Opinion
C052704
9-17-2007
THE POCKET PROTECTORS, Plaintiff and Appellant, v. CITY OF SACRAMENTO et al., Defendants and Respondents; REGIS HOMES OF NORTHERN CALIFORNIA, INC. et al., Real Parties in Interest and Respondents.
NOT TO BE PUBLISHED
INTRODUCTION
Once again we consider appellant The Pocket Protectors challenge under the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq. (CEQA); undesignated statutory references are to the Public Resources Code) to respondent City of Sacramentos approval of The Islands at Riverlake, a residential project which respondent and real party in interest Regis Homes of Northern California, Inc. (Regis) proposes to build in the Pocket area of Sacramento. The last time, when we decided only if an Environmental Impact Report (EIR) was needed, appellant won. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors I).) This time, now that the EIR has been completed and certified, appellant loses.
The project has not changed materially since the first round of litigation. Regis still proposes to build 139 detached single-family houses on a long but narrow site zoned R-1A (Single-Family Alternative Housing), on lots smaller than the standard size for conventional single-family housing (R-1). The site lies within a Planned Unit Development (PUD) approved in 1985 pursuant to the Pocket Area Community Plan-South Pocket Specific Plan (Specific Plan). When Regis submitted its project application, the Specific Plan and the PUD Guidelines provided that PUD land zoned R-1A could be improved only with "[t]ownhouse (or similar development)." Attached-housing projects which the City had approved for the site were not built. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 908-909.)
The Citys zoning ordinance prescribes a minimum lot size of 5,200 square feet for the R-1 zone. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 915.) R-1A zoning does not specify lot sizes and is not restricted to a single housing type, but "includes, without limitation: small lot, single-family detached developments; clustered attached and detatched houses; duplex or half[]plex developments; attached or detached condominimums and townhouse developments; all of which may be on public or private streets with a variety of front, side, and rear setbacks."
The PUD Guidelines used this term, along with "townhouse and related development" and simply "townhouse." The Specific Plan used the terms "[t]ownhouse and related development," "townhouse developments," and "townhouses and similar development such as cluster and row housing."
The zoning ordinance provides: "When conflicts occur between the requirements of this title and standards adopted as part of any community plan or other specific plan, the requirements of the community plan or other specific plan shall apply. [¶] [] When conflicts occur between the requirements of this title and development guidelines adopted for an applicable PUD, the requirements of the PUD shall apply." (Sacramento City Code, § 17.12.050(C), (D).)
Respondents still contend that only the proposed project can develop this problematic site at the density called for by the Specific Plan and the PUD Guidelines while meeting all other applicable standards. Appellant still contends that the project violates CEQAs land use and aesthetic standards; it also contends that the project violates CEQA traffic and circulation standards.
But the City has now obtained and certified an EIR, and it has amended the Specific Plan and the PUD Guidelines. These changes, plus the different standard of review mandated by CEQA at this stage, change the outcome.
Appellant contends that the City acted unlawfully as to both the Final EIR (FEIR) and the amendment of the Specific Plan and PUD Guidelines. As will appear, we find no violation of CEQA in either respect.
The City first approved the project with a Mitigated Negative Declaration (MND), finding an EIR unnecessary. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 908, 923-925.) A public agency which approves a controversial project without an EIR takes a calculated risk: since CEQA favors "`the fullest possible protection of the environment within the statutory language" and the EIR is the "`"heart of CEQA"" (Pocket Protectors I, supra, 124 Cal.App.4th at p. 926), a lawsuit demanding an EIR will be heard on terms which greatly favor the plaintiff. So it was here.
To decide whether an EIR is needed, a court must apply CEQAs "fair argument" standard of review: if substantial evidence supports a fair argument that the project may have a significant unmitigatable adverse effect on the environment, the court must order an EIR. (§§ 21068, 21080, 21082.2, 21151, subd. (a) (section 21151(a)); Cal. Code Regs., tit. 14, §§ 15002, subd. (f)(1), 15064, subd. (f)(1), (2); Pocket Protectors I, supra, 124 Cal.App.4th at pp. 926-929.) Under this standard, the court must consider only the challengers showing and must disregard opposing evidence. (§ 21082.2; Guidelines, § 15064, subd. (f)(1), (2); Pocket Protectors I, supra, 124 Cal.App.4th at p. 927.)
Undesignated regulatory references are to the CEQA Guidelines, which will be referred to as "Guidelines." (Cal. Code Regs., tit. 14, § 15000 et seq.)
The Guidelines, which implement CEQA, are entitled to "great weight . . . except when a provision is clearly unauthorized or erroneous under CEQA." (Laurel Heights Improvement Assn. v. Regents of University of California 47 Cal.3d 376, 391, fn. 2 (Laurel Heights I).)
We found that appellant had met this standards "low-threshold" test for requiring an EIR. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 928, 940.) But that is all we found. We did not consider the evidence supporting the project and the MNDs findings or weigh it against appellants evidence, because "fair argument" review did not permit us to do so. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 927, 931 & fn. 19, 933 & fn. 21, 934 & fn. 23, 935-938.) Nor did we decide whether the City could properly reapprove the project after certifying an EIR. We decided only that the City had not yet done the full CEQA review required.
Now we have a certified EIR, which is prima facie evidence of CEQA compliance. We also have a record with significant new evidence in addition to the EIR. Finally, we now not only may but must consider the evidence in support of the Citys actions, and under a standard of review which favors respondents.
When an EIR has been certified, "a courts inquiry in an action to set aside an agencys decision under CEQA `shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. [§ 21168.5.] As a result of this standard, `The court does not pass upon the correctness of the EIRs environmental conclusions, but only upon its sufficiency as an informative document. [Citation.]" (Laurel Heights I, supra, 47 Cal.3d at p. 392.)
"In applying the substantial evidence standard, `the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision. [Citation.] The Guidelines define `substantial evidence as `enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. (Guidelines, § 15384, subd. (a).)" (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
"A court may not set aside an agencys approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] . . . . `The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations. [Citation.]" (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
In short, we must now give the evidence in support of the project and the EIR the weight that we would give in other civil litigation to the evidence that supports the judgment. Thus appellant cannot prevail merely by citing its own evidence (which sufficed at the "fair argument" stage): it must show that respondents evidence is not "substantial" as defined in CEQA, or that respondents have not proceeded according to law. (§ 21168.5.) We shall conclude that appellant has not made this showing.
FACTUAL AND PROCEDURAL BACKGROUND
I
The first round of litigation
Background
"The proposed project occupies 20.6 acres of undeveloped land in the Pocket area, a region of 4.5 square miles within the City . . . . The project site consists of separate narrow parcels running roughly a mile altogether on both sides of Pocket Road (north and south), between East and West Shore Drives; however, the bulk of the site is on the north side of Pocket Road. Forty-foot-wide landscaped parkways (including a 15-foot-wide parkway easement and a 25-foot-wide landscape easement) create greenbelts adjacent to Pocket Road the entire length of the site.
"The Pocket area was developed residentially beginning in the 1960s in accordance with a general development plan adopted in 1965. Specific plans and a South Pocket Area Community Plan were adopted in 1976.
"In 1985, the City Council approved the `L & P — Pacific Teichert Planned Unit Development (LPPT PUD) to cover 373 acres within the scope of the South Pocket Area Community Plan, including the project site. The resolution approving the PUD, which declared itself binding on all persons intending to develop any portion of the property, stated that all development should conform to the attached LPPT Development Guidelines [the PUD Guidelines].
"The LPPT PUD incorporated a variety of housing types, including `Single Family, zoned R-1, and `Townhouse (or similar development), zoned R-1A. [Fn. omitted.] (The project site is within the R-1A-zoned part of the PUD.) The [PUD] Guidelines stressed the importance of developing all the proposed housing types as part of `an interrelated total environment throughout the PUD.
"Before the current project was proposed, the City Council had approved two unconsummated plans to develop the site. The first, submitted in 1987, would have constructed 155 [mostly] clustered townhouse units; the second, submitted in 1994, would have constructed 167 clustered townhouse units. The record does not reveal why neither project was built.
"The developer and the City executed a development agreement for the original proposed project, which was extended until August 25, 2002, for the second proposed project. The development agreement stated in part: `If Developer wishes to develop as single family residential one or more portions of the project zoned R-1A or for multifamily use, it may do so, in which case the portion or portions shall be rezoned R-1 . . . .
Senior City Planner Tom Pace testified before the Planning Commission in 2002 that "single family residential," as used in the development agreement, is a term of art referring to the Zoning Ordinances definition of R-1 housing, which includes minimum lot sizes. Thus, if a developer proposed detached housing on lots smaller than the R-1 minimum, rezoning would not be required. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 915.)
In Pocket Protectors I, under "fair argument" review, we could not consider this evidence. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 933 & fn. 21.) But now, as we decide whether substantial evidence supports the EIRs conclusions that the project will not cause environmental harm and does not require rezoning, we must not only consider Paces testimony but accord it significant weight. (Laurel Heights I, supra, 47 Cal.3d at p. 393.)
"By the time the current project was proposed, the surrounding area was fully developed with housing. All the housing types called for in the PUD and its [Guidelines] had been built, except for townhouses." (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 908-909.)
The project as submitted
Regiss application, submitted in October 2001, proposed 143 units of detached single-family housing, ranging from 1,800 to 2,500 square feet, at a density of 6.68 units per net acre (less than the maximum allowed under the Citys General Plan, the Pocket Community Plan, and the PUD Guidelines). Each part of the project site would contain two rows of wide but shallow lots, bisected by a 25-foot-wide private street running the sites full length. (Since the Citys standard street width was 41 feet, a subdivision modification would be required.) The houses would have zero setbacks from the property line in front and setbacks as little as five feet from the fencelines of existing homes in back. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 909-910.)
The IS/MND
Staff supported the proposal, though with caveats. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 910-911.) Accordingly, the City circulated a draft Initial Study/Mitigated Negative Declaration (IS/MND) in June and July 2002, then published responses to public comments in August 2002. (Id. at p. 911.)
Staff observed that the project "does not fulfill the intent of the LPPT PUD Townhouse land-use designation insofar as it does not incorporate the landscaping and open space concepts embraced by the remainder of the LPPT PUD"; however, "[t]he unusual shape of the subject site presents a number of design challenges/opportunities which the applicant is willing to address." Staff expressed concerns that long expanses of similar building massing could create a "[c]anyon" effect which needed to be minimized with varying heights and facades and a "thematic landscaping plan[,]" which might include planting one shade tree per 30 lineal feet of street frontage. Staff recommended that second-story windows be configured to minimize views into rear yards of existing homes. One staffer suggested including duplexes or townhouses, or reducing the number of units and reconfiguring the houses into a single row on deeper lots. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 910 & fn. 4.)
As to the most controversial issues in this case—"land use/planning" and aesthetics—the IS/MND found no potential for significant impact on the environment.
As to land use, the IS/MND found that the project fit the Citys general goals and policies and the Specific Plans goals and policies for single-family development and "townhouses and related development," because: (1) The R-1A zone is a "Single-Family Alternative Zone," "intended to permit the establishment of single-family, individually owned, attached or detached residences where lot sizes, height, area and/or setback requirements vary from standard single-family. This zone is intended to accommodate alternative single-family designs which are determined to be compatible with standard single-family areas and which might include single-family attached or detached units, townhouses, cluster housing, condominiums, cooperatives or other similar projects." (Italics added.) (2) PUDs are intended to permit flexibility and creativity in the design of integrated developments. (3) As to the PUD Guidelines, "[t]he project site was identified . . . for development of townhouses. In July 1993, the City . . . approved a project to develop the planned townhouses. The approvals for the 1993 townhouse project expired and the City is considering the development of single-family homes in place of the townhouse concept. . . . [¶] . . . [¶] By approving the LPPT PUD, the City determined that the townhouse and similar developments planned for the Islands at Riverlake Project site are compatible with the single-family residential homes on the surrounding parcels." (Italics added.) (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 911-912.)
We previously concluded that, as to consistency with the PUD Guidelines call for "[t]ownhouse (or similar development)" on PUD land zoned R-1A, the IS/MND was "devoid of reasoning and evidence" and "accept[ed] the Citys decision to disregard the PUD as a fait accompli." (Pocket Protectors I, supra, 124 Cal.App.4th at p. 932.) Appellant now makes much of this finding. However, we cannot reiterate too often that Pocket Protectors I was decided (1) under "fair argument" review, and (2) on the record then before us. Thus, our prior findings (including this one) are not "law of the case" on this appeal. (See part II of the Discussion.)
We still think that the IS/MND invited our conclusion by blandly asserting that "the City is considering the development of single-family homes in place of the townhouse concept" (italics added) on land zoned R-1A within the PUD, without explaining how the City could lawfully discard "the townhouse concept" merely because a projects approval had expired. Furthermore, because the PUD Guidelines imposed facially more restrictive conditions for developing R-1A land than did the Zoning Ordinance, what the Zoning Ordinance permitted did not settle what the PUD Guidelines permitted. Nor did the general assertion that PUDs are flexible support the IS/MNDs finding as to the specific terms of this PUD. (Cf. Pocket Protectors I, supra, 124 Cal.App.4th at pp. 929-933.)
But even if the IS/MND had been better reasoned on this point, we could not have given its findings any weight under "fair argument" review. We took the trouble to criticize it mainly because respondents relied heavily on it.
As to aesthetics, the IS/MND found: (1) The project would not damage scenic vistas or create light and glare and would have no "demonstrable negative aesthetic effect." (2) Although the setbacks would be smaller and the lot coverage greater than under R-1 standards, R-1A zoning "allows flexibility in setback and lot coverage requirements." (3) The projects character is "congruous with the neighboring residential development." (4) Although the project "could conflict with the visual expectations of the residents living in the homes adjacent to [it]" and "would figure prominently in the foreground of the view shed from the rear of the neighboring houses[,]" the Riverlake Community Association and Architectural Control Committee, the Planning Commission, and City staff could modify the projects design under the PUD Guidelines to "minimize negative visual impacts." (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 913-914.)
Public comment
A petition signed by 486 neighborhood residents objected to the project, alleging excessive density, inadequate setbacks, unresolved traffic problems, strain on community services, improper use of the greenbelt as front yards for new homes, and the unexplained abandonment of the cluster home concept. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 913.)
The Pocket Protectors (an unincorporated association opposed to the project) commented: (1) Rezoning to R-1 and redesign to meet R-1 standards was needed for a project of this kind. (2) The prior development agreement, which was still in force, required cluster homes (in keeping with the PUD, on which neighbors had relied). (3) The project was not an alternative to conventional housing, but a conventional project with "substandard" lot sizes, private street, and setbacks. Its plan for "two rows of uninterrupted houses, fronting on a highly traveled and dangerous street [Pocket Road], divided by a substandard width road, within arm[]s distance of existing homes," was just bad design. (4) The project would severely impact open space and trees (including the greenbelt), and its skimpy lots could not accommodate the proposed landscaping. (5) The neighborhood did not support the project. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 913-914.)
By the time the City Council considered the project, the development agreement had expired. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 920, fn. 10.)
The Planning Commission rejects the project
Before the Planning Commission considered the application, Regis reduced the number of lots to 139, restricted the number of two-story houses, eliminated upper-story windows in houses with five-foot setbacks from the property line, varied the elevations of adjacent houses, and added a sidewalk beside the private street. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 915.)
After a public hearing, in August 2002 the Planning Commission voted six to one to deny Regiss application. The Commission made findings of fact that the project "is not based upon sound principles of land use": "the proposed single-family detached units are not consistent with the attached townhouse-style housing previously anticipated for the site," the setbacks, yards, and shade trees were inadequate, "the massing of the houses" created crowding, and design features infringed on neighbors privacy. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 915-919.)
The City Council approves the project
Regis appealed to the City Council.
By the final Council hearing on the appeal, Regis had modified its design further. It had narrowed the private street to 22 feet; added a new single-story plan and eliminated its "quasi-two-story" plan (to mitigate neighbors privacy concerns); reduced the size of two models and added a new smaller model, permitting larger yards and a four-foot-wide sidewalk while alleviating off-street parking problems; and proposed seven mini-parks within the project in which larger street trees would be planted. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 919, 923.)
City staff still supported the project and the MND; The Pocket Protectors still opposed them. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 920-922.) At the second and last Council hearing, licensed architect Roger McCardle, a member of the group, submitted an alternative proposal which fused the projects single-family houses into halfplexes. (Id. at p. 922 & fn. 13.)
The Riverlake Community Association withdrew its support for the project because it disliked the latest changes. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 922.) By the time the Council reconsidered the project after the EIR was done, however, the Associations board of directors had voted to support the project again.
The EIRs discussion of project alternatives includes a design based on McCardles submission.
In June 2003 the Council voted six to two to approve the project and the MND. The Council found: (1) There is no substantial evidence that the project will have a significant effect on the environment. (2) The project "is based upon sound principles of land use in that [it] is consistent with the General Plan, the Pocket Community Plan, the Single Family Residential Design Principles, and the underlying Single-family Alternative (R-1A) zoning." (3) "The project is designated for single-family alternative residential development[.]" (4) It is also consistent with the Zoning Ordinances setback requirements for R-1A land, the General Plans and the Pocket Community Plans land use designations and density requirements, the PUD Guidelines maximum density requirements, and the General Plan Update Housing Elements encouragement of a variety of housing types within neighborhoods. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 923-924.)
The "Single-Family Residential Design Principles" (Design Principles), approved by the City Council in 2000 for new single-family residences and subdivisions, are intended "to represent [not] mandatory requirements, but . . . suggested principles for sustainable development." Each principle is followed by lists of design features to "[e]ncourage" or to "[d]iscourage/[a]void."
Though not material to our prior decision, the Design Principles figure in the EIRs analyses of aesthetic impacts and project alternatives. (See part II of the Discussion.)
The Council did not expressly find that the project was consistent with the Specific Plans and the PUD Guidelines land use designations and development conditions for the site. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 923-924.)
The court challenge
The Pocket Protectors filed a petition for writ of mandamus in Sacramento County Superior Court, contending that an EIR was needed as to inconsistencies with City land use policies and regulations, aesthetic impacts, traffic and parking, and biological impacts. The trial court denied the petition. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 925-926.)
Renewing only the first two issues, The Pocket Protectors appealed to this court. In December 2004, we reversed the trial court and ordered it to enter a new judgment directing the City to undertake an EIR. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 926, 940.) We found that where, as here, land use policies and regulations were adopted at least in part "for the purpose of avoiding or mitigating an environmental effect" (Guidelines, appen. G, § IX, subd. (b)), a claim of conflict with those policies and regulations raised a CEQA issue, and appellant had shown substantial evidence of such conflict. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 929-936.) We also found that appellant had raised a viable aesthetic-impact issue under CEQA: CEQA asks whether a project will "[s]ubstantially degrade the existing visual character or quality of the site and its surroundings" (Guidelines, appen. G, § I, subd. (c)), and there was substantial evidence that the project might have such adverse aesthetic effects as "tunneling" or "canyoning" from long double rows of houses flanking a narrow private street, insufficient use of shade trees and other landscaping, intrusions into the Pocket Road greenbelt, and excessive massing of housing. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 936-939.)
On September 22, 2005, the trial court issued a peremptory writ of mandate directing the City to set aside its approval of the project and to prepare an EIR, and to file a return to the writ "upon taking final action to certify the EIR and to reconsider the project[.]"
The second round of litigation
The Initial Study
In February 2005, the City published a new Initial Study. It noted that the EIR would focus on land use and aesthetics. It also noted that Regiss new application for the project includes "a request for an amendment to the [] PUD [] Guidelines to accommodate single-family detached small development."
The Initial Study and later CEQA documents also discuss "recreational resources." Appellant does not raise any issue on this topic, however.
The proposed amendments (which include the Specific Plan as well as the PUD Guidelines) first appeared in an appendix to the DEIR, which incorporates the Initial Study. The DEIR justifies the proposed amendments with a somewhat different rationale (first suggested in the notice of preparation (NOP) of DEIR, as indicated post).
Notice of Preparation of DEIR
On February 25, 2005, the City published a Notice of Preparation of DEIR (NOP), advising that "Land Use, Zoning, and Adopted Plans," "Aesthetics," and "Recreational Resources" will be evaluated. The NOP adds: "The proposed project is substantially the same as the version approved by the City Council in June 2003, except that the current proposal also includes amendments to the [] PUD [] Guidelines to accommodate single-family detached small lot development. The purpose of this amendment is to resolve the ambiguity of the term `Townhouse and related development in the []PUD, which the Court of Appeals [sic] for the Third District identified . . . as giving rise to a potential land use planning inconsistency between the project and the [] PUD." (Italics added.)
Some NOP recipients requested coverage of additional topics. In particular, the State Department of Transportation (Caltrans) recommended a traffic impact study of the projects effect on the Interstate 5/Meadowview Road/Pocket Road interchange.
The DEIR
In June 2005, the City published and circulated the DEIR. We summarize its relevant contents here, reserving a fuller account of disputed points for part II of the Discussion.
Scope
Based on the 2002 and 2005 Initial Studies, this courts decision, and comments on the NOP, the City determined that the DEIR would address "Land Use Plans and Policies," "Aesthetics," and "Recreational Resources" in depth. The Initial Studies (of which the second was attached as an appendix) had sufficiently evaluated other CEQA issues.
Areas of controversy
"[T]he primary issue of concern is implementation of the Citys land use policies. The controversy over the project arises out of a disputed interpretation by some project site neighbors regarding the best type of housing to allow on the site and the design of that housing. Compatibility with adjacent properties and consistency with applicable plans, therefore, are the two most controversial issues. Compatibility issues include evaluating proposed setbacks, massing, and aesthetics. Land use plan consistency issues include evaluating what the term `townhouse and related development means relative to the General Plan, Community Plan, and Development Guidelines."
Project description
The applicants objective is "to develop an alternative housing type at a density that is not currently provided in the Riverlake community." "Amendments to the LPPT PUD and [Specific Plan] [are proposed] to clarify that the `Townhouse and Related Development (R-1A) designation allows the full range of residential uses allowed under the City zoning code for single-family residential alternative designation (R-1A), i.e., single-family attached or detached units, townhouses, cluster housing, condominiums, cooperatives or other similar projects."
Significant impacts
The project could generate significant environmental impacts as to land use plans and policies, air quality, transportation/circulation, biological resources, aesthetics, cultural resources, and recreational resources. However, mitigation measures can reduce all of these impacts to less than significant levels.
The DEIR states that the traffic impact study requested by Caltrans is unnecessary.
Land use
Standards of significance
An impact would be significant if the project would: (1) conflict with the General Plan or zoning; (2) conflict with applicable environmental plans or policies; (3) be incompatible with existing land use or planned growth in the vicinity; (4) disrupt or divide the physical arrangement of an established community; (5) substantially alter the present or planned land use of the area; (6) be incompatible with long-term uses on adjacent properties; or (7) alter the type or intensity of land use within the area.
Potential impacts
Twelve potential impacts are analyzed: (1) inconsistency with the Sacramento Area Council of Governments (SACOG) Blueprint Preferred Scenario for 2050; (2) inconsistency with SACOG Blueprint Growth Principles; (3) inconsistency with the Sacramento General Plan Land Use Designation; (4) inconsistency with Sacramento General Plan Overall Urban Growth Policies, the Residential Land Use Element, or the Housing Element; (5) inconsistency with the Pocket Area Community Plan Land Use Designation; (6) inconsistency with Specific Plan goals and policies; (7) inconsistency with the PUD Schematic Map; (8) inconsistency with the PUD Guidelines; (9) inconsistency with the Zoning Ordinance; (10) incompatibility of the proposed housing density with existing land use or nearby planned growth; (11) incompatibility of the proposed mass/bulk of housing with existing land use or nearby planned growth; and (12) incompatibility of the proposed less-than-R-1-standard rear yard setbacks with long-term uses on adjacent properties. No potential impact significant enough to require mitigation is found.
The EIRs specific findings as to the lack of significant land use and aesthetic impacts are generally adopted in the City Councils findings of fact approving the project and certifying the EIR, which we set out in part below.
As to three areas of concern ("Specific Plan goals and policies," "PUD Schematic Map," and "PUD Guidelines"), the proposed amendments to the Specific Plan and the PUD Guidelines are cited and explained.
Aesthetics
Standards of significance
An impact would be significant if the project would: (1) obstruct a significant view or viewshed in a location that is visible from a public gathering or viewing area; (2) shade a recognized public gathering place or put residences into complete shade; (3) cast glare sufficient to cause a public hazard or annoyance for a sustained period of time; (4) cast light into oncoming traffic or residential uses sufficient to cause a public hazard or annoyance for a sustained period of time; (5) create a demonstrable negative aesthetic effect as measured by (a) minimum setback requirements in the applicable City Codes, the PUD Guidelines for the site, or the average setbacks of surrounding properties, (b) minimum landscaping and lot coverage requirements in the applicable City Codes or the PUD Guidelines, (c) maximum allowable density as set by the applicable City codes or the PUD Guidelines, (d) the Design Principles, (e) the Citys Smart Growth Principles, and (f) the SACOG Blueprint for Development, Transportation, and Land Use Study; or (6) create a monolithic façade so as to result in a "tunnel" or "canyon" appearance.
Potential impacts
Seven potential impacts are analyzed: (1) the combination of less than R-1 standard setbacks and greater than R-1 standard lot coverage; (2) the combination of less than minimum R-1 lot sizes and floor plans greater than R-1 standard lot coverage; (3) conflict with the Design Principles; (4) the density and intensity of the proposed detached units compared to those of previously approved attached-unit projects; (5) the possible obstruction of significant views or viewsheds; (6) landscaping incompatible with the existing character of the neighborhood or creating excessive shade; and (7) possible glare or light creating a public hazard or annoyance. No potential impact significant enough to require mitigation is found.
Alternatives
The alternatives analyzed include "No Project"; the two formerly approved proposals for the site (wholly or mainly attached housing); the "Pocket Protectors Plan" (an all-halfplex design based on Roger McCardles submission to the City Council); a "Zero Lot Line" detached housing alternative; an "R-1 Rezone" alternative; and an "R-1A Mixed" alternative, revising the project to incorporate a small number of halfplexes. The project is found environmentally superior to the alternatives (other than "No Project").
A "Contemporary Townhouse Design" alternative was considered but rejected for environmental analysis because (1) townhouse densities (10 to 12 dwelling units per acre) exceed those designated for the site by the PUD (8 or fewer dwelling units per acre); (2) no project so dense had been approved on the site; (3) such density might create land use conflicts with adjacent R-1 neighborhoods; and (4) this alternative did not satisfy the applicants objective to build detached, alternative single-family housing.
We explain the EIRs reasoning on this point in part II of the Discussion.
Proposed amendments to the Specific Plan and the PUD Guidelines
The amendments "purpose" is "to clarify, expand, and/or modify [the amended documents] such that [they] accurately reflect the intent, interpretation, and understanding of the City." The amendments "intent" is to "make clear that the "Townhouse designation in [the amended documents]" —"a generic term used [in the mid-1980s] to describe alternative residential uses different and typically higher in density than standard single[-]family detached residential uses"—was meant to accommodate "residential uses allowed and described in the R-1A zoning code of the City, which includes, without limitation: small lot, single-family detached developments; clustered attached and detached houses; duplex or half[]plex developments; attached or detached condominiums and townhouse developments; all of which may be on public or private streets with a variety of front, side, and rear setbacks (`Alternative Housing)."
The proposed amendments strike out all uses of "townhouse" and its variants in the Specific Plan and the PUD Guidelines and substitute "[a]lternative [h]ousing." The Specific Plan amendment also incorporates the above definition of "alternative housing."
As will appear, the amendments adopted by the City Council do not exactly follow these templates, but the differences are stylistic rather than substantive.
The FEIR
The FEIR, published in August 2005, incorporates public comments on the DEIR and responses to those comments, but is otherwise mostly unchanged from the DEIR. Its only major new element is a traffic impact study (presented as a response to Caltranss comments on the DEIR) which finds that the project will cause no impact or a less than significant impact as to all traffic and circulation variables.
The Planning Commission approves the project and the FEIR, but denies the request for a special permit
After hearings, the Planning Commission voted on September 15, 2005, to approve the project, including the Specific Plan and PUD Guidelines amendments, and to certify the FEIR. However, because Regiss special permit application did not get the four affirmative votes needed, it was deemed denied.
All votes were three to two. The Commission apparently can amend land use documents with a sufficient number of affirmative votes, but that number must also exceed three.
The City Council approves the project, amends the Specific Plan and PUD Guidelines, and certifies the FEIR
Regis appealed to the City Council from the denial of its special permit application, while The Pocket Protectors appealed from the approval of the project and certification of the FEIR.
On January 31, 2006, after a public hearing, the Council voted unanimously to certify the FEIR, and by six to two to grant Regiss appeal and to deny that of The Pocket Protectors. The Council then adopted implementing resolutions.
The Councils relevant findings of fact
All of the Citys findings of fact derive from the EIR, as to which the City declares it has exercised its independent judgment.
The resolution certifying the FEIR
Resolution No. 2006-093 finds that the EIR "was prepared, published, circulated, and reviewed in accordance with the requirements of [CEQA]," that the Planning Commission and the City Council had reviewed and evaluated it, and that it "reflects the independent judgment and analysis of the City []."
Under the heading "Potentially Significant Impacts Which Can Be Avoided And Impact Areas Identified By The Third District Court Of Appeal," the resolution makes findings of fact which include the following:
Land use
The project creates no significant impacts due to inconsistency with the Specific Plan or the PUD Guidelines, because: (1) It is consistent with the applicable land use goals and policies of the Specific Plan, the range of housing types identified for R-1A land in the Zoning Ordinance and in the PUD Guidelines, and the Guidelines required for all development in the PUD. (2) The Specific Plan amendment clarifies that, according to the Citys "longstanding interpretation," the Plans "townhouse and related development" designation was intended to allow the full range of housing types allowed citywide under the R-1A zone. (3) The PUD Guidelines amendment similarly clarifies that the Guidelines "Townhouse (R-1A)" designation covers that range of housing types.
The project creates no significant impacts due to incompatibility with adjacent land uses, because: (1) The proposed density (7.15 dwelling units per net acre [du/na]) is consistent with densities identified in the General Plan, the Community Plan, and the PUD Schematic Plan, as well as with planning decisions made in other parts of the PUD and in nearby developments; furthermore, because it diversifies the existing housing mix, the project is consistent with the PUD Schematic Plans intent to create a diversity of housing types. (2) The ratio of mass to bulk in the project is within the range of that found in other R-1A development abutting R-1 development. (3) The rear yard setbacks, though less than the R-1 standard of 15 feet, meet or exceed those established for R-1A halfplexes on "reverse frontage lots" and those of many existing R-1 homes.
"Reverse frontage lots" are those where the rear lot line of a corner lot is contiguous to the side lot line of the adjacent interior lot.
Aesthetics
The project creates no significant impacts due to smaller than R-1-standard setbacks and larger than R-1-standard lot coverages, because: (1) Although R-1A zoning requires the same minimum yard sizes as R-1 zoning, the Planning Commission may vary these provisions. (2) To use the standard R-1 rear yard setback would put some new houses closer to existing houses than the R-1 standard prescribes. (3) The projects setbacks meet or exceed those of a previously approved proposal for this site and of other R-1A developments in this PUD, all of which the Planning Commission had found consistent with sound principles of land use. (4) The impacts from locating 24 new houses next to existing houses at less than R-1 minimum distance are reduced by project design features (single-story houses on lots abutting existing houses, staggered lot lines, a six-foot-high "good neighbor" fence, and setbacks exceeding those of the previously approved proposal) and by the shade trees, planted as required by the Riverlake Community Association, which will screen new houses. (5) Since the Zoning Ordinance and the PUD Guidelines do not assign quantifiable aesthetic values to setbacks, the issue is ultimately subjective and within the discretion of the Planning Commission and the City Council to determine.
The project creates no significant impacts due to smaller than R-1-standard lot sizes and larger than R-1-standard lot coverage, because: (1) The projects typical lot plans exceed the PUD Guidelines required minimum landscaping. (2) The lot plans variation in lot size, lot coverage, and landscaping, plus the projects seven mini-parks, break up its potentially uniform appearance. (3) R-1A zoning is flexible as to lot coverage and size, and the PUD Guidelines do not specify maximum lot coverages for "Townhouse and related development" parcels. (4) Although the projects average lot coverage (46 percent) exceeds that of other R-1A developments in the PUD, it is less than that found in several other nearby subdivisions in the PUD. (5) The Zoning Ordinance does not set minimum landscaping coverage for R-1 or R-1A developments, and the projects average landscape coverage of 43 percent exceeds the PUD Guidelines 25 percent minimum. (6) The projects lot coverages exceed those of abutting parcels because proposed lot sizes are smaller, to provide the density required for the site by the PUD Schematic Plan and previously approved in other subdivisions within the PUD. (7) As with the prior topic, City regulations and the PUD do not assign any objective aesthetic value to minimum lot coverage, leaving it to the discretion of the Planning Commission and the City Council whether the proposed lot coverage creates an aesthetic impact.
The project creates no significant impacts due to conflict with the Design Principles because it is consistent with their general guidelines and incorporates most of their specific recommendations.
We give more specifics on this point in part II of the Discussion.
The project creates no significant impacts due to the density and intensity of its detached units as compared to previously approved attached-unit projects, because: (1) The projects density (7.15 du/na) is less than the maximum permitted under the PUD (8 du/na), and is consistent with those designated by the General Plan (4-15 du/na), the Specific Plan (7-15 du/na), and the R-1A zone (7-15 du/na). (2) The projects intensity (mass as it relates to density) is consistent with that of previously approved R-1A projects abutting standard R-1 projects. (3) The project site has been slated for this level of density for at least 20 years, and City planning staff opines that no further objective valuation of its aesthetic effect can be made.
The project creates no significant impacts due to obstructing a significant view or viewshed in a location that is visible from a public gathering or viewing area, because: (1) The projects character is congruous with the neighboring residential development. (2) The project will not change the view from Pocket Road. (3) Once the project is included within the Riverlake Community Association, which maintains the Linear Parkway, the association will enforce front yard maintenance. (4) Clustered housing might also block private viewsheds; in any event, the site has long been designated for two-story residential development. (5) The developer dealt with the possible "canyoning" or "tunneling" effect of two long rows of houses flanking the interior street by including a greater mix of one- and two-story houses and greater setbacks. The project is now consistent with the quantifiable criteria for density, setbacks, lot coverage, landscaping, and building heights and styles, and there are no established quantifiable criteria to assess "tunneling." (6) Wide turnouts, concrete islands, and shade trees in the mini-parks and private yards will break up the long uninterrupted stretch of the private street; thus any remaining potential for "canyoning" or "tunneling" is less than significant.
The project creates no significant impacts based on landscaping incompatible with the existing character of the neighborhood, because each front yard must have at least one shade tree approved by the Riverlake Community Association (ultimate average height, 50 feet), and each lot must have at least five trees. The average tree height will be 34 feet higher than the projects single-story houses and 25 feet higher than its two-story houses.
The resolution adopting the notice of decision and findings of fact denying the Pocket Protectors appeal and granting Regiss appeal
Resolution No. 2006-096 finds that the EIR "has been certified based on findings of fact relating to compliance with . . . both the substantive and procedural requirements of [CEQA] and relating to each identified potential environmental impact of the [p]roject[.]" As to the special permit to develop detached single-family dwellings within the PUD, the resolution finds:
"1. The project is based upon sound principles of land use in that [it] is consistent with the General Plan, the Pocket Area Community Plan, the [] PUD, the [] Design Principles, and the underlying Single-Family Alternative (R-1A) zoning;
"2. The proposed use will not adversely affect the public health, safety or general welfare of the surrounding residential neighborhood in that:
"a. The project is designated for single-family alternative residential development;
"b. The project proposes to apply design compatible with the surrounding area, will use quality construction materials, and has implemented numerous design components consistent with the [] Design Principles, and;
"c. The proposed project is within the Zoning Ordinances requirements for allowable setbacks within the Single-family Alternative (R-1A) zone.
"3. The proposed project is consistent with the General Plan and the Pocket Area Community Plan land use designations and density requirements of Low Density Residential (4-15 du/na) and Residential (7-15 du/na), respectively.
"4. The proposed project is within the [] PUD Guidelines and Schematic Plan maximum density allowed for the parcels—164 units are allowed—139 units are proposed; and,
"5. The project complies with the S[acramento] G[eneral] P[lan] U[pdate] Housing Element that encourages the promotion of a variety of housing types within neighborhoods to encourage economic diversity and housing choice []."
The resolution makes similar findings as to the required tentative map and subdivision modification.
The resolutions amending the Specific Plan and the PUD Guidelines
Findings
Resolution No. 2006-094, amending the Specific Plan, finds:
"1. The proposed text amendment is consistent with the General Plan and Zoning Ordinance and clarifies residential housing types allowed in the Townhouse and Related Development and is compatible with the surrounding land uses;
"2. The subject site is suitable for alternative style detached single-family development; and,
"3. The proposal is consistent with the policies of the [] Specific Plan."
Resolution No. 2006-095, amending the PUD Guidelines, finds:
"1. The PUD conforms to the General Plan and the [] Specific Plan;
"2. The PUD meets the purposes and criteria stated in the City Zoning Ordinance in that the PUD facilitates primarily residential uses designed to assure that new development is healthy and of long-lasting benefit to the community and the City; and,
"3. Development of the PUD will not be injurious to the public welfare, nor to other property in the vicinity of the development and will be in harmony with the general purposes and intent of the Zoning Ordinance in that the PUD ensures that development will be well-designed, and that the residential uses do not create a negative impact on adjacent uses."
Amendments
Resolution No. 2006-094 amends the Specific Plans definition of "Townhouse and Related Development" to read: "The `Townhouse and Related Development designation allows the full range of residential uses allowed under the zoning code for alternative single-family residential housing types as allowed in the Alternative Single-family (R-1A) zone including attached and detached units, townhouses, cluster housing, condominiums, cooperatives or other similar projects."
Resolution No. 2006-095 amends the PUD Guidelines to read: "The `Townhouse and Related Development (R-1A) designation shall allow the full range of residential uses allowed under the zoning code for alternative single-family residential housing types as allowed in the Alternative Single-family (R-1A) zone including attached and detached units, townhouses, cluster housing, condominiums, cooperatives or other similar projects."
Further proceedings in the trial court
On February 14, 2006, respondents filed a return to the trial courts peremptory writ of mandate, requesting its discharge.
Respondents also asked the trial court to lift the stay of on-site construction activity which we had ordered. (Pocket Protectors I, supra, 124 Cal.App.4th at p. 940.) When the court entered its order discharging the writ of mandate, it lifted the stay. Appellant petitioned this court for a writ of supersedeas as to that part of the courts order, but we denied the petition.
Appellant filed objections to the return, contending: (1) The FEIR was unlawfully prepared by a consultant in direct contract with Regis, rather than by the City. (2) The Citys determinations as to the PUDs requirements and aesthetic impacts were not supported by substantial evidence. (3) The EIR did not adequately analyze traffic impacts. (4) The EIR mischaracterized and inadequately analyzed appellants preferred project alternative, thus failing to consider a reasonable range of feasible alternatives.
After a hearing, the trial court issued an extensive written ruling on April 21, 2006, in favor of respondents. The court found:
1. The FEIR was not prepared unlawfully. CEQA does not require a government agency to prepare the FEIR itself but only to exercise independent judgment over it, and the City had done so.
2. Substantial evidence supported the EIRs determinations as to the PUD Guidelines.
a. Pocket Protectors I did not find as a matter of law that the former PUD Guidelines barred a project consisting entirely of detached single-family housing on R-1A land: it found only that substantial evidence supported a fair argument to that effect and that contrary evidence could not be considered at that stage. Now, however, if substantial evidence supported the Citys determination, the EIR must be upheld even if a contrary conclusion would have been equally or more reasonable. The current record contained such evidence even as to the former Guidelines. In any event, the amendments to the Guidelines and the Specific Plan, which were within the Citys discretion, had removed any doubt about whether the project fit within them.
The trial court also stated that though Pocket Protectors I rejected a definition of "townhouse" proposed by Regis, it "did not address the question of `related or `similar developments, which appears to be the critical dispute in this case. Moreover, there is an obvious distinction between what the drafters of the PUD anticipated for this site, and what the PUD actually allows." Appellant disputes these points. Because we review the matter de novo, we need not decide whether the trial court was correct.
b. As to the PUDs landscaping and open space requirements, the record contained substantial evidence supporting the Citys determinations, including the EIRs findings as to setback and open space requirements, and the projects landscaping plan. That plan was not defective for the lack of "large" shade trees because the Guidelines required such trees only for multi-family projects. Other landscaping proposals which appellants cited, though suggested by staff or the Design Principles, were never part of the Citys conditions.
These included a 2001 staff recommendation for one "street tree" per 30 lineal feet of street footage and the Design Principles "encourage[ment]" of spacing front yard trees no more than 50 feet apart.
3. Substantial evidence supports the Citys determination as to the projects aesthetic impacts. Unlike the R-1 zone, the R-1A zone has essentially no fixed standards for setbacks, landscaping, lot coverages, and lot areas; thus nonconformity with R-1 standards in an R-1A zone rarely has environmental significance. The EIR (like the Planning Commission and the Riverlake Community Association) had considered and rejected all of appellants concerns as to setbacks, the Design Principles, and "canyoning."
4. Assuming that the EIR had to address traffic impacts, it did so sufficiently. Caltranss request for a traffic study was not new evidence supporting a fair argument of potentially significant impacts.
5. An EIR need not study alternatives designed by project opponents. It need only study a reasonable range of alternatives, as this one did.
On May 5, 2006, the trial court issued an order discharging the writ and lifting the stay on construction activities. The Pocket Protectors appeal followed.
DISCUSSION
I
The City did not violate CEQA in the way it obtained and certified the FEIR
Appellant contends that the City violated CEQA in certifying the FEIR because it was prepared by Regiss hired consultant rather than by the City or a direct contractor with the City. Appellant is mistaken. The relevant CEQA provisions—sections 21082.1 and 21151(a), and the Guidelines which implement them— do not mandate that the agency or an entity directly contracting with it draft the FEIR, but only that the agency exercise independent judgment in reviewing and certifying the FEIR, however prepared. The record shows that the City did so.
The City, as well as Regis, has briefed this issue. Regis alone briefs the remaining issues.
Background
The Citys EIR preparation procedures; how this EIR was prepared
At the City Council hearing of January 31, 2006, City Principal Planner Lezley E. Buford and Deputy City Attorney Sabina Gilbert explained how the City obtains EIRs and how it obtained this one.
Buford testified that the City permits an applicant either to ask staff to select and contract with a consultant who prepares the EIR at the applicants expense, or to contract directly with a consultant on the Citys list of prequalified consultants. If, like Regis, the applicant chooses the second option, its retained consultant submits its intended scope of work for the Citys review and approval before doing the EIR.
A CEQA practice guide states: "Among local government lead agencies, it is probably more common for the agency either to retain a consultant or to accept an EIR prepared by the applicant or its consultant than it is for the agency to have its own staff prepare the EIR." (1 Kostka & Zischke, Practice under the California Environmental Quality Act (Cont.Ed.Bar 2006) § 9.6, p. 462.) Buford testified that San Francisco, Los Angeles, and San Diego have procedures similar to Sacramentos.
Buford further testified that Sycamore Environmental Consulting, Inc. (Sycamore), which did the DEIR and FEIR, had already done the MND on the project. It prepared a scope of work, which staff reviewed and approved. A staff team led by Buford reviewed and approved all further documents Sycamore drafted. Buford personally reviewed the draft "administrative DEIR" to make sure all comments were responded to. As City policy allows, Regis and its attorneys also took part in the review process.
Gilbert opined that this process complied with CEQA. Whether it is prepared under contract with the City or the applicant, staff maintains control over the EIR, and whatever is publicly released reflects staffs review and judgment. Case law had held that it does not matter who originally drafts any part of an EIR, so long as staff exercises independent judgment in approving it and the decisionmaker exercises independent judgment in certifying it.
Other evidence
The record confirms that after contracting with Regis to do the EIR and before preparing the administrative DEIR, Sycamore submitted a scope of services to the City for review. Staff revised the scope of services inter alia to require Sycamore to submit DEIR and FEIR drafts to the City rather than to Regis. Regis accepted the changes.
Appellant asserts that the City did not review Regiss and Sycamores other contract terms. We do not see why the City should have done so. The scope of services defines what documents Sycamore would draft, how it would draft them, and where and how it would submit them. These are the contract terms that matter to this issue.
The record also confirms that staff closely reviewed Sycamores draft documents, which Sycamore revised in response to staff comments.
Finally, the record shows much communication about Sycamores draft documents among staff, Regis, and Regiss attorneys, as Buford acknowledged. In the FEIRs section headed "Report Preparation," Regiss attorneys are listed as "EIR Consultants" along with Sycamore.
Analysis
According to appellant, these facts prove that the City obtained the FEIR unlawfully. Appellant asserts that CEQA required the City either to prepare the FEIR itself or to obtain it from a consultant with whom it contracted directly, rather than what happened here—which appellant characterizes as allowing the EIR to be "prepared by Regis." For reasons that follow, we disagree.
Appellants opening brief argues that the key CEQA provisions on their face, without the need of extrinsic evidence to construe them, prohibit what respondents did. In appellants reply brief, however, it invites us to examine the legislative history of sections 21082.1 and 21151 (without explaining why it no longer thinks them clear on their face) and requests judicial notice of materials relating to that history.
We normally disregard arguments first raised in a reply brief when the appellant fails to explain why they were not raised sooner. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) We see no reason not to apply this rule here. Therefore, we disregard appellants belated legislative history argument and deny judicial notice of matter offered only to support that argument. (In any event, we have examined the proffered matter and have concluded it shows nothing helpful.)
Standard of review
In deciding whether a government agency "has not proceeded in a manner required by law" under CEQA, we review for prejudicial abuse of discretion. (§ 21168.5.) Our review is de novo, with no deference to the trial courts conclusions. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1182-1183; see Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376.)
"`When the informational requirements of CEQA are not complied with, an agency has failed to proceed in a "manner required by law." [Citation.] If the deficiencies in an EIR `preclude[] informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred. [Citation.]" (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1220.)
Relevant CEQA provisions
Statutes
Section 21082.1, which covers both draft and final EIRs, provides in part (italics added):
"(a) Any draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration prepared pursuant to the requirements of this division shall be prepared directly by, or under contract to, a public agency.
"(b) This section is not intended to prohibit, and shall not be construed as prohibiting, any person from submitting information or other comments to the public agency responsible for preparing an environmental impact report, draft environmental impact report, negative declaration, or mitigated negative declaration. The information or other comments may be submitted in any format, shall be considered by the public agency, and may be included, in whole or in part, in any report or declaration.
"(c) The lead agency shall do all of the following:
"(1) Independently review and analyze any report or declaration required by this division.
"(2) Circulate draft documents that reflect its independent judgment.
"(3) As part of the adoption of a negative declaration or a mitigated negative declaration, or certification of an environmental impact report, find that the report or declaration reflects the independent judgment of the lead agency." (Italics added.)
Section 21151(a), which covers only the final EIR, provides: "All local agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project that they intend to carry out or approve which may have a significant effect on the environment." (Italics added.)
Guidelines
Guidelines section 15084, which implements section 21802.1, provides in part:
"(a) The draft EIR shall be prepared directly by or under contract to the lead agency. . . .
"(b) The lead agency may require the project applicant to supply data and information both to determine whether the project may have a significant effect on the environment and to assist the lead agency in preparing the draft EIR. . . .
"(c) Any person, including the applicant, may submit information or comments to the lead agency to assist in the preparation of the draft EIR. The submittal may be presented in any format, including the form of a draft EIR.
"(d) The lead agency may choose one of the following arrangements or a combination of them for preparing a draft EIR.
"(1) Preparing the draft EIR directly with its own staff.
"(2) Contracting with another entity, public or private, to prepare the draft EIR.
"(3) Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person.
"(4) Executing a third party contract or memorandum of understanding with the applicant to govern the preparation of a draft EIR by an independent contractor.
"(5) Using a previously prepared EIR.
"(e) Before using a draft prepared by another person, the lead agency shall subject the draft to the agencys own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the lead agency. The lead agency is responsible for the adequacy and objectivity of the draft EIR." (Italics added.)
Guidelines section 15089, which implements section 21151(a), provides in part:
"(a) The lead agency shall prepare a final EIR before approving the project. The contents of a final EIR are specified in Section 15132 of these Guidelines."
Guidelines section 15132 provides: "The final EIR shall consist of: [¶] (a) The Draft EIR or a revision of the draft. [¶] (b) Comments and recommendations received on the Draft EIR either verbatim or in summary. [¶] (c) A list of persons, organizations, and public agencies commenting on the Draft EIR. [¶] (d) The responses of the Lead Agency to significant environmental points raised in the review and consultation process. [¶] (e) Any other information added by the lead agency."
Guidelines section 15090 provides in part:
"(a) Prior to approving a project the lead agency shall certify that:
"(1) The final EIR has been completed in compliance with CEQA;
"(2) The final EIR was presented to the decisionmaking body of the lead agency and that [sic] the decisionmaking body reviewed and considered the information contained in the final EIR prior to approving the project; and
"(3) The final EIR reflects the lead agencys independent judgment and analysis."
Case law
In Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446 (disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2, 576, fn. 6 (rev. den.) (Friends of La Vina)), the court faced the question whether a public agency could lawfully require preparation of an EIR (and responses to comments about the EIR) by a private consultant for the developer. The majority said, "yes." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1450.) Because we find its well-reasoned decision dispositive, we quote it at some length.
"CEQA, the Guidelines, and all relevant case law . . . consistently teach that an agency may comply with CEQA by adopting EIR materials drafted by the applicants consultant, so long as the agency independently reviews, evaluates, and exercises judgment over that documentation and the issues it raises and addresses." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1452.)
"Section 21082.1, the section most heavily relied on by the trial court and plaintiffs, itself refutes the notion that an EIR must be the product of the agencys own authorship, to the exclusion of the applicant or its consultant. [Fn.] In the same breath as it requires agency `preparation of the EIR, the statute specifically authorizes the agency not only to consider outside comments and information but to include them in the EIR. (Accord, Guidelines, §§ 15084, subds. (c), (d)(3) [draft EIR], 15132, subd. (b) [final EIR].) . . . Thus, the primary `preparation statute authorizes and virtually requires that the EIR be `prepared using outside submissions, not merely agency draftsmanship." (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1452-1453.)
"The Guidelines, constituting authoritative interpretive prescriptions of CEQA practice and procedure, also validate documentary reliance on an applicants consultant. [Fn.] Guidelines section 15084 commences by repeating the agency preparation requirement of section 21082.1, with respect to draft EIRs. The section proceeds, in subsection (d), to set forth five permissible methods of such agency preparation. One of these is, `Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person. (Guidelines, § 15084, subd. (d)(3); cf. Guidelines, § 15084, subd. (c).) The regulation goes on to add, however, `Before using a draft prepared by another person, the lead agency shall subject the draft to the agencys own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the lead agency. The lead agency is responsible for the adequacy and objectivity of the draft EIR. (Guidelines, § 15084[,] subd. (e).) In short, this Guideline affirmatively defines and endorses `preparation of a draft EIR by precisely the method the County and applicants contend was followed in this case." (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1453-1454.)
"[Moreover], a consistent series of appellate decisions have endorsed local agencies resort to applicants consultants in the preparation of both draft and final EIRs, subject to the qualification of independent agency involvement and judgment, as against charges of unlawful delegation. [See City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 1042; Foundation for San Franciscos Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 908; Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 272, 287-288.]" (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1454-1455.)
"The foregoing cases consistently confirm that the `preparation requirements of CEQA ( §§ 21082.1, 21151 )and the Guidelines turn not on some artificial litmus test of who wrote the words, but rather upon whether the agency sufficiently exercised independent judgment over the environmental analysis and exposition that constitute the EIR. Like section 21082.1 and the Guidelines, the cases recognize that preparation of an EIR is not a solitary, ruminative process but an inquisitive, cooperative one, in which the applicant and its experts naturally can and will be heavily involved, perhaps to the point of initially drafting the text." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1455, italics added.)
The majority opinion in Friends of La Vina has been endorsed by numerous Courts of Appeal: (See Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 369; BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1233; Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 220.) We now join this parade. Neither the DEIR nor the FEIR was unlawful simply because it was drafted by the developers consultant.
Appellants arguments
Appellant tries to distinguish Friends of La Vina because it did not decide whether an agency can properly approve and certify an FEIR entirely drafted by the applicants consultant. In Friends of La Vina, the County, not the private consultant, apparently drafted a set of findings in the FEIR, "closely tracking the [consultants] drafts." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1451.) But, as noted, the FEIR is often simply the DEIR plus comments and responses—the procedural stage reached by the consultants in Friends of La Vina. (Cf. Guidelines, § 15132.) Other differences between the two documents are usually de minimis, and appellant does not point to any that would matter in this case.
Appellant also urges us to follow the dissent in Friends of La Vina (the only "case law" appellants opening brief cites to support its position). We find both the dissent and appellants arguments unpersuasive.
The dissent asserts that the agencys action violated the literal terms of section 21082.1, but fails to answer the majoritys contrary analysis. (Friends of La Vina, supra, 232 Cal.App.3d at page 1458 (dis. opn. of Gates, A.P.J.).) Thus, it does not persuade us to reject that analysis.
Appellant tries to flesh out the dissents position as follows: "If all that CEQA requires is independent agency review of a developer-prepared Draft and Final EIR, [section 21082.1] would not provide both that the EIR be prepared `directly by, or under contract to, a public agency and that the agency must independently review the EIR. . . . The logical point of requiring a lead agencys `independent review of an EIR is to ensure its consideration of the analysis in documents prepared by its environmental consultants: a city may not simply contract out the preparation of an EIR to a consultant and then certify it without review." This argument ignores most of section 21082.1 and Guidelines section 15084.
As the Friends of La Vina majority explains (supra, 232 Cal.App.3d at pp. 1453-1454), the statute and Guideline enumerate a variety of lawful methods for the agency to "prepare[]" an EIR "directly, or by contract to, [the] agency" (§ 21082.1, subd. (a)), including the acceptance of "information . . . in any format" (§ 21082.1, subd. (b))—which may mean a draft EIR submitted by the applicant or its consultant. (Guidelines, § 15084, subds. (c), (d)(3).) But once the agency has accepted this information, the agencys duty to prepare the EIR entails the duty to review the information independently. (§ 21082.1, subd. (c); Guidelines, § 15084, subd. (e).) If the only "logical point" of the independent-review requirement were for an agency to review the work of its own consultants, most of the statute and Guideline would be superfluous or inexplicable.
The Friends of La Vina dissent also remarks that the guidelines of the local agency state that a DEIR shall be prepared "by or under contract to" the lead agency (cf. Guidelines, § 15084) but an FEIR shall be prepared "by" the lead agency (cf. Guidelines, § 15089)—apparently on the view that this verbal discrepancy indicates a legal discrepancy. (Friends of La Vina, supra, 232 Cal.App.3d at p. 1459, fn. 2 (dis. opn. of Gates, A.P.J.).) Appellant similarly asserts that under Guidelines section 15089 (not discussed in Friends of La Vina) only an FEIR prepared directly by a government agency is lawful because that Guideline states: "The lead agency shall prepare the [F]EIR[.]" This argument fails for the following reasons.
First, unlike the Guidelines, the key statutes do not distinguish between documents prepared "by" and "by or under contract to" an agency: section 21082.1, subdivision (a), provides that CEQA documents (including FEIRs) "shall be prepared directly by, or under contract to, a public agency," and section 21151(a) similarly provides that local agencies "shall prepare, or cause to be prepared by contract . . . an [EIR.]" (Italics added.) If "prepare" in Guidelines section 15089 meant that the agency itself must do the preparation, the Guideline would purport to narrow section 21151(a), which it implements. A Guideline cannot lawfully narrow a CEQA statute. (See Laurel Heights I, supra, 47 Cal.3d at p. 391, fn. 2 [Guidelines not entitled to weight if unauthorized or clearly erroneous under CEQA]; Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 110-114, 116-126 [invalidating Guidelines which purported to narrow CEQA statutes].) Therefore, to avoid a construction which would render Guidelines section 15089 unlawful, we read "prepare" therein to mean "prepare, or cause to be prepared by contract" (cf. § 21151(a)).
Second, appellant does not explain why "cause to be prepared by contract" (§ 21151(a); italics added) can mean only a contract between an agency and its own consultant, and we see no reason so to construe it. In ordinary usage, one may cause a thing to happen by requiring it to be done and creating the means for someone else to do it. Thus, if a public agency provides that an applicant may contract with a consultant preapproved by the agency to prepare EIRs, the agency has "cause[d]" the EIR "to be prepared by contract."
The Friends of La Vina dissent reasons, and appellant agrees, that an applicants consultant who drafts an FEIR even in part incurs a conflict of interest between his duties to his client and to the public agency. (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1458-1459 (dis. opn. of Gates, A.P.J.).) However, the majority has answered this argument: "The trial courts ruling [that the agencys action was unlawful] derived in large measure from what the court termed `general principles of conflict of interest, as applicable to applicants and their consultants. In so ruling, the court assumed an unwarranted role. The issue in this case is compliance with CEQA. To the extent policing of specific conflicts of interest might accurately be perceived as a legislative provision or purpose of CEQA, it could be pursued. But not otherwise. Except where the law clearly provides rules for identification and rectification of what might be termed conflicts of interest, that is a legislative not a judicial function. [Citations.]" (Friends of La Vina, supra, 232 Cal.App.3d at p. 1456, italics added.) Since Friends of La Vina was decided, the Legislature has not amended the relevant CEQA provisions to bar this purported conflict of interest. We may not do what the Legislature has not done.
Thus, both the dissent and appellants arguments based on the dissent fail to persuade us.
Other points raised by appellant
Appellant complains that the City improperly excluded it from "the administrative review process" by denying it a "scoping session" or "access to the EIR consultants" and by refusing to furnish it a copy of the administrative (i.e., draft) DEIR "until months after its publication, and then only in response to a formal request under the Public Records Act." Assuming that this claim is relevant to appellants main point, appellant does not show that CEQA required the City to do anything other than it did.
As authority for entitlement to a "scoping session," appellant cites Guidelines section 15083. But this Guideline provides only: "Prior to completing the draft EIR, the lead agency may also consult directly with any person or organization it believes will be concerned with the environmental effects of the project. . . . This early consultation may be called scoping." (Italics added.) In any event, the City gave the required Notice of Preparation of Draft EIR and received comments thereon from the public, including members of The Pocket Protectors. (Cf. Guidelines, § 15082.) Appellant has not explained why that document was insufficient to inform the public of the EIRs intended scope and to afford opportunity for further suggestions.
Appellant cites no statute, regulation, or court decision which mandates public "access" to EIR consultants while they are drafting documents for internal agency review. Members of the public are entitled to submit comments on a circulated DEIR or other CEQA document, and the agency is required to consider them, as it did here. (§§ 21082.1, subd. (b), 21091.) This was sufficient to inform the public about that stage of the Citys CEQA review.
Citing section 21167.6, subdivision (e)(10), appellant asserts that "administrative draft EIRs are part of the public record if `released for public review." However, this provision does not mandate making such draft documents part of the public record or releasing them for public review.
In summary, appellants claim of wrongful exclusion from the CEQA review process is unsupported.
Conclusion
Under CEQA, as correctly expounded by the majority in Friends of La Vina, supra, 232 Cal.App.3d 1446, an agency fulfills its duty in obtaining and certifying an EIR if it independently reviews and judges the EIR before certifying it. The City here attested that it had done so, and substantial evidence supports that claim. Appellant has not shown any illegality.
II
Substantial evidence supports the Citys decisions
Appellant contends that the EIR is "inadequate" as to land use impacts, aesthetic impacts, traffic impacts, and analysis of project alternatives. We take appellant to mean that the EIRs findings were not supported by substantial evidence, and that by relying on those findings in certifying the EIR and approving the project the City failed to proceed as required by law. (§ 21168.5; Laurel Heights I, supra, 47 Cal.3d at p. 392.)
Though we review these claims de novo, we consider only whether the City prejudicially abused its discretion. (§ 21168.5.) We are not concerned with whether the EIR reached the correct conclusions, but only with whether it sufficiently informed the public and the decisionmaker. (Laurel Heights I, supra, 47 Cal.3d at p. 392.) Nor are we concerned with whether the City might have acted equally or more reasonably by disapproving the EIR and rejecting the project. (Id. at p. 393.) Furthermore, we must resolve all reasonable doubts in favor of the Citys findings and decisions. (Ibid.)
Given the cases history and appellants manner of briefing, another observation is in order. Appellant not only quotes liberally from our opinion in Pocket Protectors I, but appears to claim that what it quotes is "law of the case"— legal conclusions that bind the parties and this court now. Appellant is mistaken.
"Under the law of the case doctrine, `a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case. [Citations.] [Citation.] `The doctrine is generally applied upon retrial of a case following reversal of the judgment on appeal, and "deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." [Citation.] [Citation.]" (Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1346-1347; orig. italics.)
Here, the first element of "law of the case"—adjudication on the merits—is missing. In Pocket Protectors I, we did not decide any issue which is now before us. We decided only whether substantial evidence existed to support a fair argument that the project might cause significant environmental damage. We did not determine as a matter of law that any such argument had merit.
Nor could we have done so. To adjudicate appellants claims on the merits would have required us not only to consider and weigh both sides evidence (forbidden under "fair argument" review), but also to anticipate all future evidence, including the ultimate findings of the EIR. Where the evidence in a second appeal differs from that which existed or could be considered in the first appeal, law of the case does not apply. (See In re Saldana (1997) 57 Cal.App.4th 620, 627, fn. 2.)
Thus, if appellant took our findings in Pocket Protectors I as rulings of law that would forever trump an EIR or any other evidence respondents might offer, it erred. Our findings merely showed what appellants evidence, considered as if it were the only evidence in the case, signified under the "fair argument" standard. In other words, our findings signaled the points which the EIR should address and on which the City should make clear determinations if it chose to reapprove the project. As we shall show, the EIR and the City have done what was required.
Land use impacts
Appellant contends that the EIRs findings are unsupported by substantial evidence as to landscaping and "townhouse zoning." Under the second heading, appellant also attacks the Citys amendments of the Specific Plan and the PUD Guidelines. We conclude that appellants arguments lack merit.
Landscaping
Appellant claims that the projects landscaping violates the PUD Guidelines standards and that the EIRs contrary conclusion is unsupported. However, appellants arguments under the headings "landscaping standards" and "landscaping requirements" do not discuss the EIRs findings, but only the PUD Guidelines. Because appellant has not addressed the EIRs findings, its claim that substantial evidence does not support them is forfeited.
Appellant asserts that "the EIR ignored this inconsistency [with the PUD Guidelines landscaping requirements] and failed to mitigate it through adoption of a feasible project alternative." But appellant fails to support this assertion by quotation or record citation.
Appellant also refers us to our discussion of the PUDs history in Pocket Protectors I. But that discussion, which preceded the drafting and certifying of the EIR, is not germane to the question whether substantial evidence supports the EIRs findings.
Planning and zoning issues
Appellant contends: (1) The project conflicts with the development restrictions imposed by the former Specific Plan and PUD Guidelines, in particular as to "townhouse and related development" under R-1A zoning within the PUD. (2) The amendments did not cure the problem, and the claim that they merely clarified the documents original intent is a post hoc rationalization unsupported by evidence. (3) The EIR fails to analyze either this inconsistency or "the environmental consequences of [the] change in PUD zoning parameters" caused by the Specific Plan and PUD Guidelines amendments.
Appellant also asserts that the trial courts contrary findings were erroneous. As we review de novo, we need not consider this point.
Appellants arguments fail for several reasons. First, as already suggested, they erroneously presume that our conclusions about the Specific Plan and the PUD Guidelines in Pocket Protectors I are law of the case. Second, substantial evidence indicates that the City understood the former Specific Plan and PUD Guidelines to permit all-detached single-family housing projects on R-1A land within the PUD. Third, even if the City was wrong, it had discretion to amend the Specific Plan and the PUD Guidelines so as to permit this project. Finally, the EIR and the City made extensive findings that allowing the project without a zoning change or a redesign to R-1 standards would not harm the environment, and appellant does not come to grips with those findings.
The existing provisions and their amendment
We found inPocket Protectors I that substantial evidence supported a fair argument that the Specific Plans and the PUD Guidelines "townhouse" provisions did not permit a project consisting only of detached single-family housing on R-1A land within the PUD. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 930-931.) In the February 2005 Initial Study, the City remarked that Regis requested PUD Guidelines amendment "to accommodate single-family detached small development." However, the notice of preparation of draft EIR, published soon after, added that Regiss request was meant to "resolve the ambiguity of the term `Townhouse and related development in the [] PUD, which the Court of Appeal[] for the Third District identified . . . as giving rise to a potential land use planning inconsistency between the project and the [] PUD." Thus, the City now asserted, as it has continued to do, that (1) the term "townhouse and related development" was inherently ambiguous, and (2) the City did not realize that fact until this court pointed it out.
Appellant asserts that by calling "townhouse and related development" ambiguous, the City was trying to escape its admission in the Initial Study that the unamended Specific Plan and PUD Guidelines did not "accommodate" an all-detached single-family housing project on R-1A land; appellant also insists that this court so found as a matter of law in Pocket Protectors I. We disagree on both points.
First, the City could have reasoned that even if it had always thought "townhouse and related development" would accommodate such a project, this courts ruling showed a need for clarification. Second, as we have already said, nothing in Pocket Protectors I decided any question now before us as a matter of law.
Appellant also asserts that the Citys "ambiguity" claim contradicts the Zoning Ordinances express directive: "When conflicts occur between the requirements of this title and standards adopted as part of any community plan or other specific plan, the requirements of the community plan or other specific plan shall apply. [¶] [] When conflicts occur between the requirements of this title and development guidelines adopted for an applicable PUD, the requirements of the PUD shall apply." (Sacramento City Code, § 17.12.050(C), (D).) According to appellant, if the Zoning Ordinance defines permitted R-1A uses so as to accommodate the proposed project, but the Specific Plan and the PUD Guidelines do not, this does not create an ambiguity which needs to be reconciled, but requires the City to set aside the general zoning definition. However, appellant has not shown a "conflict[]" under the Zoning Ordinance, because it has not shown that the Zoning Ordinances definitions are "requirements" as the Ordinance uses that term.
The DEIR proposed to substitute "alternative housing" for "townhouse" and its cognates in the Specific Plan and the PUD Guidelines, on the ground that when the PUD was adopted "townhouse" was used generically to cover the range of housing types now authorized citywide in the R-1A zone as "alternative housing." Appellant asserts that no evidence supports this claim, which rewrites history to make it appear that the former Specific Plan and PUD Guidelines had permitted the project all along. We disagree.
Under CEQA, when we employ substantial-evidence review to examine a public agencys interpretation of its planning and land use policies, we must give that interpretation great weight. Thus, absent contrary evidence, we presume that the agencys statements about its past practices and understandings are reliable. (See Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1192-1193; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142; Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015; Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 717-718 & fn. 5, 719-720.) Appellant has not rebutted that presumption.
Rather than offering evidence that the City did not use "townhouse" in the mid-1980s in more or less the way it uses "alternative housing" now, appellant merely relies on this courts prior opinion, as if we had decided as a matter of law that the City could not have meant by "townhouse"—a term not expressly defined in the Specific Plan or the PUD Guidelines—what the EIR says it did. In fact, we did not even decide that a fair argument could be made on that issue, because it had not yet arisen: the parties cited nothing in the former record which resembled the EIRs statement or the Citys endorsement of that statement. Thus, we must accept the findings of the EIR, as adopted by the City, as substantial evidence that when the City originally approved the present project it understood "townhouse and related development" as synonymous with what it now calls "alternative housing."
In its reply brief, appellant quotes the testimony of City Senior Planner Pace before the Planning Commission that the proposed Specific Plan/PUD Guidelines amendments were intended not to "verify [sic; clarify?] the original intent of the PUD . . . [but] to clarify what [`]townhouses and related development[] means today." However, Pace also said: "I cant speak to what the original intent of the framers of the community [sic] was." In other words, he simply did not know how the PUD drafters had used the term. This is not evidence that they did not intend it in the sense given by the EIR.
Citing this courts response to Regiss former reliance on a dictionary definition of "townhouse" which the City had never adopted (Pocket Protectors I, supra, 124 Cal.App.4th at p. 936), appellant likens that argument to the EIRs statement about the "generic" meaning of "townhouse" in the 1980s. But, unlike the dictionary definition, the City has endorsed the EIRs statement.
Finally, when the City adopted the amendments to the Specific Plan and the PUD Guidelines, it unequivocally brought the project within the range of permitted housing types for R-1A land within the PUD. It cannot be argued that the City lacked the authority to amend its own planning and land use documents merely because they had come under judicial scrutiny. (See Richter v. Bd. of Supervisors (1968) 259 Cal.App.2d 99, 105.)
As noted, the enacted amendments do not replace each use of "townhouse" with "alternative housing" as proposed, but merely state at the outset that "townhouse [etc.]" includes the range of housing types called "alternative housing" and permitted in the R-1A zone. This drafting difference does not affect the amendments substance.
The EIRs and the Citys findings
Under CEQA, the only reason to consider alleged planning or zoning violations is to determine whether they could result in significant environmental harm. (Cf. Pocket Protectors I, supra, 124 Cal.App.4th at pp. 929-931.) Thus, even if the City had acted unlawfully in amending the Specific Plan and PUD Guidelines, it would not matter to this appeal unless it meant that the EIRs land use findings were not supported by substantial evidence, or that the Citys failure to proceed according to law had rendered the EIR useless as an informational document. (§ 21168.5; Laurel Heights I, supra, 47 Cal.3d at p. 393; Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at p. 1220.)
When the City certified the EIR, it adopted the EIRs findings that the project would not cause environmental harm due to inconsistency with the Specific Plan, the PUD Guidelines, or other applicable planning, zoning, and land use laws. We review these findings not to decide whether they are correct or the only reasonable findings that could have been made, but only to decide whether substantial evidence supports them. Moreover, we must resolve reasonable doubts in favor of the Citys findings and decision. (Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.) We conclude that appellant has not shown grounds for reversal on this issue.
The City adopted the EIRs findings that the project is consistent with the Specific Plans land use goals and policies, the range of housing types which the Zoning Ordinance identifies for R-1A land (including that within the PUD, as clearly provided by the Specific Plan/PUD Guidelines amendments), the densities identified in all the planning documents that govern the PUD (including the General Plan, the Community Plan, and the PUD Schematic Plan), and planning decisions made elsewhere within the PUD and nearby. So far as these laws and decisions were intended to avoid or mitigate environmental effects (cf. Guidelines, appen. G, § IX, subd. (b)), the City thus found that the project did not conflict with any of them.
Appellant asserts that substantial evidence does not support these findings as to four "standards of significance" identified in the EIR: (1) conflict with General Plan designation or zoning; (2) conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project; (3) substantial alteration of the present or planned land use of the area; and (4) alteration of the type or intensity of land use within the area. Applying these standards, appellant asserts that four potential impacts dismissed as insignificant in the EIR are actually significant: (1) inconsistency with the Specific Plans goals and policies; (2) inconsistency with the PUD Schematic Map; (3) inconsistency with the PUD Guidelines; and (4) inconsistency with the Zoning Ordinance. However, appellants argument presumes wrongly that Pocket Protectors I established as law of the case that the project was inconsistent with the Specific Plan and the PUD Guidelines. Once that false premise is subtracted, nothing remains.
For example, appellant states: "The trial court ruled that the City has the power to `clarify that the R-1A zone at Riverlake, which the PUD limits to `townhouse and related development, can now be lawfully expanded `to the entire range of housing products — attached and detached — allowed under the Citys R-1A zone. [Citation.] However, as a matter of law, based on the record, such an interpretation is inconsistent with the [] PUD history and with the established PUD Guidelines." (Italics added.) It could be true "as a matter of law" that this issue was already closed before the City amended the Specific Plan and the PUD Guidelines only if Pocket Protectors I foreclosed the issue, which it did not.
Appellant asserts that "the environmental consequences of such a change in PUD zoning parameters were not studied in the EIR and if such an expansion were to be considered, environmental review would need first to occur." In fact, the EIR studied in great detail the land-use "environmental consequences" of building the project. What the EIR and the City did not do was to agree that building the project creates "a change in PUD zoning parameters." The Citys refusal to accept this claim was reasonable.
In short, appellant has not shown that substantial evidence does not support the Citys decision or that the City did not proceed according to law as to land use impacts.
Aesthetic impacts
Appellant asserts that the EIRs findings are unsupported as to "canyoning," "aesthetic standards of significance," the Design Principles, and "other projects." As on the previous issue, however, appellant wrongly treats our decision in Pocket Protectors I as law of the case. Appellant also inappropriately holds the EIRs findings and the Citys decisionmaking to a standard of perfection: that is, appellant presumes that we must overturn the Citys decision unless the City can show that it was correct, or at least more reasonable than the contrary decision would have been. That is not the law. (Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.)
"Canyoning"
In Pocket Protectors I, we identified the possible adverse environmental impact from the "canyoning" or "tunneling" effect of the projects original design as an issue needing further study. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 931 & fn. 19, 937.) The EIR and the City found that this potential impact had been reduced to insignificance: (1) Regis had broken up the original designs uniformity with a greater mix of one- and two-story houses, increased setbacks, wide turnouts, concrete islands, and mini-parks, and (2) the project now met all quantifiable standards relevant to "canyoning" or "tunneling" (density, setbacks, lot coverage, landscaping, and building heights and styles). Appellant attacks these findings by citing our prior opinion and asserting that Regis has not changed the project since we issued that opinion. The attack fails.
As respondents point out, the evidence which supported a fair argument on this issue (aside from a City staffers remark on Regiss earliest proposal) consisted mostly of comments by The Pocket Protectors. (Pocket Protectors I, supra, 124 Cal.App.4th at pp. 910, 914, 916-917, 920-921, 937.) We noted that opposing evidence existed but could not be considered under "fair argument" review. (Id. at p. 937.) Now, however, it is appellant which fails to acknowledge opposing evidence.
Appellant quotes, but misapprehends, our statement that The Pocket Protectors comments "pertain even to the revised project approved by the City Council, not merely to its initial versions[.]" (Id. at p. 937.) This was not a finding that The Pocket Protectors were correct, but only that they made those comments about the revised project as well as its initial versions.
The EIRs and the Citys findings are substantial evidence that Regis has satisfactorily dealt with "canyoning" or "tunneling." Our prior opinion, which did not address those findings, is not to the contrary. And it is immaterial that Regis has not revised the project since 2003, because the EIR and the City have determined that the revisions made by then sufficed.
"Aesthetic standards of significance"
Appellant asserts that the EIR failed to apply its own defined "standards of significance" on aesthetic impacts. Appellant shows at most that reasonable persons could differ about the EIRs findings, which does not establish that they are unsupported by substantial evidence. (Cf. Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.)
As noted, the EIR established "standards of significance" for potential aesthetic impacts which include the creation of a demonstrable negative aesthetic effect as measured by (a) setback requirements derived from the City Codes, the PUD Guidelines, or average setbacks of surrounding properties, (b) minimum landscaping and lot coverage requirements in the City Codes or the PUD Guidelines, and (c) the Design Principles. Appellant attacks the EIRs findings as to these standards. We find appellants arguments unpersuasive.
Setbacks
Appellant selectively quotes and quibbles over the EIRs findings, brandishes its own evidence as dispositive, and calls the EIRs conclusions "unsupported." We disagree.
To begin with, appellant asserts that the EIR "acknowledges . . . impact" from project setbacks less than the R-1 standard, because it acknowledges that a fair argument exists on this point. In other words, appellant once more confuses the "fair argument" standard of review which applies pre-EIR with the substantial-evidence standard of review which applies post-EIR.
Appellant notes the EIRs observations that 24 out of 59 existing houses adjacent to the project would be closer to new houses than the R-1 setback standard would require, but that this is less than significant because "the proposed rear yard setbacks meet or exceed the rear yard setbacks established for R-1A halfplexes on reverse frontage lots, and in many instances, exceed setbacks of existing R-1 homes[.]" Appellant then comments: (1) the comparison to setbacks on reverse frontage lots is inapposite because the houses in this project are not halfplexes on reverse frontage lots; (2) if 24 out of 59 existing homes would be closer to new homes than R-1 standards would allow, "[t]his hardly counts as `many instances of the project exceeding relevant setbacks." The first point is trivial, and the second is wrong: 59 minus 24 equals 35, which counts as "many instances" by any reasonable standard. But even if these observations were weightier, they would show at most that the EIR might reasonably have reached a different conclusion, which is not grounds for reversal. (Laurel Heights I, supra, 47 Cal.3d at pp. 292-293.)
Appellant also asserts: "This section of the EIR does not even mention that `[t]he front yard setbacks of the houses fronting on Pocket Road and the landscape easement are zero feet. . . ." (Italics added.) However, the quoted passage comes from another section of the EIRs aesthetic-impacts analysis; thus it cannot be said that the EIR failed to inform the public and the decisionmaker of this fact. In any event, it is not relevant to whether new houses are set back insufficiently from existing houses.
Following appellants ellipsis, the EIR states: "because there are two landscape easements totaling 40 feet between the proposed houses and the Pocket Road right-of-way." Appellant does not quote or acknowledge this finding.
Finally, appellant asserts that the EIR "ignores" its own standard of significance because it concludes that the issue is ultimately subjective and within the Citys discretion to determine. However, before the EIR so concludes, it assesses all the quantifiable objective factors that could inform the Citys discretion. The fact that the EIR does not reach the conclusion which appellant would prefer is not grounds for reversal.
Landscaping and lot coverage
As on the prior topic, appellant quotes the EIRs acknowledgement of a fair argument as if it established a negative aesthetic impact as a matter of law, then claims that the EIRs contrary conclusions are unsupported merely because appellant disagrees with them. Appellant asserts that the EIR could not properly call the applicable zoning standards "flexible," but cites nothing to the contrary from City Codes or other relevant documents. And, as on the prior topic, appellant wrongly presumes that citing its own evidence is enough to refute the EIRs findings. Again, appellant has not shown grounds for reversal.
The Design Principles
The Design Principles, adopted by the City in 2000, set out the Planning Commissions standards for new single-family housing. Principles state "the prescriptive or mandatory elements of project planning or design that will be used by the City to determine compliance with the Principles Document. [They] are broad in scope and allow for flexibility in approach and alternative design solutions." There are nine principles, four dealing with "Building Design" ("General Architecture," "Garages," "Porches/Entries/Courts," and "Lighting/Security") and five dealing with "Site Planning/Design" ("Driveways/Entry Walks," "Setbacks/Lot widths," "Landscaping/Sidewalks," "Street view walls/Monument Entries/Access," and "Orientation to parks/public open space"). Each principle has a set of "advisory guidelines" headed, "Encourage" and "Discourage/Avoid."
Despite this use of "mandatory," the introduction also states (as previously noted): "This document is not intended to represent mandatory requirements, but instead, suggested principles for sustainable development."
Appellant asserts that the project violates the principles concerning "General Architecture," "Setbacks/Lot widths," and "Landscaping/Sidewalks," and that the EIRs contrary findings are unsupported. Appellants argument fails for two reasons: (1) It confuses the principles with their advisory guidelines. (2) It wrongly presumes that the EIRs findings must be rejected unless demonstrably correct or more reasonable than any other possible findings.
The EIR notes the existence of a fair argument that inconsistency with the Design Principles ("general design goals expected by the Planning Commission") could cause a negative aesthetic impact. After analyzing the projects compliance with each principle and its advisory guidelines, however, the EIR concludes that the project is consistent with all of the principles.
As to "General Architecture," the EIR quotes the principle: "Variation in residences, structures and buildings is achieved through the use of quality materials and detail in design, which lends visual interest, distinctive character and identity to a community." It then quotes the associated guidelines to "encourage" (including "Design diversity that breaks from repetitive tract house style by providing front elevation variation throughout neighborhood plan" and "Manipulation of building elements and massing to avoid visual monotony with particular emphasis on long streets") or to "discourage/avoid" (including "Excessive repetition of identical floor plans and elevations throughout a neighborhood or subdivision with little differentiation"). It finds the project consistent with the principle because the project "incorporates most of the above recommendations. The project applicant proposes six different floor plans (two 1-story plans and three 2-story plans) with three elevations each, ranging from a 1,428[-]square-foot, single-story house to a 2,250-square-foot, two-story house. . . . The proposed designs incorporate consistent levels of detailing and finishes on all sides of the structure, with particular attention to publicly visible façades. No side-by-side or cross-private road duplication of a house elevation would occur."
Appellant cites the testimony of its own planning expert that the project lots are "of a uniform, repetitive size" that could have been mitigated, then asserts in conclusory fashion that consistency with the principle in question cannot be achieved merely by incorporating "most of the above recommendations." But the issue is whether substantial evidence supports the EIRs findings, not whether appellants expert might disagree. And we do not see why incorporating "most" of a set of advisory guidelines or "recommendations" for implementing a principle is insufficient to achieve consistency with the principle.
Appellant also alludes to its "tunneling"/"canyoning" argument, which we have already rejected.
As to "Setbacks/Lot widths," the EIR quotes the principle: "Neighborhood environments are established by a variety of architecture and landscape defined by varied lot widths and setbacks." It then quotes the associated guidelines: "Encourage [t]he incorporation of reduced or varied front setbacks" and "[c]urvilinear or angled streets to allow varied setbacks"; "Discourage/Avoid [d]eep homogenous front setbacks." It then finds that the project is consistent with the principle because "[t]he front yard setbacks from the lots fronting on the interior, private street are `reduced—approximately 9[]to[]11 feet, with a typical 18-foot driveway. The front yard setbacks of the houses fronting on Pocket Road and the landscape easement are zero feet because there are two landscape easements totaling 40 feet between the proposed houses and the Pocket Road right-of-way. These setbacks bring the houses with their windows and `eyes on the street closer to the streets and sidewalks for a sense of security for pedestrians. The proposed plans feature nine different elevation designs, with a varied palette of colors, trim materials, and roofs . . . . The yards of the lots fronting on Pocket Road will be completely landscaped. The front yards of the lots fronting on the interior private street will be completely landscaped. Landscaping of the backyards of the interior lots will be the responsibility of the homeowner. . . . These features, plus the varied home sizes and heights, will prevent any sense of homogeneity."
Appellant asserts that the EIRs finding of consistency with the principle is erroneous because the project will not have "curvilinear or angled streets"; in other words, appellant again mixes apples (the guidelines) with oranges (the principles). Appellant also asserts that the project cannot be consistent with the principle because the front yards facing Pocket Road will have zero setbacks, but "varied . . . setbacks" can logically include zero setbacks for some houses in a project. These criticisms do not show that the EIRs finding is unsupported by substantial evidence.
As to "Landscaping/Sidewalks," the EIR quotes the principle: "Consistent quality and design of landscape elements and sidewalks softens the aesthetics of structures and ties neighborhoods together while contributing to energy efficiency." It then quotes the guidelines, which include "[e]ncourage [p]lanting at least one 15-gallon shade tree within the front yard setback to provide for shading on the house and sidewalk . . . [with] [s]pacing between front yard trees . . . no greater than 50 feet," and "[d]iscourage [b]uilding new homes with few or no front yard shade trees." It finds the project consistent with the principle because: "The project will plant between 1 and 2.5 Riverlake[-]Community[-]Association[-]approved shade trees in each yard abutting the interior private street. . . . Shade trees exist already in landscape easement along Pocket Road and additional shade trees will be planted in the mini-parks throughout the development. Because the private drive is narrower than a standard City street section, the proposed shade trees are expected to provide adequate cover of the streets hard surface. . . . Because most of the existing shade trees within the landscape easement will be preserved, larger shade trees may be planted in the mini-parks, and the proposed landscaping coverage well exceeds the 25% minimum coverage requirement of the [] PUD Development Guidelines (proposed landscape coverage averages 44%)."
Appellant asserts that the project violates the principle because the principle "call[s] for at least one 15-gallon shade tree within the front yard setback and no more than 50 feet between front yard trees, and . . . urge[s] projects to discourage or avoid `building new homes with few or no front yard shade trees." As before, appellant confuses the principle with its associated guidelines.
The principle requires "[c]onsistent quality and design of landscape elements," not a particular means of achieving this goal. As noted, the Design Principles expressly "allow for flexibility in approach and alternative design solutions." Since the project site features a 40-foot landscape easement with shade trees between the front yards facing Pocket Road and the road itself, and the project design includes "mini-parks" which can also accommodate shade trees, the project can be consistent with the principle at issue even if it does not literally follow the guideline about front yard tree-planting.
Appellant also cites evidence that "larger" or "oversized" shade trees may not fit into the project. But this evidence does not even show an inconsistency with the guideline—let alone the principle, which does not specify any particular tree size.
In short, appellant has failed to show that the EIRs findings of consistency with the Design Principles are unsupported by substantial evidence.
"Other projects"
Appellant asserts that the EIRs references to features of previously built or approved projects are irrelevant. Even if correct, this point would not establish grounds for reversal. Thus we need not discuss it further.
Traffic impacts
Appellant asserts that the FEIRs traffic impacts study is "inadequate and incomplete." However, instead of arguing the point, appellant merely cites its trial brief, which it purports to incorporate by reference. This is impermissible and forfeits the claim of error. (Cal. Rules of Court, rule 8.204(a)(1)(B) [points in appellate briefs must be supported by argument]; Balesteri v. Holler (1978) 87 Cal.App.3d 717, 720.)
Respondents assert that appellant may not raise this issue because it did not renew its claim of a potential traffic impact in this court in Pocket Protectors I. Respondents are wrong. The FEIR traffic study which appellant now seeks to attack did not exist at the time of the first appeal. Therefore, contrary to respondents position, neither res judicata nor collateral estoppel bars appellants current argument.
Project alternatives
Appellant contends that the EIRs analysis of project alternatives is defective in two respects: it mischaracterizes and improperly analyzes appellants preferred alternative, and it fails to identify an environmentally superior alternative to the project. We disagree.
An EIR must describe and analyze a reasonable range of alternatives to a proposed project, which can feasibly attain most of the projects objectives and reduce or avoid any of its significant environmental impacts; it must also analyze "no project" as an alternative. (§§ 21001, subd. (g); 21002.1, subd. (a); 21061; 21100, subd. (b)(4); Guidelines, § 15126.6, subd. (a).) If the EIR identifies "no project" as the environmentally superior alternative, it must also identify an environmentally superior alternative among the other alternatives. (Guidelines, § 15126.6, subd. (e)(2).) We evaluate the EIRs analysis according to the "rule of reason," which requires setting forth only those alternatives necessary to permit a reasoned choice. (Guidelines, § 15126.6, subd. (f).)
Here, the EIR described and analyzed seven alternatives to the proposed project, including "no project" (alternative 1). The so-called "Pocket Protectors Plan," based on architect Roger McCardles halfplex proposal to the City Council, is alternative 4.
The other alternatives include "Pocket Road Manor Houses" (the project approved for the site in 1987); "Riverlake Park Homes" (the project approved for the site in 1994); "Zero Lot Line" (an all-detached single-family project with 155 units facing Pocket Road); "R-1 Rezone" (an all-detached single-family project meeting R-1 standards, including around 100 homes); and "R-1A Mixed" (a revision of the proposed project consisting of 139 detached and attached single-family alternative residential units, including between five and 30 halfplexes). Appellant does not object to the EIRs analysis of these alternatives.
Alternative 4
The EIRs analysis
The EIR states that The Pocket Protectors prepared and submitted a "conceptual housing development design" for 126 single-family alternative residential units in "a row" of 63 halfplexes, plus "a private road along the existing fence line[.]" (The number and arrangement of units were determined by scanning the submitted design, scaling it, and placing it on a digital basemap of the project parcels. The resulting design is illustrated with a series of drawings.) The halfplexes would be set in pairs at opposite angles facing the private road, skewed at a 30-degree angle to their lots, and spaced uniformly throughout the subdivision; garages would be located in the front of each halfplex.
The EIR finds, among other things, that this alternative creates potential problems as to inconsistency with zoning and the Design Principles, and also as to adverse aesthetic impacts. The potential zoning inconsistency is that the private road would adjoin the side yards of existing houses at a closer distance than the setbacks required for R-1 and R-1A zoning (12.5 feet minimum for street-side side yard setbacks). The potential inconsistencies with the Design Principles are: (1) the proposals angular configuration is not considered an appropriate way to combat "sameness"; (2) this configuration would shield active-use windows from the private road, contrary to the Principles preference for "eyes on the street"; and (3) the front unit garages would be prominently located in front. The potential adverse aesthetic impacts are the "uniform setbacks and repetition of appearance that result from an angled layout on the lots along an almost mile-long uniform road," and the private roads proximity to adjacent houses.
Compared to the proposed project, alternative 4s environmental impacts are generally the same except for land use and recreational opportunities, as to which it is "insubstantial[ly]" inferior.
Appellants arguments
Appellant complains that respondents, rather than working with appellant to develop its proposal from McCardles "design concept," mechanically extrapolated his preliminary sketch over the length of the project site, then faulted the resulting scheme for problems, such as visual monotony, created by the extrapolation. However, nothing in CEQA requires a project proponent or a public agency to work with project opponents to design an alternative to the project—a procedure which could let a determined opponent stall CEQA review indefinitely. In any event, by the date McCardle submitted his sketch to the City, appellant had had ample time to develop a fully formed alternative and cannot blame respondents for its failure to do so.
Appellant asserts: "The City did not pronounce alternatives to be `infeasible, which is the CEQA standard, but `rejected them—likely because there was no basis for a finding of infeasibility." This point is not strictly germane to the argument that the EIR is defective, nor is it separately headed as required by the rules of appellate briefing. (Cal. Rules of Court, rule 8.204(a)(1)(B).) But even assuming it is properly raised in an attack on the EIR, it lacks merit.
By "alternatives," appellant apparently means only its preferred alternative, as it does not argue for any other.
Appellant cites no authority holding that a public agency must find project alternatives infeasible before it may choose the proposed project instead, and there could not be any such authority because the proposition is absurd. "Infeasibility" eliminates proposed alternatives during the EIRs screening process; thus, all which survive that process and receive detailed consideration in the EIR are presumably feasible. (Guidelines, § 15126.6, subd. (c).) Under appellants standard, an agency faced with a range of feasible alternatives would be powerless to choose or reject any. In fact, CEQA gives the decisionmaker great discretion in choosing whether to adopt the proposed project or any alternative, even where the EIR has found that the proposed project will have significant environmental effects—a finding not made here. (See, e.g., Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 574-575.)
Along the same lines, appellant cites its own experts testimony that Alternative 4 (even though it was not appellants true proposal) had greater advantages and fewer defects than the EIR concluded, and would have met the projects declared objective— "to develop an alternative housing type at a density that is not currently provided in the Riverlake community"—as well as the project. But the disagreement of appellants expert with the conclusions of the EIR is not grounds for reversal. (Laurel Heights, supra, 47 Cal.3d at pp. 392-393.)
Appellant has failed to show that the EIR or the City proceeded improperly in evaluating Alternative 4.
The EIRs failure to identify an environmentally superior alternative
The EIR found the proposed project environmentally superior to the alternatives, other than "no project." Appellant asserts that this finding was improper because when "no project" is found to be the environmentally superior alternative, CEQA requires the EIR also to identify an environmentally superior alternative among the other alternatives. (Guidelines, § 15126.6, subd. (e)(2).) We conclude that any error was harmless.
Under the heading "Environmentally Superior Alternative," the EIR states: "The No Project Alternative would have the fewest significant effects on the physical environment, but it is inconsistent with all of the planning documents specifying that the project site should be developed with residential uses. In the event that the no-project alternative is considered the environmentally superior alternative, CEQA Guidelines (Section 15126(d)(3)) requires the identification of an environmentally superior `build alternative." There is no current Guideline so numbered, and the EIR does not cite the Guideline which actually applies here. (§ 15126.6, subd. (e)(2).)
Respondents do not try to defend the EIR on this point. Instead, they assert that where a project has no significant effects on the environment, CEQA does not require an agency to make specific findings on the feasibility of alternatives. Even if so, this is irrelevant to a discussion of the EIR.
The EIR then gives reasons why the proposed project is environmentally superior to three of the alternatives (not including Alternative 4).
Assuming that the somewhat equivocal statement we have quoted amounts to a finding that "no project" is the environmentally superior alternative, we agree with appellant that the EIR was also required to identify an environmentally superior alternative among the remaining alternatives, and should not have identified the proposed project itself as the environmentally superior alternative. Nevertheless, the error was harmless because it did not prevent the EIR from serving properly as an informational document on this issue.
First, the EIR discusses the alternatives environmental pluses and minuses in detail, as well as those of the proposed project. Second, it summarizes its analysis in a matrix which compares the alternatives to the proposed project on every applicable factor, employing a five-point scale ranging from "[s]ubstantial improvement compared to the proposed project" to "[s]ubstantial deterioration compared to the proposed project." This method— which also facilitates a point-by-point comparison of the alternatives to each other—is specifically authorized by CEQA. (Guidelines, § 15126.6, subd. (d).) Given these facts, the EIR "include[s] sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project." (Ibid.)
In any event, appellant has not shown that the EIRs error caused the City to abuse its discretion by choosing the proposed project over the alternatives. For this reason also, appellants claim of error fails.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)
We concur:
NICHOLSON, J.
BUTZ, J.