, and small parking areas.” The 1997 interim management plan noted “potential development scenarios within a portion of Arana Gulch, including the possibility of residential use to recover some of the acquisition cost.” Use as a school site had been considered there as well.
The other objectives related to resources are: “Protect and enhance sensitive habitat areas, including coastal prairie, riparian woodland, and wetlands.” “Educate the public about nature resource protection and enhancement through interpretive displays and programs.” “Reduce sedimentation through: a) stabilization and restoration of eroded areas; b) trail improvements; and, c) other Best Management Practices.”
The other objectives related to public use are: “Provide a trail system that allows public access within habitat areas in a manner that does not result in significant degradation of habitat values.” “Provide areas for nature viewing and interpretive displays. Ensure that interpretive displays are designed to complement and blend with the natural environment.” “To protect sensitive habitat areas, restrict dogs to on-leash use at all times on designated trails.” “Close unauthorized, non-designated pathways.” “Provide no new vehicle parking within the Arana Gulch boundaries, as there is adequate existing parking near entrances.”
The staff representative explained that “the project that was before the City Council for the previous ten years was a bicycle/pedestrian/wheelchair accessible path connecting the east and west. And it looked at different alternatives. Arana Gulch was just one of the routes. That was the project. It was a bicycle/pedestrian path project. [][] The project before you today is a long-term Master Plan for a 67-acre area which is called Arana Gulch. So, therefore, the only alternatives that are included are alternatives within the Arana Gulch property.” She also stated: “Frederick Street does not provide access for disabled people within Arana Gulch, and it does not provide a new west entrance to Arana Gulch.”
During discussion by the commission, the absence of offsite alternatives came up again. The staff representative stated: “It’s confusing to explain. The project before you is Arana Gulch. The project is not an east-west pathway; therefore, what’s in the EIR is alternatives that still provide a park master plan that do not include a paved east-west connection. So that is the means of this department providing an alternative.”
The guidelines are found in the California Code of Regulations, title 14, section 15000 et seq. (Guidelines). As the California Supreme Court recently reaffirmed: “In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
That project objective is: “Provide trail connections through Arana Gulch that provide access from adjacent communities to the coastline and the Monterey Bay National Marine Sanctuary Trail. Provide multi-use trail connections that comply with Americans with Disabilities Act (ADA) requirements and provide pedestrian, wheelchair and bicycle access.”
For example, according to a March 1997 letter from the City to California’s Department of Transportation concerning the Broadway-Brommer connection project: “Eight alternatives (including variations) are proposed including No Build.” In July 1997, four “proposed new alternatives” were put forth by the Greenbelt Committee, all connecting to Frederick Park. An August 1997 status report on the Broadway-Brommer connection project observes: “Several alternative alignments have been identified and studied. These alternatives connect by either linking through the Port District to a neighborhood park, Frederick Park, or through an open-space, meadow area, known as Arana Gulch and adjacent to the Port District. The alternatives have generated much discussion among local neighborhood groups, bicycle groups and citizen advisory groups. There continues to be lively discussion on which bicycle/pedestrian alternative should be constructed to connect Broadway to Brommer Street/Seventh Avenue. The various alignments all have different constraints that must be addressed including wetlands, historic structures, endangered plant species and parking impacts. [f] The complexities of these issues and the various interest groups involved with each have made forming a decision a difficult problem.” A map accompanying the status report depicts seven alternative routes.
In November 1999, the Broadway-Brommer DEER/environmental assessment (EA) was presented. In an executive summary, that report noted that “potential areas of controversy” included alternative alignments. In addition to the three alternatives that it analyzed, the EIR/EA described nine other alternative alignments that had been eliminated.
The May 2003 city council agenda report also notes: “Several Frederick Street Park options were considered in the original alternatives evaluation.” An attached table compared “those alternatives to the option considered the environmentally preferred option in the EIR analysis and recommended by staff and the City Transportation Commission.” That table reflected several drawbacks to a Frederick Street alternative, including potentially significant impacts on visual and biological resources as well as parking impacts and traffic safety issues.
According to the findings of fact: (1) alternative 1, the no project alternative, “would not meet the objectives of the Project, and is undesirable from a policy standpoint.” (2) “The failure of Alternative 2 to provide an ADA-compliant trail through [Port District] property renders the alternative infeasible within the meaning of CEQA, as the City Council, acting in its legislative capacity, concludes that the alternative would not meet a key objective of the Project, and is undesirable from a policy standpoint.” (3) “The failure of Alternative 3 to provide an ADA-compliant public access and certain funding for an Adaptive Management Program renders the alternative infeasible within the meaning of CEQA, as the City Council, acting in its legislative capacity, concludes that the alternative would not meet a key objective of the Project, and is undesirable from a policy standpoint.” (4) “The failure of Alternative 4 to provide . . . ADA-compliant trails, nature viewing areas, and interpretive displays, as well as its failure to provide certain funding for an Adaptive Management Program, renders the
Citing CEQA case law, the findings conclude that “because adopted mitigation measures will avoid all significant effects but one, and that one significant effect—on the Santa Cruz tarplant-—can be ‘substantially lessened’ through adopted mitigation, the City Council has no obligation, in these findings, to address the feasibility of any of the alternatives set forth in the EIR for the Project. Even so, however, the City Council, in the interests of full disclosure, nevertheless explains why, in its considered judgment, no such alternative is ‘feasible’ within the meaning of CEQA.” (See 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 17.32, p. 828 [noting uncertainty in the law about “what level of impacts remaining after mitigation will trigger the requirement for a statement of overriding considerations”]; Remy et al., Guide to California Environmental Quality Act, supra, at pp. 400-402 [same].)
Concurrence Opinion
Although I agree with the result reached in the majority opinion, I write separately to explain why I find appellants’ contentions unavailing.
I. Background
Arana Gulch is a parcel of more than 60 acres of real property owned by the City of Santa Cmz (the City). The project proposed by the City is the Arana Gulch Master Plan (the Plan). The Plan is designed to serve two sets of key objectives. The City wants to protect the natural resources and sensitive habitat in Arana Gulch while providing a high level of public access that will permit the City to educate not only pedestrian visitors but also disabled visitors about resource protection through interpretive displays and programs. To provide the highest level of public access to Arana Gulch, the Plan proposes the creation of a trail system that will include a multiuse, paved, ADA-compliant,
The City’s environmental impact report (EIR) for the Plan concludes that the proposed multiuse trail could have a significant impact on biological resources, as it would pass through an area that possibly contains a seed bank for the Santa Cruz tarplant. The EIR identifies four possible alternatives to the proposed multiuse trail that might reduce or eliminate the Plan’s significant impacts. Alternative 1 is no project, and it would accomplish none of the project objectives. Alternative 2 is similar to the proposed project, but the multiuse trail would not travel through the Port District property, thereby providing a reduced level of public access. Alternative 2 would not reduce the impact of the proposed project on the Santa Cruz tarplant. Alternative 3 is similar to the proposed project, but the east-west through trail would be unpaved, thereby precluding access for the disabled. Alternative 3 would reduce the impact of the proposed project on the Santa Cruz tarplant, and it was identified in the EIR as the environmentally superior alternative. Alternative 4 would provide for a trail system, but there would be no paved trails and no east-west connector trail. Alternative 4 would preclude access for the disabled and provide a reduced level of public access for the nondisabled.
The city council certified the EIR, and it rejected the four alternatives identified in the EIR on the grounds that none of the alternatives would satisfy all of the “key objective[s]” of the project.
II. Discussion
“ ‘We may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. “Our
“Judicial review of an agency’s decision to certify an EIR and approve a project ‘shall extend only to whether there was a prejudicial abuse of 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.’ [Citations.] Thus, we consider only whether the City failed to comply with CEQA or made determinations that were not supported by substantial evidence.” (Preservation Action Council, supra,
A. Reasonable Range of Alternatives
Appellants contend that the EIR failed to set forth a reasonable range of alternatives because none of the alternatives fully satisfied the City’s “key objective[s],” which included providing an ADA-compliant trail. In appellants’ view, the failure of the EIR to include an alternative that met all of the City’s “key objective[s]” “created a false choice between an ADA trail and avoiding significant impacts to tarplant.”
“ ‘CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. . . . [A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal (Pub. Resources Code, § 21002); and (2) may be “feasibly accomplished in a successful manner” considering the economic, environmental, social and technological factors involved.’ ” (Preservation Action Council, supra,
Appellants’ contention lacks merit. First, although appellants claim that the EIR does not include an alternative that provides for an ADA-compliant trail, alternative 2 in fact provides for an ADA-compliant trail. Second, CEQA (Cal. Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) neither explicitly nor implicitly requires that an EIR identify a single
Appellants also argue that the City was required to consider offsite alternatives for an east-west bike path, and they imply that the EIR was required to contain a discussion of such alternatives. The administrative record demonstrates that the City has over many years considered a number of possible offsite routes for an east-west bike path. Appellants ignore the fact that the project under consideration by the City here was not an east-west bike path but a master plan for Arana Gulch. While an offsite route for the bike path might have eliminated the need for a bike path through Arana Gulch, it would not have changed the need for disabled access or the City’s desire to provide the highest level of public access to Arana Gulch by providing an east-west through connector trail. Some of the alternatives considered in the EIR would have omitted an east-west connector through Arana Gulch. Had one of those alternatives been selected, any east-west bike path would necessarily have had to be offsite. Under these circumstances, the EIR provided sufficient information to the public about alternatives to avoid the environmental consequences of the Plan, and the administrative record provided ample information to inform the City’s legislative decision regarding the relative importance of the bike path objective of the Plan.
B. Feasibility of Alternatives
Appellants contend that the City’s findings that the alternatives were not feasible were erroneous because they were inconsistent with the EIR’s inclusion of these alternatives as potentially feasible alternatives.
An EIR “must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation.” (Cal. Code Regs., tit. 14, § 15126.6, subd. (a), italics added (CEQA Guidelines); see Preservation Action Council, supra, 141 Cal.App.4th at pp. 1350-1351.)
Thus, while the certification of the EIR is a determination that the EIR adequately discusses potentially feasible alternatives, CEQA explicitly permits the legislative body to make a postcertification determination that these potentially feasible alternatives are not actually feasible, so long as the legislative body makes the requisite findings citing specific reasons for its infeasibility determination. There is no inconsistency between the City’s certification of an EIR that discusses potentially feasible alternatives and the City’s determination that those alternatives are not actually feasible.
Appellants argue that the City based its infeasibility determination on impermissible considerations. This argument falters on the fact that CEQA expressly permits such a determination to be based on “other considerations” (Pub. Resources Code, § 21081, subd. (a)(3)), and we review the City’s determination solely for substantial evidence to support those considerations (Uphold Our Heritage v. Town of Woodside (2007)
CEQA did not require the City to choose the environmentally superior alternative. It simply required the City to consider environmentally superior alternatives, explain the considerations that led it to conclude that those alternatives were infeasible, weigh those considerations against the environmental harm that the Plan would cause, and make findings that the benefits of those considerations outweighed the harm. Here, the City considered environmentally superior alternatives, explained the considerations that led it to conclude that those alternatives were infeasible, weighed those
III. Conclusion
I agree that the judgment should be affirmed.
A petition for a rehearing was denied October 14, 2009, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied December 17, 2009, S177419.
ADA stands for the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.).