Solano County and the San Francisco Bay Conservation and Development Commission (Commission) approved permits to allow real party in interest Waste Connections, Inc., to expand the Potrero Hills Landfill, which is situated within the secondary management area of the Suisun Marsh. The permits were issued after years of environmental review and litigation under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).
In the instant writ proceeding, petitioners Sustainability Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF) and David Tam contend the permit approvals violate the Solano County local protection program and, specifically, a county ordinance, because the expansion will entail some rechanneling of an ephemeral watercourse called Spring Branch. Under that ordinance, modification of a marsh watercourse is allowed only if no “reasonable alternative” exists. Petitioners claim the Commission could have, and should have, approved a smaller expansion that would not impinge on the intermittent watercourse. The trial court agreed, ruling no substantial evidence supports the Commission’s determination that a smaller alternative is not economically reasonable. The Commission and real party in interest have appealed. We reverse.
Factual and Procedural Background
The Potrero Hills Landfill is located in the upland, grassland area—or “secondary management area”—of the Suisun Marsh. The landfill site is currently 320 acres in size. The expansion, as proposed in 2003, would allow an increase in fill height and also add 260 acres of adjoining property to the site—extending the life of the landfill another 35 years. The proposed expansion would also have a number of environmental impacts, including impinging on and requiring the alteration of a portion of an intermittent watercourse, Spring Branch. Decades ago, relocation of another portion of Spring Branch was deemed consistent with applicable laws, and permitted in connection with the landfill.
County’s Approval of Permits
In early 2003, the county gave notice it would prepare an environmental impact report (EIR) for the proposed landfill expansion. The draft EIR, published later that year, concluded relocating a portion of the Spring Branch watercourse would not have a significant environmental imрact if certain mitigation measures were adopted.
1
In part, this conclusion was based on a finding the watercourse was then “devoid of riparian vegetation.” The draft
The draft EIR evaluated one alternative to the proposed expansion project: increasing the height of the landfill, without increasing the footprint. This alternative was rejected because it would still require excavation of the . adjacent land, would not appreciably reduce environmental impacts, and would, with a significantly reduced fill capacity, undermine the project goals. Offsite alternatives were not considered in detail, since any new site was likely to raise issues similar to those facing the proposed expansion.
Two years later, in September 2005, after receiving and responding to comments, the county certified a final EIR and issued a use permit and marsh development permit for the proposed expansion (Nos. U-88-33 and MD-88-09).
Under the Suisun Marsh Preservation Act of 1977, a decision by a local government to issue a marsh development permit can be challenged in two ways. One provides for tiered agency, and then court review. The challenger first appeals to the Commission, the body with ultimate responsibility for implementing the act. (§§ 29106, 29504, subd. (a).) If the challenger remains aggrieved after the Commission’s decision on appeal, the challenger “may seek judicial review ... by filing a petition for a writ of mandate in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure within 60 days after such decision or action has become final.” (§ 29602.) The other avenue allows for direct review by the courts. The challenger may seek “judicial review of any decision made or any action taken pursuant to this division by a local government that is implementing the certified local protection program, or any component thereof, whether or not such decision or action has been appealed to the commission, by filing a petition for writ of mandate in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure within 60 days after the decision or action has become final.” (§ 29603.)
Petitioner David Tam took both paths.
The Prior “Protect the Marsh” Writ Proceeding
In October 2005, Tam and others filed a writ proсeeding in Solano County Superior Court
(Protect the Marsh v. County of Solano
(2009, No. FCS026839)). The first amended petition not only challenged the adequacy of the county’s EIR (first cause of action) it, in separate causes of
The trial court issued its decision in the prior Protect the Marsh writ proceeding on February 26, 2007. It ruled two findings in the EIR, unrelated to Spring Branch, were not supported by substantial evidence. It also faulted the EIR for not considering alternative landfill sites outside of the marsh. The court rejected the remainder of the petitioners’ claims, also ruling that the modification of the Spring Branch watercourse was not inconsistent with any governing plan or regulatory requirement. This writ decision was not appealed.
During 2007 and 2008, the county revised, recirculated, and recertified the EIR. The revised EIR included a 50-page discussion of, and reasons for rejecting, 20 nonmarsh locations for a new landfill in lieu of expanding the existing landfill. The trial court determined the discussion and rejection of one of the locations was inadequate and therefore refused to approve the county’s return to the writ.
The county spent another year making additional revisions, and on November 3, 2009, the trial court approved its return to the writ. SPRAWLDEF, which had not been a party to the writ proceeding, purported to appeal this order, but its appeal (SPRAWLDEF v. County of Solano (Oct. 8, 2010, A127688), app. dism.) was dismissed for lack of standing.
The Appeal to the Commission
The same month Tam and others filed the Protect the Marsh writ proceeding, he and others also filed administrative appeals of the marsh development permit with the Commission. Although Tam did not contend the relocation of the Spring Branch watercourse was inconsistent with applicable state and local laws, other appellants did.
In December 2005, the Commission concluded the appeals raised substantial issues, triggering de novo review of the county’s approval of the marsh
Assessing Spring Branch, the 2007 scientists’ report found the intermittent watercourse had a bed and banks. It also found wetland vegetation within the watercourse, differing from the 2005 hydrology report prеpared in connection with the county’s EIR and other reports submitted to the Commission by real party in interest. The scientists’ report, which the Commission ultimately credited, recommended modified mitigation measures, including having the rechanneled watercourse more closely mimic the native one, employing better monitoring of water quality, and seeking preservation of similar areas within the Spring Branch watershed. In light of the new information and proposals in connection with Spring Branch, the Commission asked real party in interest to explore reducing the size of the expansion.
The size of the landfill was addressed in a 2009 report on alternatives real party in interest prepared and submitted to the Army Corps of Engineers, whose approval was also required for the proposed expansion. The report was eventually filed with the Commission and part of the universe of materials referenced by the staff during the administrative proceeding.
The 2009 report analyzed 16 offsite alternatives and four onsite alternatives and compared them to the proposed expansion which would increase the capacity of the landfill by about 41.43 million tons (61.6 million cubic yards), at a unit cost of $2.66 per ton ($110 million), and extend the life of the landfill by 35 years. The first onsite alternative increased only the height of the landfill. This would increase the capacity by only 8.04 million tons (12 million cubic yards), at a unit cost of $3.04 per ton ($24.7 million), and add only seven years to the life of the landfill. As had been noted in the EIR, this alternative would likely require excavation of soil surrounding the Spring Branсh watercourse, creating some environmental impacts in the area. The second onsite alternative called for a 112-acre (rather than 167-acre) expansion of the landfill footprint, without additional height. This would increase the landfill capacity by 10.08 million tons (15 million cubic yards), at a cost
The Commission, itself, engaged in' direct dialogue, through numerous e-mail exchanges, with real party in interest about another alternative that would not encroach on Spring Branch. This alternative would add 127 (rather than 167) acres to the landfill site, all north of Spring Branch. 4 It would reduce expansion capacity by about 30 percent, shorten the lifespan of the landfill by 10 years, and reduce overall gross revenues by 45 percent. There would not, however, be a commensurate reduction in investment costs. Because such costs are largely fixed, there would only be a 10 percent reduction in costs. Nor was there a direct correlation between the percentage reduction in the acreage (24 percent) and reduction in capacity (30 percent) due to “the nature of landfill engineering” and, specifically, that the land around Spring Branch is capable of supporting a greater volume of landfill than other areas. Real party in interest therefore advised the Cоmmission the economic consequences of the 127-acre alternative will be “ ‘of such a magnitude that the business decision to expand cannot be justified.’ ” 5
In answer to further Commission inquiries, real party in interest explained its profit margins were typically around 9 percent, giving it only a small margin of error for operating new or expanded sites. Accordingly, without capacity for 54 to 59 million cubic yards of fill in the expansion area, the project would not be “financially viable.” Real party in interest declined to provide further financial detail, viewing the information as confidential.
The Commission did, however, on the basis of community input and for aesthetic reasons, reject the increased landfill height the county had allowed. Accordingly, the height, in both the new and old portions of the landfill, would remain capped at 220 feet above sea level, unless real party in interest could demonstrate the fill would not be visible from preset vantage points. This modification reduced the capacity of the planned expansion by approximately 10 percent.
On October 21, 2010, the Commission voted 15 to four to reject the administrative appeals, and determined that the landfill expansion, as modified by the Commission, was consistent with the Suisun Marsh Preservation Act of 1977 and the Solano County local protection program. Pertinent hеre, the modified marsh development permit allowed for replacement of portions of the Spring Branch watercourse with a 6,500-foot underground pipeline and a five-foot deep, 30-foot wide surface channel.
This Writ Proceeding
Two months later, on December 17, 2010, Tam and SPRAWLDEF filed the instant writ proceeding—separate from the, by then, already resolved Protect the Marsh proceeding—in San Francisco Superior Court pursuant to section 29602, challenging the Commission’s approval of the marsh development permit and, specifically, its decision to allow alteration of the Spring Branch watercourse. Petitioners claim no substantial evidence supports the Commission’s determination there are no reasonable alternatives that would preserve Spring Branch and the Commission thereby violated Solano County Ordinance section 31-300, which prohibited filling natural channels in the marsh unless there are no reasonable alternatives. Four months later, the San Francisco Superior Court transferred the case to Solano County.
Discussion
The Suisun Marsh Preservation Act of 1977 and Standard of Rеview
The Legislature created the Commission in 1965 and gave it planning and permitting authority over projects affecting the San Francisco Bay.
(People ex rel. S. F. Bay etc. Com. v. Town of Emeryville
(1968)
The Suisun Marsh Preservation Act of 1977 is intended to protect valuable natural resources within the marsh and invests the Commission with ultimate authority over its implementation. (See §§ 29002, 29003, 29005, 29106, 29200, 29504, subd. (a).) Under the act, the marsh consists of “primary” water-covered areas and lowland grasslands, and upland “secondary” areas. (Sеe §§ 29101-29103.) For developments in secondary areas— such as the landfill expansion at issue here—a marsh development permit must be obtained “from the local government having jurisdiction over the land in which the proposed development is to occur.” (§ 29502, subd. (a).)
A local government may issue a marsh development permit “only if it finds that the proposed development” is consistent with or “in conformity with” the adopted “local protection program.” (§ 29503, subd. (a).) The local protection program is defined as “those provisions of general or specific plaiis; ordinances; zoning district maps; land use regulations, procedures, or controls; or
As we have discussed, the act permits challenges to permitting decisions to be brought by way of “a petition for a writ of mandate in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure.” (§ 29602.) “Under subdivision (b) of Code of Civil Procedure section 1094.5, an abuse of discretion is established and a writ of mandate should issue if an agency either failed to proceed in the manner required by law, did not support its decision with adequate findings, or if its,findings are not supported by the record.”
(Save San Francisсo Bay Assn. v. San Francisco Bay Conservation etc. Com.
(1992)
An “agency’s findings and actions are presumed to be supported by substantial evidence. [Citations.] A person challenging an administrative determination bears the burden of showing the agency’s findings are not supported by substantial evidence. [Citations.] When reviewing the agency’s determination, the court examines the whole record and considers all relevant evidence, including that which detracts from the administrative decision.”
(Ross, supra,
While petitioners have cited to a variety of provisions of the Suisun Marsh Preservation Act of 1977 and the county’s local protection program, at the end of the day, their challenge to the Commission’s approval of a marsh development permit is grounded on one Solano County Ordinance, section 31-300. 7 Under section 31-300, a grading ordinance, “every effort must be made to preserve natural channels and drainage ways” (§ 31-300, subd. (n)) and, more concretely, that filling, grading, or excavating watercourses “shall be allowed only where no reasonable alternative is available, and where allowed, shall be limited to the minimum amount necessary” (id., subd. (o)). Petitioners claim no substantial evidence supports the Commission’s finding that the 127-acre alternative is not economically reasonable.
In arguing whether, from an economic perspective, there was “no reasonable alternative” under Solano County Ordinance section 31-300, petitioners and respondents alike invoke CEQA and its concept of whether an alternative is or is not feasible. 8 “Feasible” is defined in CEQA as “cаpable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” (§ 21061.1.) Under CEQA, governments are to choose “feasible” alternatives and “feasible” mitigation measures to lessen the significant environmental impacts of projects. (§§ 21002, 21081.) While the Suisun Marsh Preservation Act of 1977 defines “feasible” identically to CEQA (§29115), it does not, itself, appear to employ the term in any substantive way.
We conclude employing CEQA’s definition of “feasible,” and the CEQA case law concerning economic infeasibility, is an appropriate approach since the term embraces the concept of reasonableness. (See
Citizens of Goleta Valley v. Board of Supervisors
(1990)
“The ‘feasibility of . . . alternatives must be evaluated within the context of the proposed project. “The fact that an alternative may be more expensive or less profitable is not sufficient to show that the alternative is financially infeasible. What is required is evidence that the
additional
costs or lost profitability are sufficiently severe as to render it impractical to proceed with the project.” ’ [Citations.] Thus, when the cost of an alternative exceeds the cost of the proposed project, ‘it is the magnitude of the difference that will determine the feasibility of this alternative.’ ”
(Center for Biological Diversity v. County of San Bernardino
(2010)
For example, in Woodside the proposed project was replacing an old, historic residence with a new one. (Woodside, supra, 147 Cal.App.4th at pp. 591, 598.) The town rejected two rehabilitation alternatives as infeasible based on their cost—between $4.9 million and $10 million—without obtaining any evidence about the cost of constructing the proposed new home. Without any comparative numbers, it was not possible to determine the feasibility of the rehabilitation alternatives. (Id. at p. 599.) However, the conclusion was different for two other alternatives calling for relocation and renovation of the old residence in addition to building a new home. The appellate court held a $5 million price tag for relocation and renovation, apart from the cost of the new home, “supports a reasonable inference that these alternatives are not economically feasible.” (Id. at p. 599, fn. 6.)
Woodside
does not require any particular economic analysis or any particular kind of economic data, but requires generally “some context” that allows for economic comparison.
(Woodside, supra,
147 Cal.App.4th at pp. 600-601.) The appellаte court suggested that to reject the rehabilitation-only alternative, for example, it might have been “sufficient to show that the cost of rehabilitating the existing house would be significantly more than
In
Citizens of Goleta Valley v. Board of Supervisors
(1988)
In contrast,
Sierra Club
v.
County of Napa
(2004)
The record before the Commission here is at least commensurate with that in
Sierra Club.
With respect to the 127-acre alternative the Commission identified in 2010, real party in interest submitted a chart comparing salient data
both
for the landfill expansion as proposed and the posited alternative. This showed the alternative would result in a 30 percent reduction in capacity
Accordingly, real party in interest did not simply baldly assert the 127-acre alternative was not economically feasible. It provided comparative figures and explained why an expansion that did not have 54 to 59 million cubic yards of capacity was not financially viable. Thus, real party in interest provided the Commission with “some context” to permit the Commission to assess the economic feasibility of the 127-acre altеrnative.
(Woodside, supra,
In addition, the 2009 report real party in interest prepared for the Army Corps of Engineers was part of the administrative record. While the Commission did not specifically refer to the 2009 report in its decision rejecting the appeals and approving a modified marsh development permit, there is no dispute the report was part of the record and included within the materials referenced by the staff. We must therefore assume it was within the universe of information the Commission considered. (See
Environmental Protection Information Center
v.
California Dept. of Forestry & Fire Protection
(2008)
As we have discussed, this report examined, in considerable detail, four other onsite alternatives involving lesser changes to the Spring Branch watercourse. The report compared, side by side, the per unit cost, capacity, and life of the landfill, for the prоposed expansion and the alternatives. The costs per ton of the alternatives ranged from $3.04 to $11.53, compared to $2.66 for the project as proposed. The capacities ranged from 10.1 million cubic yards to 15 million cubic yards, compared to 61 million cubic yards for the project as proposed. And the life of the landfill ranged from 5.9 to 8.7 years, compared to 35 years for the project as proposed. The disparity in these figures is so great it amply supports the conclusion a reduced-size alternative of the magnitude necessary to avoid implicating Spring Branch was not economically feasible.
Thus, the record in this case is not close to that in
Woodside
and
Goleta Valley
in which the financial data was so lacking no economic comparison at
There is no merit to petitioners’ assertion the economic information in the record about the landfill expansion as proposed and the alternatives, should be discounted or ignored because it was provided by real party in interest. The Commission could have, of course, rejected the evidence, had it found it not credible. It was also within the province of the Commission, however, to accept the information as accurate and relevant. (See
San Franciscans Upholding the Downtown Plan
v.
City and County of San Francisco
(2002)
Furthermore, despite petitioners’ contrary assertion, the Commission did not rejeсt the reduced-size alternative on economic grounds alone. If an alternative is infeasible for noneconomic reasons, such as a failure to achieve project goals, it can be rejected on that basis without any economic feasibility analysis. (See
Save Round Valley Alliance
v.
County of Inyo
(2007)
Given our conclusion that substantial evidence supports the Commission’s decision and the trial court’s judgment invalidating it must therefore be reversed, we do not address other arguments made by the Commission, real party in interest, and amici curiae, or the responses to those arguments by petitioners. This includes the real party in interest’s assertion section 29409 exclusively governs the proposed expansion. This statute provides: “Notwithstanding the policies of the protection plan, the local protection program may not preclude the future development of a new solid waste disposal site in the Potrero Hills if it can be demonstrated that the construction and operation of solid waste facilities at that site would not have significant, adverse ecological or aesthetic impacts on the marsh.” (§ 29409.) We likewise do not address petitioners’ newly fashioned response to this argument—that “alternatives or no alternatives, the ‘substantial adverse ecological impacts’ to Spring Branch Creek prohibit[] the current рroject.” Petitioners never advanced such a claim in the trial court (their petition focused on the allegedly flawed alternatives analysis), and to the extent they may be asserting it now as an independent ground for invalidating the Commission’s decision they have forfeited it. (See
Today’s Fresh Start, Inc. v. Los Angeles County Office of Education
(2013)
The judgment of the trial court is reversed, and the court is directed on remand to enter a judgment denying the petition for writ of mandate. Appellants to recover costs on appeal.
Margulies, Acting P. J., and Becton, J., * concurred.
On June 25, 2014, the opiniоn was modified to read as printed above. Respondents’ petition for review by the Supreme Court was denied July 30, 2014, S219200.
Notes
The draft EIR described Spring Branch as “[a]n ephemeral surface water runoff channel.”
All further statutory references are to the Public Resources Code unless indicated.
The Commission received copies of reports and analyses submitted to and generated by numerous governmental bodies related to the expansion project, including the county’s EIR and related documents; reports to the United States Army Corps of Engineers on project alternatives, impacts, and mitigation measures; and voluminous materials from the Bay Area Air Quality Management District, California’s Department of Fish and Game, California Integrated Waste Management Board, Califоrnia’s Regional Water Quality Control Boards, and U.S. Fish and Wildlife Service.
The Commission’s report mistakenly refers to this alternative as involving 117 acres. It is clear from the record, however, the alternative involved adding 127 acres to the landfill footprint.
Given the discussion of this 127-acre alternative, petitioners are incorrect in asserting “[t]here was no specific alternative described” by the Commission.
As a preliminary matter, the county, which filed an amicus curiae brief in support of the Commission, asserts SPRAWLDEF lacks standing to challenge the Commission’s approval of the modified marsh development permit. While SPRAWLDEF did not appeal the county’s approval of the permit to the Commission, it nevertheless participated in the administrative proceeding’ by filing a letter in suppоrt of the appeals. It subsequently joined with Tam to challenge the permit in the instant writ proceeding, and no party has ever challenged its
At oral argument, the Commission suggested petitioners did not invoke this ordinance in the trial court. That is incorrect. Petitioners expressly cited the ordinance in their trial court memorandum of points and authorities, and the Commission, in turn, addressed the ordinance in its opposition memorandum. The Commission had cited and applied the ordinance during the administrative proceedings and referenced it in the marsh development permit.
Before the Commission, as well, real party in interest cited to CEQA’s feasibility language in discussing the proposed expansion and the 127-acre alternative. No party offered an alternative method of analysis in either the administrative proceedings or the trial court. Nor have they done so on appeal.
Under applicable regulations, a county’s waste management plan “shall demonstrate that there is a county wide or regionwide minimum of 15 years of combined permitted disposal capacity through existing or planned solid waste disposal and transformation facilities or through additional strategies.” (Cal. Code Regs., tit. 14, § 18755, subd. (a).) The greatest lifespan of any of the alternatives addressed in the 2009 report was 8.7 years.
Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.