Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. CU151667 Carol K. Ash, Judge.
Law Offices of Richard L. Harriman and Richard L. Harriman for Plaintiffs and Appellants.
Law Offices of Dennis L. Myers, Dennis L. Myers, City Attorney; Meyers, Nave, Riback, Silver & Wilson, Julia L. Bond and Peter S. Hayes for Defendants and Respondents.
OPINION
LEVY Acting P.J.
INTRODUCTION
Valley Advocates and Robert B. Friesen (Friesen) (collectively appellants) appeal from the order denying their petition for writ of mandate (petition), which challenged the adequacy of environmental review under the California Environmental Quality Act (CEQA) for a project by respondent City of Atwater (City) to construct and operate a new wastewater treatment plant (NWWTP).
CEQA is codified at Public Resources Code section 21000 et seq. Unless otherwise specified all statutory references are to the Public Resources Code. The requirements of CEQA are augmented by the state CEQA Guidelines, which are codified at title 14 of the California Code of Regulations at section 15000 et. seq.
The petition described Friesen as an individual who lived and owned real estate within the vicinity of the project. It described Valley Advocates as a California non-profit public benefit corporation with a principal place of business in Chico. The petition alleged Valley Advocates “initiates and prosecutes legal actions in the public interest in the Central Valley of California.” Friesen allegedly requested Valley Advocates’s assistance in opposing the project. The petition alleged Friesen and Valley Advocates were pursuing this action as private attorneys general. They sought, inter alia, attorney’s fees.
Appellants contest the sufficiency of the final impact environmental report (FEIR) as an informational document on various grounds. They also contend the City violated CEQA’s requirements by responding to their late comments on the draft environmental report (DEIR) in an addendum and not revising and recirculating the DEIR. In addition, they argue the trial court failed to rule on a general plan adequacy claim and erroneously denied a request for judicial notice. We conclude administrative remedies were not exhausted on many of these issues and the remainder lack merit. We will affirm.
FACTS
1. The existing wastewater collection and treatment facilities.
The City currently owns and operates a wastewater collection, treatment, and disposal plant (EWWTP) which provides municipal sewage service to the City, Castle Airport Aviation and Development Center (Castle Airport), the community of Winton and a federal penitentiary.
The EWWTP began operation in 1958 with a design flow capacity of 2.5 million gallons per day (mgd). The EWWTP has been upgraded over time. Its current maximum flow capacity is 6 mgd average dry-weather flow (ADWF). The current ADWF is approximately 3.6 mgd.
The EWWTP and adjacent sludge drying beds are located at 550 Commerce Avenue on 33 acres of City-owned property along the south side of State Route 99. The EWWTP includes lands within the southern edge of the City limits, extending into an unincorporated rural part of Merced County.
The EWWTP discharges secondary treated effluent to the Atwater Drain, which is an open watercourse for the City’s storm water runoff. The Atwater Drain runs southward along Bert Crane Road until it reaches Gallo Ranch. At this juncture, the Atwater Drain connects to the Peck Drain, which runs across Gallo Ranch.
Gallo Ranch is owned by Joseph Gallo Farms. In 1978, Joseph Gallo Farms granted the City an easement to flow 6 mgd of treated effluent through Gallo Ranch in exchange for permission to use all of the effluent for agricultural irrigation (the easement agreement). In 2007, the easement agreement was modified to increase the permitted flow to 12 mgd.
At the southwest boundary of Gallo Ranch, the Peck Drain rejoins the Atwater Drain alignment. Effluent flows which are not extracted by Gallo Ranch continue through privately owned farmland and wetland areas to the terminus of the Atwater Drain in the Arena Plains Unit of the Merced National Wildlife Refuge (Arena Plains Unit). Excess flows from the Atwater Drain are used by the U.S. Fish and Wildlife Service for habitat enhancement on refuge lands.
2. The 2006 project and 2006 notice of preparation.
In October 2006, the City issued a notice of preparation (NOP) of an environmental impact report (EIR) to assess a project to improve and expand the EWWTP and construct a biosolids storage and transfer facility (2006 project).
3. The 2007 National Pollutant Discharge Elimination System (NPDES) permit.
All wastewater treatment plants that discharge to surface waters are issued a permit by the NPDES. NPDES permits are renewed every five years by the appropriate regional water quality control board, in this case the Central Valley Regional Water Quality Control Board (CVRWQCB). NPDES permits contain water discharge requirements establishing quantity and quality limits.
In June 2007, a NPDES permit regulating the EWWTP was adopted by the CVRWQCB (the 2007 NPDES permit). The 2007 NPDES permit sets a maximum ADWF of 6 mgd and it requires the City “to upgrade its current treatment process to produce disinfected tertiary effluent and comply with limitations for ammonia, salinity, chlorine residual, nitrite, nitrate, oil and grease, and turbidity” no later than June 21, 2012. Also, the NPDES permit “contains California Toxics Rule limitations for copper, lead, zinc, dioxin and two trihalomethane compounds … that must be complied with by no later than May 2010.”
4. The project.
In response to the conditions of the 2007 NPDES permit, the City changed the 2006 project. The revised project was “designed to achieve compliance with sludge handling requirements specified in the new NPDES permit’s interim (i.e., current) limits and the final limits anticipated after future studies are completed and submitted to the [CVRWQCB].”
In November 2007, the City issued a revised NOP (the 2007 NOP). It described the differences between the 2006 project and the revised project, as follows:
“ … [T]he project has changed in two major ways:
“1. The City had previously proposed to improve and expand the [EWWTP] at its current location on Commerce Avenue. The City is now proposing to build a new WWTP on a site known as the ‘Bert Crane Road site, ’ which is located approximately 5 miles southwest of the [EWWTP]. The [EWWTP] would be demolished.
Wastewater Treatment Plant (WWTP).
“2. The City had previously proposed to expand the [EWWTP] in stages, from a capacity of 6 [mgd] to up to 12 mgd. The City is now proposing to expand the plant, at the new location, to only 8 mgd.”
As revised, the project consisted of the following components:
“The proposed project would involve construction of a new, improved WWTP on City-owned property on Bert Crane Road approximately 5 miles southwest of the existing WWTP site and installation of a pressurized influent force main to deliver raw wastewater from the influent pump station at the existing WWTP site to the new WWTP site. The new, improved WWTP would include filtration facilities and an ultraviolent (UV) light disinfection system to meet the tertiary treatment standards outlined in the California Department of Health Services Title 22, California Code of Regulations, Division 4, Chapter 3 (Title 22 tertiary standards); facilities necessary for nitrogen reduction to meet future regulatory standards; improved solids handling processes, including a biosolids storage/transfer facility; and emergency storage ponds. In addition, the facility would be designed and sited to allow the incremental expansion of treatment capacity of the WWTP from an initial capacity of 6 [mgd] up to 8 [mgd].…”
Also:
“The proposed project includes decommissioning and eventually demolition of the existing WWTP on Commerce Avenue. It is estimated that decommissioning and demolition of the existing WWTP would be accomplished in 4-6 months after the new WWTP becomes operational.”
The expansion of treatment capacity to 8 mgd was designed to accommodate growth planned for in the 2000 City of Atwater General Plan (General Plan) and to serve prospective development at Castle Airport and Winton, as well as potential expansion of the penitentiary. “The expanded treatment capacity would result in increased discharge of wastewater effluent to the Atwater Drain … and would allow expanded use of wastewater effluent for irrigation of agricultural lands on [Gallo Ranch] and habitat enhancement at the Arena Plains Unit of the Merced National Wildlife Refuge (Merced NWR).” Any future expansion in capacity above the 8 mgd level would require separate environmental review.
5. The DEIR.
The DEIR for the project was released in December 2007. The DEIR broke the project into three phases and analyzed the potential environmental effects of each phase. “Phase I would include the construction of facilities for preliminary, secondary, tertiary, disinfection, and biosolids handling processes; upgrades to the existing influent pump station; installation of the two force mains; installation of the effluent discharge pipe and outfall structure; and construction of the biosolids storage/transfer facility.” The DEIR specified that one of the components of phase I was installation of two parallel 24-inch influent sewer force mains that would be installed to convey wastewater flows from the influent pump station to the NWWTP.
Phase II encompassed construction of “facilities needed for the 2-mgd expansion of treatment capacity from 6 to 8 mgd ADWF.” Construction of improvements necessary for expansion of capacity from 6 mgd to 8 mgd could occur simultaneous with construction of phase I. Initiation of phase II would be determined based on growth within the City’s sphere of influence and requests for additional wastewater capacity allocations from prospective wastewater generators.
Phase III was demolition of the decommissioned facilities at the EWWTP. Phase III could occur before or after phase II.
The DEIR describes the site selected for the NWWTP (hereafter the Bert Crane Road site) as “three City-owned properties totaling approximately 112 acres in a rural, sparsely populated agricultural area along Bert Crane Road.” The Bert Crane Road “site is situated approximately one-half mile north of two natural watercourses, Bear Creek and Black Rascal Creek.” The Bert Crane Road site is under the jurisdiction of the City. These properties currently do not have a land use designation. As part of the project, the City would initiate an amendment of the General Plan and zoning change to implement an institutional land use designation and a planned development zone.
The DEIR concluded the project would have beneficial impacts on water quality. Nearly all of the project’s environmental impacts were determined to be less than significant after mitigation. There would be cumulatively significant adverse impacts on habitat for special status plant and animal species in the Arena Plains Unit, on odors in the vicinity of the Bert Crane Road site, and on air pollution during construction. The project would not result in an inconsistent pattern of development within the City’s urban core.
The DEIR analyzed two alternatives to the project: continued operations of the EWWTP (the no project alternative), and upgrading and expanding the EWWTP to comply with the requirements of the 2007 NPDES permit. It concluded the project would be the environmentally superior alternative.
6. Public review period for comments on the DEIR.
The City posted, published in newspapers and mailed notice of the availability of the DEIR for a 50-day review period, which closed on February 15, 2008. Friesen was mailed notice of the availability of the DEIR.
Comment letters were received from various state and local agencies and a local duck club. Appellants did not submit written comments on the DEIR within the public review period.
On January 31, 2008, respondent Atwater City Council (City Council) conducted a public hearing for receipt of comments on the DEIR. Appellants did not speak at this hearing.
In May 2008, the City released the responses to comments document. The DEIR and the responses to comments document constitute the FEIR.
A noticed hearing before the City Council for certification of the FEIR and project approval was set for May 12, 2008.
7. Appellants made a tactical decision not to submit comments on the contents of the DEIR within the public review period.
Friesen retained attorney Richard Harriman (Harriman) at an unspecified date prior to close of the comment period on the DEIR. “Early in the EIR process for the project, Mr. Harriman requested that he and his client, Robert Friesen, receive notice of availability of the DEIR.” The City mailed notice to Friesen as requested.
Harriman and City staff members exchanged a series of e-mails in early May 2008. In one of the e-mails, Harriman wrote that he made a tactical decision not to submit comments on the DEIR within the review period, as follows: “The reason for not filing comments on the DEIR was to enable me to enter into negotiations with the City, which I commenced last year with Dave Church to structure an approach to avoid conflicts with my client, Robert Friesen.” Harriman requested a copy of the FEIR, staff reports and proposed resolutions. Harriman wrote that he intended to review these documents “and prepare written comments and objections to be lodged in the record at [the May 12, 2008 hearing], so that I may preserve my client’s rights.”
The copy of this e-mail contained in the administrative record is undated. Respondents assert in their brief that Harriman emailed this message on May 8, 2008. Appellants do not dispute this statement in their reply brief.
8. Appellants’ late objections to the contents of the DEIR.
Harriman was the only speaker at the May 12, 2008, hearing. He asked for a two-week continuance to give him additional time to review the FEIR and submit comments. The City Council continued the hearing to May 27, 2008.
Appellants submitted a comment letter dated May 19, 2008. Their comments related exclusively to the contents of the DEIR. The letter stated that the General Plan is outdated and inadequate as a matter of law and therefore the City cannot find that the project is consistent with it. Also, the DEIR’s analysis of “potentially significant water impacts resulting from the discharge of substantially larger volumes of stormwater drainage is inadequate, due to the lack of quantified amounts of discharge or assumption that the storm water quality discharged is similar to the existing quality of such storm water.” Further, the DEIR failed to analyze greenhouse gasses. Also, the DEIR failed to disclose and analyze the fact that construction of the NWWTP would require relocation of the point of diversion and “modification of the Gallo Farms appropriative right permit” and “[t]his permit modification process could well be lengthy, thereby delaying the City’s compliance with the Order of the [CVRWQCB].” Also, the DEIR’s conclusion that the project is the environmentally superior alternative lacks support because two feasible project alternatives were not considered. Appellants suggested an alternative involving construction of individually designed tertiary treatment plants within the City limits, which would allow treated effluent to be used for landscape irrigation. Also, they suggested selling effluent to duck clubs and municipalities instead of allowing Gallo Ranch to use it without charge.
At the hearing on May 27, 2008, Harriman was the only public speaker. All of his remarks were directed at the contents of the DEIR. He said “the fundamental defect” in the DEIR is the inadequate analysis of cumulative impacts on air quality that would result from the project’s accommodation of growth contemplated by the General Plan. Also, he stated the DEIR’s analyses of odors and greenhouse gas emissions were inadequate.
The City Council tabled consideration of FEIR certification and project approval and directed City staff to analyze appellants’ comments.
9. The Addendum.
A document titled “Addendum to the Environmental Impact Report City of Atwater Wastewater Treatment Plant Improvement Project” (Addendum) was released in August 2008. A copy was provided to Harriman.
At the outset, the Addendum stated CEQA did not require the City to provide written responses to appellants’ comments because they were made after the close of the comment period on the DEIR and they related solely to the contents of the DEIR. The City decided a written response was appropriate “to provide a clear record of its consideration of all issues associated with the project.”
The Addendum concluded the suggested alternative of tertiary treatment plants was infeasible and would not reduce any environmental impacts. Also, the Addendum concluded the DEIR adequately analyzed all of the concerns identified by appellants so modification of this document was not necessary. Further, the Addendum stated City staff had decided to reduce the project to phase I only; expansion of treatment capacity to 8 mgd was no longer proposed. The presently permitted treatment capacity of 6 mgd was sufficient to meet current and anticipated needs for the next several years. Reduction of previously identified mitigation measures was not recommended. No new or substantially more severe environmental impacts would result from the approval of phase I alone. “Construction of a WWTP with 6 mgd [capacity] would reduce growth potential in the [C]ity.” In the future, the City will need “to consider options to serve additional growth [consistent with the General Plan] beyond what could be accommodated by a 6-mgd plant. Options may include construction of satellite plants, expansion of the [N]WWTP from 6 to 8 mgd as evaluated in the FEIR, or some other option. It is speculative to conclude the options that would be proposed in the future.”
10. Certification of the FEIR and approval of phase I of the project.
On September 22, 2008, the City Council held a noticed public hearing on FEIR certification and approval of phase I (the certification hearing).
Harriman was the only public speaker. He stated the City violated CEQA’s requirements by creating the Addendum instead of revising or supplementing the DEIR and recirculating it. Also, he asserted the project description was no longer stable because the project had been reduced and CEQA required the City to go back and reanalyze the reduced project. Harriman further commented the City had not adequately responded to his comments on the General Plan inadequacies, the statement of considerations had not considered the detriments of the project, and feasible mitigation measures such as solar energy had not been required.
Earlier in the evening, Harriman hand delivered a letter dated September 22, 2008, to a City staff member. It contained five objections to certification of the FEIR: (1) improper creation of an Addendum; (2) failure to adequately respond to comments about the inadequacies in the General Plan; (3) failure to adequately respond to comments about discharge of untreated storm water into the waters of California and the United States; (4) failure to adequately respond to comments about the absence of feasible mitigation measures reducing adverse air quality impacts caused by mobile source emissions; and (5) failure to adequately respond to comments about the need to require use of alternative energy technology on new growth.
After Harriman finished speaking, a representative for the City responded. He stated the Addendum was a written response to appellants’ late comments on the DEIR. Appellants’ comments had not resulted in discovery of any new significant adverse environmental impacts. The decision not to proceed with phases II and III did not render the description of the project unstable. The environmental effects of phase I alone were fully analyzed in the DEIR so the City was not required to revise it. Also, the DEIR concluded it was not necessary to adopt alternative energy measures because the project would reduce greenhouse gasses compared to existing conditions and have a net environmental benefit. The environmental effects of new growth were analyzed in the EIR prepared and certified for the General Plan (General Plan EIR). Appellants had not provided any details about the alleged inadequacies in the General Plan or explained why the response to the comment about discharge of storm waters was inadequate. Harriman’s comment about mobile source emissions was new. This issue was considered in the DEIR, which explained that new growth accommodated by the project was consistent with growth already anticipated in the General Plan.
The City Council approved resolutions certifying the FEIR, approving phase I of the project, and adopting findings of fact, a statement of overriding considerations and a mitigation monitoring and reporting program. A notice of determination was filed on September 23, 2008.
11. Trial court proceedings.
Appellants filed the petition in the superior court on October 23, 2008. They alleged 15 violations of CEQA in connection with certification of the FEIR and approval of phase I of the project. These allegations will be set forth as necessary in the discussion of the appellate issues.
Respondents’ answer pled the defenses of failure to exhaust administrative remedies, unclean hands and laches.
Appellants identified seven issues in their trial brief: (1) the project was improperly segmented; (2) the City should have modified and recirculated the DEIR in response to their comments; (3) the FEIR did not analyze a reasonable range of project alternatives; (4) the FEIR failed to incorporate a copy of the easement agreement; (5) the FEIR inadequately analyzed adverse cumulative impacts on water quality; (6) the FEIR inadequately analyzed cumulative traffic impacts on South Bert Crane Road; and (7) the General Plan is legally inadequate. For the first time, appellants asserted that construction of two parallel 24-inch force mains and associated infrastructure as part of phase I created irreversible momentum toward a WWTP with 12 mgd capacity, and the FEIR was deficient for failing to analyze the alleged growth inducing effect caused by construction of the dual parallel force mains.
In their opposition brief, respondents argued several of these issues were barred by the failure to exhaust administrative remedies and all of them were meritless.
A briefing schedule was established by the trial court. Appellants did not comply with it. The briefing schedule was modified after respondents filed a motion to dismiss the action. Appellants filed a trial brief on May 19, 2009, and an amended trial brief on June 19, 2009, which was the same day respondents filed their opposition brief. Appellants did not file a reply brief.
Hearing on the petition was held on July 24, 2009. During this hearing, Harriman stated “the reason we had not filed comments on the Draft EIR is we were trying to avoid getting into the issue of the Gallo water agreement with the City.” Also, Harriman said appellants had not raised issues surrounding the easement agreement “in response to the Draft EIR because they are so explosive. That was why we held back until we couldn’t cut a deal with the City to get what we wanted with the City and with my clients.”
On the date of the hearing, appellants filed a request for judicial notice of three photographs of signage on South Bert Crane Road, which Harriman took in July 2009. Appellants also asked for judicial notice of the fact that this roadway “is generally known to be subject to flooding during the winter and spring months.”
On October 20, 2009, the trial court issued a tentative decision denying the petition. It found issues 1, 4, 5 and 6 raised in appellants’ trial brief were barred by the failure to exhaust administrative remedies, and the rest of appellants’ issues lacked merit. It declined to consider evidence outside the administrative record.
Appellants filed a statement of objections to the tentative decision. On November 24, 2009, the court overruled appellants’ objections, affirmed the tentative decision as the statement of decision and entered final judgment in favor of the respondents.
DISCUSSION
1. The standard of review is well-established.
We must determine whether the lead agency’s CEQA determinations constitute a prejudicial abuse of discretion. (§ 21168.5.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.” (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26 (Dry Creek).) The appellate court independently reviews the administrative record. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197 (Bakersfield).)
“A court’s proper role in reviewing a challenged EIR is not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document. [Citation.]” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391 (Irritated Residents).) It must contain facts and analysis, not just the bare conclusions of the agency. There must be “a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences.” (State CEQA Guidelines, § 15151.) The analysis of environmental effects will be judged in light of what was reasonably feasible. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.) “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection.” (Dry Creek, supra, 70 Cal.App.4th at p. 26.)
Conclusions, findings and determinations must be supported by substantial evidence in the administrative record. (Bakersfield, supra, 124 Cal.App.4th at p. 1198.) This standard “also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions. [Citation.]” (Ibid.) Substantial evidence is defined 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.” (State CEQA Guidelines, § 15384, subd. (a).)
“Noncompliance with CEQA’s information disclosure requirements is not per se reversible; prejudice must be shown.” (Irritated Residents, supra, 107 Cal.App.4th at p. 1391; § 21005, subd. (b).) “Failure to comply with the information disclosure requirements constitutes a prejudicial abuse of discretion when the omission of relevant information has precluded informed decisionmaking and informed public participation, regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements. [Citations.]” (Bakersfield, supra, 124 Cal.App.4th at p. 1198.)
2. Unless administrative remedies are exhausted, judicial review of an asserted defect in CEQA compliance is statutorily barred.
Only a proper party can bring a CEQA action. To have standing to maintain a CEQA action, the petitioner must have “objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of notice of determination.…” (§ 21177, subd. (b).) Through counsel, Friesen commented prior to close of the certification hearing. Respondents have not challenged appellants’ standing to bring a CEQA action.
But there exists a second hurdle appellants must surmount before a claimed defect in CEQA compliance can be considered by the courts. With certain exceptions not shown to be relevant here, a petitioner who possesses standing may allege as grounds of CEQA noncompliance only objections to the proposed project that were presented, either orally or in writing, at the administrative agency level prior to certification of the EIR and project approval. (§ 21177, subd. (a); Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909 (Porterville).) This is known as exhaustion of administrative remedies. Exhaustion is not a matter of judicial discretion. It is a mandatory statutory prerequisite that must be satisfied before an alleged CEQA violation can be considered in a legal action. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589; see also Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 920; Bakersfield, supra, 124 Cal.App.4th at p. 1199.)
The purpose of the exhaustion doctrine is to ensure the public agency has an “opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.” (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198.) While the petitioner “need not have personally raised the issue [citation], the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary. [Citation.]” (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894.) “‘[O]bjections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them. Otherwise, the purpose of the exhaustion doctrine would not be served, since the courts would be called upon to step outside their limited role of reviewing the decisionmaking process of the administrative agency.…’ [Citation.]” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 282 (Banker’s Hill).) “‘General objections to project approval or general references to environmental issues are not sufficient.’ [Citations.]” (Porterville, supra, 157 Cal.Appp.4th at p. 910.) Simply expressed, CEQA claims cannot be aired “‘for the first time in the courts.’ [Citations.]” (Ibid.)
Appellants bear the burden of establishing that each claimed ground of CEQA noncompliance was first presented to the City prior to certification of the FEIR and approval of phase I of the project. (Porterville, supra, 157 Cal.App.4th at p. 909.) As will be explained, the trial court correctly determined that appellants failed to satisfy this burden on four points which they have raised as appellate issues. Therefore, we reject those points based on the failure to exhaust administrative remedies.
a. Administrative remedies were not exhausted on issues surrounding construction of two parallel 24-inch force mains.
Without citing any evidence in the administrative record, appellants assert the dual parallel 24-inch force mains that are a component of phase I constitute infrastructure necessary to support a 12 mdg capacity WWTP. Based on this premise, they argue the whole of the project is a 12 mgd capacity NWWTP and that the City improperly curtailed the project description and unlawfully segmented the project. They argued the FEIR is legally inadequate because it did not analyze the impacts of 12 mgd capacity NWWTP.
The trial court found administrative remedies were not exhausted on these points:
“As to the issue of project segmentation Petitioner argued at the hearing that the issue was raised sufficiently to exhaust the administrative remedies requirement, but the Court finds Petitioner did not raise this issue in the letter they sent …, and only generally and indirectly raised a concern regarding the use of an addendum and redefinition of the project in the testimony given by Mr. Harriman at the public hearing.… Such [a] general and isolated comment was not sufficient to fairly present the issue to the City. [Citation.]”
Respondents argue the trial court correctly found administrative remedies were not exhausted on the segmentation claim and other issues arising from the construction of two parallel 24-inch force mains as a component of phase I. Respondents are correct.
At no time during the administrative proceedings did anyone assert, either orally or in writing, that construction of two parallel 24-inch force mains would create the basic infrastructure necessary to eventually allow the NWWTP to function at 12 mdg. No one asserted the project had been improperly segmented and the whole of the project was a 12 mgd capacity WWTP. No one commented that construction of two parallel force mains created momentum towards a 12 mgd capacity. In fact, there were no comments by anyone even referencing the two parallel force mains.
Appellants assert that improper segmentation is a legal subcategory of an inadequate project description. They argue the point was raised by the following comment Harriman made during the certification hearing: “Secondly, with respect to the redefinition of the project, the project description, therefore, is not stable, finite and accurate. You’ve changed [the project] in mid-project review. It changes the way that you analyze alternatives. It changes the way that you look at your numbers. It should be re-circulated with either what you call an addendum or a supplement or a revised draft EIR.”
This contention is unpersuasive. Harriman was asserting that reduction in the project to phase I alone required revision of the FEIR and recirculation. Harriman did not mention the dual parallel force mains or assert that the project should have been defined as a project to construct a WWTP with 12 mgd capacity. He did not assert that construction of dual parallel force mains created momentum towards a 12 mgd capacity WWTP. There was nothing in Harriman’s comments that would have alerted the City to a need to consider the carrying capacity of the dual parallel force mains when defining the project and analyzing its direct and cumulative environmental effects. Also, appellants’ generalized comments about the growth inducing effects of the project, and the inadequacy of analysis about the environmental effects of growth facilitated by the project, were not sufficiently specific to fairly present to the City this segmentation claim.
We agree with respondents that Banker’s Hill, supra, 139 Cal.App.4th 249, is directly on point. In Banker’s Hill, the appellate court found an “isolated and unelaborated” comment asserting “project splitting” was insufficient to exhaust administrative remedies on a claim that the lead agency had impermissibly segmented or piecemealed a project by issuing grading permits before deciding if the project was exempt from CEQA. The court reasoned that this comment was not adequate to present the issue fairly to the agency because it did not provide the agency with an opportunity to evaluate and respond to a piecemealing claim. (Id. at p. 282.)
Similarly, in this case no oral or written comment alerted the City to any potential environmental issues arising from the installation of dual parallel force mains as a component of phase I. The City did not have an opportunity to consider and respond to any contentions about the alleged 12 mgd capacity of these dual mains. No one commented that the entirety of the project was not being considered. Therefore, we conclude appellants did not satisfy their burden of establishing that issues related to the construction of dual parallel 24-inch force mains as a component of phase I were raised at the administrative level. As a result, we hold administrative remedies were not exhausted on all of appellants’ assertions relating to the dual parallel force mains. The piecemealing claim and the contention that the FEIR is deficient because it did not analyze the impacts of a 12 mgd capacity WWTP are rejected on this basis.
b. Administrative remedies were not exhausted on issues surrounding the easement agreement.
In their amended trial brief, appellants argued the City violated CEQA by failing to append a copy of the easement agreement as part of the FEIR. The trial court rejected this point on the basis of failure to exhaust administrative remedies.
On appeal, appellants assert there was an agreement between Gallo Cattle Company and the City whereby Gallo Cattle Company accepts untreated storm waters, which it discharges to waters of the United States and California. Appellants assert this “is an integral part of the Project” which was not analyzed in the FEIR. Also, appellants assert the City is providing a gift of public assets to a third party in violation of CEQA and the California Constitution.
Having carefully examined the record, we conclude administrative remedies were not exhausted on this point, or on any other issues involving an agreement between the City and a Gallo entity. Although appellants suggested selling effluent to duck clubs and municipalities instead of allowing Gallo Ranch to use it “without charge, ” they did not assert that the easement agreement constituted an illegal gift or violated the state constitution. The comment about storm water contained in appellants’ written late comments to the DEIR raised a different point than is asserted on appeal. In fact, during the hearing on the petition Harriman stated he purposely chose not to raise any objections about the agreement between the City and a Gallo entity prior to certification of the FEIR because such issues are “explosive.” Harriman said “we held back until we couldn’t cut a deal with the City to get what we wanted with the City and with my clients.” Thus, Harriman admitted that appellants made an intentional tactical decision not to raise objections or concerns surrounding the easement agreement, or any other agreement between the City and a Gallo entity, during the administrative proceedings. No other commenter linked the terms of the easement agreement to any deficiency in the FEIR. No one argued the easement agreement or another agreement between the City and a Gallo entity violated the state constitution. Therefore, we hold administrative remedies were not exhausted on these issues or on other points related to the terms of the easement agreement or another agreement between the City and a Gallo entity. (Porterville, supra, 157 Cal.App.4th at pp. 909-910.)
Also, we agree with respondents that appellants’ gift of public funds argument suffers from a second procedural defect. This claim was not pled in the petition or argued during the hearing on the petition. Appellants summarily asserted this claim for the first time in their written objections to the tentative decision. We agree with respondents that appellants cannot assert this new cause of action on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
c. Administrative remedies were not exhausted on issues surrounding the environmental setting of South Bert Crane Road and the baseline quality of receiving waters.
Appellants argue the FEIR failed to adequately analyze the environmental setting of South Bert Crane Road and did not adequately disclose the environmental baseline of the water quality of the receiving waters of Bear Creek and other tributaries of the San Joaquin River. The trial court concluded administrative remedies had not been exhausted on these points.
Although appellants assert the trial court erred in concluding administrative remedies had not been exhausted on these issues, they do not cite any record evidence showing that either of these points was presented to the City prior to certification of the FEIR. Our examination of the record convinces us that no one made any comments concerning South Bert Crane Road during the administrative proceedings. No one commented that the FEIR failed to analyze traffic or flooding on this roadway. There were no comments about the FEIR’s discussion of the baseline water quality conditions in waters receiving treated effluent. Also, no one commented about or referred to the City of Merced’s alleged construction of a new WWTP. In sum, appellants did not meet their burden of showing that administrative remedies were exhausted on these points. Consequently, we hold challenges to the sufficiency of the FEIR’s analysis of the environmental setting and the FEIR’s analysis of flooding and traffic impacts are not cognizable on appeal. (Porterville, supra, 157 Cal.App.4th at pp. 909-910.)
d. The public interest exception does not apply.
Citing Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683 (Woodward Park), appellants “submit that the public interest exception to preservation and exhaustion of issues on appeal is applicable.” Appellants misunderstand the holding in Woodward Park.
In Woodward Park, we alerted the parties to a point contained in a comment letter submitted by Caltrans in response to the NOP for the EIR at issue in the appeal, and solicited briefing on this point. We found the defect identified in Caltrans’ comment letter could be considered on appeal even though the point had not been litigated in the trial court. First, we determined that administrative remedies had been exhausted on the issue because the exact point had been presented to the lead agency for consideration prior to project approval. (Woodward Park, supra, 150 Cal.App.4th at p. 712.) Only after we concluded administrative remedies had been exhausted on the point did we explain that in some circumstances an appellate court may consider an issue in the first instance when it involves a pure question of law and resolution of the issue is in the public interest. (Id. at pp. 712-714.) Thus, Woodward Park does not provide a basis for petitioners in a CEQA action to avoid the statutory exhaustion requirement and raise new objections to the adequacy of environmental documentation that were not presented to the lead agency during the administrative proceedings. Since appellants are not attempting to raise objections to CEQA compliance that were presented to the City prior to project approval, but were not litigated in the trial court, Woodward Park is inapposite.
3. The City’s use of an addendum to reply to appellants’ late comments did not violate CEQA.
The Addendum stated it was created to serve two purposes. First, to provide a written response to appellants’ late comments on the DEIR. Second, to explain that the project had been reduced to phase I only and that this decision did not require modification of the FEIR because the environmental impacts of phase I had been fully analyzed in the existing FEIR, and these impacts would either be the same or less than the impacts of the three-phased project examined in the FEIR.
Appellants argue the City violated the requirements of CEQA by authoring the Addendum instead of revising and recirculating the DEIR. We are not convinced.
CEQA does not require an agency to prepare written responses to comments on a draft EIR that are received after close of the designated public review period. (State CEQA Guidelines, §§ 15088, subd. (a), 15207.) If a lead agency elects to respond to late comments after responses have been prepared to timely comments, it has flexibility in the form of the response. It can reply either orally or in writing. (See, e.g., A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1809 [oral response during public hearing]; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 568 (Goleta) [written response in administrative findings].)
CEQA does not require circulation of the responses to comments or the final EIR. A lead agency may, but need not, provide an opportunity for the public or commenting agencies to review a final EIR before approving the project. (State CEQA Guidelines, § 15089, subd. (b).) When a response to comments “makes important changes in the information contained in the text of the draft EIR, ” the text in the body of the EIR should be revised or marginal notes should be interposed showing that the information is revised in the response to comments. (State CEQA Guidelines, § 15088, subd. (d).)
Appellants’ written and oral objections to the DEIR were made after close of the comment period. Therefore, the City did not have any obligation under CEQA to respond to their untimely comments. Appellants’ unsupported assertion that City was required to prepare and circulate a supplemental or subsequent EIR responding to their late comments on the DEIR is unconvincing. We agree with respondents that City’s creation of an Addendum containing a detailed written response to appellants’ late comments “went beyond the City’s minimum obligations under CEQA.”
Appellants’ fixation on the title of the City’s response to their untimely comments elevates form over substance. Citing state CEQA Guidelines section 15164, subdivision (a), appellants argue the City was precluded from creating a document containing the word “addendum” in the title prior to certification of the FEIR. This subdivision provides: “The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred.” There is nothing in the statutory language prohibiting creation of an addendum in response to untimely comments on a DEIR. In the circumstances presented here, CEQA did not prohibit use of an addendum prior to certification of the FEIR.
Moreover, appellants were not prejudiced by any technical defect associated with the title of City’s response to appellants’ late comments. Regardless of the title of the City’s response, this document constitutes a substantive reply to all of appellants’ written and oral comments on the DEIR. The Addendum did not omit relevant information that precluded informed decisionmaking and informed public participation. Neither appellants nor the public were misled to their detriment by the title of the City’s voluntary response to appellants’ late comments. We find the asserted error to be de minimis and reject it for lack of prejudice. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 487, fn. 10.)
4. The City was not required to prepare and circulate a supplemental EIR to study the reduced project.
Appellants argue the City violated CEQA by not preparing and circulating a supplemental EIR after it decided to reduce the project to phase I only. This issue was resolved adverse to appellants’ position in Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890 (Western Placer).
In Western Placer, an EIR was prepared for a project to mine 1, 000 acres over a period of 85 years. Prior to certification of the EIR the project was reduced to mine 785 acres over a period of 40 years. A document describing the revised project was prepared but not circulated. The appellate court rejected a contention that CEQA required revision of the EIR and recirculation. The court explained an EIR must be revised when the project is changed in such a way that the public is deprived of a meaningful opportunity to comment upon a new significant environmental impact, or there is a substantial increase in the severity of a significant environmental impact. When changes in a project result in an improvement in environmental conditions, CEQA does not require the lead agency to include that analysis in the FEIR or even to make a written finding or order to that effect. It found: “The parties have directed us to no provision in CEQA or the Guidelines, and we have found none, that requires all changes made to a project after the final EIR is released but prior to certification to be included in the EIR.” (Western Placer, supra, 144 Cal.App.4th at p. 899.) The decisions of a lead agency not to revise and recirculate an EIR are presumed to be correct and the petitioner bears the burden of proving these decisions were not supported by substantial evidence. The administrative record supports the lead agency’s determination that the revised project did not create any new impacts apart from those already discussed in the EIR. Therefore, petitioners failed to satisfy their burden of proof. (Western Placer, supra, 144 Cal.App.4th at pp. 899- 906.)
We agree with respondents that Western Placer is directly on point. The FEIR analyzed the direct and cumulative environmental impacts of a three-phased project to construct a NWWTP with a 6 mgd treatment capacity (phase I), expand the NWWTP’s capacity to 8 mgd (phase II) and demolish the EWWTP (phase III). The environmental effects of phase I were fully identified and analyzed in the FEIR. The City’s decision to reduce the project to phase I alone did not create any new environmental impacts that were not previously identified and analyzed in the FEIR. As in Western Placer, the decision to reduce the project to phase I only “created no new impacts from what was already discussed in the FEIR. CEQA did not require the [City] to delay the project further in order to evaluate the new project’s reduced impacts on the environment.” (Western Placer, supra, 144 Cal.App.4th at p. 906.)
5. CEQA did not require modification of the DEIR and recirculation to consider the tertiary plants alternative because it is infeasible.
In their untimely comment letter, appellants asserted the analysis of project alternatives was inadequate “due to the fact that it does not address or analyze the reasonable and feasible alternative of utilizing individually designed tertiary treatment plants constructed within the City limits on a zone of benefit basis, which would allow treated effluent to be used for landscape irrigation without having to pump the treated effluent up-gradient for re-use.” Appellants asserted the tertiary plants alternative would offer the following benefits: the City would use “less water for landscape irrigation, would adopt a maximum re-use project, reduce the amount of expense for a large-scale, centralized public treatment facility, and would make it more feasible for ‘new growth to pay its own way, ’ while at the same time greatly increasing conservation of water by City residents.” Appellants did not proffer any supporting documentary or testimonial evidence about tertiary treatment plants.
The Addendum concluded this alternative was not feasible and would not have less adverse environmental impacts than the project. It explained:
“The comment suggests that an alternative to constructing the [NWWTP] is constructing numerous tertiary treatment plants throughout the [C]ity, but it does not explain what impacts this approach would reduce, and none are apparent. Satellite plants to process a portion of the influent stream would still require an upgraded plant, would require several discharge locations and several NPDES permits, and would not meet the requirements of the [CVRWQCB], which is the primary objective of the [project].”
Further:
“… [R]euse of treated effluent already is being accomplished through [the easement agreement], and it would continue with the project. As explained in the DEIR (page 2-26). Gallo Farms has the right to divert all WWTP flows from the Atwater Drain during summer. These flows are reused for agriculture, which displaces the need to use an equivalent amount of surface water or groundwater.
“Reuse by the City for landscape irrigation would accomplish virtually the same benefit. However, reuse for municipal purposes would require that the City construct a network of reclaimed water lines, which would be costly and would require construction throughout the [C]ity. In turn, this construction would result in traffic impacts (construction within roadways), air quality and noise impacts from construction, and potentially other environmental effects. Importantly, the reuse, whether at the [C]ity or Gallo Farms, would conserve roughly the same amount of water.”
In the trial court, appellants argued CEQA required modification of the DEIR and recirculation to consider the tertiary plants alternative. The trial court found the record contained substantial evidence supporting the City’s finding that the tertiary plants alternative was infeasible, and the FEIR was not inadequate as an informational document because it failed to study this alternative.
Appellants reiterate their complaint that the City failed to include a reasonable range of alternatives because it omitted their tertiary plants alternative. In their view, CEQA required revision of the DEIR and recirculation to consider this suggested alternative. As will be explained, these arguments fail because appellants did not establish either the feasibility or the environmental superiority of the tertiary plants alternative.
An EIR “‘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 [citation]; and (2) may be “feasibly accomplished in a successful manner” considering the economic, environmental, social and technological factors involved. [Citations.]’ [Citation.]” (Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 713.) Substantial evidence “includes fact, a reasonable assumption predicated upon fact, or expert opinion supported by fact.” (§ 21080, subd. (e)(1).)
The discussion of alternatives to a proposed project “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.” (State CEQA Guidelines, § 15126.6, subd. (b).) “An EIR is not required to consider alternatives which are infeasible.” (State CEQA Guidelines, § 15126.6, subd. (a).) Also, “An EIR need not consider an alternative whose effect cannot be reasonably ascertained and whose implementation is remote and speculative. [Citation.]” (State CEQA Guidelines, § 15126.6, subd. (f)(3).)
An EIR must be revised and recirculated when a commenter suggests a project alternative that meets all of the following requirements: (1) it is feasible; (2) it would clearly lessen the significant environmental impacts of the project; (3) it is considerably different from other alternatives previously analyzed; and (4) the project’s proponents decline to adopt it. (State CEQA Guidelines, § 15088.5, subd. (a)(3).)
Infeasibility findings are reviewed under the substantial evidence standard. Expert planning personnel are entitled to make some factual conclusions and findings even if they did not consult with outside agencies or entities with particularized expertise. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1379-1380.)
An agency’s infeasibility finding is presumed to be correct. The party seeking mandamus bears the burden of proving otherwise. The reviewing court resolves reasonable doubts in favor of the administrative findings and determination. (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 997.)
In this case, the facts contained in the Addendum’s discussion of the tertiary plants alternative support the infeasibility determination. Appellants do not offer any evidence disputing the facts that “[s]atellite plants to process a portion of the influent stream would still require an upgraded plant, would require several discharge locations and several NPDES permits, and would not meet the requirements of the [CVRWQCB], which is the primary objective of the [project].” Also, reusing treated effluent for municipal purposes, as envisioned in the tertiary plants alternative, “would require that the City construct a network of reclaimed water lines, which would be costly and would require construction throughout the [C]ity. In turn, this construction would result in traffic impacts (construction within roadways), air quality and noise impacts from construction, and potentially other environmental effects.” There is no evidence in the record supporting an assertion that improving the EWWTP, building numerous tertiary treatment plants and constructing a network of reclaimed water lines throughout the City is feasible and will cause less adverse environmental effects than will constructing the NWWTP and the infrastructure necessary to transmit the treated effluent to Peck Drain for reuse by Gallo Ranch (e.g., the effluent pipeline).
Further, appellants have not shown that use of treated effluent by customers other than a Gallo entity would be environmentally superior to use on Gallo Ranch. The Addendum explains that “reuse, whether at the [C]ity or Gallo Farms, would conserve roughly the same amount of water.” Appellants proffered no evidence contradicting this factual determination.
In its reply brief, appellants assert for the first time that the analysis of project alternatives was deficient because it did not consider the City’s duties under the California Water Code to reuse treated effluent for reuse within the City. This objection was not presented to the City prior to certification of the FEIR. Therefore, administrative remedies were not exhausted on this issue. (Porterville, supra, 157 Cal.App.4th at pp. 909-910.) Also, “[i]t would be unfair for us to consider an argument made first in a reply brief without a showing of good cause. [Citation.]” (Leonoff v. Monterey County Bd. Of Supervisors (1990) 222 Cal.App.3d 1337, 1354, fn. 10 (Leonoff).)
In sum, appellants did not prove the infeasibility finding is incorrect. The administrative record contains substantial evidence supporting the City’s determinations that the tertiary plants alternative is not feasible and is not environmentally superior to the project. In consequence, appellants’ contention that CEQA required modification and recirculation of the DEIR to analyze this alternative, its challenge to the finding that the project is the environmentally superior alternative, and its claim that the range of project alternatives did not satisfy the rule of reason all fail.
6. The trial court correctly rejected the General Plan arguments.
In relevant part, in their late comments to the DEIR, appellants asserted the City failed to analyze “the need to amend the Circulation Element of the 2000 General Plan to address the relocation of the proposed [NWWTP] and correlating the re-location with the remaining mandatory elements and components of the 2000 General Plan, in violation of Government Code sections 65300, 65300.5, and 65302, subd. (b).”
The Addendum replied to this comment, as follows:
“… The comment does not address the impacts of the proposed project. As described on page 1-3 of the DEIR, the project would not result in any significant transportation or traffic impacts to the existing circulation system. Given this, there is no reason, and no reason is provided in the comment, to amend the Circulation Element of the [General Plan].
“Specifically, the EIR explains that vehicle trips associated with construction and operation of the proposed project are not expected to change the level of service on local or regional roadways. Further, the only design features of the project located within existing roadways are the force main and effluent discharge pipeline. A traffic control plan for Atwater Jordan Road will be prepared during construction of the force main and discharge pipeline.… Because the temporary construction impacts can be adequately managed by a traffic control plan, and because no changes in the level of service on local or regional roadways are forseen as a result of implementing the project, no amendments to the Circulation Element of the [General Plan] are necessary. The proposed amendment to the [G]eneral [P]lan is consistent with the Circulation Element as it currently exists.
“As explained above, the cited statutory sections require the preparation and approval of a general plan, establish the legislature’s intent that the general plan be integrated and internally consistent, and prescribe certain mandatory elements for the general plan. In addition, although the commenter cites generally three court opinions [citations] as further support for his claim, no relevant rule of law is apparent in any of these opinions. Because no environmental issues associated with the project were raised, no further response is needed.”
In its trial brief, appellants argued the City “failed to correlate the relocation of the proposed [NWWTP] and the re-location with remaining mandatory elements and components of the 2000 General Plan.…”
In its tentative decision, the trial court determined appellants had not shown the General Plan failed to include required mandatory elements. Quoting Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 296 (Garat), the court concluded there is no statutory requirement that a general plan must be updated at any given interval, or in connection with any specific event. Further, appellants “have failed to meet their burden of showing the general plan is inadequate or that the WWTP is somehow inconsistent with it.”
In its objections to the tentative decision, appellants asserted the trial court failed to rule on its argument that the circulation and the land use elements in the General Plan must be amended to show the location of the NWWTP. The trial court overruled appellants’ objections.
On appeal, appellants assert the trial court failed to rule on their claim the City was required to amend the circulation element of the General Plan “to correct the defect noted [in their comment letter], regarding the legally inadequate Circulation Element.” We are not persuaded. Examination of the tentative decision shows the trial court considered and rejected all of appellants’ General Plan adequacy arguments.
Appellants also contend the correlation requirement compels amendment of the General Plan’s circulation and land use elements. We are not convinced.
“In its more concrete and practical application, the correlation requirement in subdivision (b) of [Government Code] section 65302 is designed to insure that the circulation element will describe, discuss and set forth ‘standards’ and ‘proposals’ respecting any change in demands on the various roadways or transportation facilities of a county as a result of changes in uses of land contemplated by the plan. [Citations.] The statutory correlation requirement is evidently designed in part to prohibit a general plan from calling for unlimited population growth in its land use element without providing, in its circulation element, ‘proposals’ for how the transportation needs of the increased population will be met.” (Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 100.)
There is no evidence in the administrative record contradicting the factual determinations in the DEIR and the Addendum that construction and operation of the NWWTP is not expected to change the level of service on local or regional roadways, and growth increases attributable to phase I have been accounted for in the General Plan. Therefore, we hold the correlation requirement does not require amendment of the circulation and land use elements.
Appellants “submit that there is both a nexus between the failure of the City to address flooding and drainage issues in the EIR and the failure of the City to address the inadequacy of the Circulation Element and its failure to amend the Circulation Element to reflect the change in location of the City’s [N]WWTP.” General plan consistency and adequacy claims are subject to the exhaustion requirement. (Porterville, supra, 157 Cal.App.4th at p. 910.) We have previously determined administrative remedies were not exhausted on traffic and flooding issues. Appellants’ written comments during the administrative proceedings about the General Plan’s circulation element did not include any reference to traffic, drainage or flooding. Appellants’ nexus objection was not asserted in any form to the City prior to certification of the FEIR and approval of phase I. Therefore, we hold administrative remedies were not exhausted on this issue and reject it for this reason. (Ibid.)
Finally, appellants argue the circulation element must be amended to show the NWWTP’s location. In support, they cite the portion of Government Code section 65302, subdivision (b), which provides the circulation element must identify the general location and extent of existing and proposed local utilities and facilities. We agree with respondents that this argument fails because the General Plan substantially complies with state law and it satisfies the substance essential to every reasonable objective of the statute. This asserted defect in the circulation element is merely a technical imperfection of form. (Garat, supra, 2 Cal.App.4th at pp. 292-293.)
7. The request for judicial notice was correctly denied.
In a single paragraph, appellants assert the trial court erred by refusing to take judicial notice of photographs of signage on South Bert Crane Road. They did not support this claim with legal argument or citation to authority. Therefore, “we deem this point to be without foundation and reject it on this basis.” (Bakersfield, supra, 124 Cal.App.4th at pp. 1198-1199.) “‘Appellate courts are not obliged to develop arguments which are merely suggested.’ [Citation.]” (Leonoff, supra, 222 Cal.App.3d at p. 1354, fn. 10.)
In any event, the ruling was correct. “Extra-record evidence is admissible to provide background information and, under unusual circumstances, may be admissible for unspecified limited purposes. [Citation.] However, ‘extra-record evidence can never be admitted merely to contradict the evidence the administrative agency relied on in making a quasi-legislative decision or to raise a question regarding the wisdom of that decision.’ [Citation.]” (Porterville, supra, 157 Cal.App.4th at p. 896.) Appellants sought judicial notice of the photographs to support a challenge to the adequacy of the FEIR, and not as background information. They could have, but did not, proffer photographs during the administrative proceedings. Accordingly, we conclude the request for judicial notice was properly denied. (Ibid.; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 578.)
8. Respondents are entitled to their costs on appeal.
“Fairness is a concept not yet outmoded.” (City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 1044.) We are concerned about appellants’ shifting claims and questionable negotiating tactics. Our Supreme Court has declared its disapproval of such conduct: “We cannot, of course, overemphasize our disapproval of the tactic of withholding objections, which could have been raised earlier in the environmental review process, solely for the purpose of obstruction and delay.” (Goleta, supra, 52 Cal.3d at p. 568.) We are saddened to see CEQA, a statute that was created with noble intentions and lofty goals, possibly being manipulated for base coin in this manner.
The budgets of California cities are strained to their breaking points. Taxpayer dollars that could have been put to better use were expended defending against this meritless appeal which was brought by, inter alia, Valley Advocates, an entity that alleges it is acting for the public benefit. Were we statutorily authorized to award respondents attorneys fees, we would seriously consider doing so. Since we are not, we must content ourselves with awarding respondents costs on appeal. (Cal. Rules of Court, rule 8.891(a)(1).)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: KANE, J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.