Opinion
Petitioner South County Citizens for Smart Growth (Smart Growth) appeals from the trial court’s denial of its petition for writ of mandate in which Smart Growth alleged that the County of Nevada (the County) violated various provisions of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) in approving a commercial real estate project in Nevada County. 1 Smart Growth contends we must reverse the judgment because (1) the County failed to prepare and recirculate a revised draft environmental impact report (EIR) adding an alternative project proposal recommended by staff for the Nevada County Planning Commission (the staff alternative); (2) the County failed to make any findings regarding the feasibility of the staff alternative; and (3) the County relied on future traffic improvements that have not been approved yet in order to declare the revised project’s traffic impacts less than significant.
We will affirm the judgment.
BACKGROUND
This appeal arises from the County’s decision to approve the Higgins Marketplace Project (the project) in southwestern Nevada County. Real Party in Interest KKP Lake of the Pines, LLC (KKP), submitted the application for the project to the County in 2005. The 20.07-acre site consisted of one parcel owned by the Tintle family, but KKP had an option to purchase the northern portion of the site. The original proposal involved subdivision of the site into 10 parcels for commercial, light industrial, and office uses. On five of the parcels (approximately 10.58 acres), the proposal called for a 59,800-square-foot retail store (expected to be a Bel-Air Market), two retail buildings (one 13,200 square feet and the other 6,500 square feet), two 3,500-square-foot drive-through fast-food restaurants, and 482 parking stalls. No development was proposed for four other parcels (approximately 5.07 acres), which would continue to be owned by the Tintle family, although the proposal allowed for future development of approximately 42,000 square feet of light industrial and office spaces. The last parcel, which was around 3.26 acres, was designated to retain existing wetlands and to provide a 25-foot buffer between the developed parcels and the onsite wetlands. The proposal also included a proposed habitat management plan, as required by the County Code because the wetland buffer was less than 100 feet.
In November 2007, the County published a draft EIR (draft EIR) analyzing the project’s potential significant impacts on the environment, and identifying potentially feasible mitigation measures and alternatives that would minimize or avoid potential significant impacts. The draft EIR identified two significant traffic impacts and one significant cumulative air quality impact that could not be reduced to less than significant levels even with the implementation of the mitigation measures identified in the draft EIR. All other potentially significant impacts would be reduced to less than significant levels with the implementation of mitigation measures.
The County’s environmental consultant prepared responses to the written and oral comments received at the hearing on the draft EIR. The final EIR—which consisted of the draft EIR, the responses to comments, and associated appendices—was released for public review on October 30, 2008. Following release of the final EIR, but prior to the Planning Commission’s hearing on the document, four more comment letters were received, including a letter from Smart Growth’s counsel. The County’s environmental consultant prepared responses to the late comments, and the County included the late comments and the responses in an appendix to the final EIR.
On January 8, 2009, the Planning Commission held a hearing on the final EIR to consider whether to recommend that the Nevada County Board of Supervisors (the Board) (1) certify the final EIR, and (2) approve the legislative actions required for the project (including the general plan amendment and rezone). The staff report prepared for the Planning Commission hearing recommended that the Planning Commission vote to recommend that the Board approve a modified version of the project, the staff alternative, in order to address concerns over the project’s air quality and traffic impacts. The staff alternative built upon alternative 4 in the draft EIR (the “Redesign/Reduced Density” alternative), which provided for a reduction in overall retail development. The staff alternative would cap commercial property at 75,000 square feet, have 10 acres of open space, increase the wetland buffer from 25 to 100 feet, and prohibit fast-food restaurants due to their high traffic generation. The Planning Commission voted three to two to recommend that the Board approve the staff alternative, and the Planning Commission unanimously voted to recommend that the Board certify the final EIR.
Thereafter, KKP worked to address the Planning Commission’s concerns and revise the project based on the Planning Commission’s recommendations. KKP submitted two alternatives that would reduce the project’s footprint and eliminate fast-food restaurants. The overall number of proposed buildings was
The primary differences between the staff alternative and KKP’s second alternative were that in KKP’s second alternative (1) the Tintle family property was allowed to keep its existing business park designation on 3.03 acres and the proposed office professional designation on 0.78 acres; (2) the wetland setback would be 50 feet rather than 100 feet, but an additional 20 feet was added as a buffer, making the overall reduction to the setback only 30 feet; (3) the total square footage of community commercial designations was increased from 75,000 square feet to 75,800 square feet; and (4) open space was reduced by approximately four acres. 2
Consistent with the staff recommendation of KKP’s second alternative (hereafter also referenced as the revised project), the proposed tentative parcel map was modified to coincide with the new site plan, with seven parcels divided as follows: one for each building, one for the wetlands/open space parcel, and two for the Tintle property parcels, which the Tintles intended to retain after the sale to KKP. In response to objections from the Tintles, the revised project would continue to allow the future development of their parcels for commercial uses as permitted by existing zoning standards. However, development would be limited to 26,000 square feet of building space.
On May 28, 2009, the Planning Commission held a meeting to consider (1) the details of the revised project, and (2) whether to recommend that the Board certify the final EIR. Due to a procedural error in noticing the meeting, the Planning Commission did not discuss the details of the revised project at that time. Instead, it voted five to zero that the final EIR adequately encompassed the revised project, and it recommended that the Board certify the final EIR. However, on June 11, 2009, the Planning Commission met again and discussed the details of the revised project. The Planning Commission voted to recommend that the Board approve the revised project (KKP’s
On July 7, 2009, the Board held a public hearing to consider the final EIR, and whether to approve the associated legislative actions. Smart Growth’s attorney submitted a lengthy comment letter on the final EIR at the beginning of the hearing. To allow time to consider the letter, the Board continued the meeting until mid-August. In light of the lengthy comment letter and other letters that were received, additional responses to comments were prepared and incorporated into the final EIR.
On August 18, 2009, the Board held two public hearings: one to consider the final EIR and the other to consider the legislative actions. The Board voted to certify the final EIR and approve the legislative actions.
Smart Growth timely filed a petition for writ of mandate in superior court. As relevant to the present appeal, Smart Growth asserted in a second amended petition that the County violated CEQA by (1) failing to prepare and recirculate a revised draft EIR with the staff alternative, which was a potentially feasible alternative and would have less impact on the environment than the revised project; (2) failing to make any findings or otherwise cite to substantial evidence explaining why the staff alternative should not or could not be approved; (3) asserting that traffic impacts were mitigated to “less than significant” levels by administratively redesignating an affected road as a minor arterial without any change to actual traffic conditions on the impacted road; and (4) finding that the revised project’s impacts on traffic conditions would be less than significant. After reviewing the administrative record, the trial court rejected these contentions and denied the petition for writ of mandate.
STANDARD OF REVIEW
Section 21168.5 provides that a court’s inquiry in an action to set aside.an agency’s decision under CEQA “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.” The 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).)
“ ‘The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’
DISCUSSION
I
Smart Growth contends the County violated CEQA’s mandatory procedures by failing to prepare and recirculate a revised draft EIR with the staff alternative. Before addressing this contention, it will be helpful to set forth the relevant CEQA framework and address the difference between (1) the determination, during the scoping process, of whether to include alternative projects in the draft EIR and the adequacy of the chosen alternatives, and (2) the determination of whether to recirculate an EIR when significant new information is added concerning a feasible project alternative.
A
“The core of an EIR is the mitigation and alternatives sections. The Legislature has declared it the policy of the State to ‘consider alternatives to proposed actions affecting the environment.’ [Citations.] ...[][] 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.’ ‘[I]t is the policy of the state 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 ....’” (Goleta II, supra, 52 Cal.3d at pp. 564-565, original italics.)
“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 (. . .
The range of alternatives that must be discussed and their level of analysis are subject to a “rule of reason.”
(Laurel Heights I, supra,
The scoping process is the screening process by which a local agency makes its “initial determination as to which alternatives are feasible and merit in-depth consideration, and which do not.”
(Goleta II, supra, 52
Cal.3d at p. 569; see Guidelines § 15083.) It involves “consultation] directly with any person or organization [the lead agency] believes will be concerned with the environmental effects of the project” in hopes of “solving] many potential problems that would arise in more serious forms later in the review process.” (Guidelines, § 15083.) It takes place after notice of preparation has been sent out and prior to completion of the draft EIR.
(Gilroy Citizens for Responsible Planning
v.
City of Gilroy
(2006)
The determination of whether to include an alternative during the scoping process is based on whether the alternative is
potentially
feasible
(Mira Mar Mobile Community
v.
City of Oceanside
(2004)
In other words, recirculation is not required simply because new information is added. As the California Supreme Court observed in
Laurel Heights Improvement Assn. v. Regents of University of California
(1993)
An express finding is not required on whether new information is significant; it is implied from the agency’s decision to certify the EIR without recirculating it.
(Laurel Heights II, supra,
After the final EIR had been circulated, the Planning Commission voted to recommend that the Board certify the final EIR and approve the staff alternative. Thereafter, however, KKP submitted its second alternative addressing some of the Planning Commission’s concerns; KKP’s second alternative was recommended by Flaming Commission staff and the Flaming Commission as the revised project; and the Board ultimately approved the revised project.
Under its first argument heading, Smart Growth does not challenge the adequacy of the various alternatives that were included and discussed in the draft EIR as a result of the scoping process. Nor does Smart Growth challenge the County’s failure to recirculate the final EIR with a discussion of the revised project. 3 Rather, the only challenge Smart Growth raises is that when the Flaming Commission initially voted to approve the staff alternative, and before the Planning Commission recommended KKP’s second alternative as the revised project, the County should have prepared and recirculated a revised draft EIR with the staff alternative. Smart Growth argues that because the County did not do so, the public was deprived of the opportunity to comment on a feasible alternative in violation of CEQA’s mandatory disclosure procedures. Smart Growth further contends that because the County failed to proceed in the manner required by law, the applicable standard of review is abuse of discretion.
Smart Growth does not identify any CEQA statute, guideline or judicial decision mandating that where an EIR includes a reasonable range of alternatives, then any additional alternative, even if proffered after the final EIR is released, must be added to the EIR or else the agency will not have proceeded in a mamer required by law and will have violated CEQA’s disclosure requirements. As we explained above, “all new information occurring after release of the final EIR but prior to certification and project adoption need not be included in the EIR before the agency determines whether the new information is significant so as to trigger revision and recirculation.”
(Western Placer Citizens, supra,
Smart Growth bears the burden of proving a double negative, that the County’s decision not to revise and recirculate the final EIR is not supported by substantial evidence.
(Western Placer Citizens, supra,
“As with all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant’s failure to carry his burden. [Citation.]”
(Defend the Bay v. City of Irvine
(2004)
Smart Growth has not met its appellate burden. For example, Smart Growth does not demonstrate that there is no substantial evidence to support a determination that the staff alternative was not considerably different than all of the others in the EIR, which analyzed four alternatives to the project.
Alternative 1 was the “No Project” alternative required by CEQA. (Guidelines, § 15126.6, subd. (e).) In that alternative the site would be left in its current condition.
Alternative 2, the “Woodridge Court Right-In, Right-Out” alternative, provided for restricted “right-in and right-out” access to the project from Woodridge Court. This alternative was selected to determine whether restricted access would avoid traffic impacts to State Route 49.
Alternative 3, the “Business Park Land Use” alternative, would develop the project under the current general plan land use designations. This alternative was designed to reduce traffic and noise impacts to nearby residences.
Smart Growth argues that the staff alternative “is considerably different” from the alternatives considered in the draft EIR, because none of the draft EIR’s alternatives “meet the project’s stated objectives by providing for the development of a full-service shopping alternative that would improve the County’s jobs/housing balance, while simultaneously reducing the Project’s acknowledged ‘significant and unavoidable’ cumulative air quality impacts by designating the remainder of the project site as Open Space.” (Underscoring omitted.) Smart Growth claims that none of the alternatives presented during the County’s administrative consideration of the project “contemplates this potentially feasible way to reduce the project’s air quality impacts. Rather, every action alternative considered in the publicly circulated Draft EIR reserves a substantial portion of the project site for fiiture, business park and office uses (which are not among the Draft EIR’s stated Project objectives), which necessarily include these land uses’ attendant incremental future contributions to cumulative air quality impacts.” (Underscoring & fn. omitted.)
In other words, the staff alternative allows for more open space. But Smart Growth fails to explain, with reasoned analysis supported by citations to the evidence in the record, why this specific increase in open space is considerably different.
(Nwosu v. Uba
(2004)
With respect to another recirculation factor, Smart Growth simply asserts that the staff alternative will “clearly lessen the significant environmental impacts of the [proposed] project” (Guidelines, § 15088.5, subd. (a)(3)) by designating four acres as open space on the Tintle property, rather than permitting future business park and professional use, and by eliminating the fast-food restaurants. Smart Growth provides no analysis, supported by citations to evidence in the record, explaining how this will clearly lessen the project’s environmental impacts. For example, the reduction in cumulative air quality environmental impacts might be insignificant when viewed under the appropriate thresholds for Nevada County. Moreover, Smart Growth fails to show that the staff alternative clearly lessens the significant environmental impacts of the revised project; instead, Smart Growth compares the staff alternative to the project as originally proposed.
We are not required to cull through the more than 11,000-page administrative record to see if there is support for Smart Growth’s position. (Defend, the Bay v. City of Irvine, supra, 119 Cal.App.4th at pp. 1265-1266.) Under the circumstances, Smart Growth has not established its claim that the County abused its discretion in failing to prepare and recirculate a revised draft EIR with the staff alternative.
II
In a related contention, Smart Growth claims the County violated CEQA’s mandatory procedures by failing to make findings regarding the feasibility of the staff alternative. Smart Growth believes that once the Planning Commission found the staff alternative sufficiently feasible to recommend approval of
Although a lead agency must give reasons for rejecting an alternative as infeasible during the scoping process (Guidelines, § 15126.6, subd. (c)),
5
the scoping process takes place prior to completion of the draft EIR.
(Gilroy Citizens for Responsible Planning v. City of Gilroy,
supra,
Furthermore, although the lead agency must give reasons for rejecting the alternatives discussed in the EIR where the document identifies one or more significant environmental effects of the project (§ 21081, subd. (a)(3); Guidelines, § 15091, subd. (a)(3)), the staff alternative was not one of the alternatives discussed in the EIR and Smart Growth has not established that the County erred by not including it in the EIR.
Smart Growth does not point to any CEQA statutes or regulations requiring that the lead agency make findings regarding why it rejected an alternative proposed after the final EIR and not included in the EIR.
(South Orange County Wastewater Authority v. City of Dana Point
(2011)
Smart Growth contends the County’s failure to make findings explaining why the staff alternative was infeasible “cannot be squared with”
Laurel Heights I, supra, 47
Cal.3d 376, and
Goleta II, supra,
Laurel Heights I, supra, 47 Cal.3d 376 concerned an EIR’s inadequate discussion of alternative locations for a project in violation of Guidelines section 15126. The Regents of the University of California merely included a conclusory statement that any alternatives were infeasible without providing supporting analysis. (47 Cal.3d at pp. 403-404.) The California Supreme Court held that the Regents must include their analytic route so that the public can be fully informed, rather than simply expecting the public to trust them. (Id. at pp. 404-405.) But here, adequate alternatives were discussed in the EIR. Laurel Heights I has no bearing on the present claim that the County had an obligation under CEQA to issue a finding of infeasibility if it chose not to recirculate the EIR with the staff alternative.
Goleta II, supra,
The California Supreme Court reversed the Court of Appeal, holding that it was reasonable to explain why the alternative sites were rejected via administrative findings, rather than in the EIR, due to the belated manner in which the sites were brought to the county’s attention.
(Goleta II, supra,
52 Cal.3d at pp. 567-570.) The Supreme Court stated: “In general, an EIR should set forth the alternatives that were considered by the lead agency and rejected as
“Thus, where the circumstances warrant, a reviewing court may consult the administrative record to assess the sufficiency of the range of alternatives discussed in an EIR. The circumstances justify such consultation here. Unlike the EIR in [Laurel Heights I], County’s environmental review of the . . . project discussed a full range of alternatives, including an in-depth discussion of one off-site alternative. Moreover, CGV raised the issue well after the comment period had expired. Thus, the Board’s decision to delineate its reasons for rejecting the CGV sites as feasible alternatives by means of administrative findings, rather than a full-blown supplemental EIR, cannot be deemed in this case to have been erroneous.” (Goleta II, supra, 52 Cal.3d at pp. 569-570.)
The procedural history of the case and the Supreme Court’s analysis demonstrates that
Goleta II
concerned the adequacy of the required reasonable range of alternatives in the EIR. It stated an exception to the general rule that the reasons for rejecting project alternatives as infeasible must be discussed in the EIR.
(Laurel Heights I, supra, 47
Cal.3d at pp. 404—405; Guidelines, § 15126.)
Goleta
II has no application to the present case because Smart Growth has not challenged the adequacy of the EIR on the ground it lacks a reasonable range of alternatives. Thus, we must presume the EIR provided the Board with enough information to make an informed decision.
(Village Laguna, supra,
Smart Growth next contends the County violated CEQA by relying on future traffic improvements that have not been approved yet in order to declare the revised project’s traffic impacts less than significant.
If it is feasible to do so, a public agency must mitigate or avoid the significant environmental effects of a project that it carries out or approves. (§ 21002.1, subd. (b);
City of Marina v. Board of Trustees of California State University
(2006)
Smart Growth contends the County relied on uncertain future traffic improvements in order to declare the project’s level of service (LOS) impact on Combie Road to be less than significant. Smart Growth states that KKP submitted a revised traffic study indicating that the revised project would cause Combie Road, between Higgins Road and State Route 49, to drop to LOS F under its existing designation as a “major collector.” LOS F is the worst level of traffic flow.
6
Smart Growth believes the County assumed this impact would be reduced to less than significant levels by (1) a future
However, a traffic engineer for the County’s traffic consultant indicated that the fact a section of Combie Road near the project has more driveways than other sections of the road must not be taken out of context, and does not dictate the designation of the road. The traffic engineer stated, “It is impractical to consider separate designations of small sections of roadways within larger designated roadway segments. Designating roadways in such a piecemeal manner would defeat the purpose of corridor designations.” In other words, the existing driveways on one portion of Combie Road would not preclude a minor arterial designation for the entire roadway.
As for the assumption that a previously planned and funded expansion of Combie Road would occur, the County could make such an assumption without requiring that it occur as a mitigation measure. “A public agency can make reasonable assumptions based on substantial evidence about future conditions without guaranteeing that those assumptions will remain true. [Citations.]”
(Environmental Council of Sacramento
v.
City of Sacramento, supra,
The trial court concluded, and we agree, that the County did not require the redesignation of Combie Road as a minor arterial as a mitigation measure. The County simply determined that, for purposes of the traffic analysis, Combie Road functioned as a minor arterial because it acts as a thoroughfare between Lake of the Pines and State Route 49. It did not function as a major collector, which allows unlimited driveway accesses and therefore results in slower conditions. Indeed, independent of the project, the County submitted a change in designation of Combie Road to California’s Department of Transportation (Caltrans) for use on federal functional class maps, and the impetus to reclassify the road came out of the 1996 general plan. Accordingly, the
An EIR’s analysis must be based on the actual environment, and “[t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” (Guidelines, § 15125, subd. (a); see
Cherry Valley Pass Acres & Neighbors v. City of Beaumont
(2010)
Smart Growth fails to establish in its opening brief that there is no substantial evidence to support the County’s determination that Combie Road functions as a minor arterial. It also fails to dispute the appropriateness of basing the EIR’s traffic impact determination on roadway function rather than designation. Although the County intends to widen Combie Road and the project is fully funded, this fact was simply cited in the administrative record as support for the conclusion that Combie Road functions more as a minor arterial than a major collector. But because the road functions as a minor arterial, the project will have a less than significant impact on the road, which is why it was not necessary to condition the project on the road’s future expansion. (§§ 21002, 21081; Guidelines, §§ 15002, subd. (a)(3), 15091, subd. (a)(1).)
Under the circumstances, Smart Growth’s claim that the County violated mandatory CEQA provisions lacks merit.
The judgment is affirmed.
Raye, P. J., and Robie, J., concurred.
Notes
Undesignated statutory references are to the Public Resources Code. All references to “Guidelines” are to the CEQA Guidelines, which implement the provisions of CEQA. (Cal. Code Regs., tit. 14, § 15000 et seq.) These guidelines are binding upon all state and local agencies in applying CEQA.
(Schellinger Brothers v. City of Sebastopol
(2009)
There was a dispute concerning whether it was appropriate to designate roads as open space. The staff alternative included roads as open space but KKP’s second alternative did not.
An appellate contention may be deemed forfeited if it is not presented under an appropriate heading showing the nature of the question presented and the point to be made.
(Placer Ranch Partners
v.
County of Placer
(2001)
“ ‘Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (§ 21061.1; see Guidelines, § 15364.)
Guidelines section 15126.6, subdivision (c) states: “Selection of a range of reasonable alternatives. 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. The EIR should briefly describe the rationale for selecting the alternatives to be discussed. The EIR should also identify any alternatives that were considered by the lead agency but were rejected as infeasible during the scoping process and briefly explain the reasons underlying the lead agency’s determination. Additional information explaining the choice of alternatives may be included in the administrative record. Among the factors that may be used to eliminate alternatives from detailed consideration in an EIR are: (i) failure to meet most of the basic project objectives, (ii) infeasibility, or (iii) inability to avoid significant environmental impacts.”
LOS measures the quality of traffic flow, with a grade of A referring to the best conditions, and F representing the worst conditions. The Nevada County general plan presents LOS criteria for roadway segments based on daily traffic volumes, and these thresholds make use of classifications that are based on roadway facility type. The higher classifications (i.e., arterial roadways) provide higher degrees of mobility and serve more traffic; the lower classifications (i.e., local roadways and collectors) provide access. For this reason, the County accepts a higher volume of traffic on minor arterials than on major collectors.